Anserphone, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1978

236 N.L.R.B. 931 (N.L.R.B. 1978)

Anserphone, Inc. and Beverly Miller. Case 8-CA-
11122
June 15, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 17, 1978, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Anserphone, Inc.,
Youngstown, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT create the impression that we
have engaged in surveillance of our employees'
union or protected concerted activities.
WE WILL NOT ask our employees for copies of
ANSERPHONE, INC.
statements given by them to the National Labor
Relations Board or interrogate them about other
information relating to pending unfair labor
practice charges without observing proper safe-
guards so as to guarantee that we shall not inter-
fere with their rights guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees in regard to their
hire, tenure, or any other term or condition of
their employment because they become mem-
bers of or engage in activities on behalf of City
Workers Association or any other labor organi-
zation.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to engage in or to refrain
from engaging in any or all of the activities spec-
ified in Section 7 of the Act. These activities in-
clude the right to self-organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL offer Beverly Miller immediate and
full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
job, without prejudice to her seniority or other
rights and privileges and WE WILL make her
whole for any loss of earnings she may have suf-
fered as a result of the discrimination against
her, plus interest.
ANSERPHONE. INC.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON. Administrative Law Judge: The
charge in this case was filed on June 27, 1977, and the
complaint issued on July 28, 1977. The complaint alleged
that Respondent discriminatorily reduced the hours of
Beverly Miller on February 9, 1977, and discharged her on
February 10, 1977, because of her union and concerted
activities in violation of Section 8(a)(3) and (I) of the Act.
At the hearing, the General Counsel was permitted to
amend the complaint to allege in addition that Respondent
by its supervisor, Delores Schlabaugh, created the impres-
sion of surveillance of employee union activities and
through its agent, Ray Kinnison, interrogated employees
concerning their union and concerted activities and their
testimony to be given in this case. In its answer Respon-
dent denies the commission of any unfair labor practices.
A hearing was held before me in Youngstown, Ohio, on
November 28-29, 1977. At the conclusion of the hearing
Respondent argued orally, and the General Counsel and
Respondent have filed post-hearing briefs.
236 NLRB No. 112
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case including my obser-
vation of the witnesses and their demeanor I make the fol-
lowing:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent operates a telephone answering service for
commercial customers in Youngstown, Ohio. It annually
provides services valued in excess of $50,000 for other en-
terprises, which themselves have annual direct inflow in
excess of $50,000. I find that Respondent is an employer
engaged in commerce within the meaning of the Act and
that it will effectuate the purposes of the Act to assert juris-
diction in this case.
11 THE LABOR ORGANIZATION
City Workers Association is an affiliate of Ohio Public
Employees Union. It is an organization in which employ-
ees participate and which exists for the purpose of negoti-
ating collective-bargaining agreements and representing
employees with respect to their wages, hours, and condi-
tions of employment. I find that City Workers Association
is a labor organization within the meaning of the Act.
Iit. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
I. Beverly Miller's employment
Respondent employs approximately 20 telephone sec-
retaries, who work on shifts answering telephones and tak-
ing messages for its customers. They work at a switchboard
which has five adjacent positions, each of which accommo-
dates 100 lines. Each line is identified with a strip showing
customer's name and coded instructions for answering.
From each position, the lines at adjacent positions may
also be answered, and the secretaries are expected to help
one another at busy times. When a supervisor is present
she usually sits directly behind the telephone secretaries.
Beverly Miller first started to work for Respondent in
January 1973, and was discharged in April 1973. A month
or two later in response to a newspaper advertisement she
again applied for a job and was rehired by Respondent.
Miller worked for I month on the midnight shift and then
moved to the afternoon shift on which she usually worked
for the remainder of her employment.
When Miller started, there was a day supervisor and an
evening supervisor. In 1974, the evening supervisor gave up
that job, and Respondent's manager, Warner, promoted
Miller to evening supervisor. In that capacity she worked
on the switchboard and supervised three other employees
who worked evenings. After 2 months, she gave up the
supervisor's job and returned to the job of telephone secre-
tary because she had received no increase in pay.
After Miller gave up the supervisor's job, Marge Wil-
liams, day supervisor, was transferred to nights, and De-
lores Schlabaugh became day supervisor. In September
1976, Williams left Respondent, and no supervisor was
designated to replace her during the evening hours. At that
time, Respondent designated the most senior telephone
secretary on the evening shift as senior operator. The se-
nior operator made certain that the other telephone secre-
taries got their messages out, that alarm systems monitored
by Respondent were in order, and that the evening ran
smoothly. The senior operator worked from 3 to II p.m.
Schlabaugh usually left at 4 or 4:30 p.m., and Warner usu-
ally left at 5 p.m.
2. Union activity and Respondent's response
On January 27, 1977,1 employee Sara Gossett 2 arranged
a meeting at a restaurant between Don Hanni, a represen-
tative of City Workers Association, and some of Respon-
dent's employees to discuss their interest in getting union
representation. In order to attend the meeting, Miller told
Supervisor Schlabaugh that she had to leave early that
night to go to her sister's house. Schlabaugh scheduled her
to leave work at 9 p.m., and Miller went to the meeting.
At the meeting, Hanni talked with the employees about
the appropriate union to represent them and said that on
their behalf he would contact the Communications Work-
ers of America, which had previously not shown much in-
terest in Respondent's employees. Hanni also said that if
that union was not interested in representing Respondent's
employees City Workers Association would be.
After the January 27 meeting, Hanni spoke with a Com-
munications Workers representative, and at his direction
telephoned Respondent's manager, Warner, to tell him that
the union was interested in representing Respondent's em-
ployees and was attempting to organize them.3
On January 31, Miller worked on the day shift. During
the day, Schlabaugh remarked to her that Schlabaugh
knew what was going on and why Miller had left early on
the previous Thursday. Miller made no response.4
During the week starting January 31, Miller and other
telephone secretaries talked about holding another meeting
at an employee's home, and they decided to use Miller's
house because it was centrally located. Some of their dis-
cussion took place at the switchboard while Schlabaugh
was in the room. On Thursday, February 3, a second union
organizing meeting was held at Miller's house shortly after
11 p.m., when Miller finished work that night.
After Warner received Hanni's phone call and before
February 9, Respondent handed out two leaflets to each of
its employees and mailed a letter to them. One of the leaf-
lets described the consequences of certification of the pub-
lic employees union at an area credit bureau where there
had been a strike, arrests, and permanent replacement of
18 employees. The leaflet concluded "Ours is a small com-
pany, quite similar to the Credit Bureau in size and opera-
tion. I believe you should have the hard facts when consid-
' Dates which follow are in 1977 unless other indicated.
2 Gossett, a part-time employee of Respondent. was a full-time municipal
employee and a member of City Workers Association.
The date of this call is not establshed, but it is clear that the call was
made before February 9. It is not clear whether Hanni mentioned the name
of the union involved.
' Miller so testified without contradiction.
932
ANSERPHONE, INC.
ering signing up with the union." The second leaflet urged
employees not to be stampeded into signing authorization
cards and requested that employees ask themselves a num-
ber of questions about the Union and its reasons for orga-
nizing the Company before signing up.
The letter dated February 7 stated the employer's oppo-
sition to the Union and its view of what the Union could
do to its employees. Among other things, it stated, "We
neither want a union nor do we need one. We are con-
vinced that the union will not be in your best interest, and
could be a disaster." The letter concluded, "In your own
best interest, I urge you to stay with us in resisting this
attempt of these outsiders to invade our office. You can be
assured that we will resist this union by every legal and
moral means available to us."
3. Miller's discharge
On February 9, Miller worked the evening shift, and
Schlabaugh was also present and worked for most of the
evening shift. During the evening, Schlabaugh observed
Miller reading a magazine and writing a letter while seated
at the switchboard. Miller put the magazine on top of the
switchboard. Schlabuagh asked Miller if the magazine was
hers Miller said that it was not, and Schlabaugh picked up
the magazine and took it to the employees' lounge. Schla-
baugh said nothing else to Miller about it.5
Somewhat later in the evening, Margaret Greene was
working at the first position on the switchboard, Miller was
at the third position, and Barbara Mackey was at the
fourth position. Schlabaugh's headset was plugged into the
fifth position but she was also replacing identifying strips
on the board at the fourth and fifth positions. Schlabaugh
asked Miller about her health, and in the course of ensuing
conversation Miller mentioned that she had a doctor's ap-
pointment at I p.m. the following Monday for which she
would need to leave work early. Schlabaugh said that she
could leave and mentioned that she happened to have
scheduled Miller to work from 7 a.m. to 2 p.m. that day
instead of from 7 a.m. to 3 p.m. when Miller usually
worked on Mondays. Miller asserted that Schlabaugh had
cut her hours and asked her why she had done so while
Respondent was still hiring employees. Miller also wanted
to know if the 7 a.m. to 2 p.m. schedule was going to be-
come standard procedure and challenged Schlabaugh's
right to reduce her workweek. Schlabaugh observed that it
was all right if Miller cut her own hours to go to "the
meeting" but that when Schlabaugh cut them it was differ-
ent. Miller said that she would not argue with Schlabaugh
and that Schlabaugh could do whatever she wanted with
her schedule, and the discussion ended. During the discus-
sion both Miller and Schlabaugh had raised their voices,
causing some disturbance to Mackey who was seated be-
tween them. 6 The conversation between Miller and Schla-
5 Schlabaugh so testified without contradiction.
6These findings are based on a composite of the testimony of Miller.
Schlabaugh, Greene, and Mackey. Schlabaugh did not deny that she re-
ferred to the meeting during the conversation, and indeed the only confhlct
of substance between the various versions concerns whether or not Miller
raised her voice during the incident. Miller testified that the conversation
was not carried on in loud voices and that she used the same tone of voice
baugh lasted no more than 10 minutes.7
The next morning Schlabaugh told Manager Wainer
that she had had problems with Miller in the switchboard
room the previous evening. According to Warner, Schla-
baugh told him that Miller had been carrying on, that they
had gotten into an argument over Miller's hours and her
reading and writing while on duty, that they had yelled
back and forth, and that Miller used profanity. Warner
testified that Schlabaugh told him that the incident upset
the others who were working and made it difficult for them
to hear and that that sort of thing could not be tolerated in
the switchboard room.
According to Schlabaugh, she told Warner that she and
Miller had had words, that it had gotten very loud, that it
was intolerable, that Miller disrupted the work of the
others, and that Schlabaugh could not take much more of
it. Schlabaugh testified that she mentioned that earlier in
the evening Miller had been reading a magazine and writ-
ing a letter but she did not mention the use of profanity by
Miller then or at any other time.
Warner asked Schlabaugh whether she could cover the
switchboard for the day if he terminated Miller and she
replied affirmatively.
At or about 2 p.m. that afternoon before Miller was
scheduled to start work Warner called her at home and
told her that he was letting her go. She asked for the reason
and Warner replied that it was because she was dissatisfied
with her hours. Miller disputed his statement, and Warner
then said, "Well there has been other trouble down here,
and I am letting you go." Warner gave no further reason.8
During that same day while Mary Vance was working at
the switchboard, she and Schlabaugh had a conversation in
which Schlabaugh mentioned that Miller was discharged
for complaining about her working hours. Schlabaugh also
said that Miller had asked to be off 2 hours early once to
attend a meeting and added, "I knew you guys were going
to a meeting." 9
Several days later Schlabaugh discussed Miller's dis-
charge with employee Marilyn Houy. Schlabaugh said that
it was a shame that Miller was let go because she was a
good operator. Hlouy agreed. and Schlabaugh then said
that she was aware that the employees were going to meet-
ings because she had heard some of them whispering one
night when she had stayed late and was working in the
outer office. 10
that she used in testifnng (reene testified that the conversation was "not
that loud." that she continued to take calls while Miller and Schlahaugh
talked. and that their consersltlion did not interfere Aith her work Schla-
haugh testified that Mlle ', ice became quite loud as it did whenever she
got "riled up" and that it caused the other trai girls at the switchboard Io
lower their heads in order to hear incoming calls Mackey testified that both
Miller's and Schlahaugh's oicces were raised but they were not yelling. and
that the combination olf Miller and Schiahaugh made It difficult for her to
hear incoming calls. I conclude from the tlestimons lf (ireene and Macke?.
both of whom were still employed, that during the consersation both Miller
and Schlabaugh raised their voices abuse normal levels causing some inter-
ference to Mackey who was closest to them but not to Greene
7 Only Mackes ,was asked to estimate Its length She testified that it was
"not that long" and did not exceed It) minutes Both she and Greene look
calls while Miller and Schlah;ugh were talking. and the cinversallon was
interrupted once while Miller trook a caii.
! Miller's testimon) as to this consersation was unconlradicled
9 Vance sto testified without cointradiction
"' Ilousy s testified without contradiction
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The questioning of employees by Respondent's
investigator
On Friday, February 25, 3 days before the start of the
hearing in this case, Ray Kinnison, an investigator em-
ployed by Respondent's attorney came to Respondent's of-
fice to interview Marilyn Houy and Barbara Mackey
whose names had been given to him as possible witnesses
by Respondent's attorney. At Respondent's office, Kinni-
son spoke to Schlabaugh and learned that Margaret
Greene had been present on the evening of February 9 and
decided to interview her also.
Kinnison used Warner's office and asked Schlabaugh to
send the employees in one at a time. Neither Warner nor
Schlabaugh were present during the interviews. Kinnison
introduced himself and explained that his firm was repre-
senting Respondent in the unfair labor practice proceeding
involving Beverly Miller and that he wished to question
them as to their knowledge of the February 9 incident and
the reason for Miller's discharge. Kinnison asked about
Miller's union activities but did not ask about the activities
of the three employees he questioned or the names of other
employees who were active. After questioning the employ-
ees he asked each of them for a written statement. Greene
refused to give one but Houy and Mackey gave him writ-
ten statements. In addition, Kinnison asked Mackey if he
could see a copy of the statement she gave to a Board agent
during the investigation of the case, and Mackey gave it to
him.
Kinnison did not tell any of the employees that their
participation was voluntary or that they were free to leave
the office if they did not wish to speak with him. Kinnison
also gave no assurances that no reprisals would be taken
against the employees."
B. Concluding Findings
1. The discharge of Beverly Miller
The General Counsel contends that Beverly Miller was
discharged because of her union and protected concerted
activities. Respondent contends that Miller was discharged
for cause and not for unlawful reasons. Respondent also
contends that Miller was a supervisor within the meaning
of the Act and, therefore, not protected against discharge
for union or protected concerted activities.
Respondent's supervisory contention is based on the fact
that Miller usually served as senior operator on the second
shift. While the evidence establishes that when Miller
served as senior operator she was left in charge and was
responsible for the completion of work during her shift, it
does not establish that she had any authority to supervise
J' It is undisputed that Kinnison gave no such assurances to Houy and
Mackey although both testified that Kinnison was courteous to them and
that they did not feel that their jobs were threatened. Kinnison testified that
he did assure Greene that nothing would happen to her when she displayed
nervousness and expressed concern over whether she would lose her job.
Greene denied that Kissison gave her any assurance against reprisals. I have
credited Greene who was still employed at the time of the hearing and who
refused to give a written statement despite the alleged assurances. I con-
clude that whatever Kinnison said it was not perceived by Greene as an
assurance against any reprisals.
or direct the work of others who were on duty during the
evening hours. She trained new employees and was asked
her opinion of them by Schlabaugh, but she made no rec-
ommendations as to their status. While no other supervisor
was present for much of the evening shift, Schlabaugh was
usually present for the first hour or hour and a half and
Warner was usually present for the first 2 hours of the
evening shift. There were only four or five employees pres-
ent for the entire evening shift. In these circumstances, I
conclude that Miller was not a supervisor within the mean-
ing of the Act.
Turning to the discharge, an initial question to be an-
swered is whether Respondent had knowledge of Miller's
union activities. It is conceded that Respondent was aware
generally of employee union activities before Miller's dis-
charge, 2 and Respondent had conveyed to them its oppo-
sition to their representation. Although Respondent denies
that it knew of the union activities of Miller or any other
individual employee, the evidence warrants the inference
that Respondent had such knowledge. Thus, on January 31
Schlabaugh told Miller that she knew what was going on
and why Miller left early the previous Thursday. During
that week, employees talked about the Union while Schla-
baugh was nearby and in the February 9 argument with
Miller Schlabaugh again referred to Miller's having left
early for a meeting. After Miller's discharge Schlabaugh
had conversations with two employees in the context of
discussing Miller's discharge in which she again indicated
her awareness of the meetings. While Schlabaugh did not
use the word union in describing the meetings, she neither
denied any of the statements about the meeting attributed
to her nor testified to any other possible meetings to which
her statements might have referred. I find that the evidence
warrants the inference that Schlabaugh and, through her,
Respondent knew that the employees were holding union
meetings, that Miller had requested time off on January 27,
so that she could attend such a meeting, and that a second
meeting took place at Miller's home.
The major issue to be decided is whether the reasons
advanced by Respondent for Miller's discharge were pre-
textual as the General Counsel contends or were in fact the
true reasons for it.
When Warner notified Miller of her discharge, he told
her that she was discharged because of her dissatisfaction
with her hours. When she disputed that, Warner told her
merely that there had been other trouble at the office and
that he was letting her go. In its answer to the complaint
Respondent alleged that Miller was discharged "because of
insubordination, disruption of business and inability to get
along with co-workers." In a statement given during the
investigation of this case with Respondent's counsel pres-
ent, Warner stated the following reasons for Miller's dis-
charge: "The other girls were actually afraid of Beverly
Miller, and as a result we lost two or three perfectly good
workers. Finally, on February 9 she was reading a maga-
12 Although there is some confusion as to the identity of the union for
which Hanni was speaking when he telephoned Warner before Miller's dis-
charge it appears that the employees were interested in representation by
either of the two unions for which Hanni spoke and that at the time of
Miller's discharge the employees' union activities had not yet crystallized
into a campaign for one or the other of them.
934
ANSERPHONE, INC.
zine and writing a letter while working, contrary to our
basic work rules. She argued loudly with her supervisor,
used profanity, and called her co-workers stupid, that was
too much and I terminated her." At the hearing Warner
testified that the argument brought matters to a head and
that he viewed it as insubordination.
While some of the differences in these explanations may
reflect different ways of saying similar things, analysis of all
the evidence relating to these reasons and Miller's past work
record persuades me that Respondent has shifted and
changed its explanation of the reasons for Miller's discharge
since the event and that it did so in the attempt to conceal
the true reasons for Miller's discharge.
Thus, on the day of her discharge the only specific fur-
nished by Warner was Miller's dissatisfaction over her
hours. Yet in his later statements that reason is not men-
tioned, and the other trouble vaguely referred to by War-
ner on February 10 became expanded into several alleged
shortcomings extending over the entire course of her em-
ployment. The confusion of explanations is compounded
by reasons given by Warner at an unemployment compen-
sation hearing where in Warner's presence Schlabaugh said
Miller was fired because she was complaining about her
hours and could not get along with her fellow workers and
said nothing about Miller's reading and writing on the job
or profanity.'
In addition, the evidence indicates that the additional
reasons set forth in Warner's statement, causing the loss of
two or three employees, reading and writing on the job,
and the use of profanity were afterthoughts, added after
the discharge and not reasons for Miller's discharge. War-
ner could only name one employee who allegedly quit be-
cause of Miller and was clearly unfamiliar with the facts
relating to this claim. While Schlabaugh named three, one
of those named did not quit because of Miller but contin-
ued to work after Miller's discharge. The others worked for
Respondent and made their complaints to Schlabaugh long
before Miller's discharge. Despite their complaints which
allegedly centered about Miller's treatment of them during
their training periods, Respondent continued to assign
Miller to train new employees, made her night-shift super-
visor when a vacancy arose, and instituted the senior oper-
ator practice on the night shift after she resigned as super-
visor. It is incredible that Respondent would have so
treated Miller if she was causing good employees to quit. I
do not believe that Miller's treatment ot others suddenly
became cause for her discharge on February 10.
Despite the testimony of Warner and Schlabaugh that
reading magazines and writing letters at the switchboard
was against company rules and the testimony of Schla-
baugh that she invariably reprimanded employees if she
saw them engaged in such conduct, current employees tes-
tified they engaged in such activities when the switchboard
was quiet and that they were only reprimanded for reading
13 Warner's explanation that these reasons were not mentioned because
they had been given at a prior hearing which Miller had not attended is not
persuasive. Warner conceded that no one had told him that it was unneces-
sary to repeat what had been said at the first hearing, that the refereee gave
him and Schlabaugh an opportunity to speak, and that he asked if them had
anything to add after Miller spoke.
or writing if they continued to read or to engage in activi-
ties unrelated to work when the switchboard became busy.
Schlabaugh's testimony as to her practice is contradicted
by her own testimony as to what she did when she saw
Miller reading and writing on February 9. She testified
that, after seeing Miller place a magazine on top of the
switchboard, she picked it up and asked Miller if the maga-
zine was hers. When Miller said that it was not, Schla-
baugh merely took the magazine back to the lounge and
said nothing more to Miller. What Schlabaugh said to
Miller at that time can hardly be viewed as expressing dis-
approval of Miller's reading and certainly not as a repri-
mand.
Despite Schlabaugh's failure to reprimand Miller, War-
ner testified that Schlabaugh reported that the argument
between Miller and Schlabaugh concerned Miller's reading
and writing on the job and a reprimand by Schlabaugh to
her. Quite clearly Warner's testimony added something to
Schlabaugh's report which was not in it. In the light of
these considerations and the omission of any mention of
this reason in Warner's February 10 conversation with
Miller and in Respondent's answer, I conclude that this
reason is an afterthought added after Miller's discharge
and was not a cause for her discharge."
With respect to Miller's use of profanity, Warner's testi-
mony is again substantially contradicted by that of Schla-
baugh. Although Warner testified that Schlabaugh report-
ed that Miller used profanity in their argument on
February 9, Schlabaugh and the other witnesses to the ar-
gument testified that Miller did not use profanity on this
occasion. Moreover, Schlabaugh testified that she never
spoke to Warner about Miller's use of profanity. The evi-
dence shows that others, including Schlabaugh, occasional-
ly used profanity in the switchboard room not directed at
customers but after trying conversations. Although Schla-
baugh testified she spoke to Miller about her use of profan-
ity on one occasion, her own version of that conversation
shows that it was not a reprimand but concerned Miller's
practice of using profanity in conversations with members
of her own family. From all of the above it appears that
Miller's use of profanity was not reported to Warner by
Schlabaugh and did not become a matter of concern to
Respondent until after Miller had been discharged.
With the exception of the argument between Schlabaugh
and Miller on the night of February 9, the other reasons
advanced by Warner for Miller's discharge all concern
matters which were well known to Respondent and tolerat-
ed over a period of time. While the argument on February
9 unquestionably occurred, its intensity was disputed, and
it is clear from Warner's shifting explanations for Miller's
discharge that he did not regard the February 9 incident
standing alone as sufficient cause for Miller's discharge.
I conclude from the shifting nature of Warner's explana-
tion for Miller's discharge as well as the insubstantial na-
ture of the reasons assigned for it, that the reasons ad-
vanced for Miller's discharge were pretextual. I find further
that the evidence establishes that the true cause for Miller's
discharge was her union and protected concerted activities.
14 I note also that in their testimony in this proceeding neither Warner nor
Schlahaugh referred to this alleged cause until their attention was directed
to it.
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The proffer of pretextual explanations for the discharge is
itself evidence that Respondent sought to conceal the true
cause and did so because the true cause was improper.
Beyond that Respondent expressed its opposition to union-
ization of its employees in strong terms. While such expres-
sion does not itself violate the Act, those expressions of
hostility do not stand alone. Schlabaugh made statements
to Miller and others indicating awareness of the employee
union meetings. As the General Counsel contends, these
statements created the impression of surveillance of union
activities, 15 and in the case of Vance and Houy referred to
the meetings in the context of discussions of Miller's dis-
charge, indicating a connection between the meetings and
the discharge.
Respondent contends that any inference of discrimina-
tion is offset by the fact that Sara Gossett, the instigator of
the first meeting, was not discharged. Leaving aside
Warner's claim that he was unaware of her activities until
the hearing in this case, the failure to discharge Gossett
does not negate the inference of discrimination against
Miller. Miller had taken time off to attend one meeting and
had hosted another. These activities occurred within a 2-
week period before her discharge, and her argument with
Schlabaugh furnished an excuse around which to fashion a
case to justify her discharge. That Respondent chose not to
discharge all leaders in the organizing effort does not ne-
gate the inference of discrimination against Miller.
I find in all the circumstances that Miller was discharged
not for the reasons asserted by Respondent but because of
her union and protected concerted activities and that her
discharge therefore violated Section 8(a)(3) and (I) of the
Act. I find further that Supervisor Schlabaugh made state-
ments to Miller, Vance, and Houy which created the im-
pression that Respondent was engaging in surveillance of
employees' union activities in violation of Section 8(a)(1)
of the Act.
2. The alleged interrogation by Respondent's investigator,
Ray Kinnison
The General Counsel contends that Kinnison failed to
observe appropriate safeguards in questioning Greene,
Houy, and Mackey, relying on Johnnie's Poultry Co. and
John Bishop Poultrv Co., Successor, 146 NLRB 770 (1964),
enforcement denied 344 F.2d 617 (C.A. 8, 1965). Respon-
dent contends that it was entitled to interview employees to
ascertain information as long as its interviews did not go
beyond the necessities of trial preparation, and relies on
United Merchants and Manufacturers Inc., 223 NLRB 689
(1976), and Winn-Dixie Stores, 341 F.2d 750 (C.A. 6, 1965),
as supporting the lawfulness of Kinnison's conduct.
While the Administrative Law Judge's Decision in
United Merchants and Manufacturers, supra, appears to
modify the requirements of Johnnie's Poultry, supra, in
adopting his Decision in that case the Board noted that it
did so proforma in the absence of exceptions to his finding
that interrogation in that case did not violate the Act. 6
'I Respondent correctly contends that there is no evidence that Respon-
dent engaged in surveillance of union activities. but the impression of sur-
veillance may be created without actual surveillance having occurred.
Nothing in the Board's Decision or the court's decision in
Winn-Dixie, supra, supports the conclusion that observance
of the safeguards set forth in Johnnie's Poultry, supra, is no
longer required. An employer may ascertain facts neces-
sary to its defense from employees if among other things it
assures them that no reprisals will take place and obtains
their participation on a voluntary basis. Here it is clear
from Kinnison's testimony as well as that of the employees
that he did not satisfy these conditions. Moreover, as
Winn-Dixie holds, Kinnison's request for a copy of
Mackey's affidavit was also improper. I find under the cir-
cumstances that the interrogation of employees by Kinni-
son and his request to Mackey for a copy of the affidavit
which she gave to the Board violated Section 8(a)(l) of the
Act.'7
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Beverly Miller, I shall recommend that Respondent be or-
dered to offer her immediate and full reinstatement to her
former job or if that job no longer exists to a substantially
equivalent position without prejudice to her seniority or
other rights and privileges and to make her whole for any
loss of earnings she may have suffered as a result of the
discrimination against her by payment to her of the
amount she normally would have earned from the date of
her discharge until the date of Respondent's offer of rein-
statement less net earnings to which shall be added interest
to be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (197 7).iS
Upon the basis of the above findings of fact and the
entire record in this case I make the following:
CONCLUSIONS OF LAW
I. Anserphone, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. City Workers Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. By creating the impression that Respondent engaged
in surveillance of employees' union and concerted activi-
ties, by interrogating employees concerning matters relat-
ing to a pending unfair labor practice case without observ-
ing necessary safeguards, and by asking for copies of
statements given by employees to the Board, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
4. By discharging Beverly Miller because of her union
and protected concerted activities Respondent has engaged
16 223 NLRB, supra at fn. I.
'7 See also Tamper Inc., 207 NLRB 907 (1973), enfd. 522 F.2d 781 (C.A. 4,
1975).
18 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
936
ANSERPHONE, INC.
in unfair labor practices within the meaning of Section
8(a)(1) affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 19
The Respondent, Anserphone, Inc., Youngstown, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Creating the impression that it has engaged in sur-
veillance of employees' union and concerted activities.
(b) Asking its employees for copies of statements given
by them to the National Labor Relations Board or interro-
gating them concerning any other information relating to
pending unfair labor practice charges in a manner interfer-
ing with their rights guaranteed in Section 7 of the Na-
tional Labor Relations Act, as amended.
(c) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment, because they become
members or engage in activities on behalf of City Workers
Association or any other labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to engage in
or to refrain from engaging in any or all of the activities
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and beconme
its findings, conclusions, and Order. and all objections thereto shall he
deemed waived for all purposes.
specified in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Beverly Miller immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority' or other rights or privileges previously enjoyed,
and make her whole for any loss of earnings she may have
suffered as a result of the discrimination against her in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports. and all other records rele-
vant and necessary to a determination of compliance with
paragraph (a), above.
(c) Post at its Youngstown. Ohio, place of business cop-
ies of the attached notice marked "Appendix." 20 Copies of
said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered bv any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
" In the event that this Order is enforced by a Judgment of a nited
States (.ourt of Appeals. the words in the notice reading "Posted bh Order
of the Naltonal I abtor R[tlalont, Board" shall read "Posted Pursuant to a
Judgment of the t nited State, ('ourl oif &ppeals Enforcing an Order of the
N;.rionmal i brhi Relations Board "
937