Herrick & Smith

National Labor Relations Board - Board Decisions

May 14, 1985

275 N.L.R.B. 398 (N.L.R.B. 1985)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herrick A - Smith and Mary M. Moran . Case 1-
'-:CA-21118• ,
HUNTER AND DENNIS
On' 20 : November 1984 Administrative Law
Judge - Mary Ellen R. Benard issued the attached
decision ." The Respondent filed exceptions and a
supporting brief; the General Counsel filed the
brief submitted to the judge , cross-exceptions, and
a:supporting brief; and. the Respondent filled an an-
swering brief.
Tlie.. Board has considered the decision and the
record in .light of the, exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended
Orde` 2 ;
ORDER
.
TfiefNational Labor Relations Board adopts the
recommended Order of the administrative law
judgef and,, orders that the Respondent, Herrick &
Smith, Boston , Massachusetts, its officers, agents,
successors;- and assigns , shall take the action set
forth; -in, the Order.
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 fudge's, credibility resolutions unless the clear preponderance of all
the relevant 'evidence convinces us that they are incorrect Standard Dry
Will Prdducti, 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.:
'The judge , found, and we agree , that the Respondent violated Sec
8(a)(l) of the Act by warning employee Moran, in retaliation for her pro-
tected , concerted activity, to refrain from making negative comments
about the Respondent or to seek employment elsewhere and by thereafter
discharging her._ Accordingly , we find it unnecessary to pass on the Gen-
eral Counsel 's contention that the Respondent's warning and-discharge of
Moi 6n additionally were unlawful as bemg -based on an overly broad re-
striction of employee rights
DECISION
STATEMENT OF THE CASE
• MARY ELLEN R.' BENARD, Administrative Law Judge.
The ,charge in this case was filed on June 17, 1983,' by
Mary.. M. Moran, an individual, against Herrick & Smith
(t}iet.Respondent). On August 11 the complaint was
issued,; ;alleging , in substance, that the Respondent had
violated•'Section 8(a)(1) of the National Labor Relations
Act. by:threatening Moran with discharge for making
complaints about the terms and conditions of employ-
ment ;of the Respondent's employees. and by subsequently
discharging Moran because she engaged in concerted ac-
All'dates are in 1983 unless otherwise indicated.
k:. tEl
275;:NLRB No.. 62
14 May 1985
DECISION AND ORDER
,BY CHAIRMAN DOTSON AND MEMBERS
tivities protected by the Act. The Respondent filed an
answer in which it denied the commission of any unfair
labor practices.
A hearing was held before me 1n- Boston, Massachu-
setts, on October 31-through November 4, December 5
through 9, and January 4 and 6 and March 12 and 13,
1984. Thereafter, the General Counsel and the Respond-
ent filed briefs , which have been considered.
On the entire record in this'case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS AND CONCLUSIONS'
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a partnership established under the
laws of Massachusetts to engage in the practice of law
and maintains its principal office in Boston . During cal-
endar year 1982, a representative period , the Respondent,
in- the course and conduct of its business operations, de-
rived gross revenues in excess of $250 ,000, of which over
$50,000 was derived from clients located within the
Commonwealth of Massachusetts who have annual sales
of goods or services in excess of $50 ,000- outside that
Commonwealth . The answer admits ,- and I find , that the
Respondent is an employer engaged in commerce within
the meaning of the Act and I further find that it will ef-
fectuate the purposes of the Act to assert jurisdiction
herein.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a law firm of approximately 36
partners and employs about 50 attorneys as associates.
The Respondent also employs a substantial support staff,
including about 70 legal secretaries. The secretaries are
supervised by the Respondent 's personnel director, who
at the time of the hearing and since October 1982 was
Gertrude Cashman . At all material times, the staff coor-
dinator, who worked in the personnel office , was Janet
Kotrofi. Cashman reported to the Respondent's adminis-
trative manager , Michael Clark, who in turn was respon-
sible to the Respondent's managing partner , Shepard
Remis.
Generally, -two attorneys share a secretary , and often a
secretary will. work for the same attorney for a number
of years . However , at any given time three or four of the
legal secretaries in the firm are what are called "float-
ers," that is , they are not assigned to any specified attor-
neys, but instead perform only temporary assignments,
such as filling in for other secretaries when the latter are
on vacation or sick. Cashman credibly testified that
sometimes floaters will indicate that they would prefer
not to be assigned to certain attorneys and attorneys will
request that •a given floater not be assigned to them, and
that these requests are generally honored.
The legal secretaries' working hours are from 9 a.m. to
5 p.m. with an hour for lunch . Attorneys frequently need
secretarial services after 5 p .m., and Cashman credibly
testified that the general practice is for the attorney to
HERRICK & -SMITH
first request his, or her own secretary to stay;. if that indi-,
vidual is unable or unwilling to do so; the attorney ` asks
the personnel department to arrange for someone to do
the work. Cashman also credibly testified.that overtime
work of less than half an hour is usually performed by
the attorney's on secretary, -
B. The Employment of Mary Moran
1. Moran's employment as a floater '
Charging Party Mary Moran began working for the
Respondent in April 1976 as a legal secretary. For the
first 5-1/2 years of her employment she was a floater,
and credibly testified2 that as a floater she had worked
for just about every attorney in the firm, that there was a
tendency to assign her to the more .senior attorneys and
the more "difficult" ones, and that about 1980 the Re-
spondent's then personnel director, Susan" Bera'nyk,3 told'-
her that she was one of the best floaters in- the firm and
that consequently. the Respondent- preferred for her to '
work for the partners and the more difficult attorneys.-
The earliest performance appraisal, for-Moran that is in
evidence is that dated April 1980;' it was -prepared by-
the individual who was then the -Respondent's personnel
director5 and stated, inter alia,, that Moran worked "er-
ratically," that the reviewer saw a "gradual decline, over .
the last two years of interest in job & firm,". and that
Moran "[t]akes a great deal of sick time," and ",[i]s exhib-_
iting more & more a lack of professionalism." The ap-
praisal also stated that Moran. should spend less time
talking with other staff and pay more attention to her
work, and that she should "look for another position if
downward trend continues."- Clark reviewed the apprais-
al with Moran and wrote at' the bottom of the' form that
it had been discussed with her'and that `she agreed' that
the appraisal 'was accurate and that she 'would improve
her performance 'However, Moran testified that, al-
though she remembered Clark reviewing the appraisal
with her, she did not remember his reading the parts
about looking for another job, working erratically, or -ex'-
hibitmg a declining interest in her fob.. Moran also testi-
fied that, although Clark may have said that her work:'
needed to improve, she had disagreed with that com
ment.
2 Moran testified at considerable length in this proceeding and I thus
had ample opportunity to observe her demeanor On most issues I found
her to be a trustworthy witness, for she appeared candid and-generally
exhibited good recollection However, with respect to certain matters she,
showed a tendency to exaggerate her testimony , in her own behalf In]
consequence , although many of my findings are based on Moran's cred-
ited testimony , there are some matter 's on which I did not credit her, and
those are specifically noted In light of my credibility findings , it is worth
repeating here the often -quoted maxim that "[i]t is no reason' for-refusing'
to accept everything that a witness says, because you. do not believe all
of it, nothing is more common in all kinds of judicial decisions than to
believe some and not all" NLRB 'v Universal Camera Corp ; 179 I "id
749, 754 (2d Cir 1950) '
3 At some point in 1982 Beranyk 's last . name : was changed to' Grove
To avoid confusion; she is called Beranyk herein
4 As more fully discussed below, the legal secretaries are generally
given performance appraisals annually on the anniversary of their em-
ployment with the firm
5 Clark, when shown the document at the hearing, credibly. testified-
that he was not sure who the personnel director ; was at the time
399
I find that, as stated -in the evaluation, the review was
shown to Moran and she agreed to improve her perform-
ance, and discredit Moran's testimony to the extent that
it is inconsistent with this finding:
. The second evaluation in evidence for Moran was for
the year- ending 'in 'April 1981, .and was prepared by
Edward McLaughlin, the attorney for whom Moran was
working as a floater at that time. The evaluation was- on
a preprinted form which listed various categories such as
"Neatness," "Accuracy," and so on.. Each category was
accompanied ' by several -descriptive statements; -the re-
viewer was to check a box indicating the, appropriate
comment.-Under "Accuracy" McLaughlin checked the
statement that Moran was "above average; makes few"
errors;' under "Amount [of work]" he checked "consist-
ently produces more than average; can usually 'meet
deadlines;" and in the category "Dependability" `he
marked "dep"endable; needs"only moderate ' supervision."
In the category of attitude toward work- •MaLaughlin
checked "shows unu'sually 'strong interest , pride , and en-
thusiasm," and in the courtesy category he marked "ex-
tremely courteous .& helpful; behaves in professional
manner, even under difficult circumstances" McLaugh-
lin also checked statements reflecting that Moran was
"unusually .thorough= justifies-, utmost confidence; can,
always be relied; upon to turn in a finished product . ...Y
exceptionally neat and orderly I- find it- easy to locate,
papers - when she . .. is absent";, that Moran was a
"steady- worker; seldom, away from' job; never takes
break unless work is caught tip"; that she was "rarely
absent or late [and] notifies in advance";'that she "usual-
ly responds well to changes,'-' and -was "always willing to.
corisider suggestions & criticism; easily reasoned with";
and that her expertise was ' `.`abode - expected level" and
she showed a "high degree of resourcefulness, excellent
judgement;'I can be absent from office &'rely upon [her]'
t6 handle or properly refer `all problems."' The form also
contained a.' space for -. additional. comment; here
McLaughlin wrote that "Ms. Moran was required to step
into a'difficult situation when [another secretary] became
ill, She has ' met this heavy { burden with care, patience,
understanding -&- full cooperation: Without her help my
role would-have been almost impossible to fulfill."
The only other evidence relating to Moran's' perform=
- ance prior to 1982 are two memoranda written in Sep-
tember 1981 . The first is 'a , memo to Moran's file from
Beranyk dated September 11, and states that two- attor-
neys had told Beranyk that, although they liked Moran
and; found her friendly and helpful, she-was slow, in fin-
ishing, work, did. not display much initiative, required ex-
tensive explanations of assignments , and made -too" many,
mistakes. The,second memo,, dated .September 23, is frotih,,
Beranyk, to. Clark, and states'that.attorney John.Whitlock-
had, requested; that. Moran be assigned., to him, permanent
ly and, that, Beranyk had- advised Whitlock, of, her con-
cernsthat Moran • had difficulty, handling..pressure and
that-other-attorneys.. had, said.she needed.to_be-closely.su-
pervised. Beranyk also 'stated. in. the memo that. both
Whitlock and Moran had indicated that Moran's difficul-
ties might stem from , her long tenure as a floater. -
DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
2 Moran's assignment as secretary to Whitlock
In 1981 Moran was assigned to Whitlock as a floater.
Whitlock's previous secretary, Averill Bradford, had
worked with him for more than 4 years, but had trans-
ferred to a floater position in August 1981 after she and
Whitlock had decided they no longer wished-to work to-
gether. Two other secretaries, Dolores Lombre and
Diane Schukay, subsequently worked for Whitlock brief-
ly, but apparently neither of those assignments was satis-
factory. In-fact, Lombre wrote a memo to Beranyk dated
August 13, . 1981, detailing various complaints she had
arising from her 3 days of working for Whitlock.
It is undisputed that after Moran had been working for
Whitlock for a short time he told her that he liked
having her working for him and asked if she would
accept the position as' his permanent 'secretary, and that
after considering that offer for some time Moran accept-
ed it in December 1981. -
It is also undisputed that Whitlock generated so much
secretarial work that Moran did not work for any other
attorney • while working for him. About half of- Whit-
lock's practice' involved bankruptcy proceedings, and
Moran credibly testified that in March 1983. Whitlock
asked her if she would be willing to draft pleadings in his
cases and'that she said she would: However, Moran also
credibly testified that Whitlock- performed substantial pro
bono work for various musical organizations and for a
church, and that- sometimes she spent so much time on
work for these organizations that she had difficulty in
finishing her work for Whitlock' s.clients.
According to Moran, she worked considerable
amounts of overtime, generally starting work at 8:30
a.m.,, working most of her lunch hours, and staying two
or three evenings per week until sometime between 5-45
and 6:30 p.m. However,.Moran also testified that she was
paid overtime only on one or two occasions because
when she began working for Whitlock he told her that
he did not like to sign overtime slips and did not want
her to put in overtime on, clients' work. Moran further
testified that if she mentioned overtime Whitlock became
upset, so she stayed late without receiving any extra pay.
Whitlock testified that bankruptcy courts are reluctant
to. approve charges for secretarial overtime and that in
consequence he always encouraged his secretary to 'get
bankruptcy-related work done during normal business
hours. Whitlock further testified that it was not his
policy to refuse to sign overtime slips, that "although
Moran typically stayed at the office after 5 p .m. she usu-
ally left before 5:30 p.m., and that he thought it was ex
tremely unlikely that she would have stayed in the office
past 6 p.m. 3 days per week. Whitlock's demeanor while
testifying did not favorably . impress me: he did" not
appear to be entirely candid and, particularly on cross-
examination , tended to be evasive and nonresponsive
Accordingly, to the extent that Whitlock's account of
their working relationship is inconsistent with that of
Moran, I credit her.
Whitlock prepared an evaluation of Moran at the end
of February 1982, checking the same boxes as McLaugh-
lin had-.a ' year earlier as to her accuracy, amount of work
performed, dependability, attitude toward work, and
courtesy. Under "Completeness" Whitlock checked the
statement "usually very thorough; pays attention to.
detail"; under "Neatness" he listed Moran, as "usually
very neat and orderly"; and under "Expertise" he
checked the statement "generally acceptable-just strong
enough to keep up; not strong enough to provide free
time for more responsibilities," but added that Moran
was "improving toward" the next level. Whitlock listed
Moran as an "unusually steady worker; always finds
things to do; never wastes time-knows how to plan
trips to xerox, etc. to cut down on time spent away from
desk," but listed her familiarity with-the job's require-
ments as "adequate." Whitlock also checked the state-
ments "frequently offers good suggestions; judgment can
be relied upon," "accepts supervision and criticism
gracefully," and "extremely adaptable & flexible. Enjoys
learning," adding that-"Mary is now.learning more com-
plex typing-charts, boxes, columns, etc." Whitlock
.noted that Moran's record with respect to punctuality
was "near perfect," and added that she was "often in
early-doesn't put in o.t. [overtime]." In the space for
additional comments Whitlock wrote that "Mary is
showing steady improvement in coping with my work.
She is invariably cooperative and conscientious. Her
word processing skills are improving as I press her.""
Also as a part of Moran's 1982 evaluation, Beranyk
filled out' a' form in which she included statements that
"Janet [Kotrofi] said [Moran] can be resistant in a pas-
sive way. She's always been cooperative with me," that
Moran was "in early everyday," and that:
Mary's skills & ability in the past were always
judged to be acceptable-it appears that she is im-
proving & seems to be working well with Mr.
Whitlock who is a demanding boss. Mary has
always been cooperative & flexible whenever I have
asked her to do something. The only negative inci-
dent of which I am aware was when Mary had a
problem with another secretary & became so upset
that she didn't come to work & refused to return to
her floater assignment because of the problem with
the other secretary. She admittedly has trouble w/
pressure & is afraid of math-hence reluctance to
get involved in an attorney's billing'if complex.
A note to the last statement added that Moran was "now
more involved as she works for Mr. Whitlock-is im-
proving now:" Under "Employee's Comments," Beranyk
wrote:
Mary enjoys working w/ Mr. Whitlock-it is 'a
good learning experience for her-she is learning to
do charts, columns, etc. on the Mag. She was not
happy with her salary increase: (1) John is demand-
ing & busy; (2) she voluntarily comes in early,
works thru lunches & often stays past 5 p .m. I ex-
plained that the overall review was for an entire
[year]-she has only worked for" Mr. Whitlock for
1/2 a year. 1st 1/2 of [year], when floating, she was
weaker on mag, was not considered that strong a
sec[retary]. I told her she had a right to submit a
documented memo asking for another review if she
wished.
HERRICK & SMITH
Moran credibly testified that when Beranyk called her
in to discuss Whitlock's appraisal the personnel director
said that she'was very pleased that the assignment was
working out, that Whitlock was not known for giving
good appraisals and she had never known Whitlock. to
give such a good one, and that she was pleased and sur-
prised at his review of Moran.
Whitlock prepared Moran's next evaluation in March
1983. The form used in Moran's 1981 and 1982 evalua-
tions had been replaced by a simpler version; on this
Whitlock listed Moran's accuracy, completeness, and
neatness of work, her use of time, and her amount of
work produced as "Above- Average."6 Whitlock listed
Moran's workload as, "Heavy," her technical skills as
"Above Expec[ted] Level,"7 and her job knowledge as
"Above Aver[age]."8 Whitlock also checked "Above
Av[erage]" for Moran's judgment and initiative and de-
pendability, and marked her punctuality, adaptability/-
flexibility, cooperation, and courtesy all as "Excellent/-
Outstanding." In the narrative section, Whitlock wrote
that:
Mary has reached a level of. technical skills where
she can do each task I need done. She has also de-
veloped complementary routines which-I can rely
on to, handle ordinary administration, which is one
goal we have worked on. We will continue to work
on helping her understand - the substance of my
work, so, that she can generate " pleadings, docu-
ments, and the like. She is doing an awfully good'
job.
Cashman, who by this time had replaced Beranyk as
personnel director, discussed this appraisal with Moran,
telling her that her administrative skills were good, that
Whitlock wanted her to start preparing pleadings and
other court documents, and that she would receive a
wage increase of $32 per week. Moran said that she was
not very pleased with this amount, and that she had ex-
pected a $40 increase'in light of how hard she worked
and the fact that she worked for Whitlock, and Cashman
responded that the salary, was a good one for a legal sec-
retary in Boston and that if she was not happy with it
she should "check the market." Cashman also advised
Moran that Whitlock had said that he was a very busy
attorney, and that Moran was flexible, cooperative, eager
to learn, and never put in for overtime.
Whitlock testified that for the first year or more that
Moran worked for him she was extremely cooperative
and would work overtime whenever necessary, and that
he found this attitude one of Moran's principal strengths
as a secretary. However, according to Whitlock, during
the last 2 or 3 months that Moran worked for him she
became much less flexible and cooperative and was not
as willing to work overtime, either before or after regu-
lar working hours or at lunchtime, as she had previously
6 The choices hsted were "Outstanding," "Above Average," "Satisfac-
tory," and "Unsatisfactory "
7 The other choices for this category were "Super[ior],"
"Accept[able]," and "Poor "
8 In this category the other choices.were "Except[ional]," "Adequate,"
and "Limited "
401
been Whitlock testified that Moran also began spending
substantial amounts of time away from her desk and
became less reliable about accomplishing a reasonable
amount of work during the day, and also started arriving
at 9 a.m., and was thus not ready to begin working until
a few minutes later, but insisted on leaving promptly at 5
p.m. Whitlock further testified that he sometimes asked
Moran where she had been or _ told her that' he wanted
her to be ready at 9 a.m., but that- he did not want to
make an issue of the situation because on the whole his
working relationship with Moian'had been-good.
According to Whitlock, about the same time that
Moran became less cooperative she seemed to be spend-
ing her time making -critical comments about the firm
and its management, including complaints about ineffi-
ciency and how people were treated. However, the only
specific complaints Whitlock could recall Moran making
related to the frequent difficulty she had in finding an
available mag machine.
I do not credit Whitlock's testimony about either the
asserted decline in Moran's performance or. Moran's 'al=
leged complaints. As indicated above, I was not favor-
ably, impressed with Whitlock's demeanor; in addition,
although Whitlock claimed that the change occurred
more than 3 or 4 weeks before the end of Moran's period
of working for him, he prepared her favorable evaluation
on March 18, and, as discussed below, Moran transferred
to a floating position a month later. I cannot believe that,
if Moran's work or attitude had deteriorated as dramati-
cally as Whitlock testified, he would have failed to make
some indication to that effect on her evaluation Indeed,
I find it especially incredible that Whitlock would have
marked Moran's adaptability/flexibility, cooperation, and
courtesy as "Excellent/Outstanding" had she in fact been
a chronic complainer.
3. Moran's request to resume floating
Moran testified that about a week after she received
her April 1983 evaluation she arrived at work one morn-
ing at 9 10 because of a train delay, and that when she
went into Whitlock's office to take work from his "out"
box he looked at his watch and said it was "ten after
nine." According to Moran, she did not respond, but
Whitlock repeated the -time and then told her that she
was 10 minutes late and that she was "losing your credi-
bility and reliability in my eyes." Moran testified that she
then said, "John, all the free time I give you and this
firm, I'm ten minutes late," and at that point Whitlock
started "screaming," "Don't you realize that it's Monday
morning?" and slamming his fist on his desk. Moran ap-
parently did not say anything else, but went back to her
desk. -
Whitlock testified that on the day in-question Moran
arrived 15 or 20 minutes late and that he told her that
she really had to start getting in on time. According to
Whitlock, he tried to make it clear to Moran that this
was not an isolated occasion but part of a pattern, but
she became very upset. For the reasons stated above, I
credit Moran's account of this incident over that of
Whitlock.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-A day or two following the incident Moran went to
see Cashman , recounted to her what had happened,, and
told her that she would like to stop working - for Whit-
lock and resume floating : According to Moran , Cashman
said that she would - have to wait until someone was
found to - replace ' her and that she should reconsider her
request, but that if she' still wanted to stop working for
Whitlock she could . go back to floating for the summer.9
It is undisputed that Moran subsequently told Cashman
that she still wanted a transfer and Cashman said she
would talk to Whitlock . According to Moran , Cashman
later told her that Whitlock was upset , did'. not 'want her
to leave , and' wanted to know if the situation ' could be
remedied , but Moran did riot change her mind: i °
- Whitlock testified , however , that he told Cashman that
a-change was likely to be necessary because he did not
see how, he could continue to -work with Moran if she
was not going - to be ' more reliable and cooperative. Both
Whitlock and Cashman - also - testified that "after Moran
stopped"working for Whitlock he told Cashman that he
thought Moran had spent too much of Mier time criticiz-
ing the management ' of the , firm 'in unproductive -ways,
and, was : taking a" very: negative attitude: toward 'her
work .' However; Moran- denied making - such complaints;
and-'neither Cashman nor Whitlock appeared to be forth-
right - when testifying on- this - point . Accordingly ; I credit
Moran .- - _,:---. , , ' . - -. - .. -
Moran testified that sometime ', after , she .requested- the
transfer , she talked to McLaughlin , , who asked, her .for
whom she was working . Moran - replied that , she was
working ; for Whitlock but had ' asked - for -a transfer and
then , -in response to' McLaughlin 's question , explained
why. 1According to' Moran , McLaughlin, made , "a, par-
ticular, -comment" about • Whitlock and said , that. he was
not surprised , sand -that he had been ,wondering how. long
Moran would put up, with Whitlock 's."nonsense .'R.Moran
testified that she, also - told McLaughlin about the unpaid
overtime,that she-had --Worked and McLaughlin became
upset.and said - thatl no secretary in the firm , should work
overtime without .getting : paid for it.l i . '
On April • 19,Moran resumed floating . Her_ first assign-
ment was to James , Wexler , , an associate , ' for whom she
worked for about 2 weeks .. On Monday , May 2, Moran
began working for Thomas Anninger , a partner , - whose
previous secretary, Evelyn Hanlon , had, resigned 'her em-
ployment with the Respondent -the previous Friday. -
'4. Anninger 's -relationship .with Hanlon
Hanlon had been hiredl as Anninger's secretary in De-
cember; -1978 and , worked , for him the entire time she was
-'9 Cashman essentially substantiated Moran's account of thisconversa-
tion, but further. credibly. testified that she pointed out to Moran that
Whitlock had ,lust given her a good, evaluation and her assignment to him
seemed generally'satiifactory , and that 'she 'suggested to Moran that .she
think about- the situatibn 'overnight
-10 Whitlock testified' that .he thought • that -after Cashman ' initially told
-him=that Moran' had asked' to be , reassigned , Cashman. said "she would ask
Moran to reconsider her request, and that there was some other incident
,which precipitated Morah's-final decision to transfer For-the reasons'dis-
cussed above ,'I credit Moran'
11 McLaughlin did not testify -I-credit Moran, who testified forthright-
ly and, persuasively about this-conversation both on direct and cross-ex-
amination
employed by the' Respondent, -although she worked for
other attorneys as well at various times. It is undisputed
that Anninger, considered Hanlon to have superior tech-
nical skills 1 2 and that for the first 4 years that Anninger
and.Hanlon worked together they had a very satisfac-
tory working relationship. It is also undisputed. that ini-
tially Hanlon worked overtime for Anninger almost any-
time he requested it, but that after she had been working
for him about a year and a :half she was assaulted on the
train on her way home from work about 5:45 p.m. After
this incident Hanlon usually left the office promptly at 5
P.M.
Hanlon credibly" testified' 3 that she decided-to quit her
fob- after an incident with Anninger in February when
the firm closed' early because of severe sleet and -snow.
According, to Hanlon, Cashman came around to tell the
employees that they could leave at noon, but when
Hanlon told Anninger that the office was closing he in-
sisted that she stay and. revise a newsletter he had been
drafting for a neighborhood civic association in which he
was active. 14 - Hanlon testified that she told Anninger
that the weather was very bad and she would have a dif-
ficult time getting home, but he nonetheless insisted that
she stay. - - -
Hanlon further testified that she stayed an extra hour
and a half to do the work, which included making the
revisions and then running -off copies on a mag machine,
which. is 'a' memory typewriter that prints copy line by
line. Anninger had required Hanlon to use the mag in-
stead of `photocopying the newsletter presumably be-
cause;,although photocopying would be faster, copies
printed on the -mag' would look better. According to
Hanlori, she was annoyed at having to stay at the office
and made. Anninger, aware of her irritation, and when
she finallyr left she, waited 40 minutes for a bus to get
home.' It • is -undisputed that. Hanlon did not receive any
extra pay for working after the firm closed for the day.
The • next - morning, still according to, Hanlon, when
Anninger arrived at the office and before he removed his
hat and coat, he, started-yelling at her in front of "quite a
few people, telling - her 'that , her "attitude stinks," that
she was never willing to work overtime, and that she
was- not - there when he needed her. Hanlon responded
that she 'did -not understand what "the beef" was, and
that she had-stayed the day before and finished the work,
but Anninger "kept yelling" and, according to Hanlon,
was. "belligerent and nasty and very loud." Hanlon testi-
fied that following this incident she was furious with An-
ninger and consequently tried to keep her contact with
him to a minimum . About a week later' Anninger asked
Hanlon to come- into his office and in the course of the
ensuing- conversation apologized for yelling at her in
12 However, Anninger credibly testified that Hanlon was never inter-
ested in his type,of 'practice and he could not have her prepare simple
'letters-or forms or gather the data necessary to complete forms '
P ,l found-Hanlon to be an extremely credible witness She appeared
to exhibit good recall and to testify candidly I recognize that Hanlon
and Moran were friends, but there is no indication that their relationship
affected Hanlon's testimony
14 Although the organization was not a client of the Respondent, An-
ninger credibly testified that he,considered his work on its behalf very
important
HERRICK & SMITH,
front of other people , but reiterated his comments about
her attitude and said that perhaps they should no longer
work together.
Hanlon never discussed the incident with Cashman,
but in mid -April gave notice that she was leaving.
Hanlon credibly testified that she did not talk with Cash-
man about the matter because she did not feel that Cash-
man would be particularly sympathetic.
Anninger gave a- somewhat different account of the
snowstorm incident from that provided by Hanlon, testi-
fying that the weather on the day in question was not as
bad as had been predicted when the decision to close the
firm for the day was made , that he was under the, im-
pression that Hanlon would have to wait for an hour in
any event in order to drive home with her sister, who
also worked in downtown Boston , and that she finished
the work in that time . However, Hanlon testified that
she and her sister did not drive to work that day because
of the weather forecast and that her sister 's office had
closed and she could have gone home at any time.
I credit Hanlon 's account of the snowstorm incident
over that of Anninger. As noted above, I found her to be
a very credible witness. However , Anninger did not im-
press me as favorably ; much of his testimony was self-
serving, and he did not appear to testify candidly. Ac-
cordingly, I find that the snowstorm incident and the
subsequent events occurred as Hanlon described them. I
further find that this incident is evidence that Anninger
was a difficult and demanding boss for his secretary.
5 Moran's assignments to Wexler and Anriinger
As mentioned above, Moran worked for 2 weeks for
Wexler while his regular secretary was on vacation. Ac-
cording to Moran, the first day she worked for Wexler
she arrived about 8:30 a.m. Before she had removed her
coat, Wexler started telling her what he wanted done
that day, but Moran told him that she would be back at
9 a.m. and left for coffee . Moran testified that when she
returned Wexler asked her to come into his office and
told her that he did not know why she was treating him
"this way" and that if she wanted to start working at 9
a.m. she had better be there on time . Moran replied that
she would, but that that morning she had not even taken
off her coat before Wexler started giving her things to
do Wexler repeated that he did not know why Moran
was treating him that way and she said that her hours
were 9 a.m. to 5 p.m. and she had wanted to have coffee
with the other secretaries . Moran further said that if
Wexler was not happy with her he should call the per-
sonnel department and have her transferred , and he said
that he wanted her to work for him for the 2 weeks that
his secretary would be gone. Moran repeated that she
would be ready to work at 9 a.m. There was apparently
no further incident between Moran and Wexler during
the 2 weeks that she worked for him.
Wexler testified that he was very much taken aback by
this incident because other times that Moran had worked
for him he had found her very cooperative and very
nice. Wexler also testified that a number of times he
heard Moran make comments to other secretaries con-
veying "a -strong dislike for the way the firm operated
and the way people were treated." However, Wexler
3
also testified that he did not recall talking to 'Cashmae;
Clark, or Remis about Moran's performance.'
Moran was assigned to work. for Anninger' and:an.as
sociate named Ted Bohlen beginning May 2: A week or
two earlier ,Moran had seen Anninger in the hall -outside
a' conference room where the Respondent was' holding a
workshop for the secretaries on effective communication:
According to Moran, Anninger asked her what was-'hap=
pening and she said that the firm was having a workshop
for the secretaries but that she thought the attorneys
should be attending the workshop instead. Anninger re-
plied that the Respondent would hold a similar work-
shop for the attorneys and Moran, said that that-'was
good because the morale among the secretarial staff- was
very low and the secretaries were very unhappy at the
way they were being treated by the attorneys. Moran
testified that at that point Anninger became, upset and
asked if she was talking about his, situation with Hanlon.
Moran'said that she was not, but that she would not let
members of her family speak to her the way the` attor-'
neys spoke to the secretaries. Anninger asked if she at-
tributed this behavior to "the economy" and Moran said
that she had no idea. She then, somewhat facetiously,
said, "Aren't you glad you ran into me tonight?"_•to
which Anninger replied, "No, I'm not." Moran further
testified that at The time of this incident she did not -know
that she would be assigned to work for Anninger.;' '., .'
Anninger testified that after Moran said that` the; firm
should hold a communication seminar, for- the attorneys
as well as the secretaries, she went on to say that she
was no longer working for Whitlock and something. to
the effect that although she had liked working'for'=him
she "just couldn't take it anymore." According`,to'-An
ninger, Moran also said that she had asked to=,be Teas=:
signed to a floating position because she did not-want-,'to
work with Whitlock any longer, she looked "very= in-
tense" when she'talked-about Whitlock, and he.felt,that,
he was getting involved in something he would` rather
avoid. Anninger_ further testified that Moran =tlien' ,s_aid:
something about he must be sorry he ran into her"-. he
just shrugged his shoulders and walked away. According
to Anninger, he was not upset about the conversation,
and he did not think he could have projected the,image
that he was.
For the reasons discussed above, to the extent, that
there are disparities between Moran's testimony, about
this incident and that of Anninger, I credit Moran.
According to Moran; sometime early in the first' week
that she worked for Anninger he called .her`' into his
office and said that he knew they would be working to-
gether for at least a week and asked Moran - if she ,real-
ized that the arrangement would not "work out over the
long run." Moran said that she did. Anninger' testified
that he did not think he would have told Moran that the'
arrangement would not work over the long run, but that
he- may have referred to his understanding, that the. as-
signment was not permanent but was to last only until a
secretary was found to 'replace Hanlon. I credit - An-
ninger,' who seemed to testify candidly on this point, `and
conclude that he did not make the specific ; comment
Moran attributed to him. However, it is clear. that'-An=
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ninger emphasized the temporary nature of Moran's as-
signment to work as his secretary ,
Moran credibly testified that about a week after she
started working for Anninger he told her that-he was
pleased with the arrangement, that he would-be: traveling
frequently for Washington, D.C., and -that he felt very -
comfortable with lier-being there while he'was-gone; He
then asked Moran if she would mind'working for him in-
definitely until a replacement for Hanlon waste hired and
she indicated that that would be all right. In conse-
quence, Anninger arranged 'with the personnel depart-
ment that -Moran would-be assigned to him indefinitely
asa floatei. ' -
According 'to- Cashman, about a- week after' •Moran
began • working for Anninger; Cashman asked" him how
the assignment -was working 'and he told her that things
were' going pretty well *but that Moran did not have
Hanlon's technical skills. 'It appears that this was the con-
versation in which Anninger asked to' retain" Moran in-
definitely; however, Anninger testified that, in the con-
versation in which Cashman asked -him how the assign=
ment was 'he replied that he would -keep Moran until ;a
replacement :-was - found for Hanlon, -but that he would
watch the situation to make sure that it continued to be
satisfactory.. I do not- credit. Anninger on this point, for
he did=not appear candid-when giving this testimony, but
rather seeemed to be consciously tailoring his testimony
to fit the Respondent's position in the case.
6. The -incident of May 3
Moran credibly testified that late in the' morning of
May 3:Anninger told her that he had some work that
had to-be completed that'day, and that she responded
that she could not•stay after 5 p m: According to Moran,
Anninger gave-her some-work about 4 p.m. After she
had done -the' typing,- Anninger made some revisions,
which she also typed. When Anninger gave her a second
set of revisions, Moran concluded that she would not be
able to finish the job,by 5 p.m, so she called the person-
nel. department- to have. someone- do the, work after she
left: At 5 p.m. the other -secretary -arrived.=Moran testi-
fied that-while she was standing with her coat-on ex-
plaining what needed to be done, Anninger came out of
his office- and she told him that the other secretary
would finish the work. According to Moran, Anninger
"got very upset and very red in the face" and yelled
"Shit, shit, shit!". Moran testified that she just thanked
the other- secretary, said, ,`'Good night," and left It is un-
disputed -that this was the only occasion that Anninger
ever-used crude language to Moran. -
Anninger testified that he, had had something difficult
to write that afternoon ,and that about 4 p.m.. he asked
Moran if she could,.type his longhand draft, so that he
could make revisions. About 4:45, p.m., according to An-
ninger, Moran asked if she; could get. someone else to
finish the-work,and he-asked if she could stay,because he
did not think, it. would take more than an extra 20 min-
utes . Moran replied that .she could, not.; Moran then, ac-
cording to Anninger, tried to find someone else, but told
Anninger that no_ one was available and he should take
the work to the word processing department That sug-
gestion was not satisfactory- to Anninger, and eventually
someone- else did come to finish the work . Anninger tes-
tified that, when he saw at 5 p .m. that getting his work
done was going to be more difficult than he had thought,
he turned on his heel, pounding the fist of one hand into
the palm of the other , and said "Shit , shit , shit!" in frus-
tration . Anninger further testified that he was not facing
Moran when he uttered the expletive , and that the job
was finished by 5.20 or 5:30 p.m.
I credit Moran 's version of this incident over That of
Anninger , for Moran seemed to testify forthrightly about
,the matter, while Anninger appeared less than totally
candid. Further , as the General Counsel has pointed out
in his brief, Anninger testified that, when' Cashman, as
discussed below , talked to him about the incident a few
days later , he had to make an effort to recall what had
happened. .
Moran credibly testified that she was upset by the inci-
dent because , although she had heard attorneys use foul
language on' other occasions , Anninger had directed his
words at her, and she did not think anyone should talk
to her or to any secretary in that manner . It is undis-
puted that about the next day Moran placed the follow-
ing memorandum on Cashman 's desk: •
TO: Mrs. Cashman
FROM . Ms. Moran - • -
RE: Thomas Anninger -
On Tuesday , May 3,- 1983 at 2:30 P.M . Mr. An-
ninger told me he had something that had to go out
by 5:00 p .m. I waited until 4 : 30- P.M . for the work
to make various revisions-I told him I had to leave
at 5:00 P.M. When I realized it would take longer
than 5 :00.P.M. to finish the job I called Personnel
to find , someone to;complete the task . When Mr.
Anninger came out and found 'me explaining to the
woman taking over and putting my coat on he pro-
ceeded with "shit , shit , shit " This Mrs. Cashman is
what we, as secretaries , have to contend with.
Moran told Denise --Allen, the only other secretary
who worked in her area, about the incident and that she
had written a memo to Cashman about it. Allen advised
Moran that she thought 'that sending - the memo was a
good idea and that Anninger should not have used such
language to Moran.
About May 5 Cashman called Moran into her office.
Moran testified that when she went in Cashman held up
the memo and said she wanted to discuss it. Moran said
that she had not been sure whether ' Cashman would
want , to discuss the , memo or file it, and Cashman asked,
"What would I. file this for?" and then threw the memo
on her desk and said she did not want any more memos
from Moran and that if she had a problem she was to
handle it herself. According to Moran, Cashman also
said that perhaps this was' Anninger 's way of handling
things; when Moran said that she would-not have been
able to get by'with speaking to an attorney that way and
that she was a professional and wanted to be treated as
such , Cashman told her that she was inflexible , that- if
she did not like the firm she- could leave , and that this
was probably not the field for her . Moran responded that
HERRICK & SMITH
she had been working for attorneys since 1964 and was
one of the most flexible secretaries in the firm: Moran
also testified that Cashman told her that a mature way to
have handled the situation would have been to tell An-
ninger at the time that that was not the way she or any
secretary should be treated. t s
Cashman, however, testified that she emphasized to
Moran that no secretary should have to tolerate offen-
sive language or behavior, but that in her experience an
incident of that type was better remedied by the offend-
ed individual objecting on the spot rather than sending a
memo to a third party. Cashman also testified that she
told Moran that although she would talk to Anninger
she did not think her comments would "carry as much
of a punch" as an immediate objection from Moran.
Cashman specifically denied that she threw Moran's
memo on her desk or told Moran not to send memos in
the future, or that she said anything to Moran about
being inflexible or leaving the firm.
I credit Cashman, for she seemed candid while testify-
ing about this conversation. Accordingly, I discredit
Moran to the extent that her account of the meeting dif-
fers from that of Cashman.
Anninger testified that'Cashman told him that she had
received a memo from Moran and wanted to know about
the incident to which it referred. According to An-
ninger, it then occurred to him for the first time that
someone might have found his language offensive.
C. The May 11 Meeting
1. The arranging of the meeting
Moran testified that at some point in the week, follow-
ing the conversation described above with Cashman, she
asked Robert Sullivan, a partner in the firm who was
walking past her desk, if he was aware of the low morale
of the firm's employees and the number of secretaries
who were leaving. According to Moran, Sullivan replied
that the problem had been brought to his attention by
another secretary and that Moran should arrange a meet-
ing between a group of the secretaries and Remis, the
Respondent's managing partner. Moran said that that
sounded like a good idea and that she would invite
McLaughlin, a member of the Respondent's executive
committee, to the meeting as well 16
Moran subsequently talked to about 10 or 11 other sec-
retaries as to whether they wanted to attend such a
meeting; some of them indicated that they did not want
to be involved, but others said they would go to a meet-
ing if it were arranged. Dolores Lombre, who, as men-
tioned above, was one of the secretaries who was briefly
assigned to Whitlock before Moran began working for
him, also talked to some of the secretaries, and credibly
15 Moran testified that she did not speak to Anninger about his lan-
guage at the time of the incident because she had to leave, because she
did not want to embarrass him in front of the other secretary, and also
because no attorney had spoken to her that way before and she thought
it was a matter which should be brought to the personnel director 's atten-
tion However, she did not testify as to whether she gave Cashman this
explanation - -
16 Sullivan did not testify, and I credit Moran's account of this conver-
sation -
405
testified that several of them told her that they were re-
luctant to attend , but that they would like her to report
back on- what occurred. -
Moran also, with Lombre's help, prepared an agenda
of topics to be discussed at the meeting. These included
the lack of respect, courtesy, or consideration shown to
secretaries by lawyers; Cashman's failure to be support-
ive of the secretaries or help them to solve problems; the
number of secretaries who had left the firm, were look-
ing for other jobs, or were unhappy -with the attorneys
or the personnel department; the low morale at the firm
and the awareness of this situation of employment agen-
cies and personnel departments at other firms; the
amount of pro bono work the secretaries were expected
to perform; the failure to pay overtime; and the secretar-
ies' feeling that, Kotrofi harassed them when they called
in sick.
Moran-called McLaughlin, who spent 2 or 3 days per
week at the Respondent's Cape Cod office, - and asked
him to attend the planned meeting, which he agreed to
do. McLaughlin also told Moran that the secretaries
should state all-their grievances at that meeting. Moran
thereupon called Remis and told him that a group of sec-
retaries would like to meet with him and that she had
asked McLaughlin to be present. According to Moran,
Remis asked what the meeting was about and she men-
tioned lack of support from the personnel department
and low morale in the firm. Remis agreed to meet at 11
a.m. on May 11.
2. The meeting
The meeting took place as scheduled, i 7 with Remis,
McLaughlin, Moran, Lombre, and three other secretar-
ies, Josette St. Linger, Kathy Burkhamer, and Elaine
Seastrom, in attendance. Moran opened the meeting by
reading the following statement:
Thank you Mr. Remis and Mr. McLaughlin for
giving us your time for this meeting. We will try to
make it as brief as possible and yet air - our griev-
ances one by one, we are all here- in the best inter-
ests of the firm. I for one have an investment here
one of over seven years and am very concerned as
to what is going to become of my position ' here.
What I plan on doing, if it is in agreement with
you, is to read our agenda and then go back and
take each item so we can have an open discussion
about it.
Moran then read the agenda. According to Moran,
McLaughlin asked how the attorneys evidenced a.lack of
respect for the secretaries and the • other secretaries
present described various specific instances of attorneys
being rude or inconsiderate. In the course of that discus-
sion Moran narrated the incident with Whitlock in April
over her being late and Anninger's' use of vulgar lan-
guage the previous week, and also mentioned the amount
of personal work she had done for Whitlock and-his un-
17 The following account-of the meeting is based on the credited and
uncontradicted testimony of Moran and Lombre , the only participants
who testified. -
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willingness to pay overtime. The - other secretaries
present said that Anninger was very difficult to get along
with and that he had a tendency to get work to his sec-
retary late.18
At some point -in the meeting, Moran asked what
Cashman's purpose at the firm was, and Remis respond-
ed that she was - "very good on the management end."
Moran replied that, while that *might be true, by the lime
Cashman turned her attention to the secretaries they
would be gone, and that many of the secretaries were
either leaving or looking for other jobs because they
were afraid they would be discharged. Several of the
secretaries at the meeting said that Cashman ignored
their valid complaints, and that this attitude bothered
them because they had no one else to whom they could
refer these matters. Remis said, "Well, you understand
that you can't keep coming to me," to which Moran re-
plied that they were all fully aware of that fact but that
they had had no alternafive According to Moran, she
also stressed four or five times during the meeting that
the secretaries were there solely in the best interests of
the firm Moran 'also said that if she were personnel di-
rector she would discharge Kotrofi because she intimi-
dated the secretaries, made them cry, and required them
to take on other work when they already had as much as
they could handle from the attorneys to whom they
were assigned There was also some discussion of the
Respondent's sick leave policy and the requirement that
a secretary keep calling the office until he or she talked
to Kotrofi and how Kotrofi reacted when a secretary
called in sick.
Moran also discussed the problem She had had with
overtime and pro bono work while working for Whit-
lock, and said that although the secretaries did not gen-
erally object to such work there had been clays when she
had had client work to do but Whitlock had insisted on
her working on other matters Moran mentioned a spe-
cific occasion when after she spent an entire day prepar-
ing a chart Whitlock shifted some of the material around;
when she gave the chart back to him at 4:45 p m. he
took out a ruler and told her to move an item an eighth
of an inch -Morann said that she finally moved the paper
bail on her typewriter, and that Whitlock was apparently
satisfied with the result. According to Moran, McLaugh-
lin "cracked up" when she described the incident. Before
the meeting ended, Seastrom said that the other secretar-
ies thought so highly of Moran `that if it were not for her
Seastrom would not be there, and if Moran was upset
she knew that "it had to be something big." The other
secretaries agreed with this comment. As the secretaries
were leaving Remis' office, McLaughlin told Moran to
"keep the troops calm"; she replied, "[F]ine," and
thanked him for coming to the meeting.
It is undisputed that during the meeting Remis took
notes; although neither Remis nor McLaughlin testified,
a document which is at least a portion of Remrs' notes
was introduced into evidence at the hearing, and substan-
18 Hanlon credibly testified that Ammnger had a tendency to not tell
her that he needed oveFtime unit] late in the afternoon. sometimes after
3 30 p in , and Allen credibly -testified that she had observed that An-
ninger gave Moran a lot of work toward the end of the day
tially "corioborafes Moran's testimony as to what was dis-
cussed.
On May 12 Remrs sent a memo. to each of the secre-
taries who had attended the meeting the previous day.
The text of that memo read:
Since our meeting yesterday, I have taken the op-
portunity to discuss with Mrs. Cashman the con-
cerns you raised. Should any problem arise in the
future, 1 would hope that you would' be able to re-
solve them directly with the person involved or by
discussing 'them with Mrs. Cashman. As we all
agreed, it would not be a workable process for me
to be involved - -
There is no evidence that any action was taken to
remedy any of the specific -grievances raised at the May
11 meeting. However, a few days after the meeting, ac-
cording to. Moran, McLaughlin -told her to keep every-
one calm and that he was "working on things."
Moran testified that following the meeting Cashman,
who had previously exchanged greetings with her when
they encountered each other, would look the other way
when she saw Moran coming. However; Cashman
denied ever intentionally avoiding Moran, either before
or after the May 11 meeting, and I credit that denial.
Anninger and Cashman both testified that Remis had
an "open door" policy and that he was willing to talk
with almost anyone about anything. Cashman further tes-
tified that in her view this policy was not inconsistent
with Remis' May 12 memo to the secretaries telling them
to direct their complaints to her because "I think he said
the proper channels are to start with Personnel, that does
not say that he would not listen ." Nonetheless, it is un-
disputed that there had never before been a meeting be-
tweeh a group of support staff and the managing partner
to discuss staff complaints. Further, Clark, who met with
Remis frequently, testified that he was not aware of any
policy of Remis' that could be described as an "open
door" policy or any policy of allowing or encouraging
support staff to come to him to discuss problems In light
of all the evidence, including the wording of the May 12
memo and Remrs' comments at the meeting, it is clear
and I find that, whether or not Remrs had ever avowed a
willingness to listen to staff complaints, he made it clear
that all complaints would have to be taken to the person-
nel department, even if that department were the subject
of those grievances. ' -
3 The knowledge of Cashman, Clark, and Anninger
as to what occurred at the May 11 meeting
Anninger testified that he first learned of the secretar-
ies' planned meeting with Rennis when Moran told him
on May_ 10 that she would be seeing Remis the next day.
Anninger 'also testified that he did not ask what the
meeting was about and that Moran did not volunteer any
information. On May 11, according to both Cashman and
Anninger, about 10 minutes to 11 Anninger asked Cash-
man if she was aware that Moran and some of the other
secretaries were going to meet with Remis and Cashman
said that she was not Anninger replied that she should
HERRICK & SMITH
be and called Remis, but when Remis answered the tele-
phone he said that the meeting had already started.
Anninger testified that he first learned that Moran had
talked about the May 3 incident at the meeting during
the preparation of the instant case for trial, and that he
did ,not speak- to Remis, Cashman, McLaughlin, or
anyone else in the firm about what ,was discussed. at the
meeting until after Moran filed her charge As noted ear-
lier, I did not find Anninger to be a totally credible wit-
ness, and his demeanor while testifying on this point was
particularly unimpressive. He seemed to be more anxious
to give evidence that would bolster the Respondent's as-
serted defenses than to present-a candid account of his
involvement in the events at issue, and I therefore do not
credit his testimony- that he was not aware of Moran's
statements to Remis about him until after she was dis-
charged.
Cashman:testified that about 5 p.m. on May 11 Remis
called her and asked her to come to his office, where he
told her that Moran had asked to see him, that he had
agreed to meet with her because he thought she had
some personal matter to discuss, and that when she came
to see him there were several other secretaries with her.
According to Cashman, Remis said that the secretaries
had made complaints about various matters, including a
lack of support from the personnel director, and that
Moran, Lombre, and Burkhamer had complained about
her. Cashman further testified that Remis told her that
Moran had specifically complained " of Cashman's han-
dling of the May 3 incident between Moran and An-
ninger, but that the secretaries gave her high marks for
management , and he was going to write a memo to the
secretaries advising them that in the future they should
direct their concerns to her. Cashman denied that Remis
told her about any complaints the secretaries made other
than- those involving, her, and testified that she did not
consider the secretaries' complaints about herself to be a
personnel problem and that she did not feel, that -she
needed to discuss these matters with Clark. However,
since Remis told Cashman that Moran had complained 'of
her handling of the May 3 incident between Anninger
and Moran, it is obvious that Cashman realized that
Remis had been told about the incident. Cashman, also
denied that she ever subsequently talked about this con-
versation with Remis to Anninger.
On cross-examination Cashman testified that on May
12 she told Clark that Moran and a group of other secre-
taries had met with Remis about some complaints they
had and Clark told her that he was planning to tell
Remis- that he should not worry about such complaints
but that they should be directed to Cashman. Cashman
further testified that she did not tell Clark what com-
plaints the secretaries had discussed with Remis and that
she did not have any subsequent conversations with
Clark about the secretaries ' meeting. According to Cash-
man, she did not feel that any of the secretaries at that
meeting had' legitimate grievances against her, and she
was not bothered by their complaints because "it goes
with the territory." I do not credit Cashman on this
point; for, -although she was rather emphatic when so
testifying on dross-examination, she also seemed argu-
mentative and less than forthright I thus do not find that
407
Cashman was as unconcerned about the secretaries' com-
plaints to Remis about her as she indicated in her testi-
mony.
Clark testified that he first learned of the May 11
meeting when Cashman- told him that afternoon that the
meeting had taken place. According to Clark, Cashman
asked him if he knew what had been discussed and he
replied that he did not. The next morning; according to
Clark, he had a regularly scheduled meeting with Remis.
At that time Remis told him that he had understood
Moran to request a meeting with him about-some person-
al'matters and that he did not' know that other employ-
ees were also planning to attend. Clark testified that he
suggested to Remis that the whole matter was one for
personnel, that it would have'been better for the meeting
to have been held by the personnel department rather
than by Remis, and that Remis agreed and said that he
was going to write each of the secretaries. a memo to
that effect. Clark further testified that Remis did not tell
him what had been discussed at the meeting, that he only
knew what had occurred from the General Counsel's
questions at the instant hearing,- and that he did not
recall what caused him to think that the secretaries had
talked to Remis about personnel matters. On redirect ex-
amination, Clark explained that any reference to personal
or personnel problems would prompt him to suggest that
the matter should be referred to the personnel depart-
ment. I do not credit any of Clark's testimony as to
when he learned of what was discussed at the meeting,
for Clark generally did not impress me as a truthful wit-
ness, and his testimony _ on this point seemed especially
evasive and self-serving. Further, his purported explana-
tion of why he made the suggestion he did to' Remis was
totally unpersuasive. I therefore find that, at'some point
between the May 11 'meeting and Moran's discharge,
Clark learned specifically what the secretaries had dis-
cussed with Remis.
D. Moran's Subsequent Relationship with Anninger
1._Annmger's dissatisfaction with Moran
Anninger testified that Moran did not have the degree
of technical skill that Hanlon had possessed, but that he
was nonetheless initially pleased to have Moran assigned
as his secretary because she was helpful and enthusiastic
and was willing to do filing, which Hanlon had not liked
and-had not done well. As discussed above, about the
end of the` first week that Moran worked for him, An-
ninger asked her to remain until a- permanent secretary
was found for him
Anninger also testified that, although Moran never ex-
pressly said that as a general rule she was unwilling to
work overtime, she frequently told him as much as a day
in advance that she needed to leave the office at 5 p.m.;
according to Anninger,, her unwillingness to stay later
was a source of tension. However, it is undisputed that
Anninger asked Moran to work overtime once or twice
per week, and that she did stay late a couple of times
during the first week she worked for him. -
Both Anninger and Cashman testified that he contact-
ed her approximately weekly to-ask what progress was
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being made on finding him a permanent secretary and
that until about 2 to 3 weeks after Moran started work-
ing for him he told Cashman that the situation was satis-
factory. However, according to Anninger, he became
more and more unhappy with Moran as time went on
and so advised Cashman. Specifically, Anninger testified
that he told Cashman- that the arrangement was less satis-
factory but that he did not ask-Cashman for a different
secretary because he was going to be on vacation the
week of June 13 and had already decided that he did not
want Moran to work for him when he returned.
Anninger specifically stated that after Moran had been
working for him for 3 or 4 weeks he told Cashman that
Moran was no longer showing ,the enthusiasm that she
had initially demonstrated and that Moran was beginning
to "wear" on him and he was glad the assignment would
not be for long, and that he thought he also said that he
would rather not make the change prior to his vacation.
However, Cashman testified that. during about the fourth
week that Moran worked for Anninger he told Cashman
that things were "not great" and that Moran was too
slow and her skills were not equal to Hanlon's, but that,
when Cashman asked him if he would be all right until
she found him a permanent secretary, he replied. in the
affirmative. For the reasons discussed above with respect
to my findings that certain other testimony by Anninger
was not credible, I do not credit his testimony that he
told Cashman a couple of weeks before his vacation 'that
he did not want Moran as his secretary when he re-
turned.
In his testimony Anninger also recalled that fairly
early in the course of Moran's assignment as his secre-
tary, he had asked her if she would mind watering the
plants in his office, and she responded that she did mind
but that she would do it. Anninger testified that Moran
in fact did not water the plants, and that he was irritated
because he went out of his way to be sensitive about
what chores secretaries should perform and he was care-
ful not to "turn a secretary into a waitress," but his re-
quest had not seemed unreasonable. According to An-
ninger , the incident demonstrated to him that Moran had
"an irritating personality" with which he would have to
contend.
Anninger also testified that Moran was slow in getting
work done and indecisive about such matters as how to
get access to the mag typewriters t 9 or whether she
should make copies of a document herself or have the
work done by the Respondent's copy center, and that he
became increasingly irritated with her. According to An-
ninger, as time went on Moran displayed less enthusiasm
for trying to please him and no longer demonstrated a
"willingness .. . to try and fit into the daily pressures
that I was under."
2. The incident at Moran 's apartment
Moran credibly testified that about 3 a.m. on May 30 a
male tenant in her apartment building attempted to get
into her apartment . Moran called the police and some of-
19 There were not enough of these machines for each secretary to
have one available at all times , and it appears that on occasion the secre-
taries had to wait substantial periods of time to use them
ficers came to the building; the man attacked and cut the
face of one of the officers and was arrested. According
to Moran, the afternoon of May 30 she called Anninger
at home ,20 described what had happened, and told him
that she would be late the next morning because she had
to go to the local police department and courthouse.
Moran testified that Anninger told her not to worry
about getting in late and that he would see her when she
- - -arrived. 21
Anninger testified that in this telephone call Moran
said that she did- not know what to do, that another
tenant was pounding on the door to her apartment and
wanted to come in and was threatening her, and that she
was very frightened. According to Anninger, he was
under the impression that his conversation with Moran
occurred during the attempted break-in, and he advised
Moran to call her landlord. Moran said that she had
done so but the landlord was no help and Anninger then,
according to his testimony, told her to keep her door
locked and go to see the clerk of the' courts the next day.
Moran's testimony about the incident and her telephone
call to Anninger seemed more truthful than Anninger's,
and I therefore credit her version over his.
Moran arrived at the office late on Tuesday,-May 31,
as a result of filing the request for a hearing mentioned
above.
3. Anninger's subsequent complaints about Moran
On June 7 Moran went to the hearing scheduled on
her complaint about the attempted break-in and took the
entire day as a personal day of leave, although the court
proceedings were finished by about noon. On June 9
Moran took a day of sick leave. As noted above, -An-
ninger took a 1-week vacation beginning June 13.- An-
ninger testified that he had work he wanted to finish
before he left, and that he was upset by Moran's ab-
sences on June 7 and 9. Anninger further testified that
toward the end of the week, probably on-Thursday, June
9, he talked to Cashman and told her that he had "had it
up to here with Moran" and could not count on her, and
that the week had been "horrible," and he wanted a dif-
ferent secretary when he returned from his vacation. Ac-
cording to Anninger, Cashman saw that he was upset
and asked if he had worked with Moran long enough to
be able to write a review of her performance, and An-
ninger said that he could.
Cashman testified that in this conversation Anninger
told her. that the situation was intolerable and he could
not depend on Moran to be there when he needed her
and'that when she was present her skills were not very
good. Cashman further testified that Anninger said that
he had already told Kotrofi that he did not want Moran
assigned to him when he returned from his vacation and
20 May 30, a Monday, was the Memorial Day holiday in 1983
21 Anninger testified that he thought that Moran had called him on
Sunday, June 5 However, the document Moran filed with the local dis-
trict court to request a hearing as to whether a criminal complaint should
issue in the matter is in evidence, and lists the date of the incident as May
30, the date of the request for a hearing as May 31, and the hearing date
as June 7 I therefore find Moran's statement of the dates at issue'to be
the accurate one
HERRICK & ,SMITH
that Moran was not a good secretary and should be
fired , and that she then asked Anninger if he could pre-
pare an evaluation of Moran and he said that he could.
However, although Anninger repeatedly referred to
that conversation in his testimony , he never testified that
he told Cashman that Moran should be fired or that her
skills were not good and, indeed , testified that he did not
say anything about either Moran 's, skills or her status
with the firm . Further, Anninger testified that he only
had one or two conversations with Kotrofi about Moran
and that both of those discussions had occurred in the
early part of the period `during which Moran worked for
him and were limited to a comment by Aininger that the
arrangement was working out all right. I therefore do
not credit Cashman 's testimony that Anninger told her in
that conversation that Moran should be discharged and
that he had so advised Kotrofi.
It does not appear that , except for the review employ-
ees receive at the end of their 90-day probationary
period , any other attorney had ever been asked to pre-
pare an evaluation of a secretary outside the annual
review process . Cashman testified that, to her knowl-
edge , during her tenure with the firm no other attorney
had ever recommended such extreme discipline of a legal
secretary . However , according to Cashman , she asked
Anninger to write an evaluation because his remarks
were "very strong," and, because Moran had been em-
ployed by the Respondent for 7 years and had received a
recent evaluation , Cashman felt that she would need
something in writing in order to discuss Moran's per-
formance with her . Cashman further testified that, al-
though at the time she asked Anninger for an evaluation
of Moran she knew that Moran had criticized both her-
self and Anninger to Remis , she did not have that fact in
mind when she talked to Anninger.
I do not credit Cashman 's explanation as to why she
asked Anninger if he could write an evaluation. For, as
discussed above, I have found that (1) she was not as un-
concerned about the complaints made about her to
Remis as she testified to being ,' and (2) her question to
Anninger was not prompted by any comment by him
that-Moran should be discharged.
In the meantime , according to Anninger , on Wednes-
day, June 8, he had come out of a meeting as Moran
walked by and she took the opportunity to tell him that
she had to leave at 5 p.m. Anninger testified that "it was
said with such vehemence and such intensity that it irri-
tated me," and that he looked at another witness to the
exchange and they both rolled their eyes.
Moran credibly contradicted Anninger 's testimony
that her work performance declined during the period
that she worked for him , and her testimony in this
regard was corroborated by Denise Allen, who credibly
testified that , from what she could observe, Moran was
very cooperative with Anninger. Allen further testified
that she did not observe any change in the degree of co-
operativeness Moran displayed while working for An-
ninger and that Moran 's productivity was equal to that
of any other secretary in the firm . However , according
to Allen , for some period of time the mag in the area
where she and Moran worked was broken and they had
to leave the area to work on another machine . In conse-
409
quence, the two secretaries took turns staying in the area
to answer the telephones , which may have caused some
delays in Moran 's performance of her work . Allen also
testified that Moran knew how to operate the mag and
worked well on it . Finally , Allen testified that she never
heard Moran make any remarks that could be construed
as disloyal to the firm, although about twice a week
there were conversations among various secretaries
about morale.
On Friday, June 10 , Anninger told Moran that he
would be coming in the following day and would-leave
some work for her to do while he was on vacation.
Moran said that she could not do that work because she
.had been assigned to someone else for the next week, but
Anninger said that that was "ridiculous ." According to
Anninger, Moran then said that she had talked to Ko-
trofi , who wanted her to work elsewhere on Monday,
and Anninger said that he would arrange matters with
Kotrofi . Moran said he should do that because she could
not talk to Kotrofi ' because she "could not stand that
woman ." Anninger further testified that he did talk to
Kotrofi , who said that Moran could do Anninger's work
until noon on Monday.
Moran , however , testified that she learned on Friday
that she was to be assigned to an associate - named Marty
Fishkin and to a law clerk on Monday and that when
Anninger told her he had work for her to do that day
she told him so. Anninger said he would discuss the
matter with Kotrofi and then came back and told Moran
that Kotrofi had said she was not assigned to anyone.
According to Moran , she went to see Kotrofi at 5 p.m.
and explained the situation to her , telling her that Fish-
kin was a very busy attorney and she could not be re-
sponsible for accomplishing both his work and An-
ninger 's. I credit Moran 's account to the. extent that it
differs from that of Anninger.22
The following Monday , Moran started working for the
law clerk and Fishkin . Fishkin's office was a floor below
Anninger's, and Moran credibly testified that she worked
at a desk outside Fishkin's office but went up to An-
ninger 's office periodically to open his mail and check
his telephone calls. She also took some work from An-
ninger 's'office downstairs to do.
- 4. Anninger's evaluation of Moran
Anninger came into the office on Saturday, June 11,
and prepared an evaluation of Moran which he left on
Cashman 's desk. It is undisputed that Anninger wrote the
evaluation without discussing Moran 's performance with
Bohlen , the associate for whom she was also working at
that time . The evaluation was on the same type of form
utilized by Whitlock in his last evaluation of Moran and
listed her work as "satisfactory" with respect to accura-
cy, completeness , and neatness ; "unsatisfactory" with re-
spect to use of time and amount of work produced; "ac--
ceptable" in regard to her technical skills; and "ade-
quate" with respect to her job knowledge . Anninger
gave Moran a rating of "average" for "Judgment & Initi-
ative," "Punctuality ," and "Courtesy," but listed her as
22 Kotrofi did not - testify
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"below average" for "Dependability," "Adaptability/-
Flexibility," and "Cooperation." Under "'Remarks," An-
ninger wrote the following:
Mary was assigned to me as a temporary arrange-
ment. She was embittered and hurt by her prior ex-
perience and wanted to make a go of it with me,
not on a permanent basis, but to reassure herself.
The first few weeks went fairly well. Her skills are
average at best, but she was willing to file papers,
knew the ropes around the office, and was useful to
me. However, with time her personal life began 'to
interfere with her work. She missed some time here
and there, perhaps for legitimate reasons, but I
could not count on her anymore. In the morning
she would remind me repeatedly that she absolutely
had to leave at 5 p.m. (Katy Donovan was witness
to one of the moments, and showed surprise and
amusement at Mary's. behavior.) Mary spends a
great deal of time worrying about the next day's ar-
rangements at the expense of her current work.
Her skills are very average, below, the."general
standard for this office. She is slow getting down to
work and reluctant to just. get something done
when needed. Nothing is simple with her.
She needs direction for every decision and when
she takes small steps: on her own- they are often
doubtful. She sent an unacceptably. poor copy of a
60 page document to . . . our major client.
Her attitude is the biggest problem. She is not
loyal to this office and has the sense that we owe
her more than she owes us. She complains constant-
ly to me or others walking by and,willing to listen.
Her relationship with personnel is very poor.
I think we should let her go. This will not be an
easy one-I expect it will cause her great pain, but
.I am afraid everything seems to be a-,trauma in her
life, and I think she bungs much of that to the
office. We cannot satisfy her here .and her skills are
not-up to-our standard.
Anninger testified that the sole reason he listed Moran as
below average in dependability was that the week before
he prepared the evaluation she had not been at the office
when he needed her. Anninger also testified that he rated
Moran as below average in flexibility because of her in-
sistence on having a "9 to, 5" job, and that he did not
view his work in those terms and thus found himself
-always in a "collision" with Moran on that issue. With
respect to his rating of Moran on "cooperation," An-
ninger testified that he felt that Moran was not,helpful
about his need to finish various work before his vacation
and, as to "courtesy," testified that he' rated Moran as
average because, although she was always polite, Hanlon
had been especially good at_relating to people. , `
Anninger further testified that his comment about
Moran's personal life interfering with 'her work was
based-on her telephone call- to ' him after the attempted
break-in at her apartment, and that he' also felt that
Moran's boyfriend had a great deal of influence over her
and was in some way involved with her unwillingness to
stay at work after 5 p.m. Similarly, Anninger testified
that' he had based his comment about Moran missing
time on her failure to come to the office the day she
went to court because it was his understanding that the
court appearance would only require about.half an hour.
The remark about Moran's worrying about future ar-
rangements at the expense of current work, according to
Anninger, referred to his discussion with • Moran on
Friday, June 10, when she said she would riot'be able'to
do his work the next week because she had' another as-
signment." .
Anninger testified that his comment that Moran's work
was below standard was based on a comparison of her
work with that of other secretaries in the office, and that
Moran had-a tendency "to make life more complicated
rather-than simple." Anninger also testified that he based
his remarks about Moran's attitude on his feeling that
Moran's "mind was on something very different from
what I was trying to do, I was interested in the various
projects that I was working on, and I saw. Mary as quite
separate and apart from that endeavor. o me she was
what I call a 9 to 5'er." According to Anninger, the tele-
phone call Moran had made to' him about the incident at
her apartment was a "turning point"23 "that really gave
me the sense that she wasn't a part of the office any
more, that there were other personal things that were
dominating' her life .... 'I had the general; feeling that
she was a person with personal problems that were get-
ting in the way of her :. . ability to' work with us."
Anninger further testified that his - comment about
Moran feeling that the firm owed her "more than she
owes us" had to do with her "9 to 5" attitude, and that
his comment that she complained "constantly" was based
on her being a "chronic malcontent, somebody who
really was never happy with any situation." Specifically,
Anninger testified that Moran complained about a
broken typewriter, about a photocopying machine that
would not work properly, and about, someone, she found
difficult in the bookkeeping department. With respect to
the last mentioned, Anninger testified that he frequently
needs to be, reimbursed for cash outlays, and thus often
must contact the bookkeeping department, and that he
had the impression, that Moran did not like dealing with
that , department. Anninger also testified that he.had had
a "pretty good" experience with, the accounting depart-
ment. -However, 'Moran credibly testified that the only
time she ever discussed the bookkeeping department
with Anninger was after she had gone there at An-
finger's request and that he was surprised that she re-
turned quickly and told. her that he had never had such
good luck with that department.
.Anninger,testified that his comment about Moran's re-
lationship with personnel was based on -his conversation
with Moran about Kotrofi the Friday before he left-on
vacation and that he was less concerned with whether
Moran's complaints were 'valid than with, the. fact that
she had a "complaining personality." Finally, Anninger
testified that he had never before recommended the dis-
23 Anninger credibly testified that any telephone calls he had had at
home with Hanlon had been initiated by himself and always involved
either a request that she come in early the next day or mitrucnons about
work to be done before he arrived if he was going to be late.
HERRICK & SMITH
charge or discipline of any nonattorney employee of the
Respondent, but that he recommended that Moran be
fired because he saw no hope for her improvement.
5. Cashman's reaction to the Anninger evaluation
Cashman first saw the evaluation when she arrived at
work on Monday, June 13. According to Cashman, she
had no reason to disbelieve Anninger's 'evaluation of
Moran, and, although she could not evaluate Moran's
performance herself, she believed that Anninger had
done so to the best of his ability. Cashman also testified
that she looked through Moran's personnel file to see if
anyone, else had had an experience similar to Anninger's
with her, and came to the conclusion that there were pe-
riods when Moran had not performed as well as she had
at others but that there were also times when she had
done very well. However, it is undisputed that Cashman
did not talk to Bohlen about Moran's work, and, al-
though Cashman testified that she thought Bohlen was
on vacation during one of the weeks at issue, Bohlen did
not testify, and, there is no documentary evidence or
other testimony as to whether he was available to discuss
Moran's situation. In any event, Cashman conceded that
she did not even consider the question of Bohlen's view
of Moran's work.
Under the circumstances, I do not credit Cashman's
testimony that she had no reason to feel that Anninger
had not evaluated Moran as accurately as he could. It is
undisputed that Cashman knew that Anninger's conduct
had been discussed at the secretaries' May 11 meeting
with Remis, and she was, of course, aware that Moran
had made an issue of Anninger's behavior on May 3. An-
ninger impressed me as a man who does not take criti-
cism lightly, and I cannot believe that Cashman, an
expert on personnel matters, did not recognize that An-
ninger might have evaluated Moran more harshly in re-
taliation for her criticism of him. Further, although
Cashman testified that she considered Anninger's evalua-
tion in light of other information in Moran's personnel
file, I find it noteworthy that she nonetheless operated
solely on the premise that Anninger's evaluation was jus-
tified, without taking it with the proverbial "grain of
salt," and without discussing Moran's performance with
any of the other attorneys, such as Wexler, Fishkin, or
Bohlen, for whom she had recently worked.
The same day there was a meeting of the Respondent's
salary committee, which is composed of Remis, Cash-
man, and Clark.24 Cashman credibly testified that in the
course of that meeting she told Remis that she had re-
ceived a "scathing" evaluation of Moran from Anninger
and that she intended to discuss it with Moran later in
the week. Cashman testified that she also advised Remis
and Clark that she had received an anonymous memo to
the effect that Moran had been "badmouthing" the firm,
and that she might discuss that with Moran at the same
24 The salary committee is responsible for deciding the amount of
salary increases the secretaries will receive on the basis of their annual
evaluations It is undisputed that although Remis is a member of that
committee he does not attend all of its meetings Indeed , Clark testified
that for the year preceding Clark's testimony in this case Remis had not
been directly involved in salary committee meetings unless specifically
asked to be
411
time as the evaluation. According to Cashman, she had
received the note 2 or 3 weeks earlier through the inter-
office mail, 'but had made no attempt to ascertain its
author or to talk to Moran about it. -
E. Moran 's Discharge
1. The events of June 16
• It is undisputed that on Thursday, June 16, Cashman
called Moran and said she wanted to talk to her. Moran
testified that when she arrived at Cashman's office Cash-
man told her that she had received various reports, in-
cluding one from Whitlock, that Moran had been "bad
mouthing" the firm. Moran said that Whitlock was enti-
tled to his opinion but she had never "bad mouthed" the
Respondent. According to Moran, Cashman then ac-
cused her of not being a loyal employee of the firm, and
Moran denied the accusation. Cashman then said that she
was not saying that Moran was disloyal, but repeating
Anninger's comments,25 and showed Moran the anony-
mous memo she had mentioned to Remis and Clark at
the salary committee meeting. Moran repeated that ev-
eryone was entitled to his opinion, and at that point
Cashman held up Anninger's evaluation of Moran and
read excerpts from it. 26 It is undisputed that Moran
denied everything she heard and said. the evaluation was
"ludicrous." According to Moran, Cashman said that if
Moran did not like working at the firm she could leave
and that she was in the wrong field and Moran replied
that she had been working for lawyers since 1964. Cash-
man, however, testified that she told Moran that if she
could not refrain from making negative remarks about
the firm she should look for work elsewhere.
According to Moran, Cashman further told her that
she would prepare a memorandum for Moran to sign and
that if Moran did not change her attitude and receive
better performance evaluations she would be terminated.
Moran responded that she would not sign any memoran-
dum and Cashman then said, according to Moran, that
that would determine her employment and further said
that Moran had stopped working with Whitlock because
of a personality conflict. Moran replied that that was not
the reason and that the correct reason was "on the
record"
Cashman, however, specifically denied telling Moran
that Whitlock had advised her that,Moran had been "bad
mouthing" the firm, or that she advised Moran that if
she did not change her attitude and receive better eval-
uations she would be. terminated. However, Cashman
conceded that she told Moran that if her performance
did not improve she would be discharged. Cashman also
testified that, when she read to Moran, Anninger's com-
ment about her attitude and loyalty, Moran protested
that Anninger's remarks were foolish and that she had
always been loyal to the firm and had worked hard for
25 Moran initially testified that she did not recall Cashman saying that
she was only,,refernng to what Anninger had said, but later conceded
that Cashman had made this comment
26 Cashman credibly testified that she does not read all of an appraisal
to its subject if she does not feel that reading the entire document will
result in the employee viewing the evaluation session as a_ positive one
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anninger as well as for Whitlock. According to Cash-
man, at that point she said, "That may be, but what
about this?" and showed Moran the anonymous note.
Cashman testified that, although she told Moran that
she would prepare a memo for her to sign noting that
she had read and understood its content, she did not say
that whether Moran signed the memorandum would de-
termine her employment. Cashman further testified that
she believed that she told Moran that she was not asking
her to agree with the substance of their discussion, but
only to acknowledge what had been discussed and that
she understood it. However, although I. have credited
much of. Cashman's testimony, her demeanor at this
point did not favorably impress me, for she seemed eva-
sive and only made this comment in response to a lead-
ing question on direct examination. Further, Moran.cre-
dibly testified that she did not recall Cashman telling her
that she only wanted Moran to sign a memo to acknowl-
edge that the conversation took place, and not as an indi-
cation that she agreed with the substance of what she
had been told.
Finally, Cashman testified, she-did not tell Moran that
Anninger had recommended her discharge, but did tell
her that she would look for a significant improvement in
her performance over the next 30 days. According to
Cashman, she did not tell Moran of Anninger's recom-
mendation because she did not intend to do what he had
suggested.
To the extent that there is a conflict between the ver-
sions of Cashman and Moran as to what was said at this
meeting, I credit Cashman, except, as noted, with respect
to her assertion that she told Moran that she would be
asked to sign a memo only to acknowledge what was
discussed. Although I have generally credited Moran's
testimony in this proceeding, certain portions of- her ac-
count of this discussion, particularly her, statement that
Cashman told her that her continued employment would
depend on whether she signed the memo, seemed to me
. I read excerpts from Mr. Anninger's evaluation,
.such as "the first few weeks went fairly well.
However, with time her personal life began to inter-
fere with her work. . . . She needs direction for
every decision. . .: Her attitude is her biggest
problem. She is not loyal to this-office, and has the
sense that we owe her more than she owes us. She
complains constantly to me or others walking by
and willing to listen.. . .
Miss Moran took exception to all these remarks,
said the comments were untrue, unfair, disgraceful
and ridiculous.
Negative Comments on the Firm-Miss Moran
denied "bad mouthing" the Firm. I told her never-
theless -not only, I, but partners [in the firm] had
been told that Miss Moran had been making nega-
tive remarks, and that this would have to cease im-
mediately. I showed Miss Moran the anonymous
note I had received. '
To sum up, I advised Miss Moran that her per-
formance would be evaluated again over the next
thirty (30) days, and that the evaluations would
have to come through a lot better: I reminded her
that she was earning $370.00 a'week to be a floating
secretary, and that if her performance did not im-
prove we would be forced to terminate her employ-
ment.
I also told her that as long as she is employed by
the Firm, we expect her to refrain from negative
comments. If she cannot, she should seek employ-
ment elsewhere.
I told Miss Moran that Mr. Remis is aware of
what I had discussed-with her, and is in full agree-
ment.
/s/ Gertrude M. Cashman
Gertrude M. Cashman
Director of Personnel
to be more of an attempt to bolster her theory of why MC/bg
she was ultimately'discharged than to accurately recount
the events at issue.
Cashman credibly testified that immediately after
meeting with Moran she prepared the following memo:
June 16, 1983
To: THE FILE
Re: Miss Mary Moran
Today I spoke with Miss Moran regarding the
following matters:
(1) Performance evaluation of Mr. Thomas
Anninger for period 05/02/83-06/10/83.
(2) Reports, that Miss Moran had been' "bad
mouthing" the Firm.
Performance Evaluation-I told Miss Moran that
Mr. 'Anninger rated the quality of her work only
satisfactory, the quantity unacceptable, and her per-
sonal characteristics such as judgment, initiative, de-
pendability, cooperation, etc. as average or- below
average. .
June 17, 1983
I have read, and understand the contents of this
memorandum.
/s/ Mary M Moran
Cashman testified that her only reason- for meeting
with Moran- on June 16 was the Anninger evaluation,
and that she felt that that evaluation -was based on a
short period of time and should be viewed against the
long period when Moran's work was satisfactory, and
Moran should be given an opportunity to improve her
performance. Cashman also testified that if Moran had
recognized the validity of Anninger's evaluation of her
no written warning would have been issued to her and
she would not have been asked to sign any disciplinary
document. According to Cashman, if Moran had said
that Anninger was right or that although he was wrong
there were areas where she could improve, or if she had
taken note of what Cashman said, Cashman would not
have prepared a memo However, according to Cash-
man, even if Moran did not acknowledge the validity of
HERRICK & SMITH
Anninger's complaints she should have been willing to
discuss them , but instead Moran took the attitude that
Anninger had no right to evaluate her performance and
that Cashman had no right to convey Anninger's views
to her.
Cashman further testified that in her tenure with the
Respondent no other employee had refused to sign an
acknowledgement of a summary of a discussion involv-
ing his or her work However, according to Cashman, as
of June 16 she had decided that if. Moran refused to sign
the memo she would have noted that fact on the docu-
ment , and would also have noted that the conditions
stated in the memo would nonetheless go into effect, i.e.,
Moran would still have been expected to significantly.
improve her performance in the next 30 days.
According to Cashman, her comment in her June 16
memo about having been advised by "partners" that'
Moran had been making negative remarks referred to a
conversation with Whitlock sometime between the
middle of April and the first of May. Cashman testified
that in that conversation Whitlock told her something to
the effect,that Moran constantly told other secretaries,
while they were at their desks ; that the Respondent was,
a terrible place to work.
Cashman further testified that Laura Chasnov, the su-
pervisor in the word processing department , told her in
early May that , while she was in a crowded public eleva-
tor in the building where the Respondent is located, she
overheard Moran say that everyone-was leaving, that the
secretaries were not treated right , and that the Respond-
ent was an awful place to work. However, Chasnov did
not testify , although there was no indication that she was
unavailable to do so; there is no evidence that either
Chasnov or Cashman prepared any memo documenting
this incident ; and at the hearing counsel for the Respond-
ent specifically disclaimed any contention that this con-
versation with Chasnov was included in Cashman's refer-
ence in the June 16 memo to Moran 's negative remarks.
Cashman testified that the ' anonymous memo played
no part in her decision to talk to Moran on June 16 be-
cause she felt that a complaint submitted anonymously
did not merit investigation. Cashman also testified about
her comment in the June 16 memo that she had discussed
the action she proposed to take about Moran with
Remis, conceding that her only discussion with Remis
about the Anninger evaluation was that on June 13.
2. Moran's response to the meeting with Cashman
The evening of June 16 Moran wrote,a memo to Cash-
man which she left on Cashman's desk the next morning;
she also left copies for Remis and McLauglin The text
of the memo read as-follows:
With regard to our conversation earlier today in
which you alleged that I "bad mouthed the firm,"
had a poor evaluation by Mr Anninger and in addi-
tion you quoted Mr. Whitlock as also having said
that I "bad mouthed the firm" is not surprising to
me. I knew it was only a question of time when you,
would set up a meeting between us to initiate action
against me.
413
1. You are aware that I went in with a group of
other employees to- the Managing Partner to ,ex-
press 'my dissatisfaction with your lack of support
to the secretaries in this firm;
2. In light of the fact that I have already written
you a memo in regard to Mr . Anninger 's inconsid-
erate, poor attitude towards me (his secretary left
him for the same reasons) it is just a natual pro-
gression for you to eventually meet with me. It is
on record about Mr. Anninger and the working
relationship that we have;
3. The reasons why I did not want to work for Mr.
Whitlock are on record as well as is my_ job per-
formance during _ that time-which is totally con-
tradictory to statements you have made to me this
morning;
4. The fact that you mentioned I am an unloyal em-
ployee of Herrick & Smith is ludicrous, inasmuch
as I cared enough to have a meeting with the
Managing Partner along with some other secretar-
ies to try to straighten things out, i e., the follow-
ing:
(a) The large number of secretaries that have and are.
continuing to leave the firm;
(b) The lack of support from Personnel when'secre-
taries have problems; and `. .
(c) The intimidation that other secretaries , and now
myself, have to contend with.
My loyalty to the firm is of the highest' quality. I
'have always' done a good job here at Herrick &
Smith and have always enjoyed working at the
firm-over seven years speaks for itself.
Your comments ' and demand that I sign a warn-
ing notice not only is an insult but also a clear bla-
tant act'on your part to set me up to be fired. Nov;
for the record, I deny all your accusations and
those of Messrs. Anninger and Whitlock and reaf-
firm in writing that I have never "bad mouthed -the'
firm" but have spoken my personal feelings to my
friends (and fellow workers) about your lack of sup-
port -and if my private conversation about Personnel
is misconstrued as against the firm, then it is - obvi-
ous to me that you have a problem and not me.
cc Edward F. McLaughlin, Jr.
Shepard M. Remis
3. The "events of June 17 '
Cashman credibly testified that she saw Moran's memo
on her desk when she arrived-at-work the next morning
and that after she read the memo she went to Clark's
office and asked him to read - both her memo and
Moran's. After Clark had done so Cashman asked him to
be. present at her next conversation with Moran and- he
agreed. They then .had a secretary call Moran and ask
her to come to Clark's office 27 According to both Clark
27 The following account of this meeting is a composite of the credible
portions of the testimony , of Moran, Cashman , and Clark None of the
three witnesses was totally , credible on this issue, but , rather than detail
all the conflicts in their testimony , I have noted only those which I con-
sider the most significant
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Cashman, they did not discuss what action would be
taken with respect to Moran while they waited for her.
When Moran arrived Cashman said that Clark was there
so that nothing that was said would be misconstrued and
Clark said that Cashman had prepared a memorandum of
the meeting the day before, which he gave to Moran to
read.
After Moran • had read Cashman' s memo , Clark asked
her if she had any comments. Moran said that the memo
misquoted her salary, which was $382 per week, and
Cashman made a marginal notation on the memo of the
correct amount. Moran then said that she disagreed with
all Anninger had said and that Cashman had said that
she was inflexible and not a loyal-employee'and she did
not agree with those remarks. Cashman interjected that
she had not made such a statement but' had read An-
ninger 's comments to' that effect, and Moran conceded
that Cashman was correct.28
According to Cashman, she said that she was not
asking Moran to agree with Anninger's evaluation but
only to agree that they had discussed it the day before
and that the memo accurately reflected that discussion.
Moran repeated, "It's all wrong." However, Moran
denied in her testimony that she was'told that she was
not being asked to acknowledge that the contents of the
memo were substantively accurate, but only that it cor-
rectly reflected what was said the day before. On this
point Moran appeared more forthright and candid than
did Cashman,-,and I therefore credit Moran.
Both Cashman and Moran testified that Cashman went
through each paragraph of the memo and asked Moran if
it summarized what they had discussed the day before,
and Moran agreed that it did. Cashman further testified
that Moran did, not repeat her charge of the previous
day that the evaluation was "ludicrous," but ,did say that
she did not agree with it.
Clark, on the other hand, testified that he did not
recall that they were ever able to get to the point where
Moran agreed that Cashman's memo was an accurate ac-
count of their meeting the previous day. Clark also testi-
fied emphatically and repeatedly that Moran refused to
discuss Cashman's memo and insisted on talking about
the attorneys' attitude toward the secretaries instead, and
that the conversation "did not focus, except to a very
minimal degree, on the performance evaluation, - which
was the purpose of the meeting." I do not credit Clark
on this point. In general, he did not impress me as a
credible witness, for he was frequently evasive in re-
sponse to questions and seemed to be-more anxious to
give a version of events which would be in accord with
the Respondent's view of the case than to accurately re-
count what occurred: Further, as noted, Cashman credi-
bly testified that she went over the memo with Moran.
When Cashman referred to the part of the. memo
about refraining from negative comments, Moran said
that she wanted to talk about other things, specifically
about the attorneys and the fact that secretaries were
28 Cashman credibly testified that she never told Moran that in her
personal opinion Moran was not a loyal employee, and, indeed, testified
that she had never heard Moran make a negative comment about the Re-
spondent except during the course of the June 16 and 17 'meetings
leaving the firm. Clark said that he did not care and
Moran responded that that was obvious.29 Clark further
said that the purpose of the meeting was to talk about
Anninger's evaluation of Moran and not about secretaries
leaving or problems other people might have, and told
Moran that what went on in the firm should not affect
her. Moran said that it did affect her because she had
been with the Respondent for over 7 years, that that was
why she had arranged the meeting of the secretaries with
Remis, and that she was very concerned. Clark said that
if she did not like the firm she should leave, and Moran
replied that she would leave at her own convenience.
Clark responded, "Not at your convenience, at our con-
venience."
According to Moran, Clark then told her that he
wanted her to sign the memo and she either did not re-
spond or refused to sign.30 Moran testified that Clark
then told her again to sign the memo and when she re-
fused he became "very red" and, leaning over his desk,
pointed his finger at her and "screamed" that she was
fired. 'However, both Cashman and Clark credibly
denied that Clark had acted in this way, and also testified
that when Moran-said she would leave at her own con-
venience Clark said that no one had such a luxury and
that at that point they again began to discuss the evalua-
tion. 3 i
Cashman further, testified that Moran started another
tirade about the attorneys and both Cashman and Clark
testified that Clark finally said that Moran left him no al-
ternative but to terminate her services. Moran said that
she would like to know what benefits were due her and
whether she was eligible for the Respondent's pension
plan, and Clark said that she was not, and that Cashman
would discuss the other matters with her.
Later on June 17 Cashman sent a memo to Remis with
the following text:
- Mike Clark and I met with Mary Moran today.
After considerable discussion, Miss Moran agreed
that my memorandum on June 16, 1983, accurately
reported what was said at our meeting.
29 Cashman testified that Clark did not make this comment On this
point, however, I specifically credit Moran Clark conceded in his testi-
mony that "I really wasn't interested in all these other things Maybe-
Well, I wasn't interested, we were not there for her analysis or review of
all these other things until at least we went through her performance
evaluation," and that he so told Moran Having watched Clark carefully
as he testified, I received the clear impression that his testimony that he
did not want to discuss Moran's concerns until after her evaluation had
been discussed was an afterthought, and that what he said to Moran was,
as she testified, that he was not interested in the points she was trying to
raise
so On direct examination Moran testified that the first time Clark told
her to sign the memo she refused, while on cross-examination she testi-
fied that when Clark first gave her that instruction she did not say any-
thing
31 Clark testified that after he made the comment about not having the
luxury to leave at one's own convenience he said, "Let's get on with the
evaluation " Clark was then asked if there was "some follow-up discus-
sion about the evaluation," and testified confusedly and after some delay
that "[t]he discussions came about when Mary would say that the re-
marks of the people in Mrs Cashman's transcript, the summary of their
conversation, all of it was totally inaccurate " I credit Cashman and dis-
credit Clark, for the reasons noted above, to the extent that his testimony
is inconsistent with hers
HERRICK &, SMITH .
She refused to sign. Mike told her we had no al-
ternative but to terminate her employment.'
Cashman also. sent a copy, of that memo to McLaughlin,
testifying that she did so because Moran's June 16 memo
to her indicated that a copy had gone to him.
Cashman also at some point made the following entry
on Moran's wage/salary 'history: "6/17/83-Terminat-
ed-MC-failed to participate in review process." Cash-
man testified that she could not recall when she made
that entry, and that she used Clark' s initials to indicate
that it was, he who actually terminated Moran. Clark tes-
tified that he never saw that notation prior to testifying
in this case and that he had never asked Cashman why `it
was there.
Cashman testified that she thought Clark had fired
Moran because she was unwilling to participate in any
evaluation of her performance and because she was un-
willing to accept any kind of control or direction' from
either Cashman or Clark. In support of this contention,
Cashman testified that in the June 16 meeting Moran did
not discuss the Anninger evaluation, but only said it was
"ludicrous," and that she took particular exception to the
comments about loyalty, and said that she would report
Cashman to Remis. However, I do not credit Cashman
on this latter point, for she did not 'appear candid when
giving this testimony. -
Clark testified that the decision to discharge Moran
was made in the course of the June 17 meeting, that' he
discharged her because of her "inflexibility [and] unreal-
istic [and] . uncooperative attitude," and that Moran
"[e]ffectively . . . quit when she came-in" to the meet-
ing. Clark also 'testified that he had not discussed the
possibility that Moran should be fired before' he dis-
charged her, that through June 17 he had never read An-
ninger 's'evaulation or talked to Anninger about the lat-
ter's views of Moran as his legal secretary, and that prior
to the June 17 meeting he had never heard Moran make
any negative comments about the Respondent and had
not heard any reports from partners that Moran had
made such comments.
Clark further testified that he had only scanned Cash-
man's memo of the June 16 meeting prior to the June 17
meeting and had not read the Anninger evaluation. How-
ever, Clark also testified that in deciding to discharge
Moran he took into account the evaluation. In an appar-
ent attempt to-reconcile these two statements, Clark then
testified that he only considered the evaluation as a state-
ment by an-individual. I do not credit this latter com-
ment , and find that Clark's. earlier testimony, that he con-
sidered the, evaluation in making the decision to fire
Moran, was more accurate..
Clark- also testified that Cashman had told him before
the meeting started that Moran had said the day -before
that she would not sign anything reflecting her discus-
sion with Cashman on June 16 and that that, refusal was
one factor leading to. his conclusion that Moran would
not participate in the June 17 meeting. According to
Clark, the purpose of the June, 17 meeting was "to see if
we could get things corrected in moving in a different
direction with Mary. The only way we could do that is
415
if we all communicated. If we had, then things might
have gone in a different way. They could have.
As discussed above; I do not find -that after telling
Moran a second time to sign Cashman's memo Clark
"screamed" at Moran that she was fired. Nonetheless, in
light of Cashman's memo to Remis and Clark's testimony
that Moran's refusal to sign the memo was part of his
basis for thinking that she would not participate in the
review, I find Moran's refusal to sign was also a factor in
her discharge. -
This conclusion is further supported by Anninger's
credible testimony that the week after he returned from
his vacation Cashman told him that she had a-meeting
with Moran and had read excerpts from Anninger's eval-
uation to her, that Moran had taken exception to all An-
ninger's comments and said they were outrageous, and
that Moran was asked to sign a document and refused to
do so. According to Anninger, Cashman also told him
that at a subsequent meeting Moran's refusal to sign the
document had led "to the point where Mike Clark felt,
`Well, we, all- have rules to obey here,- and I 'm sorry,
you're fired."' -
F.- Other Complaints by Support Staff- Other Instances ,
- of Discipline of Employees
1. Other support staff complaints
The record indicates that there has been only one time
other than the May 11 meeting that any member of the
support staff asked to see Remis in order to make some
work-related complaint. This occasion occurred some -
time shortly after .May 11 when Larry. Mullin, who
worked in the word processing department, called Remis
and asked to talk to him. According to Cashman, Remis
told her that he had advised Mullin to see her. Mullin
resigned his job with the Respondent on May 27.
There is evidence of other complaints by various em-
ployees, although not presented 'by them to a managing
partner. For example, in March 1982 secretary Laurie
Morgan wrote a memo to Kotrofi complaining that some
secretaries misused the, pool created to handle overflow
mag work. Kotrofi met with Morgan about the matter,
but told her that unless she were more, specific about her
complaints they could not be remedied.
'It is undisputed that in August 1982 Beranyk held
meetings with the support staff to discuss, as Beranyk
later stated in a memo to Clark, "issues and, problems of
mutual concern, and hopefully to develop constructive
solutions." According to this memo '32 . at these meetings
32 This memo was the subject of considerable controversy'at the hear-
ing in part because, althotigh the General Counsel had subpoenaed Clark
to produce "Memoranda , notes, minutes of meetings that included me`m- -
bers of the Policy Committee or Personnel Department- staff. and any
submissions by employees, referring to'employee complaints , suggestions
or grievances from January 1, '1981, to date," the memo was not' pro-
duced until the' fourth day of the trial The General Counsel contends, as
he did at the hearing, that the failure to produce the- document sooner
warrants an inference and a finding ` that the Respondent's lack of dili-
gence in supplying the document "reflects badly upon Clark's overall re-
liability, and was part of an attempt to tailor a defense " The General,
Counsel contends that such an inference is particularly justified in light of
(1) the'General Counsel's repeated questions to counsel for the Respond-
Continued
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the issue of `low morale' emerged, not unexpectedly, as
the primary topic," and the support staff who attended
the meetings expressed concern about, inter alia, rude-
ness by the legal staff to the support staff, inequitable
treatment of staff based on who worked for a partner
and who did not, the failure of some staff to do a full
day's work while other staff were overloaded, rude
and/or indifferent treatment of the secretaries by the em-
ployees in the accounting department, and an insufficient
number of mag machines.33
Clark testified that- he, discussed Beranyk's memo with
her and that "certain things . :. were done,"- but it does
not appear that many of the suggestions Beranyk made
in the memo were ever implemented. In addition, some
complaints by -employees or support staff supervisors re-
sulted in discipline; these are-discussed below.. -
2. Discipline of employees other than Moran
a. Discharges -
Cashman credibly testified that she followed the prac-
tice of memorializing discussions with support staff per-
sonnel relating to discipline and of asking the individual
who was the subject of such memo to sign it, and that
ent as to whether there were any notes of meetings involving the policy
committee or the personnel department staff in which employee griev-
ances were discussed and (2) counsel for the Respondent's assurances that
there were no such notes
The existence of this memo is first referenced in -the record late in the
third day of the hearing, and it was produced for my inspection the next
morning At that time, Cashman, although not under oath, stated that she
had seen the document for the first time the day before When Clark was
called as a witness much later in the hearing, he was asked how he had
gone about gathering the subpoenaed material, and testified that he talked
to Cashman about the matter and asked her to pull the appropriate
records because he assumed that whatever material the firm had would
be kept in the personnel department According to Clark, when Cashman
called him after the hearing opened and asked if there was such a docu-
ment, he talked to Kotrofi, and Remis' secretary found a copy of the
memo Clark also testified that when Cashman called him the Beranyk
memo "did not leap to mind as being an example of employee grievances
being voiced ," and that not all the matters discussed in the memo could
be termed grievances
.In support of his contention that an adverse inference is warranted, the
General Counsel cites Auto Workers (Gyrodyne Co) v. NLRB; 459 F 2d
1329 (D C Cir 1972), and argues that the Respondent's failure to dis-
close the existence of the memo, which was obviously known to Clark, is
a "threat to the integrity of the litigation process " However, while I
agree with the General Counsel's statement of the principle, I am not
convinced that in this case it applies Clearly, Clark knew that the meet-
ings between Beranyk and the support staff had been held and knew that
she had prepared a memo about those meetings Further, I put no faith in
Clark's assertion that he did not view the Beranyk memo as concerned
with employee grievances Nonetheless, as the court pointed out in Gyro-
dyne, the question of whether an adverse inference should be drawn is
one for the factfinder In this case, although I find that Clark's confused,
inconsistent , and rambling testimony about the Beranyk memo reflects
unfavorably on his overall credibility, the record suggests that the failure
to supply the memo earlier may have been a simple oversight In conse-
quence, and in light of the fact that the memo was supplied relatively
early in this lengthy hearing, I decline to draw the inference that the fail-
ure to supply the memo was a part of an attempt to tailor a defense
$9 Indeed, Beranyk specifically mentioned that an unidentified floater
had said at one of the meetings that the shortage of mags could have' a
disproportionate impact on floaters' performance evaluations The con-
cern was that an attorney who was not well acquainted with a floater's
performance might think that a secretary's failure to finish work was due
to her not working hard enough when the real reason was the lack of
equipment I find this comment in the memo significant in light of
Moran's complaints about the unavailability of mag machines
the Respondent had also followed this practice before
she became personnel director. Cashman also credibly
testified that on occasion she receives reports about an
employee's performance and that if such -reports are in
writing she adds them to the employee's personnel file; if
the reports are oral she may memorialize them herself. A
number of both types of memos were introduced- into
evidence and indicate the types of complaints made
about employees and the types of discipline employees
received.
The only legal secretary other than Moran to have
been discharged between Cashman's appointment as per-
sonnel director and the instant hearing was Averill Brad-
ford, who was discharged in December 1982. Bradford
had been employed by the Respondent since May 1976
and was Whitlock's secretary -from January 1977 until
August 1981. Various documents from Bradford's per-
sonnel file were introduced into evidence and indicate
that for a considerable period of time prior to her dis-
charge-she was the subject of complaints from various
attorneys and other personnel in the firm. For example,
in both his 1979 and 1980 evaluations of Bradford, Whit-
lock wrote that her work was satisfactory but her ab-
sences were excessive. In April 1981 Bradford sent a
memo to Beranyk, the then personnel director, complain-
ing, inter alias of the amount and difficulty of work
Whitlock required her to do for his outside interests, and
contending that if such work was a part of her normal
duties her performance of it should be taken into consid-
eration in determining her annual salary increases. A
month later Bradford sent another memo to Beranyk
complaining about a lack of cooperation from another
secretary in ensuring that the telephones were answered
in the area where they both worked.
On August 10, 1981, Bradford was reassigned from
working for Whitlock to a floating position. In response
to a request from Beranyk to explain why he and Brad-
ford had decided to stop working together, Whitlock
wrote that, although Bradford was "one of - the most
competent secretaries I have ever seen," he had prob-
lems with her attitude. Specifically, Whitlock wrote that
Bradford complained about matters such as broken ma-
chines or a lack of supplies, that she "took the attitude'
that she worked so hard that she could not be asked to
remain after 5 p.m. without being paid overtime, not-
withstanding the fact that she usually arrived a few min-
utes after 9 a.m., and sometimes quite late," and that she
brought personal problems to the office, and was absent
unexpectedly. Whitlock further wrote that "[t]he funda-
mental issue was that she had decided. that she would
make no further effort to correct these things, just flatly
refused. It was this lack of cooperation that lead [sic] to
our decision not to work together." In his 1982 evalua-
tion of Bradford,' covering the approximately 3 months
she had worked for him after her 1981 evaluation, Whit-
lock wrote that, although Bradford had exceptional
skills, when she felt overworked or under pressure she
was short with people and the quality of her work suf-
fered. In addition, Whitlock wrote, she was "increasingly
inflexible in responding to crisis overtime situations and I
HERRICK & SMITH
could not be sure she would be ready to work at 9 a.m.
because of her problems with transportation."
After Bradford' s reassignment • as a floater, memos
written about her during the spring of 1982 document
complaints that she chattered-incessantly and loudly and
distracted other secretaries. Indeed, in a memo to Ber-
anyk dated May 7, 1982, McLaughlin. wrote, "I don't
think [Bradford's] continued employment with the firm is
in the firm's best interest, unless you can persuade her to
change the manner in which she operates." On May 12,
1982, Beranyk wrote a memo to Bradford noting, inter
alia, that both she and Kotrofi had previously spoken
with Bradford about her deficiencies, that they had been
unable to find a permanent assignment for her because
various attorneys were unwilling to have her work for
them, and that, although her technical skills were excel-
lent, "the Firm must see an immediate and consistent im-
provement if it is to continue your employment." Brad-
ford signed that memorandum on May 26, 1982.34
In July 1982 Kotrofi sent a -memo to Beranyk about
Bradford's excessive absenteeism, and on August 6, 1982,
sent another memo to Beranyk about a conversation with
Bradford concerning the latter's absenteeism and com-
plaints about her chatter. According to the second,
memo, in the course of that conversation when Kotrofi'
told Bradford that she was putting a note in her file,
Bradford "left my office telling me that she was putting
a memorandum in my file." In that same memo , Kotrofi
recommended that Bradford be terminated. A few days
later Chasnov, supervisor of the word processing depart-
ment , for whom Bradford had apparently been working,
sent a memo to Kotrofi complaining of Bradford's per-
formance and attitude.
On October 28, 1982, shortly after Cashman became
personnel director, she wrote a memo to the file docu-,,
menting a conversation with Bradford in which Cashman._
told Bradford that the latter's absences were excessive'
and unacceptable and also talked about some problems.
Bradford had been having with her work. The memo
further stated that Bradford would receive amnesty for.
any complaints about her prior to Cashman's coming to
the firm, and that Cashman would evaluate her again 2
weeks after her reassignment as a floater. Bradford
signed the memorandum.
As noted above, Bradford was fired in December.
1982; according to Cashman, she was discharged because
she failed to improve hei record of absenteeism after her
meeting with Cashman in October. There is no evidence.
that Bradford was in fact reevaluated after her 2 weeks
as a floater.
It is undisputed that a number of nonsecretanal sup-
port staff employees were discharged in 1982 and 1983.
Thus, for example, Christine Knight, a word processing
operator who was hired on April 19, 1983, was dis-
charged after working for the Respondent only 3 or 4
months. A' month after Knight was hired, Cashman ,
talked to her about her poor language skills and work
habits, and in July discussed Knight's deficiencies with
34 It does not appear that any action was taken against Bradford for
her failure to sign the memo for 2 weeks after it was written, but there is
also no evidence of the reason for that failure
417
her again and told her that her- probationary period
would be extended for a month. According to Cashman,
Knight was discharged because her performance did not
measure up to the Respondent's standards.
The record also contains extensive evidence about
computer operators Susan Cameron and Elizabeth Col-
lins, who were the subject of numerous memoranda from
August 1981 until they were discharged in January 1983.
Specifically, the data processing supervisor, Greta Ostro-
vitz, complained to Beranyk in August 1981 about the
two employees taking extra time for lunch without per-
mission, and wrote another memo 2 weeks later about
their habitual late arrival at work. Beranyk talked to
both employees on September 23, 1981, and prepared a
memo of that discussion Although- the memo contains
lines for the employees' signatures, neither Collins nor
Cameron signed it, and there is no evidence that they
were disciplined in consequence. Ostrovitz sent another
memo to Beranyk on December 9, 1981, and another 2
weeks later, about Cameron's failure to follow instruc-
tions and a' consequent loss of time on the computers.
The second memo also noted that Cameron and Collins
had disobeyed Ostrovitz' specific rule against playing a
radio in the computer room. Thereafter, in May 1982,
Ostrovitz documented some careless mistakes made by
Cameron,'and sent another memo to Beranyk that same
month about both employees' excessive personal tele-
phone calls. On June 10, 1982,' Ostrovitz wrote another
memo to Beranyk in which she complained about Cam-
eron's failure to balance the books properly, discussed
Cameron's poor attitude and job performance, and rec-
ommended that Cameron's employment with the Re-
spondent continue only until she found another job. By
memo dated July'19, 1982, Ostrovitz recommended that
Cameron's annual review be deferred for 1 month be-
cause there had been no significant progress in her work
performance during the previous' year. Beranyk wrote a
memo to the file the same day about conversations she
had had with Ostrovitz over Cameron's and Collins' fail-
ures to properly perform their jobs while Ostrovitz was
on vacation and the resulting loss of data, their failure to
help an outside supplier who came to repair an equip-
ment failure, and various other problems with their atti-
tude and work. On September 7 and 10, 1982, Ostrovitz
wrote memos to the file about Cameron's careless work.
Thereafter, by memo' dated October 12, 1982, Ostrovitz
instituted new computer room procedures and. advised
both Cameron and Collins that failure to follow those
procedures could result in their discharge. Cashman dis-
charged Cameron on January 6, 1983; according to the
memo Cashman prepared of the discharge interview, she
told Cameron that she was being fired because of the
level of her performance as a computer operator and be-
cause she had failed to complete the weekly proof sheet
between the general ledger and billing. Collins was also
discharged by Cashman, but the memo of her discharge
interview, if there was one, is not in evidence.
Another data processing employee discharged by
Cashman was Louis Karidoyanes, an assistant manager,
who had been hired on January 17. By memo dated
March 11 Ostrovitz advised Cashman that Karidoyanes
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was unable to make decisions, required close and con-
stant supervision, and missed deadlines, and that his per-
formance did not meet the Respondent's minimum stand-
ards. The memo recommended that Karidoyanes be eval-
uated over the next 30 days and that he be discharged if
there was no improvement in his performance., That
same day. Cashman wrote a memo to the file which Kari-
doyanes signed. Cashman's, memo summarized Ostrovitz'
memo and advised Karidoyanes of the 30-day deadline.
On March 30 Cashman wrote another memo to the file -
stating that Karidoyanes was discharged effective that
day. - - -
The record also contains considerable documentation
of the performance of Arnold Wilkins, a messenger, who
was hired in November 1982. According to a memo
from Service Manager Arthur Pottie to Cashman dated
February 24,., Wilkins had problems getting along with
most. of his coworkers, was inflexible, and often ques-
tioned authority. The memo further stated that Pottie
had talked with Wilkins about these.problems three or,
four times without effect, and that Pottie recommended
that Wilkins be placed on a 1-week probation and that, if
his attitude and the quality of his work did not improve,
he be discharged. Cashman wrote a memo to the file on
February 28,"which stated that if Wilkins'- performance
did not improve significantly he-would be discharged, -
but did not state a -deadline for the improvement. Wilkins
signed that memo. Pottie wrote another memo on March
25 documenting Wilkins' refusal to comply with a re-
quest from his supervisor and stating that one more fail-
ure to respond to a direct order would result in his dis-
missal . Cashman credibly testified that Wilkins was fired
on March 25 after refusing another direct order.
Arlene Meucci was an accounting clerk who worked
for the Respondent for 10 or 12 years. In April 1982
Meucci received a review stating that she was doing'a
"good job" but needed to develop better working rela-
tionships with some attorneys and support staff. On July
7, 1982, Beranyk wrote a memo to the file about ' a
"rather loud altercation" between Meucci and the Re-
spondent's trust bookkeeper. Nancy Young, the supervi-
sor of the accounting department, discussed the incident
with Meucci at Beranyk's request, but there is no evi-
dence that Meucci was otherwise disciplined or asked to'
sign any kind of memo or warning. At some point after
Cashman became personnel director it came to her atten-
tion that Meucci did not have the technical skills to
work with anew accounting system the Respondent had
installed,'-and Cashman was also advised by Young that
Meucci was argumentative and not responsive to the re-
quests of the secretaries who came to the accounting de-
partment. Cashman discharged Meucci, testifying that
she did so because Meucci could not handle the responsi-
bilities inherent in the new system. -
The only other support staff employee to be dis-
charged during the-relevant time period was D. Virginia
Jones.. According to a memo from Kotrofi to the file
dated July 6, 1982, Jones had been acting as a backup to
Kotrofi in the personnel department and it appeared that
she had not handled certain matters with the confiden-
tiality required in her position, had made comments
which allegedly misrepresented certain situations, ' and
had displayed poor judgment . Although the memo con-
tained a line for Jones ' signature , Jones did not sign it,
but there is no evidence that her failure to do so resulted
in any discipline . Jones was discharged in September
1982 because after she was put on disability leave follow-
ing an automobile accident , she failed to advise the firm
as to whether she wished to remain employed.
Review of the evidence pertaining to discharged em-
ployees establishes that most of them , particularly those
who had been with the firm for a significant period of -
time , were warned numerous times before they were fi-
nally terminated . Thus, for example , Bradford 's excessive
absences had been noted in both her 1980 and 1981 eval-
uations, and her lack -of cooperation and other attitude
problems were the subject of at least five memos be-
tween August 1981' and October 1982. Nonetheless, al-
though Casliman told Bradford in October 1982 that she
would be reevaluated' after 2 weeks as a floater, Bradford
was not fired until December of that year . Similarly,
Cameron was ' the subject of 11 ' critical memos between
August 1981 and her discharge in January 1982, and Col-
lins' was the subject of 6 such memos in, apparently, the
same time period. Even employees with relatively short.
tenure generally received more than one warning that
their performance was not satisfactory before they were
discharged. Cashman talked to Knight twice , and Wil-
kins was the subject of two written memos and , appar-
ently , a good many oral warnings before he was fired.35
b. Other treatment of employees with poor work
performance and/or attitude
Lombre had been hired by the Respondent as a floater
in May 1981. On August 31, 1982, Beranyk sent a memo
to -Clark about Lombre's May 1982 evaluation noting
that the paralegals for whom Lombre was working had
said-that she was quick, pleasant, and had good skills and
potential, but that she-spent too much free time chatting,
did not listen to instructions, and had some reluctance to
perform backlogged work. The memo also noted that
Lombre was reviewed again in July 1982 and had shown
improvement, and recommended a further salary in-
crease. On October 29, 1982, Cashman wrote a memo to
the file about a meeting she had had with Lombre in
which Lombre had aired various complaints and Cash-
man 'had cautioned her about her use of sick leave and
her excessively ' long telephone calls. According to the
memo, Cashman advised Lombre that she would be as-
signed as a floater and that her performance would be
reviewed within a month. In November and December
1982 various of the attorneys indicated dissatisfaction
with Lombre's work,-particularly her inability to follow
directions and her difficulty in taking dictation, and sev-
eral attorneys, including Anninger, requested that
Lombre not be assigned to them again. Indeed, accord-
ing to Cashman, some of Lombre's floating assignments
as I recognize that there was only one memo by Kandoyanes' supervi-
sor, but he had been employed less than 2 months when that memo was
prepared Further, although Meucci and Jones were each discussed in
only one memo, the conduct discussed in those memos was not the basis
for their terminations
HERRICK & SMITH
lasted less than a day because she could not handle the
work _
Cashman credibly testified that, although Lombre had
been hired as- a legal secretary, her skills were not ade-
quate for that position, and that in December 1982 Cash-
man told Lombre that she would have to receive better
reviews if she wanted to continue as a floater. However,
according to Cashman, the reviews of Lombre's work
did not show improvement, and none of the attorneys
for whom Lombre worked as a floater was interested in.
having her as a permanent secretary It is undisputed that
Cashman never initiated any discussions with Lombre
about the latter's work performance and that Lombre
was never asked to sign any warning notice about defi-
ciencies in her work. It is also undisputed that at some
point Cashman offered her two different positions, first-
as a receptionist and then as a word processing operator,
in the firm. According to Cashman, although Lombre
should not have been hired as a legal secretary, she had,
been retained by the Respondent for 2 years without
ever having been advised that she could not handle the
job, and it was therefore the Respondent's responsibility
to place her in a position where she could be productive.
Cashman further testified that she would not have felt
that the Respondent had the same obligation to retain
Lombre if she had only been employed there a few
months. Lombre resigned her job with the Respondent
on June 20 According to Cashman, for the last 3 months
or so that Lombre worked for the firm she did not float
but was assigned work from various individuals because
of her lack of skills.
Other secretaries who apparently exhibited a serious
deficiency in necessary skills were also not warned or
disciplined Thus, for example, in 1981 a secretary was
reassigned at the end of her 3-month probationary period
at the request of the attorneys for. whom she had been'
working, but did not receive any type of warning as a
result.36 Subsequently, that same secretary was the sub-
ject of a memo to Beranyk complaining that, when she
had substituted for another secretary during the latter's
absence, she had left the other secretary's desk "a mess,"
and had made a number of mistakes. It does not appear
that any discipline was imposed in consequence.37
Similarly, two other secretaries whose skills were defi-
cient were not subjected.-to any threat of discharge.
Thus, also in 1981, partner William Shields requested
that his secretary be transferred from working for him to
a floating position because her skills were not sufficient
to handle his workload; however, there was no discipline
imposed on her in consequence and there is no indication
that she was told that her performance would have to
improve in order for her to keep her job.38 Still another
secretary who had difficulties in performing the work
was assigned to submit her work to Kotrofi so that the
latter could review it before it was given to an attorney.
According to Cashman, after 4 or 5 months of this ar-
36 However , when that secretary was hired Beranyk had indicated to
her that if her performance was satisfactory she would receive an in-
crease at the end of her probationary period, she did not receive that in-
crease
37 See G C Exh 34
39 See G C Exh 48
419
rangement , the secretary was able to handle the work on
her own , and remained employed by the Respondent at
the time of the hearing. -
There is also substantial , evidence about support staff
whose attitude or conduct -was a source of concern. For
example , the record contains a memo dated August 18,
1980, from Kotrofi to Beranyk concerning a request by
word processing operator . Suzanne Sillaber -Kuhns that
Kotrofi advise a potential employer that Sillaber-Kuhns
was earning a higher salary than she actually was. The
memo also noted a conversation - in which Sillaber-Kuhns
asked Kotrofi for overtime because she came in at 8:30
each morning for her own convenience , even though
there was no work at that time for her to do. On August
19, 1980 , Kotrofi wrote another memo to Beranyk about
Sillaber-Kuhns' telling another employee to list that Sil-
laber-Kuhns had worked -more overtime than she had. In
September , October , and November 1980 there were
more memos about Sillaber-Kuhns' conduct in, inter alia,
failing to perform certain assignments or to work the
hours she was scheduled . At this time Sillaber-Kuhns
was the acting evening supervisor in word processing,
but was about to go on maternity leave . The memos indi-
cate that, although she was told that no decision about
retaining her in that position would be made until she re-
turned from her leave , no discipline was imposed on her.
Another secretary was the subject of a memo dated
September 29, 1980, which noted that she seemed to
have a lot of free time and that she used that time to talk
to other staff rather than helping with pool work. How-
ever, there is no evidence ' that the secretary, whom
Cashman described as ',,excellent," received any disci-
pline, other than the memo itself.3 9
Beginning in October 1980 there were complaints of
time wasting by secretary ' Patricia Desaulniers. The
record contains memos 'showing that , as a result of these
complaints , Desaulniers was reassigned from the attorney
for whom she had been working on June 30, 1981. The
reassignment apparently did not accomplish . its purpose,
however, for in September 1981 Beranyk wrote a memo
to Desaulniers stating that Desaulniers wasted too much
time, was away from her area an unreasonable amount of
time , and was involved in too many personal telephone
calls. The memo further stated that Desaulniers could be
terminated if she could not meet . the Respondent 's stand-
ards for productivity .. However , no further action was
taken against Desaulniers and she went on disability
leave at some time prior to Cashman becoming personnel
director. ,
Also in 1980, Beranyk wrote a memo to the file docu-
menting complaints by attorneys and staff in the Re-
spondent's labor department about a' secretary who had
been employed by.the Respondent for almost 8 years. In
consequence , she was transferred to a floating position,
but remained with the firm . - I also note that in March
1981 this same secretary complained to Kotrofi that
Wexler, for whom she was working at the time, made
excessive demands on her and she was therefore unable
to do the work of the other person to whom she was as-
39 See G C Exh 41
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed, and that -various other behavior of Wexler caused
her to feel "very tense and anxious."-There is no-evi-
dence that any action was taken as a'result' of this com-
plaint.4 0 -
Still another secretary is the subject of three memos
dating from February and March 1981 documenting crit-
icism of her for lack of cooperation and ignoring a ring-
ing telephone, but there is no evidence that • she was
warned or otherwise disciplined in consequence. Another
memo, dated May 13, 1982, from Beranyk to Kotrofi,
noted that concerns raised about this secretary were
"distressing and should .. . be investigated as soon as
possible,".but again there is no evidence of any discipline
being imposed on her in consequence .41
The record also contains a 1981 review noting that a
secretary who had substantial free time did not offer to
help the secretarial pool and had not learned how to use
the mag machine, although she -had expressed willingness
to learn. A subsequent note from Beranyk advised that
the secretary had, not followed through on the matter
and therefore could not, help the pool, but there is no in-
dication that she received any discipline or warning in
consequence.42
The record also includes memos pertaining to com-
plaints by a secretary in May 1981 that the attorney for
whom she worked was too demanding, rude, and unfair
and complaints by the attorney that the secretary was
uncooperative, unresponsive, and very careless. Beranyk
urged both parties to discuss their concerns and noted
that she had also talked with the secretary about the Tat-
ter's refusal to do a specific, project. Beranyk memorial-
ized a conversation in which she told the secretary that
it was inappropriate for' her to refuse to comply with a
reasonable request and that she 'did" not want to hear of
any more such incidents, and that the secretary would be
reassigned, but no other discipline was imposed on her,'
and she was 'still employed by the ' Respondent- as of the
time of the hearing.43 - -
Memos dated January 1982 'document the extremely
poor attendance record of another secretary. In conse-
quence, Clark told her that unless her attendance im-
proved she would be transferred to a floating position,
and in March 1982- she was, but it does not appear that
any other discipline was imposed on her 44
Also in January 1982, McLaughlin requested that his,
permanent secretary be replaced, and she was conse-
giiently transferred to, a floater' position. -A week later,
Beranyk wrote a memo to the file detailing complaints
from both secretaries and attorneys about this secretary's
rudeness and complaints from secretaries about her fail-
ure to help others with work. However, it appears that
she was not disciplined.45 -
In November 1982 Cashman wrote a "memo about
Larry Mullin, evening lead operator in the word process-
ing department, listing complaints about him from -vari-
ous attorneys and from Laura Chasnov,- his supervisor,
40 See G C Exh 33
41 See G C' Exh 43
42 See G C Exh 36
43 See G C Exh 47
44 See G C Exh 45
45 See G C Exh 46
and advising Mullin that Cashman would again review
his performance in 2 weeks. The lead operator= responsi-
bilities, which included interaction with the, attorneys
and prioritizing of the department's work, were with-
drawn from -Mullin about December 9, 1982, but he re-
mained an operator and suffered no decrease in salary.
Cashman testified that when these duties were with-
drawn she explained the situation to Mullin but did not
ask him to sign anything because, although he did not
agree with the decision, he accepted it.- Mullin-resigned
from the Respondent in late May 1983. - ' • ' '
Another memo documented an April 1983 incident in
which a secretary shouted at a paralegal when the latter
asked for her work to be done as quickly as; possible.
The memo also reflected that two other individuals for
whom the secretary was working also said they were
having problems getting their work done, but there is no
evidence that the secretary was subjected to any disci=
pline in consequence 41
As late as October 1983, shortly before the ' hearing
opened, Cashman wrote a memo to the file about a sec-
retary's failure to answer the telephone properly, but no
discipline was imposed on her.47
3. Other evidence of reassignments of secretaries
As noted above, floaters are sometimes reassigned
from one attorney to another, either at the secretary's re-
quest or at the request of the attorney. According to
Cashman, during her tenure with the Respondent and as
of the time of the hearing, no more than three attorneys
other than Anninger had asked for a change in a floating
assignment , and the only secretary who was subsequently
disciplined was Bradford. ,
The record also contains substantial evidence of other
reassignments of secretaries from one attorney to an-
other. For example, partner Edward Condit's secretary
of 3 or 4 years was reassigned as a floater after a client's
will was lost in April 1983. Cashman testified that the
secretary received a disciplinary warning about the inci-
dent, but there is no documentary evidence of this disci-
pline and it is undisputed that the secretary was not
asked to sign any warning. Subsequently , the same secre-
tary worked as a floater for another partner but he asked
that she be:reassigned because she could not handle so
busy an assignment . The secretary was not disciplined
and, indeed, was not even told the true reason for her
reassignment , but instead was advised that another secre-
tary wanted an opportunity to try for the position.48
According to Cashman, none of the other secretaries
who were reassigned • denied having the shortcomings
which resulted' in the transfer. However, as noted above,
not all of them were advised that they had any short-
comings.
-G. The Parties' Contentions
The General Counsel contends that by telling Moran
odJune 16 and 17 that she must refrain from criticizing
46 See G C Exh 37
47 See G C Exh 42
48 See G C Exh 39
HERRICK & SMITH
her employer and by discharging Moran on June 17, the,
Respondent violated Section 8(a)(1) of the Act. In sup-
port of these contentions, the General Counsel argues
that ( 1) it is unlawful under the Act for an employer to
tell an employee that he or she must refrain from criticiz-
ing. the employer or to condition continued employment,
on compliance with such a prohibition ; and (2) An-
ninger 's unfavorable evaluation of Moran , the warning
Cashman gave to Moran at her meeting with her on June
16, and Moran 's discharge were all prompted by Moran's
protected concerted activity of complaining with other
secretaries ' to Remis and McLaughlin about working
conditions in the firm . Thus, the General Counsel argues
that the reasons given by Anninger , Cashman , and Clark
for their actions were pretextual , as demonstrated by.
Moran 's satisfactory work performance and the disparate
treatment accorded to her as compared to other support
staff with poor work performance and/or attitude.
The Respondent , on the other hand , contends that (1)
neither Moran 's involvement in the May 11 meeting nor
her complaints about various - matters at the firm consti-
tuted concerted activity protected by the Act ; (2) even if,
she engaged in protected concerted activity , that con-
duct was not a motivating factor in her discharge; (3)
Cashman 's June 16 memo did not , state any unlawful
conditions of employment ; and (4) Moran was not dis-
charged for refusing to sign that memo.
H Analysis and Conclusions
1. The warning
It is well established that a warning to an employee
that he or she should either refrain from making protect-
ed concerted complaints or look for employment else-
where violates Section 8(a)(1) of the Act . 49 However, as
noted above , the Respondent asserts that Moran did not'
engage in any protected - concerted activity , and,' thus,
that Cashman 's warning to her about making negative
comments was permissible . In support of this contention,
the Respondent asserts that its evidence regarding,
Moran's complaints demonstrates that the complaints did
not constitute protected concerted activity but were, in-
stead , mere "chronic griping ... not intended to initiate
or induce group action or even to advance the common
interest of the secretaries."
The evidence on which the- Respondent relies is the
testimony of Whitlock, Anninger, and Wexler that they
heard Moran complain frequently , Cashman 's -testimony
about the purported report to her from Laura Chasnov
about hearing Moran make a comment in the elevator,
and the anonymous memo to Cashman which she men-
tioned to Moran during their meeting on June 16: How-
ever , I find that the record does not support a finding
that Moran did as much complaining as the Respondent
contends.
First , I have specifically discredited Whitlock 's testi-
mony-about the alleged deterioration of his working rela=
tionship with Moran and her alleged complaining In ad-
dition , given the circumstances under which Moran
49 See, for example , Stemerfilm, Inc, 255 NLRB 769 (1981 ), enfd in
relevant part 669 F 2d 845 ( lst Cir 1982), cited by the General Counsel
421
stopped working for Whitlock and Cashman 's knowledge
of those circumstances,. I find that Cashman 's purported
reliance on what Whitlock told. her was not in good
faith . For, as with Cashman 's testimony that she had no
reason to believe that Anninger had not evaluated Moran
as well as he could , it strains credulity that Cashman
would take Whitlock 's comments at face value. More-
over , the only specific complaint by Moran that Whit-
lock could recall related to the unavailability of mag ma-
chines, a complaint which can hardly be construed -as an
expression of disloyalty to, the Respondent.
I have similar difficulty with the Respondent 's stated
reliance on Anninger 's statement in his- evaluation of
Moran that "[s]he complains constantly to me or others
walking by and willing to listen " and-on his testimony in
explaining that comment that Moran was a "chronic mal-
content , somebody who really was never very happy,
with any situation ." Anninger testified specifically that
Moran complained - about a broken typewriter , a photo-
copying - machine, and the bookkeeping • department.
However , I have credited Moran 's denial of Anninger's
testimony about bookkeeping , and I have also credited
Allen's testimony that she never heard Moran make any
remarks that could be construed as disloyal to the firm.
Further , I note that Anninger did -not testify that he re-
ferred to Moran 's complaints in his discussions about her
with Cashman ; if the complaints were as distressing as he
indicated in his testimony , it seems unlikely that he
would have failed to include them in his listing to Cash-
man of the reasons for his dissatisfaction with Moran.
With respect to Cashman 's alleged conversation with
Chasnov , as noted above, Chasnov did not testify, al-
though as a supervisor employed by the Respondent she
could presumably have been produced as a witness. As
also, noted above, the Respondent has disclaimed any
contention ' that the reference in the June 16 memo to
negative remarks was based in any way on Chasnov's
report.
As to the anonymous note, Cashman stated in her tes-
timony that the memo did not enter into her decision to
speak to Moran on June - 16. Accordingly , the Respond-
ent cannot properly rely on that note as justification for
the warning given to Moran . Similarly, although Wexler
testified that he overheard Moran make remarks which
indicated ."strong dislike for the way the firm operated
and the way people were treated," he did not advise
Cashman of Moran 's comments . Thus, Cashman could
not have relied on any information received from Wexler
in deciding to issue a warning to Moran.
The. foregoing discussion leads - me to - the conclusion
that the Respondent 's witnesses considerably overstated
the nature and extent of Moran 's complaints , and that, al-
though Moran , as she stated in her June 16 memo to
Cashman ,- had "spoken [her],.personal feelings"- to other
staff, Cashman 's warning to her in the course of the June
16 meeting was not based on "negative remarks" or "bad
mouthing" by Moran To the contrary , I find that the as-
serted reason for the warning was pretextual , and the
real purpose behind it was an attempt either to force
Moran to resign or to provoke her into some conduct
that might arguably provide a legitimate basis for her
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. I therefore find that the warning was in retal-
iation for Moran's protected concerted activity and thus
violated Section 8(a)(1) of the Act.
2. The discharge
a. The nature of Moran's activity
The Respondent contends that the May 11 meeting
was not protected concerted activity because "the meet-
ing did not constitute an effort on the part of this group
of secretaries to advance their common interest. Rather,
each of the secretaries in attendance at the meeting at-
tempted to advance her own individual interest. While
there were generalized comments about . concern for
office morale and the number of secretaries leaving the
firm, a close examination of the meeting reveals that its
real teeth involved individual complaints made on an in-
dividual basis. As such, this activity does not constitute
concerted action." In support of this proposition, the Re-
spondent cites the Board's recent decision in Meyers In-
dustries, 268 NLRB 493, 497 (1984), in which the Board
held:
In general, to find an employee's activity to be
"concerted," we,shall require that it be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self. Once the activity is found to be concerted, an
8(a)(1) violation will be found if, in addition, the
employer knew of .the concerted nature of the em-
ployee's activity, the concerted activity was pro-
tected by the Act, and the adverse employment
action at issue (e.g., discharge) was motivated by
the employee's protected concerted activity..
I find, contrary to the Respondent's assertions , that the
record establishes that Moran's activity with respect to
the May 11 meeting was concerted within the meaning
of Meyers and was also protected. First, I have found
that Moran discussed her intention to arrange the meet-
ing with a number of the other secretaries, and that one
of them, Lombre, specifically aided Moran in formulat-
ing the agenda and in ascertaining whether other secre-
taries planned to attend the meeting . Second , it is clear
that the secretaries attending the meeting were voicing
matters of common concern. Thus, for example, when
Moran described Anninger's use of vulgar language' to
her, the other secretaries at the meeting also talked about
him, specifically mentioning that he was hard to get
along with and gave work to his secretary late. Further,
when Moran talked about Cashman's lack of support for
the secretaries and their concern that bythe time Cash-
man turned her 'attention to the secretaries they would
be gone, some of the other secretaries at the meeting said
that Cashman ignored their complaints, and that they
had no one else to whom they could take these matters.
Accordingly, I find that at least some of the complaints
Moran registered at the meeting, especially those involv-
ing Anninger and Cashman, were not merely her individ-
ual grievances, but were complaints voiced by other sec-
retaries as well. I' thus find no merit to the Respondent's
contention that that meeting was no more than an oppor-
tunity for a group of employees to air what' were indi-
vidual complaints.
As to whether Moran's activity was protected, I take
note of Lutheran Social Service of Minnesota, 250 NLRB
35 (1980). In that case, the administrative law judge, af-
firmed without comment by the Board, analyzed the dif-
ference between chronic complaining and protests pro-
tected by the statute. In finding the conduct of two al-
leged discriminatees unprotected, he noted, "There is no
evidence that they were attempting to organize a labor
organization, they made no effort to invite the other em-
ployees into some informal coalition; they formulated no
agenda; they filed no grievances; and they made no de-
mands . What they did, essentially, was to complain, criti-
cize, and carp from, as it were, the sidelines." Id at 41.
The same, of course, cannot be said in the instant case,
for Moran's activity in arranging and preparing for the
meeting with Remis was not only undertaken in concert
with other secretaries, but had the purpose, pursuant to
McLaughlin's advice, of airing a variety of complaints,
many of which were shared by all or most of the secre-
tanes at the meeting. There can be no question that the
complaints raised by the secretaries related to their terms
and conditions of employment, and I therefore find that
Moran's activity with respect to that meeting ,was' pro-
tected by Section 7 of the Act.
b. The Respondent 's reasons for its actions against
Moran
(1) Anninger
Having found that Moran's work performance and at-
titude did not deteriorate during the period she worked
for Anninger, I do not credit Anninger's stated reasons
for his ratings of Moran on the evaluation and his writ-
ten comments. I find it especially noteworthy that the
last week Moran worked for Anninger purportedly,
formed the basis for much of his negative comment
about her; given the vehemence of the evaluation, the
failure to include other examples of Moran's alleged defi-
ciencies indicates that in fact there were none. In addi-
tion, the recommendation that Moran be discharged
based on the events of only 1 week strongly supports the
inference, which I draw, that Anninger was trying to
build a case for Moran's discharge and that he was moti-
vated by concerns other than her performance as a secre-
tary. Moreover, there is no contention that Moran was
not entitled to the time she took off the week of June 6
or that her overall attendance record was less than satis-
factory.
As discussed above, I have also discredited Anninger's
testimony that he was not aware of Moran's statements
to Remis about him until after she was discharged, and I
do not believe Anninger's testimony that he was not con-
cerned about what occurred at the May 11 meeting.
Indeed, his purported lack of concern is belied by his ad-
mitted anxiety prior to the meeting to advise Remis that,
in Anninger's view, Cashman should be present. In these
circumstances, I conclude that Anninger's complaints
about Moran and his recommendation in the evaluation
that she be discharged were based on a desire to retaliate
HERRICK & SMITH
against her for her activity in arranging the meeting with
Remis and her participation in that meeting.
(2) Cashman
As discussed above, I have found that Cashman was
more concerned about the complaints made about her at
the May 11• meeting than she indicated in her testimony.
I have also' discredited Cashman's testimony that An-
ninger told' her the end-of the first week of June that
Moran should be discharged.' Accordingly, I also dis-
credit Cashman's testimony that Anninger's comment
was the reason that she asked him to write an evaluation
of Moran: Instead , I find that Cashman realized both that
any evaluation Anninger prepared of Moran was likely
to be highly unfavorable, and that such an evaluation
was also likely to cause Moran either to quit or to pro-
voke her into some action for which she might be dis-
charged. I thus also find that the basis for Cashman's re-
quest to Anninger was her realization that the result of
that evaluation would probably be Moran's departure
from the firm.
In making this finding, I am particularly cognizant of
the disparity, described above,- between the Respondent's
handling of, Moran's alleged deficiencies and the treat-
ment of other support staff with work or attitude prob-
lems.50 In this regard, I also note Cashman's testimony
that other secretaries with various work-related deficien-
cies were not disciplined because they acknowledged the
validity of the complaints about them. For, I have found
that Anninger's complaints about Moran were prompted
by her protected activity rather than by any deficiency..
in either her skills or her attitude; in these circumstances,
she was under no obligation to acknowledge the validity
of Anninger's criticisms. -
(3) Clark
As discussed above, I have found that Clark -was
aware some time before June 17 of what was discussed
at the May 11 meeting and I have discredited Clark's tes-
timony that Moran refused to acknowledge that Cash-
man's June 16 memo accurately recounted her meeting
with Moran. I also discredit Clark's testimony that the
decision to discharge Moran was made during the June
17 meeting and that Moran was discharged because of
her "inflexibility [and] unrealistic [and] uncooperative
atttitude." To the contrary, I find 'that Clark, like An-
ninger and Cashman, was looking for a basis for either
causing Moran to resign or discharging' her, and that
Moran's refusal to sign the memo provided such a basis.
Inasmuch as Moran had already acknowledged that
the memo accurately described her conversation with
Cashman the day before, the normal course would have
been for Cashman to; as she testified, note on the memo
that the employee refused- to sign but that the action
specified would still be taken. This, of course, is not
what happened, and Clark's seizing on Moran's refusal to
sign as grounds for discharging her isthe final indication
that the Respondent's agents were motivated in their
so See United Packing Co., 271 NLRB 942 (1984)
423
action against Moran by her concerted activity that was
protected by the Act. I so find.
Accordingly, 1-further find that by discharging Moran
the Respondent violated Section 8(a)(1) of the Act.
On- the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Herrick & Smith is an employer engaged in com- -,
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By first threaiening employee Mary Moran with dis-
charge and later discharging her, the Respondent has - -
violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain _
affirmative action designed to effectuate the purposes of
the Act.
Having found that the Respondent unlawfully dis-
charged employee Mary Moran, I shall recommend that
the Respondent be ordered to offer her 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
previously enjoyed. I shall further recommend that the
Respondent be ordered to make her whole for any loss
of earnings she may have suffered as a-result of the,dis-
crimination against her by payment to her of the amount
she would normally have earned from the date of her
termination until the date of the Respondent's offer of re-
instatement, less net interim earnings, in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), to which
shall be added interest, to be computed in the manner
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).
See generally Isis Plumbing Co., 138 NLRB 716 (1962).
Finally, I shall recommend that the Respondent be or-
dered to expunge from its files any reference to the un-
lawful warning and discharge of Moran.
On these findings of fact and conclusions of law and
on the entire record, I issue the following .recommend-
1
- ORDER
The Respondent , Herrick & Smith; Boston , Massachu-
setts, its officers , agents , successors , and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge because
they engage in concerted activities protected under the '
National Labor Relations-Act.
(b) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activity. -
51 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
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action.necessary to
effectuate the policies of the Act.
(a) Offer Mary Moran immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially, equivalent position, without prejudice to
her seniority or other rights and privileges previously en-
joyed, and make her whole for any loss of earnings she
may have suffered as a result of the Respondent's dis-
crimination against her in the manner set forth in the sec-
tion of this decision entitled "Remedy."
(b) Remove from its files any reference to the warning
to Mary Moran on June 16, 1983, and to her discharge
on June 17, 1983, and notify her in writing that this has
been done and that the evidence of this unlawful warn-
ing and discharge will' not be used as a basis for future
personnel actions against her.
(c)' Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of •backpay due under the
terms of this Order.
(d) Post at-its Boston, Massachusetts office copies of
the attached notice marked "Appendix."52 Copies of the
notice, on forms provided by the Regional- Director for
Region 1, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where' notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
52 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
. APPENDIX
" NOTICE To EMPLOYEES
POSTED BY ORDER'OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the Uiiited States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with discharge be-
cause they engage in concerted activities protected under
the National Labor Relations Act.
WE WILL NOT discharge or otlierwise discriminate
against employees because they engage in protected con-
certed activity.
WE WILL NOT-in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their right to engage in or refrain from engaging in any
or all of the activities specified in Section 7 of the Act.
WE WILL offer Mary Moran immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges pre-
viously enjoyed, and WE WILL make her whole for any
loss of earnings and other benefits' resulting from her dis-
charge, less any net interim earnings , plus interest.
WE WILL notify Mary Moran that we have removed
from our files any reference to her warning and dis-
charge, and that the warning and discharge will not be
used against her in any way.
HERRICK & SMITH