Arthur Young And Co.

ARTHUR YOUNG & CO Arthur Young and Company and Nina Bloom Case 2-CA-22164 September 28 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 5 1988, Administrative Law Judge Raymond P Green issued the attached decision The Respondent filed exceptions and a supporting bnef and the General Counsel filed an answering bnef i 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 record2 in light of the exceptions and briefs and has decided to affirm the judge s rulings findings 3 and conclusions and to adopt the recommended Order 4 The judge did not explicitly apply the entire analysis set forth in Wright Line 5 However we find that the judge s decision satisfies the analytical objectives of Wright Line 6 In this regard we find that the judge correctly concluded that the Re spondent s asserted reasons for the discharges of Bloom and Cohen either did not exist or were not relied on by the Respondent Therefore the judge did not have to go through the burden shifting analysis of Wright Line Assuming arguendo that the Respondent s assert ed reasons did play a part in the discharges we find that the Respondent has failed to meet its burden of establishing that it would have dis charged Bloom and Cohen in the absence of their protected activities ' The General Counsel s motion to correct the transcript is granted 2 On August 16 1988 the Respondent filed a motion requesting that the record be reopened to receive into evidence relevant portions of an Equal Employment Opportunity Commission determination dated May 23 1988 which found that the evidence presented by the Charging Party did not establish a violation of the Age Discrimination in Employment Act (ADEA) On September 12 1988 the General Counsel filed a re sponse to the motion The Respondents motion is denied as the prof fered evidence would not alter the result in this case See Central Broad cast Co 280 NLRB 501 ( 1986) Boards Rules and Regulations Sec 102 48(d)(1) 3 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 4 We shall issue a new notice to employees to conform to the judge s recommended Order 5 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 453 U S 989 (1982) approved in NLRB v Transportation Manage ment Corp 462 U S 393 (1983\ 6 See Limestone Apparel Corp 255 NLRB 722 (1981) enfd 705 F 2d 799 (6th Cir 1982) 39 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Arthur Young and Company New York New York its officers agents successors and assigns shall take the action set forth in the Order except that the at tached notice is substituted for that of the adminis trative 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 WE WILL NOT discharge our employees because they concertedly complain about their wages hours or other terms and conditions of employ ment WE WILL NOT impose restrictions on where or when our employees may talk for the purpose of discouraging our employees from engaging in con certed activity for their mutual aid and protection WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Nina Bloom and Lisa Cohen im mediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their se niority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge less any net interim earnings plus interest WE WILL notify each of them that we have re moved from our files any reference to her dis charge and that the discharge will not be used against her in any way ARTHUR YOUNG AND COMPANY Larry Singer and Gail Auster Esqs for the General Counsel Lois A Chamberlain Esq for the Respondent DECISION STATEMENT OF THE CASE RAYMOND P GREEN Administrative Law Judge This case was heard by me on various days in September and 291 NLRB No 6 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October 1987 The charge in this case was filed by Nina Bloom on 30 March 1987 and the complaint was issued on 14 May 1987 by the Regional Director for Region 2 of the National Labor Relations Board In substance the complaint alleges (1) That on 27 February and 3 March 1987 the Com pany discharged Nina Bloom and Lisa Cohen respec tively because they concertedly made complaints about their wages and working conditions (2) That on or about 26 or 27 February 1987 the Com pany by Supervisors Judith Wayne and Anne Giardina orally promulgated a rule prohibiting discussions among employees at anytime at the Company s facility FINDINGS AND CONCLUSIONS I JURISDICTION It is admitted and I find that the Employer is engaged in interstate commerce within the meaning of Section 2(2) (6) and (7) of the Act II OPERATIVE FACTS Prior to their discharge Nina Bloom and Lisa Cohen worked for the Company for about 6 years and 2 years respectively Both were employed as proofreaders in the Document Processing Center where their immediate su pervisor was Sonia Flores At the time of the events there were 5 proofreaders employed in the Center which consisted of about 29 employees The overall su pervisor was Ann Giardina director of the Document Processing Center Giardina in turn reported to Walter Wohlgemuth a partner in the firm Judith Wayne was the personnel administrator responsible for personnel functions vis a vis the firm s nonprofessional employees She reported to Alan Brott who among other things was the director of personnel development During their employment Nina Bloom and Lisa Cohen were average employees Thus according to their annual evaluations they tended to be graded as satisfactory i There is also evidence that Bloom over the years has been somewhat of a chronic complainer It seems to me that almost all the events in this case can be traced back to November 1986 when the firm hired two new proofreaders at salaries higher than the proofreaders then employed These new proofreaders were Ivy Leon and Ron Landskroner The hiring of the new proofreaders engendered talk among at least Bloom and Cohen and on 2 December Bloom complained to Wayne about the fact that the new proofreaders were receiving higher salaries than both Bloom and Cohen Wayne told Bloom to talk about her salary with Giardina The following day Giardina issued written warnings to both Bloom and Cohen regarding past latenesses some of which were trivial On 23 or 24 December Nina Bloom called Judith Wayne to ask if anything had been done about her salary i In Bloom s evaluation of 4 August 1985 (more than a year before the events in this case) her supervisor wrote Nina must learn to leave her personal problems out of the office If she cannot we may have to recon sider Nina s continued employment at Arthur Young This is the only time Bloom was told that her job might be in jeop ardy Her evaluation for 1986 indicates improvement complaint When Wayne said that she had told Bloom to talk to Giardina Bloom responded I can see I in not going to get anywhere with you On 12 or 13 January 1987 Bloom and Cohen together went to see Alan Brott They discussed with him the salary situation of the proofreaders focusing on the fact that the new proofreaders were hired at higher salaries than they were making 2 Brott in essence replied that he would look into the matter and discuss it with Judith Wayne On 16 and 18 February Brott met separately with Bloom and Cohen Basically he rejected their safety complaints On 18 or 19 February some of the proofreaders went out for dinner together In attendance were Nina Bloom Lisa Cohen Ivy Leon and Ron Landskroner (Debbie Graham did not attend) Some remarks allegedly made at this dinner are heavily relied on by the Respondent in its defense as it claims that Ivy Leon reported to manage ment that certain racial and ethnic slurs were made at this dinner Specifically the Respondents witnesses tests feed that Leon told Giardina on 26 February that Bloom said in substance that Puerto Ricans and blacks ran the Document Processing Center and that the way to get ahead in that department was to be Puerto Rican or black Also it is claimed that Bloom said that Thelma Witherspoon (a black woman who works at the front desk) had gotten further in life than she deserved Interestingly Ivy Leon testified that the alleged racial remarks were made by Bloom but not at the dinner and that Giardina had misunderstood her as to date Nina Bloom on the other hand credibly testified that at the dinner Leon asked the others present if the supervisors liked her to which Bloom said that she would do fine because You re Puerto Rican Ann is Puerto Rican and Sonia is Puerto Rican I note that Sonia Flores testified when Ivy Leon told her about these remarks at the dinner Flores laughed because she thought they were ri diculous On 19 February employee Maureen McGovern gave notice to Judith Wayne While there she also com plained about the manner in which Giardina and Flores spoke to other employees Thereafter McGovern told Cohen about her conversation with Wayne and suggest ed that Cohen go talk to her As a result of this both Lisa Cohen and Debbie Graham made appointments to see Judith Wayne where they each raised complaints In this respect Lisa Cohen credibly testified that she rester ated her previous complaints about the new proofreaders being given higher salaries She also testified that she complained about Giardina bullying employees and about Flores using profanity 3 Cohen testifed that she felt that Wayne had given her a sympathetic hearing so that after their conversation she told other employees in the department that if they had complaints they should go see Judith Wayne 2 They also questioned the need to hire more proofreaders when there was not enough work for the proofreaders already on staff 3 Wayne testified that both Debbie Graham and Lisa Cohen com plained about the use of foul language by Giardina and Flores She could not recall if Cohen raised the salary issue ARTHUR YOUNG & CO 41 Sonia Flores testified that on Tuesday 24 February employee Joyce Imbrosci told her that the proofreaders were getting together and going up to the personel de partment to complain about the management of the Doc ument Processing Center According to Flores Imbrosci said that she was being harassed to join and make complaints (I note here that the nature of this alleged harassment was never divulged to me )4 In any event Flores states she then told Giardina of her conversation with Imbrosci whereupon they both went to see Judith Wayne who confirmed that there were complaints about the use of foul language at the front desk (Flores con ceded that she did use such language ) According to Giardina Judith Wayne also said that Bloom had come to see her in December about her salary and that some of the proofreaders had gone to see Brott According to Wayne and Giardina the latter said that the people in the department (proofreading) were congregating and whispering and that work was not getting done at this busy time of the year 5 On Wednesday 25 February Judith Wayne with Ann Giardina met with the proofreaders According to Wayne she decided to hold this meeting because no work was being done some employees were upset and it was being said that Wayne was encouraging employees to make complaints about their supervisors 6 Wayne tes tified that she told the proofreaders that it was not ap propriate for people to force other employees to come to her to make complaints that she never instigated com plaints that the firm would not tolerate strong arm or union like tactics and that employees should not be con gregating when work had to be done According to Ann Giardina Wayne said that she was aware that some proofreaders had gone to the personnel department to complain that some proofreaders were harassing others to make complaints that she would not stand for these union type tactics and that she was aware of the salary problems that the firm was working on to correct During this meeting Nina Bloom at various times sought to raise the salary issue but was told by Wayne with in creasing irritation that discussion of that issue was not appropriate at that time At the end of the meeting it ap pears that Bloom may have told some of the other proof readers that they were spineless babies because no one else was willing to raise complaints According to Giardina after the meeting Nina Bloom came over to her and said she was not involved in any of the nonsense that Lisa and Debbie were involved in Giardina asserts that Bloom said (while banging her hand on the desk for emphasis) the real issue here is that Lisa Debbie and I want more money On the day after the proofreaders meeting (26 Febru ary) Ivy Leon went to talk to Ann Giardina According Giardina testified that Flores told her that employee Minell Williams had claimed of being harassed She did not know however the nature of the alleged harassment 5 There is some dispute about how busy this time of year was for proofreaders John Mulligan testified that they were very busy at the front desk in February and there was a lot of reproduction work Proof readers however do not do reproduction work 6 In a pretrial affidavit Wayne when describing her reasons for hold ing this meeting did not assert that work was not getting done to Leon she told Giardina that she had nothing to do with complaints which were based on jealousy During the course of this conversation Leon said she told Giar diva that on one occasion Bloom had told her that she would have no problem fitting in because the Document Center was run by Puerto Ricans She also said she told Giardina that remarks had been made to the effect that Thelma Witherspoon had gotten further in life than she deserved and that some of the proofreaders made fun of Witherspoon s speech She also talked about the proof readers dinner saying that Cohen was the Norma Rae of the group According to Leon she did not say that the racial or ethnic remarks were made at the proofread ers dinner but that Giardina mistakenly assumed that they were As to the above noted conversation Giardina testified that Leon came to her saying that she did not agree with Nina Lisa and Debbie Giardina asserts that Leon said that there was a proofreaders dinner on 19 February where Bloom and Cohen were encouraging the others to complain about Giardina and Flores and Bloom and Cohen wanted more money According to Giardina Ivy Leon said that someone at the dinner (without mention ing names) said that Puerto Ricans were running the de partment and that Thelma Witherspoon had gotten fur ther in life than she deserved because she was black Giardina testified that she related her conversation to her supervisor Walt Wohlgemuth In this regard Wohlge muth testified that Giardina told him that work was not getting done that people were sitting around document ing their complaints against management and were trying to get others to complain and that two proofreaders made racial slurs to the effect that in order to get ahead in the department you had to be black or Puerto Rican On Friday 27 February Giardina told Flores that she wanted to stop all the congregating at the proofreaders booths (The proofreaders work in pairs in booths) In this respect Ron Landskroner testified that on that date Giardina told him there was to be no further association among the proofreaders except for what was required by the work that there would be no more socializing and no more congregating at each other s booths On the morning of 27 February a meeting was held with Ann Giardina Judith Wayne Walt Wohlgemuth and Alan Brott At this meeting decisions were made to discharge Nina Bloom and to issue a warning to Debbie Graham Regarding Lisa Cohen it apparently was decid ed that Ann Giardina was to question her further and to use her own judgment as to whether Cohen should be discharged With respect to the meeting on 27 February Ann Giardina testified that she reported that the department was disrupted that work was not getting done and that there was a lot of gossiping She says she related the racial slurs that consisted solely of the remarks about Puerto Ricans running the department and about Wither spoon getting further in life than she deserved because she was black Giardina states that she reported that Bloom Cohen and Graham were mentioned as the people responsible for the disruption that they were going around harassing others to make complaints She 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also states that they discussed the marginal work record of Bloom and Cohen According to Giardina it was de cided at the meeting to discharge Bloom to give Graham a warning and that she would confront Cohen about the proofreaders dinner and make a decision for or against discharge based on Cohen s response According to Wohlgemuth he made the decision to discharge Bloom at the 27 February meeting based on (1) her disruptive behavior (2) her harassment of other employees (3) the racial remarks and (4) the fact that she was a marginal employee Regarding the racial com ments Wohlgemuth stated that the only racial remarks he could recall discussing at this meeting were the state ments about getting ahead in the department and that the only person linked to these remarks was Nina Bloom With respect to Cohen he stated that Giardina was di rected to check to see if Cohen was actually involved in encouraging other people to file complaints As to the work flow Wohlgemuth could not cite any specific jobs being late as a result of the alleged disruption by the proofreaders 7 He also testified that in the past although there have been complaints by minority employees about alleged discriminatory promotions in favor of whites he knew of no cases where any disciplinary actions were taken in that connection Alan Brott testified that Giardina reported a significant disruption in the department by Bloom Cohen and Graham He stated that she reported racial comments being made by Cohen and Bloom those consisting of the remarks about Thelma Witherspoon getting further in life than she deserved and remarks to the effect that you had to be Puerto Rican to get ahead in the department According to Brott the employment histories of the three employees were reviewed and it was decided to discharge Bloom to warn Graham and to get more in formation about Cohen s involvement in the racial com ments (He states Graham was not linked to the racial comments ) Judith Wayne testified that she was not present during some part of the meeting on 27 February She testified that the discussion when she was present focused on the racial comments She also stated that the performance ratings of the three employees were discussed In the latter respect she stated that Cohen s evaluation was sat isfactory and that Graham was evaluated as a good em ployee Later on 27 February Giardina told Bloom that she was being discharged She also w rote up a memorandum on that date a cop) of which was delivered to the per sonnel office on 3 March It stated Nina Bloom has been a marginal performer for the six years that she has been employed at Arthur Young In December 1986 Nina formally complained about her salary Nina was told that her salary was based on her job level and performance and that Arthur Young believed it to be appropriate Appar Ivy Leon who was called as a witness by the Respondent and who no longer works for the Company testified that although Nina Bloom talked excessively there were no jobs during February 1987 that she and Bloom worked on together that missed a deadline ently frustrated because of her inability to obtain a salary increase she became involved with two other department members in an effort to discredit department management This was brought to my attention by several other department members who complained they had felt harassed and pressured to join this activity They indicated discussion about this effort to discredit department management took place during and outside work hours Based on the information offered by department members the ac tivity in which Nina was involved was highly dis ruptive to departmental operation and morale This situation combined with her marginal per formance convinced me that her termination was in the best interest of the department Accordingly Nina was terminated on Friday February 27 1987 It appears that Giardina at some point revised the above memorandum a copy which was sent to the per sonnel office on 18 March It stated On February 27 1987 I terminated Nina Bloom a proofreader in the Document Processing Center I discussed her marginal performance over the six years that she has been employed at Arthur Young I also discussed her involvement in the activity to discredit departmental management which I had learned about from other members of the Center and had documented I told her that this incident which was highly disruptive to departmental oper ation and morale combined with her marginal per formance had convinced me that her terminations was in the best interest of the department Nina denied any involvement in the activity and blamed it on Debbie Graham another Proofreader in the Center She said that she thought she was a good Proofreader I went over a number of recent incidents in her file as well as past performance review lateness problems prior disruptive behavior etc She said again that she thought she was a good Proofreader Then she said that she thought she was going to get fired after the argument she had with Judtih Wayne during the meeting with the Proofreaders on February 25 1987 She said that firing only her was not going to solve my problems She said that she felt sorry for me and guessed that I had been stuck with the dirty work I did not respond to this since I did not want to get into a protracted discussion with her I note that in neither memorandum quoted above or at her exit interview with Bloom did Giardina mention any thing about the alleged racial or ethnic slurs On 27 February Giardina confronted Cohen stating that Giardina was aware of her activity to discredit de partment management According to Cohen Giardina said that she knew that there was a dinner where people complained about Puerto Ricans running the department and Thelma not deserving her job Cohen states that she really did not understand what Giardina was talking about so she remained silent Giardina asserts that Cohen denied attending the dinner According to Giardina she ARTHUR YOUNG & CO 43 next spoke to Ivy Leon again and Leon confirmed that at the dinner Lisa Cohen was the Norma Rae and that Bloom made the racial comments On 3 March Giardina discharged Cohen I note that during cross examination Giardina testified that if Cohen had not engaged in the activity of soliciting others to complain to Judith Wayne I would not have discharged her on 3 March In a memorandum written by Giardina to Wohlgemuth on 3 March she stated Lisa Cohen has been a marginal performer for the 22 months that she has been employed at Arthur Young 8 Based on the information offered by department members Lisa apparently frustrated because of her salary became involved with two other department members in an effort to discredit departmental man agement This was brought to my attention by sev era] other department members who complained they had felt harassed and pressured to join this ac tivity They indicated discussion about this effort to discredit department management took place during and outside work hours The activity in which Lisa was involved was highly disruptive to departmental operation and morale This situation combined with Lisa s marginal performance has convinced me that her termination is in the best interest of the department I would like to discuss this with you as soon as possible After talking to Wohlgemuth and having discharged Cohen Giardina wrote another memorandum (dated 3 March but received in the personnel department on 8 March) It stated On February 27 1987 I spoke to Lisa Cohen a Proofreader in the Document Processing Center I told her that based on information offered by de partment members I was aware of her involvement in an activity to discredit departmental management which was highly disruptive to departmental oper ation and morale I told her I knew about the dinner at which she and Nina had discussed recruit ing other people in the Center to go talk to Judith Wayne about Sonia and me I also told her that I had heard that there were racial comments made and Arthur Young was not going to tolerate this Lisa denied any involvement in the activity and said that she knew nothing about the dinner or the racial comments I said You weren t at a dinner with Nina Bloom Ron Landskroner and Ivy Leon on Thursday February 19? She said that she didn t know anything about a dinner After I spoke to Lisa I again spoke to Ivy Leon a Proofreader in the Document Processing Center who had informed me about the dinner She told me that Lisa was definitely at the dinner and was the Norma Rae of the group Based on Lisa s marginal performance and her involvement in the activity to discredit departmen ° In fact Lisa Cohen according to her annual evaluation and the testi mony of Judith Wayne was not a marginal performer tal management which has been documented I concluded that her termination was in the best in terest of the department On March 3 1987 Lisa was terminated Lisa s only reaction was to say Are we through9 In a related matter Deborah Graham received a formal warning on 4 March In a memo dated 6 March Giardina explained On Wednesday March 4 Deborah Graham was given a formal warning due to her involvement with two other department members in an effort to discredit departmental management This was brought to my attention by several other depart ment members who complained they had felt har assed and pressured to join this activity They mdi cated that discussion about this effort to discredit departmental management took place both during and after working hours This activity was highly disruptive to departmental operation and morale If Debbie takes part in future activities such as this she will be terminated Discussion When proofreaders Nina Bloom and Lisa Cohen dis covered in late November 1986 that two new proofread ers had been hired at salaries higher than their own they discussed this and came to the opinion that it was unfair On 2 December Bloom went to protest this situation to Judith Wayne the personnel administrator stating among other things that both she and Cohen thought it unfair that newly hired proofreaders should receive higher salaries The evidence also discloses that in Janu ary 1987 both Cohen and Bloom together went to speak to Alan Brott the director of personnel management where they raised the disparate salary issue That such actions by Bloom and Cohen constituted protected con certed activity within the meaning of Section 7 of the Act is not amenable to serious debate Meyers Industries 281 NLRB 882 (1986) B & P Trucking 279 NLRB 693 697 (1986) 9 Moreover the actions of Lisa Cohen and Deborah Graham in deciding to complain (and complain ing) to Judith Wayne about verbal abuse by their super visors also constituted protected concerted activity within the meaning of the Act Avalon Carver Community Center 255 NLRB 1064 1068 1070 (1981) In my opinion the principal reason that the Company discharged Nina Bloom and Lisa Cohen was because they concertedly complained about the salary issue and were perceived by management as encouraging other employees to present their grievances complaints or gripes to Judith Wayne over the heads of their supervi sors 110 Moreover I am convinced that had Bloom and ° Whether it was fair or justified for the Company to pay the new proofreaders higher salanes is not relevant to the issues in this case 10 Although the Company asserts that other employees were harassed into making complaints to management no evidence was presented con cermng the nature of this alleged harassment 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cohen not raised their complaints and had they contra ued to work at their jobs in the same manner as they had in the past they would not have been discharged This indeed was explicitly conceded by Giardina in Cohen s case when she testified If Cohen had not engaged in the activity of soliciting others to complain to Judith Wayne I would not have discharged her on March 3 In neither the case of Bloom nor Cohen do I conclude that either was discharged because of her performance Nor do I conclude that either was discharged because their activities disrupted either their own work or the work of the department In this respect although Nina Bloom may very well have been a talkative employee there is insufficient evidence that any activity by her (or by Cohen) caused any work to be delayed or any dead line to be missed In fact Ivy Leon (a witness called by the Respondent) testified that although she found Bloom s excessive talking to be annoying they never missed a deadline on any job that they worked on to gether Moreover John Mulligan (also called by Re spondent as a witness) although testifying that there was a great deal of reproduction work in February 1987 and that the front desk of the Document Processing Center was very busy did not testify that there was an unusual amount of proofreading work Indeed he tended to cor roborate the testimony of Cohen and Bloom to the effect that the proofreaders had a good deal of downtime The Respondent relies to a large extent on alleged racial slurs made by the discriminatees Basically this contention boils down to some remarks attributed to Nina Bloom (but not to Lisa Cohen) by Ivy Leon at a dinner attended by most of the proofreaders on 19 Feb ruary 1987 In essence the remarks at most were to the effect that the Document Processing Center was run by Puerto Ricans and blacks that the way to get ahead in that department was to be black or Puerto Rican "I that Thelma Witherspoon spoke funny 12 and that she had gotten further in life than she deserved because she was black It is asserted that these remarks were reported to Ann Giardina by Ivy Leon on 26 February and in turn transmitted to higher management It was these alleged remarks (and no others) which according to Respond ent s witnesses were discussed at the meeting on 27 Feb ruary where it was decided to discharge Nina Bloom The fact is however that at the time that Bloom was discharged the alleged racial slurs were not mentioned by Giardina as playing any role in the decision to dis charge her Moreover in neither memorandum prepared by Giardina around the time of Bloom s discharge did she even mention the alleged racial remarks as playing any role in the discharge decision Indeed it is my belief that the alleged racial comments by Nina Bloom had little if anything to do with the decision to discharge her Rather I believe that the principal reason for her dis charge was that she was perceived by management as someone who with Cohen was stirring up trouble by in stigating other employees to raise complaints about their wages and other terms and conditions of employment In 11 No contention is made that any of the typically offensive ways of describing blacks or Pureto Ricans was used 12 Witherspoon speaks with a southern accent Lisa Cohen s case Respondent s reliance on the alleged racial slurs is even less pursuasive because except for the assertion that she may have made fun of the way Wither spoon spoke no other racial remarks were attributed to her by Ivy Leon Even assuming arguendo that the alleged racial slurs or ethnic comments were in fact made by Bloom and/or Cohen and were in fact the main reason for their dis charges I would still conclude that their discharges vio lated the Act as it is my opinion that these remarks would be protected by Section 7 At worst these re marks simply were expressions of opinion among em ployees that minorities are given preferential treatment vis a vis promotions in the Document Processing Center because the supervisors also happened to be members of minority groups Such an opinion expressed by employ ees (whether accurate) is directly related to terms and conditions of employment and is not so offensive as to adversely affect company discipline NLRB v Vought Corp 788 F 2d 1378-1382 (8th Cir 1986) NLRB v New York University Medical Center 702 F 2d 284 (2d Cir 1983) Honeywell Inc 250 NLRB 160 161 (1980) 13 The complaint also alleges that on or about 26 and 27 February the Respondent orally promulgated a rule pro hibiting discussions among employees at anytime on the Company s premises The evidence does not support such a broad allegation On the other hand the evidence does establish that at that time Giardina did tell some of the proofreaders that they no longer could congregate and talk at their booths unless such talk related directly to their work As the evidence establishes that this direc tive was directly responsive to the employees protected concerted activity described above I conclude that this directive violated Section 8(a)(1) of the Act Southwire Co 277 NLRB 377 389-390 (1985) 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 By discharging Nina Bloom and Lisa Cohen because of their protected concerted activity the Respondent has violated Section 8(a)(1) of the Act 3 By imposing restrictions at work on the talking of its employees for the purpose of discharging employees to engage in concerted activity for their mutual aid and protection the Respondent has violated Section 8(a)(1) of the Act 4 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 13 Respondent asserts that had it not discharged Bloom and Cohen for the racial slurs it would have subjected itself to potential liability under Title VII of the Civil Rights Act of 1964 To my mind Respondent s as sertion goes far beyond what the facts in this case could conceivably jus tify In Bundy v Jackson 641 F 2d 934 (D C Cir 1981) the court held that the plaintiff had a cause of action for a pattern of sexual harassment by her supervisors Canddi Y Kansas City Chiefs Football Club 568 F 2d 87 (8th Cir 1977) is also inapposite In that case the court although noting that derogatory comments could be so excessive and approbious as to constitute an unlawful practice under Title VII dismissed plain tiffs action based on occasional ethnic slurs made by his supervisor ARTHUR YOUNG & CO i 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 designed to effectuate the policies of the Act Having found that Respondent discriminatorily dis charged Nian Bloom and Lisa Cohen I shall recommend that Respondent offer them immediate and full reinstate ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them All backpay provided shall be computed with interest on a quarterly basis in the manner de scribed by the Board in F W Woolworth Co 90 NLRB 289 (1950) and with interest computed in the manner and amount prescribed in New Horizons for the Retarded 283 NLRB 1173 (1987) 14 See also Isis Plumbing Co 138 NLRB 716 (1962) Additionally in accordance with Sterling Sugars 261 NLRB 472 (1982) I shall recommend that Respondent expunge from its files any reference to the discharge of Nina Bloom and Lisa Cohen and to notify them in writ ing that this has been done and that evidence of same will not be used as a basis for future personnel actions against them , On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed15 ORDER The Respondent Arthur Young and Company New York New York its officers agents successors and as signs shall 1 Cease and desist from (a) Dishcarging employees because of their concerted action of protesting their wages and other terms and conditions of employment 14 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 US 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) 15 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 45 (b) Imposing restrictions on when and where employ ees can talk when such restrictions are for the purpose of discouraging employees from engaging in concerted ac tivity for their mutual aid and protection (c) 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 Nina Bloom and Lisa Cohen immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or any other rights or privi leges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Expunge from its files any reference to the dis charges of Nina Bloom and Lisa Cohen and notify them in writing that this has been done and that evidence of the discharges will not be used as a basis for any future personnel actions against them (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records sot,ial security payment records timecards personnel records and reports and all other records nee 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 17 Copies of the notice on forms provided by the Regional Director for Region 2 after being signed by the Respondents 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 maten 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 1 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