Respond First Aid/Complete First Aid System/Dot Health Care Products

RESPOND FIRST AID 167 Plouffe & Stuff, Inc., d/b/a Respond First Aid/Complete First Aid System/Dot Health Care Products and Deborah S. Johnson. Case 7-CA-28524 July 30, 1990 DECISION AND ORDER BY CHAIRMAN STEPHE ■NS AND MEMBERS DEVANEY AND OVIATT On July 12, 1989, Administrative Law Judge Elbert D Gadsden issued the attached decision The General Counsel filed exceptions and a sup- porting brief The Respondent filed cross-excep- tions and a supporting brief and an answering brief to the General Counsel's exceptions 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,' findmgs,2 'The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We correct the following errors in the judge's decision, which do not affect the result In sec B, "Respondent's Business Organization and Op- eration," par 7, Johnson's sales territory was "Southfield, Sterling Heights, and the north side of Eight Mile Road", rTar 8, referring to O C Exh 6, should read "your bad attitude", and par 9, referring to R Exh 6C, should read "1 Very negative toward Co changes[,] 2 D J poor attitude is a detriment to the morral [sic] of the staff', and] 3 D J poor attitude is a lunderence [sic] toward acheiving [sic] Co goals" In the subheading of sec B, "Johnson Placed on Probation," the refer- ence to Exh I, should be to Exh IA In the last paragraph of this sub- section, the record indicates that Hickey defined Johnson's bad attitude as le]xpressing dissatisfaction with the operations of the Company, of the policy changes within the Company, packaging changes within the Company, procedural changes within the Company A verbal expression of dissatisfaction" In the first paragraph of sec C, "Union Activity of the Respondent's Sales Representatives," the correct name is "Bonnie MacPetne", and in par 10, regarding the offer of proof, the record indicates that the quota- tion's second paragraph is "In that first conversation Susan May's tone of voice and manner were abrupt" In sec C, "Testimony [1st]," par 5, the record indicates that employee Dann's testimony is "Mark said that indeed It was a free country and we had a right to meet with whoever we wanted to in public" In the first paragraph of sec C, "Testimony [4th]," it was Susan May, not Johnson, who did not explain whether the perceived increase in Johnson's sales was May's own conclusion In sec C, "With Respect to Lawful Motivation," par 6, the last phrase of Item 2, should read "the first six months of fiscal "87-'88" In par 12 the judge quotes Hickey as saying to Johnson that she would have to "correct the deficiencies during the current quarter" The record indi- cates that Hickey testified "she had to the end of the third quarter [July 31] to correct that problem" We also make the following corrections to the judge's citations NLRB v Wed-Mart Stores, 488 F 2d 114 (8th Or 1973), and Storer Communica- tions of Jefferson County, 287 NLRB 890 (1987) and conclusions only to the extent consistent with this Decision and Order The complaint alleges that the Respondent dis- charged employee Deborah Johnson in violation of Section 8(a)(3) and (1) of the Act because of her support for and activities on behalf of Teamsters Local 247 The judge recommended dismissal of the complaint The General Counsel filed excep- tions to the judge's decision We find merit in the General Counsel's exceptions, and we conclude, for the reasons set forth below, that the Respondent's discharge of Johnson violated Section 8(a)(3) and (1) of the Act I FACTS The facts, as more fully set forth by the judge, are summarized as follows The Respondent sells medical and first aid supphes and equipment Each of its sales representatives has a territory to cover using company-owned vans In October 1987, James Plouffe, the Respondent's chairman, deter- mined that there had been no gain in sales for the second year in a row He thereafter implemented internal changes, including changes in the product line During early 1988, 3 the Respondent continued to make changes, including changes in the pay struc- ture and working conditions of employees The Re- spondent's sales representatives, including particu- larly Deborah Johnson, 4 expressed their dissatisfac- tion with these changes The employees expressed their complaints during their weekly Monday night sales meetings as well as in other gatherings In response to the employee complaints, the Re- spondent, on or about April 12, issued a memoran- dum to employees stating that complammg about the changes to other representatives was the "wrong way" to address the problem The Re- spondent suggested that the right way was to put the complaints in wntmg and bring them to man- agement The sales employees were told that the "wrong way" would not be tolerated and if they continued to "plague" coworkers with their "bad attitudes" they would be viewed as insubordinate and written up On May 12, the Respondent's president, Mark Hickey, met with Deborah Johnson He told her that he expected her to resign from her job because of the strong dissatisfaction that she had expressed the week before at a sales meeting Johnson re- fused According to Hickey's notes, he then ad- vised Johnson, inter gm that she needed to in- 3 All dates refer to 1988 unless otherwise indicated 4 Johnson began her employment as a sales representative about March 17, 1986 299 NLRB No 21 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD crease her sales, make more prospecting calls, and return the company van to the office by 6 p m Hickey's notes also reflect that he considered John- son to be very negative about company changes and that her poor attitude was detrimental to em- ployee morale and to achieving company goals Thereafter, in a memorandum dated May 18, Hickey notified Johnson she was on probation, "until further notice "5 On June 6, the Respondent implemented a straight commission system and eliminated paid va- cation and sick days This act generated further complaining by the sales representatives, with Johnson being particularly vocal in her complaints Subsequently, on June 12, 20, and 26, Hickey met with Johnson and discussed her failure to return the van to the office On June 20, he also discussed her failure to turn in her paperwork On July 25, the sales representatives held their regular sales meeting at the company office After the meeting, most of the sales representatives went to the Press Box Restaurant and Bar to meet with David Schuler, a Teamsters organizer The meet- ing had been arranged by employee Doris Ander- son However, Johnson had notified the other sales representatives about the meeting While the meeting was taking place, Hickey stopped for gasoline at a station next door to the restaurant He noticed the company vans parked behind the restaurant He then went into the res- taurant and over to the employees who were sit- ting at a table Schuler was weanng a Teamsters jacket, and Teamsters authonzation cards were on the table 6 Hickey was introduced to Schuler and shook his hand Hickey asked Schuler if he was an attorney Schuler said "no" Hickey then asked Schuler if he represented the employees Schuler said "if they want me to" Hickey then left the res- taurant On July 26, the next day, according to the cred- ited testimony of Susan May, a former executive administrator of the Respondent, Hickey told May that he thought that Schuler was a union organizer and that the employees were trying to organize Hickey told her that he thought Johnson was the instigator of the organizing campaign He asked May to compile Johnson's sales statistics for the end of July He told May that he was going to dis- charge Johnson at the end of August "based on her probation for [sic] sales performance" and because he felt she was a "troublemaker, [and] she had a 5 The complaint does not allege that the Respondent's placing Johnson on probation violated the Act 6 Employees Johnson and Dann testified that Schuler's business cards were on the table Employees Johnson and Puhl testified that Schuler was wearing Teamsters Jewelry and had his name and insignia on his shirt bad attitude" Hickey also told May that he had seen employee Wanda Schut and her husband, Keith, talking to Johnson and he thought Keith had been the one to help Johnson contact the Union On Wednesday, July 27, Hickey arranged a meeting with Sales Representatives Mickey Dann, Pat Puhl, and Barbara Smith Hickey discussed their benefits with them and asked who the man was at the restaurant The sales representatives said "no comment" After this meeting Hickey told May that he felt more comfortable—that the em- ployees were scared of losing their jobs On Thursday or Friday, according to May's credited testimony, there was a meeting among Plouffe, Hickey, and May In a loud and angry voice Plouffe said that "there had never been a union there [at the Company], that there never would be a union there, that he hated unions, and that he would fire the employees and close the Company before he would allow a union" He told Hickey to get nd of Johnson because he "believed once Deborah was gone that all the commo- tion and the upheaval and dissention [sic] among the employees would just die with Deborah's leav- ing "7 The following Monday or Tuesday, Hickey told May that Johnson's termination had been moved up to that Fnday, August 5 He told May to pre- pare Johnson's sales statistics May gave Hickey Johnson's sales statistics on August 4 or 5 and told Hickey that there had been an improvement m Johnson's statistics Hickey told May that he would have to terminate Johnson immediately, given the increase in her sales if they had waited until the end of August to fire Johnson, Hickey noted, "they wouldn't have been able to use the terms of [her] probation as the basis for the termination" Johnson was discharged on August 5 8 II ANALYSIS AND CONCLUSIONS In Wright Lzne, 9 the Board set forth its test of causation for cases alleging violations of Section 8(a)(3) of the Act First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a moti- vating factor in the employer's decision Once this 7 The Respondent also canceled all sales meetings, an action the Judge found was to keep the sales representatives from talking to each other 8 According to employee Alan Budlong's credited testimony, during a meeting in October, Plouffe and Hickey told him that Johnson had been "behind the Teamsters trying to unionize and that she is bringing action before the National Labor Relations Board, but as far as they were concerned, she was let go because of her work performance" a 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cu. 1981), cert denied 455 U S 989 (1982), approved in NLRB y Transportation Manage- ment Corp, 462 U S 393 (1983) RESPOND FIRST AID 169 is established, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct 10 The judge found, and we agree, that the General Counsel made a prima facie case supporting an in- ference that the Respondent discharged Johnson because of her union activities Clearly, Johnson engaged in union activity by publicizing to other employees and attending the union meeting with a Teamsters orgamzer on July 25 As discussed below, the Respondent had knowledge of these activities The Respondent's of- ficials expressed considerable animus towards John- son's and the other employees' union activities 12 Also, the judge found, and we agree, that the Re- spondent made the initial decision to discharge Johnson on July 26—the first day after the union meeting This highly suspect timing of the dis- charge decision lends substantial support to the General Counsel's pnma facie case In contending that the General Counsel failed to establish a prima facie case, the Respondent ex- cepts, inter aim, to the judge's finding that it had knowledge of Johnson's (and the other sales repre- sentatives') union activities Contrary to the Re- spondent, the record amply supports finding that the Respondent was aware of Johnson's union ac- tivities In particular, the Respondent's knowledge is evidenced by Hickey's July 26 remarks to May He told May that he thought the man in the bar the previous night was a union organizer and that the employees were trying to organize Hickey also stated that he thought Johnson was the instigator of the campaign 13 Accordingly, we find that the '° In his exceptions, the General Counsel argues that the Respondent's alleged lawful reasons for Johnson's discharge were pretextual and were not the true reasons for the discharge The General Counsel argues that the Respondent did not rely on the alleged lawful motivations for the dis- charge and therefore the judge should not have relied on Wright Line, supra, to resolve the Issues before him Contrary to the General Counsel, we agree with the judge that Wright Line, supra, provides the correct framework for the analysis of the Respondent's motivation for Johnson's discharge See Roadway Express, 279 NLRB 302 (1986), and Lawson Co v NLRB, 753 F 2d 471 (6th Or 1985) " The judge found that "the General Counsel has established a pnma facie case by a preponderance of the evidence that in furtherance of its opposition to unionization, Respondent's discharge of Deborah Johnson was motivated by protected union and other concerted activities, and that such actions by the Respondent had the effect of discouraging the employees in organizing a union" Shp op at 17 i2 noted, Chairman Plouffe explicitly stated that he would never permit a union at his business He further stated that he would fire em- ployees and close before allowing a union President Hickey's July 26 reference to Johnson as a "troublemaker"—m context—demonstrates his animus toward Johnson's union activity 13 We reject as totally without ment the Respondent's argument that employer knowledge is not established when It is proved that an employ- er thought but did not know for certain that union activity occurred The Board and the courts have long held that when the General Counsel proves an employer suspects alleged discrimmatees of union activities, the knowledge requirement is satisfied See, e g, Turnbull Cone Baking Co v NLRB, 778 F 2d 292, 296 (6th Cir 1985) General Counsel established that the Respondent had knowledge of Johnson's and the other employ- ees' union activities Having found that the General Counsel estab- lished a prima facie case, the burden shifted to the Respondent to show that it would have discharged Johnson even in the absence of her union activity The judge concluded that the Respondent would have fired Johnson even without her union activi- ties We disagree with the judge, and find that the Respondent did not carry its burden The Respondent contended that it discharged Johnson because of her poor sales performance However, on July 26, when Hickey told May that he was going to fire Johnson at the end of August because of her sales performance, he was not aware of her sales statistics It was only after Hickey made the decision to discharge Johnson that he asked May to compile Johnson's sales statis- tics Further, on August 1 or 2, when Hickey de- cided to accelerate Johnson's dismissal, he again did not review her sales statistics On August 4 or 5, when May, having compiled Johnson's statistics, told Hickey that Johnson had improved her sales statistics, Hickey never reconsidered his decision to discharge Johnson To the contrary, Hickey com- mented to May that he would have to terminate Johnson immediately in order to avoid recognizing any improvement in her sales, which would satisfy the conditions of her probation From the above facts, the conclusion is inescap- able that the Respondent was not relying on John- son's sales statistics in deciding to discharge John- son Hickey's statements and course of conduct demonstrate that he did not know or care whether Johnson's work performance had improved Rather, he had a predetermined decision to dis- charge Johnson His comments in response to learning of Johnson's improved sales show that he sought to conceal the real reason for the discharge Under these circumstances, the Respondent's rebut- tal case fails to establish that Johnson would have been discharged for poor work performance in the absence of her union activity Indeed, the Respond- ent's efforts to rely on facts of which it was not aware (i e, Johnson's sales statistics as of the date of the decision to discharge)" and to hide the real reason for Johnson's discharge supports the infer- ence that it was acting for unlawful reasons See i4 Board recently emphasized that in a case turning on employer motivation an employer obviously cannot be motivated by facts of which It is not aware at the time It makes its decision See Philips Industries, 295 NLRB 717 (1989) 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shattuck Denn Mining Corp v NLRB, 362 F 2d 466 (9th Cir 1966) 16 The Respondent argues that Injected Rubber Products Corp, 272 NLRB 418 (1984), is similar to this case and warrants a dismissal here We dis- agree In Injected Rubber, the Board concluded that an employer had established that it had discharged an employee for poor work performance Initially, the Board found that the General Counsel had failed to establish a prima facie case of a violation of the Act Even assuming a prima facie case, the Board concluded that the employer was motivated to act by the employee's poor work There, the employer made its discharge decision after confirm- ing that the employee's production was not increas- ing and that the employee was not responding to warnings Ultimately, the employer established that it relied on the employee's poor work performance in making its decision to discharge Here, unlike in Injected Rubber and as discussed above, the Re- spondent failed to demonstrate that its action was based on Johnson's poor work performance Accordingly, having found that the General Counsel established a prima facie case warranting an inference that Johnson was discharged for union activities and having found that the Respondent failed to rebut the General Counsel's prima facie case, we conclude that the Respondent's discharge of Johnson violated Section 8(a)(3) and (1) of the Act 16 15 recommending dismissal of the complaint, the judge found that the Respondent "carried its burden of establishing that Deborah Johnson would have been discharged any time during or at the end of the current quarter (July 30, 1988) for cause—legitimate business reasons, absent any union activity by the employees" The judge's statement suggests—incor- rectly in our view—that the Respondent's motivation was lawful because the Respondent put Johnson on probation before she engaged in union activity Probationary employees are entitled to the full protection of the Act See Trice Industrzes, 283 NLRB 848, 854 (1987) Although Johnson was placed on probation in May, the Respondent's discharge decision was not made until at least July 26, the day after the union meeting The motivation for that decision is at Issue here Although it is relevant that Johnson was on probation, that fact is not determinative in deciding the Respondent's motivation for the discharge If the judge meant to Imply that he found that the Respondent had demonstrated that It had relied on Johnson's work statistics in making its decision to terminate, we disagree, for the reasons set forth above, and thus reverse any such finding 16 General Counsel, though acknowledging that the complaint does not specifically allege that the Respondent's discharge of Johnson was for her protected concerted activities (I e, as opposed to her union activities), urges the Board to find that Johnson was discharged for her protected activities The General Counsel contends that the matter was fully and fairly litigated at the heanng Presumably, the General Counsel is urging that we find that Johnson was discharged for consistently ex- pressing dissatisfaction at employee meetings about the Respondent's changes in working conditions In light of our finding that the Respond- ent discharged Johnson for her union activity, we need not pass on the General Counsel's additional theory CONCLUSIONS OF LAW , 1 The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 By discharging Deborah Johnson on August 5, 1988, the Respondent has violated and is violating Section 8(a)(3) and (1) of the Act 3 The unfair labor practice found above consti- tutes an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act We shall order the Respondent to offer Deborah John- son immediate and full reinstatement to her former position, or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges We shall further order the Respondent to make John- son whole for any loss of earnings or other benefits she may have suffered as a result of the discrimina- tion against her Backpay shall be computed as pre- scribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) We further shall order the Respondent to remove from its records and files any reference to the unlawful discharge and to notify Johnson, in writing, that this has been done and that the dis- charge will not be used against her in the future Sterling Sugars, 261 NLRB 472 (1982) ORDER The National Labor Relations Board orders that the Respondent, Plouffe & Stuff, Inc , d/b/a Re- spond First Aid/Complete First Aid System/Dot Health Care Products, Plymouth, Michigan, its of- ficers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against any employee because of the employee's union activities (b) In any like or related manner mterfenng 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) Offer Deborah Johnson immediate and full reinstatement to her former job or, if that job no RESPOND FIRST AID 171 longer exists, to a substantially equivalent position, without prejudice to her seniority or any other nghts or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to her unlawful discharge and notify Johnson in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for further personnel action against her (c) 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 (d) Post at its place of business in Plymouth, Michigan, copies of the attached notice marked "Appendix " 17 Copies of the notice, on forms pro- vided by the Regional Director for Region 7, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other matenal (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply , 17 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 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these nghts To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice r To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT discharge or otherwise discrimi- nate against any of you for engaging in union ac- tivities 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 Deborah Johnson immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest WE WILL remove from our files any reference to the unlawful discharge of Deborah Johnson and WE WILL notify her in wntmg 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 PLOUFFE & STUFF, INC , D/B/A RE- SPOND FIRST AID/COMPLETE FIRST AID SYSTEM/DOT HEALTH CARE PRODUCTS Ellen J Dannzn, Esq , for the General Counsel Bryan S Ahearn, Esq and Janice A Kyko, Esq (Strinqari, Fritz, Kreger, Ahearn, Bennet & Hunsznger, PC), of Detroit, Michigan, for the Respondent DECISION STATEMENT OF THE CASE ELBERT D GADSDEN, Administrative Law Judge On October 12, 1988, Deborah S Johnson filed a charge of unfair labor practices against Plouffe and Stuff, Inc , d/b/a Respond First Aid/Complete First Aid System/Dot Health Care Products (the Respondent) A complaint was issued on November 8, 1988, by the Re- gional Director for Region 7, on behalf of the General Counsel In essence the complaint alleged that on or about August 5, 1988, Respondent discharged the charging party employee because of her support for, and activities on behalf of, the Union, in violation of Section 8(a)(1) and (3) of the Act On November 16, 1988, Respondent filed an answer denying that it has engaged in the unfair labor practices set forth in the complaint A hearing in the above matter was held before me in Detroit, Michigan, on March 2 and 3, 1989 Briefs have been received from counsel for the General Counsel and 172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD counsel for the Respondent, respectively, which have been carefully considered On the entire record in this case, including my obser- vations of the demeanor of the witnesses, and my consid- eration of the briefs filed by respective counsel, I make the following FINDINGS OF FACT I JURISDICTION Respondent, Plouffe & Stuff, Inc d/b/a Respond First Aid/Complete First Aid System/Dot Health Care Prod- ucts is, and has been at all times material, a corporation organized under, and existing by virtue of, the laws of the State of Michigan As such, the Respondent is, and has been at all times material, engaged in the nonretail sales and distribution of first aid and safety equipment to manufacturing plants and other businesses During the year ending December 31, 1987, a repre- sentative period, Respondent, in the course and conduct of its business operations purchased and caused to be transported, first aid supplies and other goods and mate- rials valued in excess of $50,000, which were transported and delivered to its place of business in Plymouth, Michigan, directly from points located outside the State of Michigan The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Local 247, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Local 247 or the Union) is, and has been at all times material, a labor organization within the mean- ing of Section 2(5) of the Act HI THE ALLEGED UNFAIR LABOR PRACTICES A Background Facts Respondent is engaged in the nonretail sale and distri- bution of first aid and safety health equipment, through 10 sales and service representatives operating from its fa- cility located at Plymouth, Michigan Each sales repre- sentative covers a designated geographical territory in which he or she calls upon managers of various manufac- turing plants and other businesses within their respective territories In the spring of 1988, Respondent made certain busi- ness operating changes, including the method of paying and allowing vacation time for its sales representatives Several of the sales representatives were dissatisfied with these changes, and when Respondent did not restore those conditions or amend its policy changes to be more satisfactory to the sales representatives, some of them proceeded to organize a union One of the sales repre- sentatives, the alleged discnmmatee, was discharged shortly after the organizing activity commenced The discharged employee contends her employment was ter- mutated because of the union organizing activity of the employees Respondent contends the alleged discnmina- tee was on probation for low and declining sales, and that she was discharged because she failed to improve her sales record in accordance with the conditions of her probation The complaint alleges and the Respondent admits that the following named persons occupied the positions set opposite their respective names, and have been and are now supervisors and agents of the Respondent, within the meaning of Section 2(11) of the Act James G Plouffe—Chairman of the Board Mark Hickey—President Counsel for the General Counsel's unopposed motion to correct errors in the transcript as outlined on page 29 of her brief is granted B Respondent's Business Organization and Operation Respondent's chairman of the board, James G Plouffe, is over the entire business operation of the Company He travels and is frequently out of the office However, whether or not he is present, or was not in fact present during the period May 30—August 31, 1988, business was carried on as usual by Plouffe's executive adminis- trator, Susan May, who is in charge (supervisor) of the four or five clerical personnel in the office May has a masters degree in nursing and graduate hours toward a masters in business and finance Respondent's president, Mark Hickey, is the supervisor of approximately 10 of Respondent's staff sales and serv- ice representatives, and he is in charge of the daily sales operations of the Plymouth facility Each sales and service representative works in his or her assigned territory by traveling in a company supplied van (vehicle), stocked with sales products which they ex- hibit or demonstrate while visiting established customers, and replenishes their depleted or out-dated inventory of stock by introducing them to new products The sales and service representatives also solicit new customers by telephone "code calling" and visiting prospective cus- tomers Before and during early 1987 Respondent's sales per- sonnel was paid on a commission basis However, James Plouffe, after an absence from the business of several months, returned to the Plymouth office August 18, 1987 At the end of the fiscal year, October 31, 1987, Plouffe noted there was no gam in sales for the second year and he proceeded to institute several changes, in- cluding changes in the product line After a business planning meeting in December 1987 with President Mark Hickey, the Company bought a new computer, rear- ranged the offices, and in February 1988, ran off a de- clining sales report on all salespersons, gave each of them a copy of the report, and directed them to visit each account holder to determine whether or not it was still a customer or had not been serviced, and to submit their findings to Hickey Plouffe also finally implemented a sales foundation program—based on the prior year sales of each sales representative Thereafter, he imple- RESPOND FIRST AID 173 mented a pay increase based on increase revenues gener- ated, and some bonus dollars In May 1988, Plouffe said he evaluated the sales repre- sentatives' compensation operation since not many sales representatives were producing enough Meanwhile, he said he discussed the sales performance of Deborah Johnson with supervisor Hickey during May, June, and July 1988 On June 6, 1988, Plouffe implemented the straight commission system of paying the sales representatives, eliminated the 3 weeks' vacation, the paid sick days, and, instead, paid $350 for 1 week's vacation, with a maxi- mum of 2 weeks Deborah Johnson was one of Respondent's sales and service representatives who was employed March 17, 1986, and assigned to the sales temtones of Southfield, Sterling Heights, and Northside Eight Miles All sales and service representatives were given a base of custom- ers by Respondent to call on, and they were to expand upon that base by obtaining referrals from those custom- ers Johnson's supervisor was Mark Hickey Johnson and other sales representatives were quite dissatisfied with many of the new changes announced and/or implement- ed by Plouffe They expressed their dissatisfaction in Monday night sales meetings or in groups as they con- gregated in, near, or away from the office Respondent was aware of the sales representatives expressing dissatis- faction with many of the changes In a memo dated April 12, 1988, President Hickey no- tified the sales representatives that the changes in busi- ness operation being made were made to promote effi- ciency and profitability for management and the sales representatives He advised them that taking issue with any of the changes in private among themselves was the "wrong way" to address the problem The "right way" was to state their opposition in writing on a form fur- nished to employees by the Respondent, turn it into man- agement or talk to management about it He assured the sales representatives that no punitive measures would be taken against them for stating their opposition to the Company's policies because that is the "right way" The sales employees were told the wrong way would not be tolerated and if they continued to verbally plague co- workers with "your bad attitudes," this will be viewed as insubordination and will be followed by written repri- mand (G C Exh 6) Shortly after issuance of the memorandum on May 12, 1988, Hickey met with Johnson and told her he expected her to resign from her job because of her very strong dissatisfaction expressed at the sales meeting a week ear- lier Johnson refused to resign Hickey's notes of that meeting indicate he told Johnson she was very negative towards the Company's changes, that she had a "poor at- titude which was a detriment to the morral [sic] toward achieving [sic] Co goals" However, Johnson and other sales representatives con- tinued to discuss their benefits and other company policy changes while loading their vans ;Sales meetings were held at 5 or 5 30 p m each Monday During those meet- ings Johnson was one of the sales representatives who voiced her dissatisfaction with certam policy changes made by management, such as the change in their method of pay—and the benefits package (personal leave days, vacation, health insurance, and the company's "la- belling a first aid cream as a burn cream") Johnson acknowledged that she had no indication management knew she was involved with the Union Nor did any member of management say anything to her about the Union before her termination Johnson Placed on Probation Hickey testified that having noticed from the profit and loss statements that there was a decline in Deborah Johnson's sales in fiscal 1987 and 1988, as compared with her sales in 1986 and 1987, he met with Johnson May 12, 1988 At that time he asked Johnson to resign from the Respondent and accept his assistance in having her hired by another company Johnson refused to resign unless Respondent offered her a year's severance pay In lieu of insisting on her resignation, Hickey outlined areas in which Johnson needed to improve her performance, sales, and increase her reported telephone calls per day, which were considerably less than the reported tele- phone calls of other sales representatives, to improve her delays in turning in paperwork timely, and to improve maintaining proper inventory control on her company van Since the office staff had reported that Johnson usu- ally returned her van to the office after 6 p m, causing the office staff problems in closing the business day, Hickey directed Johnson to return the van to the office before 6 p m at the end of each business day At the end of their meeting, Hickey testified he informed Johnson that these deficiencies would have to be corrected during the current business quarter in order for her to remain in the employ of the Respondent Johnson did not dispute Hickey's testimony in this regard Hickey said these di- rectives were imposed on Johnson to expose her to the office more, and to influence her to make more tele- phone calls daily, increase her communications with the office staff, and enable her to restock her van more effi- ciently See Respondent's Exhibit I—Probation Hickey's summary notes of that meeting dated May 18, 1988 Problems 1) Decrease of sales and route number 3 under Deborah Johnson's direction Decrease is $12,400 00 in volume (147%) through first 6 months of fiscal year 1987-1988 2) Failure to meet foundation all three months of new pay program, (February, March, & April) of 1988 3) Number of calls per day for fiscal 1987-1988 Year to date 558, lowest in company Approximate- ly one half of the calls of other sales staff 4) Constant delays in turning in paperwork (Ex- ample December through May have caused inter- nal problems in processing invoices Corrective Action 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD EFFECTIVE MAY 18, 1988 1) Deborah Johnson will be on probation till fur- ther notice. 2) Condition—Van will be returned to the office at end of each business day without exception. 3) Failure to return van at the end of each busi- ness day (6:00 P.M.) will be viewed as violation of probation directive as well as company policy re- garding unauthorized personal use of company ve- hicle during non-business hours. This will be grounds for immediate dismissal. 4) Daily paper work will be turned in at end of each day. Subsequent to the meeting with Hickey, Deborah Johnson said Hickey acted a little cool with her. Hickey testified that the office staff continued to com- plain about having difficulty dealing with Johnson and her attitude towards them, as well as her continued fail- ure to return the van by 6 p.m. Consequently, Hickey met with Johnson again on June 20, 1988, during which time he discussed these matters. Hickey held a third meeting with Johnson on June 26, 1988, but all he could recall discussing with her was her failure to return the van to the office before 6 p.m. daily, and that she had a bad attitude, about which he said he had told her in the two previous meetings. When asked what did he mean by a bad attitude, Hickey said, "Ex- pressing dissatisfaction with operation—company policies and procedural changes—verbal expression of dissatisfac- tion." C. Union Activity of the Respondent's Sales Representatives A composite of the uncontroverted evidence of record established that, Respondent held a sales representatives' meeting between 5:30 and 6:30 p.m. on Monday, July 25, 1988. At the meeting, employees, including Deborah Johnson, expressed their dissatisfaction to President Hickey about some of management's new policies, in- cluding the new pay method for the sales representatives. Subsequent to the sales meeting, the sales representatives (Pat Puhl, Mickey Darin, Doris Anderson, Barbara Smith, Barbara McPetrie, and others), responded to Deborah Johnson's earlier notice to them, to meet at the Press Box Restaurant and Bar with Union Representative David Schuler about 8 p.m. Schuler, who was wearing a jacket with the Teamsters' symbol on it, proceeded to discuss and explain unionization. He gave the sales repre- sentatives union authorization cards which were laying on the table in front of them. Meanwhile, after the sales representatives' meeting on July 25, President Hickey testified that he started for home but noticed his car was low on gasoline. He turned in the opposite direction to visit a gasoline station which was just past the Press Box Restaurant. As he passed the restaurant, he noticed several of the Company's vans parked behind the restaurant. He was concerned about whether the sales representatives were consuming alco- hol while using the company vans prompted him to in- vestigate. He parked his car, entered the restaurant, ap- proached the table where the employees were sitting, and said "Hello." He asked them whether they were drinking alcoholic beverages. They said "no," and told him what beverages they were drinking. Seeing the strange gentleman (Schuler) at the table with them, he asked Schuler was he an attorney, and Schuler said "no." According to Hickey, Deborah Johnson introduced him to Schuler and they shook his hands. He also asked Schuler if he was representing his (Hickey) staff and Schuler said, "If they want me to." Since Hickey noted that the employees were drinking only water and soda he told the employees good evening and left the restau- rant. The lighting was dim and it was not established whether Hickey could or did see the union label on Schuler's jacket or the union cards on the table. Susan May, the since terminated former executive ad- ministrator to Jim Plouffe, against whom criminal charges were filed by Respondent and are pending dispo- sition, testified that on July 26, the day after the employ- ees met at the Press Box Restaurant, Hickey came to her office, which was right across from his, and told her about his visit to the Press Box Restaurant while the em- ployees were there. However, May said Hickey also told her he thought the stranger (Schuler) was a union represent- ative and the sales employees were engaged in organizing a union; that he thought Deborah Johnson was the instigator of the organizing activity, and that he was going to termi- nate her employment upon her probation sales perform- ance and her "troublemaker attitude." He told her (May) Johnson was very vocal about her dissatisfaction with the Company's change in the pay structure of the sales representatives. May said Hickey then asked her to update and compile Deborah Johnson's sales statistics for the end of July; that he was going to discharge Johnson at the end of August when he would have hired new sales representatives, and when he and Plouffe would be on vacation at the time. She said he wanted her to wit- ness the termination of Johnson. She also said this was the first time Hickey had ever told her Johnson would be terminated. Susan May also testified that Hickey told her he saw employee Wanda, and her husband, Keith Schut, talking to Deborah Johnson in the warehouse; and that he be- lieved Keith was the person who helped Johnson contact the Union because Keith would be familiar with organiz- ing activity by virtue of where he is employed. Hickey however denied that he made any such statements to May about Wanda and Keith Schut, or any of the above- described statements attributed Co him by Susan May. However, a part of May's testimony is corroborated by her successor, Allen Budlong, who was employed by the Respondent September 27, 1988, as comptroller, with the understanding that either party could terminate his employment at will. He replaced Susan May as executive administrator to Plouffe. Budlong testified that on Janu- ary 13, 1989, Jim Plouffe walked into his office at 5 p.m. and told him he (Budlong) was terminated because they had agreed that either party could terminate the relation- ship without a reason. Budlong testified that during a conversation in October 1988 with Jim Plouffe and Mark Hickey, they told him they thought Deborah Johnson start- RESPOND FIRST AID 175 ed the Union, but that she was discharged for her per- formance and she was bringing an action before the Na- tional Labor Relations Board I credit Budlong's testimo- ny because I was persuaded by his demeanor that he was testifying truthfully, and because his testimony is consist- ent with Susan May's that Hickey said he believed John- son instigated or started the Union On cross-examination Susan May acknowledged she was fired by the Respondent on August 31, 1988, that she was not given any reasons for her discharge, and that she believes she was treated unfairly Several times during the hearing, counsel for the Re- spondent attempted to attack the credibility of Susan May on the grounds that criminal charges involving fraud (dishonesty) had been filed against May Counsel for Respondent conceded that no civil or criminal dispo- sition has been made on the charges against May None- theless, counsel for Respondent tried on several occa- sions to impeach the testimony of May on a legally unre- solved credit card dispute between May and the Re- spondent On nearly each such attempt, the witness (May) would decline to answer pursuant to the fifth amendment to the Constitution (on the grounds that her answer might incriminate her), or the General Counsel objected to such questions and was sustained by the bench pursuit to Rule 609 of the Federal Rules of Evi- dence, since May has not been convicted of a crime in accordance therewith Under these circumstances, the parties voluntarily enter into the stipulation descnbed below During the heanng the parties stipulated that 1 Following the termination of Susan May, a dispute arose as to certain credit card charges Susan May was notified by the company about these by letter on Sep- tember 16, 1988 2 On September 30, 1988, Plouffe and Stuff filed a complaint with the Plymouth police alleging credit card fraud 3 No conviction or indictment or information has re- sulted from the complaint 4 There is a dispute between Plouffe and Stuff and Susan May as to any amount she might owe 5 Susan May is in the process of paying money into an escrow to the Plymouth police to be paid to Plouffe & Stuff At a later period during this proceeding, counsel for the General Counsel and counsel for Responaent at- tempted to reach a stipulation on conversations Susan May held with Plouffe subsequent to her discharge They were unable to reach a stipulation However, in the interest of expediting the hearing, counsel for Respond- ent was allowed to make the following offer of proof without objection from counsel for General Counsel MS KYKO If allowed to testify, Mr Plouffe would say that there were two conversations be- tween Susan May and James Plouffe after she left her employment with Plouffe & Stuff, that both conversations resulted from Susan May telephoning James Plouffe The first phone call was in the be- ginning of October of 1988 In that first conversa- tion Susan May asked James Plouffe if she could sign a promissory note and asked if he would drop the Complaint with the police In the second conversation on December 2, 1988, Susan May said that because James Plouffe would not drop the Criminal Complaint, she said she hadn't yet gone to EEOC or the Michigan Depart- ment of Labor, or the IRS, but that two attorneys wanted to take her deposition and she said she would force Plouffe & Stuff to open up its Compa- ny's files and records In that second conversation Susan May's tone of voice conveyed a worried anger, was abrupt, and was very forceful Susan May was fired from her position by the Re- spondent on August 31, 1988, without any reason given by Respondent The dispute remains between the parties concerning May's use of a credit card Thus, a determi- nation of the ultimate issues in this case depends largely upon a credibility resolution of the testimony of wit- nesses Susan May and Mark Hickey While it is difficult in such instances to resolve such vexed questions of fact to which the parties alone bear witness, I have neverthe- less resolved such questions by considering the strained relationship between Susan May and the Respondent the subpoenaed testimony of witnesses still in Respondent's employ, the respective interest each witness might have in the outcome of this case, and how readily responsive, nonselective, and consistent each witnesses' version is with the total direct and circumstantial evidence of record Although I approached the resolution of these credi- bility issues with some suspicion about the veracity of Susan May as a result of the nature of her separation from the Respondent's employ and the on-going dispute between them, I could not refuse to recognize how straightforward, self-assured, and responsive she was as she testified on direct and cross-examination I particular- ly noted how logically consistent her testimony is, with certain aspects of the testimony of witnesses Dann, Smith, Puhl, Johnson, and in part with Manager Mark Hickey, as well as how it coincides with other credited evidence of record Additionally, Susan May is a highly educated and intelligent woman She withstood cross-ex- amination essentially without any contradiction or indi- cation that she was not sure about what she testified, and what actually happened while she was employed by the Respondent Correspondingly, as I observed the demeanor of Mark Hickey, I received the impression that he was not telling the whole truth, and that he was fairly well acquainted with employee's organizing rights, and was testifying very carefully to avoid conveying any impression that he said or did anything which constituted a violation of the Act I also considered how strongly Respondent ex- pressed its opposition to employees expressing their dis- satisfaction with Respondent's changes in their pay struc- ture, sick days, and allowed vacations In fact Respond- ent directed its employees to express their dissatisfactions with the Company's policy changes in writing directed to the Respondent and that to express their dissatisfac- tion among themselves was considered insubordination 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Consequently, when I consider Respondent's knowl- edge of the widespread dissatisfaction of its employees with its policy changes, particularly the frequently ex- pressed dissatisfactions by Deborah Johnson, I am per- suaded that Mark Hickey, as nearly any employer would have, suspected or believed that its employees were dis- cussing unionization of the Company in their gathering at the Press Box Restaurant, and that Deborah Johnson was a likely suspect of spearheading the organizational drive Under these circumstances, I am further persuaded that Mark Hickey told Susan May he thought David Schuler was a union representative and that Deborah Johnson was the instigator of the organizing activity, that he (Hickey) was going to terminate Johnson's em- ployment upon her probation sales performance (statis- tics) and her "trouble-maker attitude" Hickey's belief that Deborah Johnson was the instiga- tor of the Union is reenforced by the additional account of May, that he told her he believed Johnson was the person who contacted the Union because he observed her talking to Wanda and Keith Schut, since Keith would have known how to contact the Union by virtue of where he was employed May's testimonial account in this regard is corroborated in part by her successor, Allen Budlong, who testified pursuant to subpoena, that during a meeting with Plouffe and Hickey in October 1988, they told him they thought Deborah Johnson start- ed the Union Although Budlong said Plouffe and Hickey told him they terminated Johnson for her sales performance, I nevertheless credit his account that they told him they thought she started the Union Testimony ) Susan May further testified without dispute that Mark Hickey thereafter instructed her to call each of the sales employees and set up a meeting for himself, Mickey Dann, Pat Puhl, and Barbara Smith as well as another meeting for himself with Bonnie McPetne and Doris An- derson, and a separate meeting for himself and Deborah Johnson Consistent with May's testimony, Mickey Dann still in Respondent's employ, and pursuant to subpoena, testified that the day after the sales representatives met at the Press Box, he was paged by Susan May and advised "to meet with Mr Hickey the next day at 4 30 p m, that it was important" Mickey Dann testified that Dons Anderson arranged for the union meeting at the Press Box Restaurant, and that no one in management ever talked to him about the Union Likewise, Patricia Puhl, still in Respondent's employ since July 1986, and also pursuant to subpoena, testified that a day or two after the meeting of sales representa- tives at the Press Box, she was beeped by Mark Hickey and instructed to attend a meeting with him, Barbara Smith, and Mickey Dann at 4 30 p m Mickey Dann further testified that during the meeting, Hickey asked them whether or not they were with the Company and they told him they were with the Compa- ny, that Hickey asked them who was the gentleman with them at the Press Box and they said "no comment" Hickey said, "Indeed it is a free country and you have a right to meet with whomever you want to in public" Patricia Puhl testified that during the 430 p m meet- ing, Hickey, in a subtle manner, tried to induce them to voluntarily tell him what was going on at the meeting at the Press Box When none of the employees responded, he asked them what would it take to keep them on board, what would management have to change to keep them in its employ Most of the employees reiterated their dissatisfaction with the changes in their pay struc- ture, sick days, and vacation allowed Hickey was taking written notes during the meeting and told them he would not promise them anything but would talk to Plouffe and get back to them,'but he did not get back to them On that weekend, Patricia Puhl called Hickey and told him the sales representatives expected some kind of re- sponse from Plouffe about their concerns, because they were very serious She said Hickey told her Plouffe was in business a long time, and he would know how to remain in business and move ahead She told Hickey the sales representatives would like to have a response from him (management) within a couple of days after the weekend, but they did not hear from Hickey or from management in general Susan May further testified that subsequent to Hickey's meeting with Mickey Dann, Pat Puhl, and Barbara Smith, Mark Hickey told her he felt more comfortable after talking with the employees because he felt their loyalty was with the Company, and they would not be a problem regarding the union activity because he felt they were scared of loosing their jobs Credibility Determination It is readily apparent from the undefiled testimony of Mickey Dann that Respondent was trying to avoid unionization, when a day or two after the employees met at the Press Box Restaurant, Hickey asked Dann, Patri- cia Puhl and Barbara Smith, whether they were with the Company? Who was David Schuler9 and what would management have to do to keep them in Respondent's employ? When the employees (Dann, Puhl, and Smith) told Hickey they were with the Company and would not tell him who David Schuler was, I am persuaded that Hickey wanted to believe them, that he did for that time believe they were with him, and that it was this belief that prompted him to tell Susan May he felt more com- fortable after talking with the employees, that their loy- alty was with the Company, and that they would not be a union problem because they were scared of losing their jobs Testimony May further testified that near the end of the week of the July 25, 1988 regular staff meeting with Plouffe, Hickey, and herself, she could tell Plouffe was unusually agitated—angry When the subject of union activities came up he got very loud and angry and said, there has never been a Union there, there will never be a Union there, he hated unions, and "that he would fire the em- ployees and close the company before he would allow a union" May said such an emotional outburst was unusu- RESPOND FIRST AID 177 al for Plouffe She said he also told Hickey to get to the bottom of this and get rid of Deborah Johnson so that all of the commotion and upheaval would die down, al- though he did not say Johnson was behind the union ac- tivity because he did not actually know who was behind It However, in testifying, Jim Plouffe denied he made any of the aforedescnbed statements attributed to him by Susan May Likewise, Mark Hickey denied he ever heard Jim Plouffe make any such statements in his pres- ence or that Plouffe directed him to ,get to the bottom of the union activity and get rid of Deborah Johnson Credibility Determination I am persuaded by the demeanor of May and the fact that since near the end of the week of July 25, after Hickey had ample time to think about the employees dis- satisfactions and demands expressed in the meeting with him, and the meeting of employees at the Press Box Res- taurant and the stranger (Schuler) who was with them It was only natural for him and Plouffe (Management) to hear the footsteps of the Union on their heels and become concerned, as Susan May described Plouffe in a meeting with she and Hickey Under these circum- stances, considenng the previous and subsequent evi- dence of Respondent's opposition to employees' ex- pressed dissatisfactions and their union activity of July 25, I am persuaded that Plouffe angrily stated "there has never been a union there, there will never be a union there, he hated unions, that he would fire the employees and close the company before he would allow a union", and that he told Hickey to get to the bottom of the union activity and get nd of Deborah Johnson, so that all of the commotion and upheaval would subside Hickey complied with his directive Conclusions I conclude and find upon the foregoing uncontrovert- ed and credited testimony, that Respondent's sales em- ployees, including Deborah Johnson, became engaged in union activity when they met with Union Representative Schuler at the Press Box Restaurant on July 25, 1988 I further conclude and find on the foregoing credited testimony and circumstantial evidence, that on the next day, July 26, 1988, Respondent (Hickey) thought and be- lieved that David Schuler was a union representative and that the sales employees were engaged in union activity While Hickey might have only thought or believed the sales employees were engaged in union activity on July 25 and 26, 1988, and such belief alone may not have been sufficient to constitute knowledge of union activities on those dates, the evidence demonstrates that 3 or 4 days thereafter, Respondent's (Hickey) belief became much more convincing Not only did Hickey communicate his belief to Executive Administrator Susan May, but he proceeded to meet with small groups of employees and asked them whether they were with the Company Hickey also told May he believed Deborah Johnson instigated the union activity, and in October, both Hickey and Plouffe told the new executive administrator (Budlong) the same thmg Respondent's belief about Johnson was not only partially correct, but logically predicated upon the uncontroverted evidence that John- son was a vocal dissident of Respondent's policy changes affecting the employees pay, sick days, and vacation The evidence also demonstrates that Respondent mani- fested union animus when Plouffe stated in the presence of Susan May that there never was a union there, that there never will be a union there, that he hated unions, and that he would fire the employees and close the busi- ness before he allowed a union I therefore conclude and find that it may be reasonably inferred from Respond- ent's (Hickey and Plouffe) statements and actions that during the week of July 25-30, 1988, Respondent had knowledge that Deborah Johnson and other sales em- ployees were engaged in protected concerted and union activity NLRB v Wal-Mart Stores, 488 F 2d 114, 116- 117 (8th Cir 1973), Stoner Communications, 287 NLRB 890 (1987) Testimony Durmg the first week in August, Susan May said Hickey told her to prepare the sales performance statis- tics on Deborah Johnson, that the termination time for Johnson had been moved up so that it could be executed while he and Plouffe were on vacation Plouffe was al- ready on vacation However, Hickey denied he gave May any such reasons for terminating Johnson on August 5 Notwithstanding, May compiled the statistics and her actions and testimony are consistent with what actually occurred May was instructed to place a help-wanted ad for a sales representative in the Detroit News and the Lansing Journal newspapers, which May testified she sent in around the end of July This was the first time she had been personally asked to place a help-wanted ad in the newspapers Credibility Determination In this regard, the undisputed evidence shows that May, in compliance with an order from Hickey, placed a help-wanted ad in the newspaper for a sales representa- tive Although the specific date the ad was placed is not more accurately established by a copy of the newspaper ad and date, I am persuaded by May's account that it was placed m the newspapers in late July because Debo- rah Johnson was terminated August 5 If Johnson was going to be terminated as early as Hickey said she would be, it may be reasonably inferred from such fact that Re- spondent would have wanted a replacement for her almost simultaneously with her departure Moreover, Susan May was not employed by Respondent after August 31, and I find it difficult to believe that Respond- ent would have waited until near the end of August to place such an ad, when the job vacancy of Johnson was going to occur August 5 Hence, I find that Respondent had Susan May place the help-wanted ad in the newspa- pers a few days before it terminated Johnson on August 5, as May testified it did Again, May's testimony is con- sistent with the total evidence of record of what tran- spired, and Hickey's denial is not 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In accordance with instructions from Hickey, Susan May typed the notice (G C Exh 5) to all sales repre- sentatives advising them that there would be no more weekly sales meetings on Monday evenings until further notice Although prior to the latter notice attendance at sales meetings was mandatory, May said Hickey said cancellation of the meetings would prevent the employ- ees from congregating and discussing the Union, or taking issue with the working conditions, since meetings were the only times the sales representatives were all brought together by the Company Hickey denied he gave any such reasons for canceling the sales meetings Instead, he testified that the meetings were canceled be- cause employees and management personnel were going on vacation and only a few employees would be present Credibility Determination Although Hickey denies he told Susan May he can- celed the weekly sales meetings until further notice to prevent the sales representatives from coming together and enabling them an opportunity to express their dissat- isfaction with company policy changes and discuss unionization, May's testimony is consistent with the record evidence as a whole, and Hickey's denial is not Even if Hickey's testimony that the meetings were can- celed because too many people would be on vacation was in fact true, the record does not contain any evi- dence which persuades me that Susan May lacked the in- tegrity or had the labor relations insight to fabricate her testimony on this issue, anymore than she did on other versions of her testimony adverse to the Respondent's in- terest It is particularly noted that Respondent did not give its sales representatives any reason for canceling the weekly sales meetings While Respondent was not obli- gated to give its sales representatives a reason for cancel- ing the meetings, it would appear both reasonable and practical to me that an employer in all probability would have given its personnel a reason for canceling meetings which were held so regularly Thus, the Respondent's failure to give the sales representatives a reason for can- celing the meetings suggests, under the circumstances here, that Susan May's testimony is truthful as to why the sales meetings were terminated, and Hickey's latent explanation given at the hearing is not As stated earlier, I was comfortably persuaded by the demeanor of May that she was testifying truthfully Conclusions When Respondent's July 28, 1988, cancellation of the weekly sales meetings is considered in the context of the continuity of the evidence of Respondent's conduct after it learned about the employees' union activity on July 25, 1988, I am persuaded, and I find, that Respondent can- celed the sales meetings to make it less convenient for the sales staff to collectively discuss their dissatisfactions with management policy changes and also engage in union activity Testimony On the day she presented Hickey with the sales per- formance statistics of Johnson, May said there was an in- crease in Johnson's sales statistics for the last 2 weeks in July and going into August Johnson did not explain whether this was her personal observation and conclu- sion, or that of management's Nevertheless, she said Mark Hickey said he would have to terminate Johnson immediately, otherwise the increase in her sales was going to obviate the conditions of her probation letter that had been issued to her several months before be- cause her sales volume would have improved as she was advised to do Again, Hickey denied that he made any such statements to Susan May regarding the termination of Johnson Although Hickey denies he told Susan May the termination date for Deborah Johnson was moved up to August 5 so that Johnson's improved sales record would not obviate the conditions of her probation and also allow her termination to occur while he and Plouffe were on vacation, the credited testimonial and circum- stantial evidence of record tends to support May's ac- count However, in accordance with instructions from Hickey, Susan May typed the discharge notice (G C Exh 4) issued to Deborah Johnson and she witnessed its presentation to her on August 5, 1988 On August 5, 1988, at 345 p m Deborah Johnson was called to a meeting in Mark Hickey's office where Susan May and Hickey were present Hickey advised Johnson that the reason they were meeting was because she was being terminated He handed the termination notice to May and asked her to witness it and directed Johnson to read it, saying "that will explain everything" Johnson said she read it and told him Respondent owed her for 4- 1/2 sick days that she was not allowed to take Hickey told Johnson to get with May concerning her last pay- check and that John (warehouse manager) would ob- serve her removing her personal belongings from the van Conclusions I therefore conclude and find upon the foregoing cred- ited evidence 1 That during May-July 1988, Respondent had knowledge of its employees' dissatisfactions with work- ing conditions and changes in company policy affecting their working conditions 2 That for at least 5 months prior to her discharge, Deborah Johnson was frequently expressing her dissatis- faction with company policy changes relating to working conditions, and she was by no means a favored employee of the Respondent 3 That Respondent prohibited its employees from ver- bally discussing or expressing their dissatisfaction among themselves about changing company policies affecting their working conditions, and that if they engaged in such discussions, Respondent deemed it insubordination 4 On and after July 25, 1988, Respondent (Hickey) told Executive Administrator Susan May, it suspected and believed its employees were engaged in organizing a union, that it thought Deborah Johnson was the instiga- tor of the organizing activity because she frequently vo- calized her dissatisfaction with company policy affecting working conditions, and because it saw her talking to RESPOND FIRST AID 179 one of its employee's husband, whom Respondent be- lieved was knowledgeable about unionization, and that it was going to terminate Johnson's employment on her probation sales performance record and "trouble-maker attitude 5 That Respondent (Hickey) tried to solicit the sup- port of employees who would not favor the Union, which effort indicated Respondent (Hickey) was opposed to the Union It was later venfied that Respondent was not only opposed to the Union, but that it (Plouffe) said there was never a union there, there will never be a union there, he hated unions, and that before he allowed a union, he would fire the employees and close the busi- ness Such statements by Respondent clearly manifested evidence of union animus, and that it had decided to ter- minate Deborah Johnson to quell the expressed dissatis- faction with management's policies and the organization- al efforts of the sales representatives 6 That initially, Respondent decided to terminate Johnson at the end of August but it later decided to ac- celerate her termination to August 5, in order to under- mine the organizational efforts of the sales representa- tives, and cancel the weekly sales meetings to avoid making it convenient for the representatives to come to- gether and express their dissatisfactions with the compa- ny's policy changes and discuss unionization After Susan May was discharged, she said she called Deborah Johnson to inquire about the status of her case with the Board and to apologize to her for several of the things that had happened during her termination, about which she felt badly At that time Deborah Johnson asked her if she would mind if an agent of the Board contacted her, and she said she did not mind Issue The issue raised by the pleadings and the evidences is whether the Respondent discharged Deborah Johnson on August 5, 1988, because she and fellow employees en- gaged in union activity, in violation of Section 8(a)(1) and (3) of the Act, or whether the Respondent dis- charged Johnson for cause, as Respondent contends, fail- ing to improve her poor sales performance? Analysis and Conclusions The facts in the instant case appear to be governed by the Board's decision in Wright Line, 251 NLRB 1083 (1980) There, the Board held that in determining lawful- ness of alleged discnmmatory discharges is determined by the traditional precepts of Board law in 8(a)(1) and (3) discharge cases, as modified by the Board's decision in Wright Line, supra That is, where both a lawful cause and an unlawful cause for discharge is presented, the am- biguity must be resolved by the following causation test in all 8(a)(1) and (3) cases involving employer motiva- tion First the General Counsel is required to make a pnma facie showing sufficient to support the infer- ence that protected conduct was a "motivating factor" in the employer's decision In establishing a pnma facie showing, the General Counsel must establish 1 That the alleged discnminatees engaged in union or other protected concerted activities 2 That the employer had knowledge of said activities 3 That the employer's actions were motivated by union animus 4 That the discharge had the effect of encouraging or discouraging membership in a labor organization WMUR-TV, 253 NLRB 697, 703 (1980) 5 The General Counsel has the burden of proving these requisites by a preponderance of the evidences Gonic Mfg Go, 141 NLRB 201, 209 (1963) Once the General Counsel has established a prima facie case, the burden will shift to the employer to dem- onstrate that the same action would have taken place even in the absence of the protected conduct In the instant case, the General Counsel has not al- leged any independent 8(a)(1) violation of the Act, as evidence of unlawful motivation Correspondmgly, I have found that Respondent did not engage in any inde- pendent 8(a)(1) activity However, 8(a)(1) violation is not essential to finding an 8(a)(3) violation Actual motive is seldom established by direct evidence Notwithstanding, motive may be inferred by the tner of the facts from the total circumstances established If the alleged or estab- lished motive for discharge is found false, the trier can infer that there is another motive providing the sur- rounding facts and circumstances tend to support that in- ference Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966), the principle therein quoted by the Board in Best Products Go, 236 NLRB 1024, 1025 (1978) Consequently, I am compelled by the 8(a)(3) allegation here, to determine from the total evidence, whether Re- spondent's discharge of Deborah Johnson was motivated by union activity, as alleged, and/or for cause (unsatis- factory sales performance), as the Respondent contends WMUR-TV, supra With Respect to Unlawful Motivation Having previously found that Deborah Johnson and her fellow employees were engaged in union activities on and after July 25, 1988, and that Respondent had knowledge of that union activity and Johnson's involve- ment in it as of July 25 and 26, 1988, the question pre- sented is whether Respondent discharged Johnson on August 5 because of her union activity In this regard, the credited evidence also established, and I find, that on July 26, 1988, Hickey initially decided to discharge Deborah Johnson on August 31, 1988, that later during the week of July 25, Plouffe directed Hickey to find the instigator of the union activity (whom management be- lieved to be Deborah Johnson) and get rid of her However, after Hickey had received the statistics he had requested on Johnson's sales performance, he decid- ed to terminate Johnson August 5, 1988, while both Plouffe and himself would be on vacation The evidence established and I also find that Respond- ent placed advertisements for a sales representative in the local newspapers on or about July 30, and that Hickey 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD canceled the weekly sales meetings for its sales represent- atives in order to avert providing them a convenient op- portunity to congregate, and collectively express their dissatisfaction with management's policy changes and discuss unionization Consequently, I further find on the foregoing findings that the General Counsel has estab- lished a prima facie case by a preponderance of the evi- dence that in furtherance of its opposition to uniomza- tion, Respondent's discharge of Deborah Johnson was motivated by protected union and other concerted activi- ties, and that such actions by the Respondent had the effect of discouraging the employees in organizing a union Storer Communications, 287 NLRB 890, (1987), Murphy Oil USA, Inc , 286 NLRB 1039 (1987), WMUR-TV, supra With Respect to Lawful Motivation It is well established by the essentially uncontroverted evidence of record that since January 1988, Respondent, for legitimate business objectives, proceeded to imple- ment a number of policy changes which affected the sales employees' pay, sick days and health insurance It is also established by uncontroverted evidence that Debo- rah Johnson and other sales employees made their dissa- tisfactions with these changes known to management, and that as early as May 1988, the statistics of Deborah Johnson's sales performance indicated her performance was at the bottom of the list of her sales peers Although Respondent did not appreciate the dissatisfactions ex- pressed by employees about policy changes, and had ac- tually prohibited verbal discussions of such dissatisfac- tions amongst the employees, Deborah Johnson was not only the most vocal dissident with management in this regard, but she also did not get along well with Re- spondent's clerical office staff The source of her poor relations with the office staff was due to her neglect in turning in her paperwork to them timely However, when Deborah Johnson's fiscal 1987-1988 statistical performance was compared with her 1986- 1987 performance, it indicated a significant decline and Hickey met with her on May 12, 1988 At that time Hickey asked Johnson to resign and allow him to assist her in securing employment for her with another compa- ny Johnson refused, and I find that it may be reasonably inferred from these circumstances that Respondent wanted Johnson to resign because of her frequently ex- pressed dissatisfactions with Respondent's policy changes But that fact alone cannot be held against Re- spondent since Johnson's work performance was declin- ing Consequently, Respondent placed Johnson on proba- tion May 18, 1988, and Hickey outlined the areas in which she had to improve her performance to retain her employment as follows (1) Increase her reported prospecting telephone calls per day (2) Abate her delays in turning in her paper work timely (3) Maintain proper inventory control on her van To ensure timely turning in of her paperwork and in- creasing her telephone calling, Hickey said he directed Johnson to return her company-furnished van to the office by 6 p m every workday Johnson was undeniably warned by Hickey that all of these deficiencies had to be corrected during the current business quarter for her to remain in Respondent's employ Although it is noted that Hickey stated in his May 18 summary of the meeting that Johnson was put on probation until further notice, I have given Johnson the benefit of Hickey's credited testi- mony that she had the current quarter to correct the de- ficiencies outlined Although the General Counsel characterized Respond- ent's prescribed probation conditions for Johnson as "dis- ciplinary," "punitive," "more onerous" and imposed be- cause she verbalized her dissatisfaction with company policy changes, the evidence alone does not necessarily support that characterization Johnson was not the only sales employee expressing dissatisfaction with company policy changes However, the evidence shows she was the only employee who did not get alone with the office staff, and in May 1988, she was the employee with the lowest sales performance record It is therefore particu- larly noted, that Johnson's expressed dissatisfactions to management, her relation with the office staff, and the matter involving her probation all occurred prior to any union activity While this is true, the crucial question presented by Respondent's defense of "cause for dis- charge," is whether the Respondent terminated Johnson August 51 for poor work performance, as it contends, and has Respondent's evidence demonstrated that John- son would have been discharged for that reason absent any union activity by the employees, or is Respondent's contention of discharge for "cause," a mere pretext to conceal an unlawful discharge of Johnson A careful analysis of Respondent's justification for dis- charging Johnson reveals, as Susan May credibly testi- fied, that Monday, August 1, Hickey told her Johnson must be terminated immediately, that there was a lot of commotion and talk among employees and he wanted to get rid of Johnson before he and Plouffe were away from the office on vacation, and he ordered her (May) to gather statistics on Johnson's sales immediately because he was going to discharge her Here, it is particularly noted that Hickey had already decided to terminate Johnson on July 26 even though he had not yet had access to the latently provided statistics on her sales At this juncture, Hickey could not have known what results Johnson's statistics were going to reflect Moreover, sales statistics would not have normally been available until August 10, and on August 1, Hickey ordered May to obtain Johnson's statistics by hand to avoid a delay in obtaining them due to the implementation of a new com- puter system His order to May is clear evidence that he was accelerating Johnson's discharge from August 31 to early August May presented Johnson's sales statistics to Hickey August 4 or 5, and there was a large improvement in her sales during the last few weeks Hickey told May he had to terminate Johnson immediately in order to avoid rec- ognizing any improvement in her sales, which would ob- RESPOND FIRST AID 181 viate the conditions of her probation Johnson was dis- charged August 5 In an attempt to show that absent any union activity, Johnson was going to be discharged anyway, Respond- ent (Hickey) stated that it discharged Johnson because the statistics gathered by May, revealed that Johnson's sales were still low and had not improved during the current quarter Respondent's letter dated August 8, 3 days after Johnson was discharged, provided Reason for Termination Declining sales in Route #2 under the control of Deborah Johnson Evidence 1 On May 18, 1988, Deborah was placed on pro- bation 2 Number one problem cited was decreased sales figures thru the second quarter of fiscal '87-88 as compared to the corresponding period in fiscal '86- 87 (Decrease was $12,400 00 or 14 7% thru the first six months of fiscal '87-99) 3 Review of sale figures thru the third quarter '87-88 show that the problem has continued May '87 $15,251 June '87 14,811 July '87 13,663 Total $43,662 May '88 $11,588 June '88 14,253 July '88 12,216 Total $38,057 00 Difference in third quarter, $5,605 00-12 8% Difference in YTD, $18,005 00-13 9% The Respondent conceded that the figures in the above exhibit are not entirely accurate The record shows that the duration of a business quar- ter constituted 3 months, and that the quarter in question included May, June, and July 1988 The General Counsel argues that since Johnson was placed on probation May 18, Hickey's evaluation of her performance included only the remainder of May, and all of June and July In other words, she argues that Hickey considered only 52 out of 62 working days since Johnson worked approximately 52 days of the official quarter after she was put on proba- tion Hickey's evaluation did not consider or give credit for the 4 and a fraction days Johnson worked in August and Johnson was discharged August 5 While General Counsel's argument is correct, it is particularly noted that Hickey did not tell Johnson during their May meet- ing that she had to correct her sales performance during a business quarter (3 months), but according to his undis- puted testimony, he told her she had to correct her sales performance during the current quarter By his language, Hickey obviously did not intend to give Johnson the benefit of a full 12 weeks' working quarter Hickey's summary notes attached (R Exh 1A) of the May meeting with Johnson indicates she was put on pro- bation until further notice By this language, Hickey could have discharged her at an even earlier date I am compelled to recognize the evidence that John- son's working relations with Hickey and Respondent's office staff was not good any time in 1988 before and after May With this fact in mind, it is unlikely that Hickey was going to grant Johnson the gratuity of 12 additional working days to make up for the first 12 working days of May After all, Hickey had asked John- son for her resignation during the May meeting and she refused to tender it Certainly it is true Johnson was the most vocal dissident with management policy changes But she was also the lowest performer While there were other, perhaps less dissident employees, they obviously enjoyed better working relations with management and the office staff None of them were as deficient in sales performance and telephone calling as Johnson in May 1988 Most significantly, all of the expressions of dissatis- faction by employees, including Johnson's and her proba- tion, occurred prior to the onset of any union activity by the employees Therefore, Hickey, by his undisputed tes- timony, granted Johnson the remainder of the current quarter (May, June, and July) to correct her deficiencies (sales performance, including an increase in reported telephone calling) Since the first 5 days in August was not a part of the current quarter, Respondent was not re- quired to extend the quarter to include those days simply to accommodate the evaluation of Johnson's perform- ance Counsel for the General Counsel made a diligent effort to analyze and evaluate the Respondent's statistics on Johnson's performance She was able to show that there was a little improvement, which Respondent acknowl- edged In an effort to establish that Johnson's improved performance was more significant, General Counsel con- tinued to allude to the fact that Respondent should not have included in its evaluation the first 12 days of May, before Johnson was put on probation, and that he could have mcluded the first 4 or 5 days in August, during which period, she argued, showed even more improve- ment by Johnson The General Counsel further argues that had 12 additional working days been so considered by Hickey, the corrected statistics of record, plus the re- sults of the additional 12 days, would have shown that Johnson had turned around her declining sales perform- ance, showing an improvement of 56 48 percent Howev- er, Respondent was not required to consider the addi- tional working days suggested by General Counsel be- cause such consideration was not consistent with Hick- ey's undisputed language of the probation meeting, when he said "correct the deficiencies during the current quar- ter" Nor is the word "improvement" consistent with Hickey's undisputed probation language (testimony) re- quiring Johnson to correct the deficiencies during the cur- rent quarter In any event, since Johnson's sales perform- ance was still considerably lower than her sales peers, neither the General Counsel nor the undersigned can de- termine, under the circumstances in this case, what meas- ure of improvement in performance, short of correcting the deficiencies, should be acceptable to the Respondent The Charging Party presented uncontroverted evi- dence that her sales were not higher because she lost three or more accounts due to customers in her sales dis- 182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tnct going out of business or moving from the city While this is essentially true, no evidence was presented by her to show that during the quarter she conferred or discussed with Hickey these lost accounts and how they impacted on her performance On the contrary, Hickey testified, essentially without dispute, that some, if not all, of the lost accounts could have been made up by John- son with diligent work and additional telephone pro- specting He further testified without dispute that John- son's reported telephone calls were still substantially de- linquent in comparison with the record of other sales representatives Hickey testified that Johnson continued to return her van to the office after 6 p m However, Johnson ex- plained how difficult it was for her to return her van timely, owing to the distance she had to drive, the routes she had to travel during rush hours, and her efforts to get as much sales work out of the day as possible to im- prove her sales I credit her testimony that she did expe- rience difficulty returning her van before 6 p m but this was only one requirement of her probation It can not serve as an overriding factor for her inability to satisfy the other conditions of her probation (correcting her sales deficiencies and telephone calling) outlined by Hickey during the May meeting It is therefore clear from the evidence of record that before and during May 1988, Deborah Johnson was the employee who more vehemently expressed her dissatis- faction with Respondent's policy changes being imple- mented by Respondent for objective business consider- ations She was also the employee with the lowest sales statistics and reported telephone callmgs, as well as the employee with the poorest working relationship with Re- spondent's office staff and management Although other employees expressed their dissatisfaction with Respond- ent's policy changes, the evidence does not show that any of their records of performance was a low as John- son's Nor is it shown that any of them had poor work relations with the office staff and management None of them was put on probation prior to the onset of union activity Under these circumstances, it is equally clear from the evidence that Respondent wanted to get rid of Johnson when Hickey asked her to resign during his meeting with her on May 12 or 18, 1988 When she re- fused to resign, she was put on probation by Hickey and directed to correct the deficiencies enumerated by him dunng the current quarter It was at this juncture in Johnson's employment with the Respondent that she was put on the skids for discharge As of this time, and up to more than 2 months later, there was no union activity Although sales representative Bonnie McPetne's per- formance was low, it was higher than Johnson's, and the evidence does not show that she had poor work relations or a personal problem with the office staff and manage- ment McPetne was put on probation August 1, 1988, after the onset of union activity, but no 8(a)(3) charge has been filed on her behalf and I do not find that it may be reasonably inferred from Respondent's not putting McPetne on probation sooner, that such failure constitut- ed discrimination against Johnson because Respondent put Johnson on probation earlier Consequently, I conclude and find on all of the fore- going credited evidence and reasons, that although the General Counsel has established a prima facie case that Respondent's discharge of Johnson was motivated by union activity, I also conclude and find that Respondent has carried its burden of establishing that Deborah John- son would have been discharged any time during or at the end of the current quarter (July 30, 1988) for cause— legitimate business reasons, absent any union activity by the employees Downtown Toyotas, 276 NLRB 999, 1014 (1984), Wright Line, supra On these findings of fact and conclusions of law and on the entire record, I find that the complaint herein should be dismissed On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The complaint is dismissed i 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