Medical Mutual of Cleveland

National Labor Relations Board - Board Decisions

Mar 13, 1980

248 N.L.R.B. 441 (N.L.R.B. 1980)

MEDICAL MUTUAL OF CLEVELAND 441
Medical Mutual of Cleveland, Inc. and Office and
Professional Employees International Union
Local 17, AFL-CIO-CLC, and Mickey Woods
and Mary Jane Olsen. Cases 8-CA-12300,
12412, and 8-CA-12667
March 13, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On October 24, 1979, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel and Respondent filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Medical Mutual of Cleveland, Inc., Cleveland,
Ohio, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concern-
ing their union activity.
(b) Discharging or otherwise discriminating
against employees because they elect to pursue
their statutory remedies as defined in Section 7 of
the Act.
I Counsel for the General Counsel and Respondent have excepted to
certain credibility findings made by the Administrative Law Judge. It is
the Board's established policy not to overrule an administrative law
judge's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing his findings.
Counsel for the General Counsel also excepts to the Administrative
Law Judge's failure to give a broad order in his recommended Order and
notice to employees. Respondent has not been shown to have a proclivity
to violate the Act. nor has it engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for its employees' fun-
damental statutory rights. Hickmort Foods, Inc., 242 NLRB No. 177
(1979). Therefore, we shall deny counsel for the General Counsel's ex-
ception.
2 The Administrative Law Judge inadvertently failed to include a
cease-and-desist provision for the 8(aX4) finding in his recommended
Order. We have included this provision and, although we have adopted
the Administrative Law Judge's recommended Order, we are restating
the Order in full to provide language traditionally used by the Board.
248 NLRB No. 74
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following action designed to effectu-
ate the purposes of the Act:
(a) Offer Mary Jane Olsen immediate and full re-
instatement to her former position or, if such job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or privileges previously enjoyed, and
make her whole for any loss of earnings she may
have suffered as a result of the discrimination prac-
ticed against her, plus interest.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its facility in Cleveland, Ohio, copies
of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 8, after being duly
signed by Respondent shall be posted by Respon-
dent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States
Government
After a hearing at which all parties were represent-
ed by their attorneys and afforded the opportunity
to present evidence in support of their respective
positions, it has been found that we have violated
the National Labor Relations Act in certain re-
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spects and we have been ordered to post this
notice and to carry out its terms.
The National Labor Relations Act gives you,
as employees, certain rights including the
right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT coercively interrogate our
employees concerning their union activity or
sympathy.
WE WILL NOT discharge or otherwise dis-
criminate against employees because they have
elected to pursue the remedial procedures
available under the National Labor Relations
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Mary Jane Olsen immediate
and full reinstatement to her former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to her seniority or other rights and privi-
leges previously enjoyed, and WE WILL make
her whole for any loss of earnings she may
have suffered by reason of our discrimination
against her, plus interest.
MEDICAL MUTUAL OF CLEVELAND,
INC.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
case was opened initially and heard by me on April 23,
24, 25, and 26, 1979, on four separate complaints and an
order of consolidation dated March 26, 1979. By virtue
of that Order, the following cases were joined for hear-
ing and decision:
1. A complaint in Case 8-CA-12300 issued on Novem-
ber 2, 1978, upon an initial unfair labor practice charge
filed on September 29, 1978, alleging that Respondent
violated Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, by discriminatory application
of absence/tardy guidelines and the discharge of Jacque-
lyn L. Willis, in reprisal for union or other activity pro-
tected by Section 7 of Act.
2. An Order consolidating cases, and a complaint, in
Case 8-CA-12412 issued on December 27, 1978, upon an
original charge filed on November 20, 1978, alleging that
Respondent independently violated Section 8(a)(1) of the
Act through coercive interrogation, surveillance of union
activity and creating the impression thereof, and violated
Section 8(a)(3) and (1) of the Act both by giving em-
ployee Mickey Woods an unfavorable performance
rating and thereafter disparately applying its training de-
partment guidelines for insubordination against her, all
because she had engaged in union activity or activity
protected by Section 7 of the Act.
3. A complaint in Case 8-CA-12487 issued on Febru-
ary 2, 1978, upon a charge filed on December 28, 1978,
which, as amended, alleged that Respondent indepen-
dently violated Section 8(a)(1) of the Act by creating the
impression of surveillance, and by refusing to curtail the
harassment of an employee by fellow employees because
the latter had engaged in union activity, and by threaten-
ing an employee with respect to union activity. It was
further alleged that Respondent violated Section 8(a)(3)
and (1) of the Act by issuing a first warning to Olive
Senich on August 4, 1978, because she engaged in union
or activity protected by the Act.'
4. A complaint issued in Case 8-CA-12667 on March
26, 1979, upon a charge filed on March 7, 1979, which,
as amended, alleged that Respondent violated Section
8(a)(1) and (3) of the Act by instituting production stan-
dards to discourage union activity, by orally warning
Mary Jane Olsen that her level of production was low,
and by placing Olsen on a 30-day probation, all in repri-
sal for her union activity or conduct protected by Sec-
tion 7 of the Act. The complaint, as amended, further al-
leged that Respondent violated Section 8(a)(1), (3), and
(4) of the Act by discharging Olsen on March 28, 1979.
Respondent, in its duly filed answers, denied that any
unfair labor practices were committed. Following close
of the hearing, briefs were filed on behalf of the General
Counsel and Respondent.
Upon the entire record in this proceeding,2 including
personal observation of the witnesses while testifying and
their demeanor, and consideration of the post-hearing
briefs, I find as follows:
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Ohio corporation, with a principal
place of business in Cleveland, Ohio, from which it is en-
gaged in the sale of medical, surgical, and dental insur-
ance coverage. In the course and conduct of said oper-
ations, Respondent derives gross revenues exceeding
On April 25, 1978, in the course of the hearing, pursuant to a settle-
ment agreed to by all parties, the Charging Party in Case 8-CA-12487,
Olive Senich, moved for withdrawal of her charge and, accordingly,
counsel for the General Counsel moved for dismissal of the complaint
therein. The foregoing was granted by me, and based thereon Case 8-
CA-12487 was severed from the instant consolidated proceeding and dis-
missed.
2 Pursuant to a request by counsel, after close of the hearing I submit-
ted a "stipulation" relative to employee Ann Weaver during the time
period March 1, 1979, through March 28, 1979. Said exhibit is received
and marked "Administrative Law Judge Exhibit 4" Pursuant to stipula-
tion, I also received Resp. Exh. 19(b), being the 1978 time record of em-
ployee Shari Jenkins, and Resp. Exh. 20(a), being a warning notice dated
September 11, 1978, issued to employee Daisy Williams G.C. Exh. 30(a)
pertaining to attendance records of Shari Jenkins, and G.C. Exh. 30(b),
like records of Daisy Williams are received.
MEDICAL MUTUAL OF CLEVELAND 443
$500,000 annually, and on annual basis performs services
for customers located outside the State *of Ohio exceed-
ing $50,000 in value.
The complaints allege, the answers admit, and I find
that Respondent is now and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find
that Office and Professional Employees International
Union, Local 17, AFL-CIO-CLC (OPEIU), is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR L.ABOR PRACTICES
A. Preliminary Statement
This proceeding relates to adverse personnel action by
Respondent against several employees during the course
of and following an organizational campaign. The var-
ious complaints charge violations which, being disassoci-
ated in their nature and timing, do not appear to have
been interwoven in an overall campaign to defeat union-
ization through unfair labor practices. On the contrary,
the treatment accorded each of the alleged discriminatees
gives rise to an independent case requiring independent
analysis.
By way of background it is noted that in the years
since 1974 several unions had sponsored activity in the
vicinity of Respondent's premises reflective of their in-
terest in organizing Respondent's employees. The instant
case emerges from a specific organizational effort initiat-
ed by OPEIU in September 1977. That campaign appar-
ently was slow in accelerating, but was revitalized in
February 1978 when handbilling intensified. Thereafter,
union meetings were held with increased regularity. On
July 11, 1978, a representation petition was filed by the
Union. Pursuant thereto an election was conducted on
November 3, 1978, with the Union failing to receive ma-
jority support by a somewhat decisive vote of 109 for
representation and 162 against. The Union filed no objec-
tions to the election and the results were certified.
Essentially, this proceeding concerns alleged acts of
discrimination perpetrated against three employees
whose support of the Union was known at the time Re-
spondent's agents acted against them. Two of these em-
ployees were discharged. Thus, Jacquelyn Willis was ter-
minated prior to the election on August 31, 1978. Mary
Jane Olsen was discharged on March 28, 1979, well after
that election. With respect to alleged discriminatee
Mickey Woods, it is claimed that Respondent unlawfully
on October 1, 1978, rated her performance unfavorably,
and on November 8, 1978, afforded her excessive disci-
pline, all for discriminatory reasons. Finally, it is alleged
that Respondent violated Section 8(a)(3) and (1) of the
Act by placing Mary Jane Olsen on probation on Febru-
ary 27, 1979. Despite the duration of the campaign, and
the fact it was waged among almost 300 employees, in-
dependent 8(a)(1) allegations during the preelection
period are limited to a single instance of alleged interro-
gation, one instance of alleged surveillance, and two al-
leged occurrences through which Respondent is charged
with creating the impression of surveillance. During the
postelection period, the only alleged 8(a)(l) violation
pertained to a threat attributed to a supervisor more than
a month after the election.
B. Interference, Restraint, and Coercion
The General Counsel contends that Respondent violat-
ed Section 8(a)(l) of the Act through coercive interroga-
tion attributed to Peter Alfred. In this connection it ap-
pears that a "Communications Committee" was formed
during the organizational campaign through which su-
pervisors and members of management advanced views
in opposition to the Union. Alleged discriminatee Mickey
Woods testified that her supervisor, George Morgan, on
one occasion instructed her to attend a meeting of the
Communications Committee, which was presided over
by Alfred, an admitted supervisor. According to Woods,
at the outset of the meeting, Alfred stated, "that if there
was anyone here that doesn't want to be fair and hear
the other side of this, then you may leave." This state-
ment is the focal point of the General Counsel's conten-
tion. He asserts that this was "a technique for obtaining
information and . . . tantamount to subtle interrogation
of employees concerning their union sentiments." I
agree. Though, perhaps innocently intended, this invita-
tion on Alfred's part, while dim to the ears of the indif-
ferent or antiunion employees, offered clear challenge to
union supporters, who upon acceptance thereof would
disclose there sympathy under no uncertain circum-
stances. Although perhaps borderline, on balance, I am
inclined to agree with the Gerneral Counsel's view that
Alfred's remark amounted to conduct which "compels
employees to make a choice or exhibit the depths of
their pro or antiunion feelings in front of management of-
ficials and thus constitutes a subtle form of coercive in-
terrogation." See York Division, Borg-Warner Corporation,
229 NLRB 1149, 1151 (1977). Accordingly, I find that
Respondent violated Section 8(a)(1) in this respect.
The aftermath of the above incident gave rise to a fur-
ther allegation that Respondent violated Section 8(a)(1)
through statements made by George Morgan, the man-
ager of training development, which created the impres-
sion surveillance. Thus, Woods walked out of the above
meeting in response to Alfred's invitation. She testified,
without contradiction, that a few days later, she was
summoned to Morgan's office, and informed that her de-
parture from the meeting had been reported and that
Personnel Director Sharon Lewis (Nee Baier) asked
Morgan the reason for Woods' departure. In the course
of that conversation, Morgan told Woods, "Well, confi-
dentially, Sharon and I had a discussion about you,"
wherein Lewis stated, "Let's face it, George, Mickey's a
pretty bright girl I think we can bring her around to our
side." The General Counsel contends that Morgan's ex-
pression of an awareness that Woods left the meeting
created the impression of surveillance in violation of Sec-
tion 8(a)(1). Defining the outer limits of such an unfair
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice is not without difficulty3 . Nonetheless,
Morgan's expression could only be deemed unlawful
through a hypersensitive, technical, and most unrealistic
application of statutory principles. Woods' departure
from the meeting was at the instance of a management
representative and in his presence. It is difficult to imag-
ine that such an overt act would be anything but
common knowledge of a type hardly of alarm to Woods
when reiterated by Morgan. The 8(a)(1) allegation based
thereon shall be dismissed.
The General Counsel also contends that Respondent
violated Section 8(a)(1) of the Act through an alleged
threatening remark made to employee Olive Senich by
an admitted supervisor, Gayle Thompson. On December
20, 1978, Senich, a known union protagonist, was given a
first warning based upon a complaint from a subscriber.4
Both Senich and Thompson relate that Senich previously
had expressed concern to Thompson that "the Company
was out to get . . . [Senich] . . . because of . . . union
activity." Thompson on those occasions had always
denied that this was the case. However, when the De-
cember 20 warning was delivered by Thompson, the
latter according to Senich, stated, "Now, I know they're
out to get you." The General Counsel argues that, by
virtue of this latter statement, Thompson acknowledged
that the Company was interested in effecting reprisals
against Senich because of her union activity, and was
guilty of an implied threat. Thompson denied that any
such statement was made. I credit her, and accordingly
shall dismiss the 8(a)(l) allegation in this regard.5
C. The Alleged Discrimination
1. Jacquelyn Willis
Of the alleged discriminatees in this proceeding, only
Willis was terminated prior to the election. The com-
plaint pertaining to her cause avers that Willis was the
object of two-tiered discrimination. First, it is claimed
that in July 1978 Respondent applied its absence/tardy
guidelines and, second, that it discharged her on August
31, 1978, for reasons proscribed by Section 8(a)(3) and
(1) of the Act.
Willis was hired on May 7, 1976. At times material she
was classified as a service representative in the subscriber
services department, subject to the immediate supervision
of Gayle Thompson. Thompson's superior at the time of
3 This is the only statement cited by the General Counsel in his brief as
supporting an 8(aXl) allegation based upon the impression of surveil-
lance. Although it is possible that the record reflects other statements
made by Morgan acknowledging that he was mindful of an employee's
union or protected activity, absent guidance from the General Counsel, it
is not incumbent upon me to analyze and make elaborate findings with
respect to each remark which might fit within the broad spectrum of this
allegation.
4 See G.C. Exh. 23(e).
s In the circumstances, aside from concern for Senich's reliability, the
denial by Thompson impressed me as the more probable. The warning on
December 20 related to Senich's handling of subscribers. The effort to
correct Senich's interaction with subscribers had been the subject of earli-
er communications between Tom Mendelsohn, the department manager,
and Senich on August 24, 1978. See G.C. Exh. 23(d). The December 20
warning was documented and it struck me as unlikely that Thompson
would make the remark imputed to her. in the face of the detailed
charges on which the warning was based.
Willis' discharge as Thomas Mendelsohn, who had re-
cently assumed the position of manager of that depart-
ment in July 1978.
During the months prior to her discharge, Willis was
an active supporter of the Union. She attended union
meetings, signed an authorization card in in June 1978,
was a member of the employee organizing committee,
and distributed union literature and authorization cards
to fellow employees. In August 1978, union leaflets were
distributed identifying 13 employees, including Willis, as
members of the employee in-house organizing commit-
tee. 6
Respondent denied that union activity played a role in
its decision to terminate Willis, but contends instead that
it acted solely upon her tardiness in the face of a final
discharge warning. The General Counsel does not deny
that valid grounds existed for the discharge, but claims
that this was not the "moving cause."
Willis, since the inception of her employment, had an
adverse attendance record. During the first year of her
employment, on October 6, 1976, she received a written
warning, stating that any absence or tardiness will be
cause for immediate dismissal.7 In April 1977, Willis re-
ceived a first warning, based on excessive absenteeism,
and the following month, May 19, 1977, received a
second warning for excessive absences. On June 29,
1977, Willis was placed on 90-day probation for exces-
sive absenteeism and tardiness.8
Before considering the attendance record compiled by
Willis during 1978, it is necessary to point out that in
January 1977 Respondent adopted new guidelines for
controlling tardiness and absenteeism and established a
progressive disciplinary system to deal with that prob-
lem. Under those guidelines, employees situated similarly
to Willis during a given 12-month recording period were
permitted 10 incidents or an accumulation of 60 minutes,
before discipline would be imposed. In Willis' case, the
12-month recording period ran from May 7, the anniver-
sary of Willis' date of hire. Discipline prescribed by the
new guidelines recommended a first warning not to
exceed 90 days for exceeding the 10-occurrence-60-
minute tolerance. A second occurrence would result in a
second 90-day warning. If the employee were tardy
again, the employee was to be placed on probation not
to exceed 90 days, with any tardiness during the course
thereof being grounds for dismissal.
During the period preceding her discharge, Willis' at-
tendance problem persisted. On February 16, 1978, she
received a first warning for compiling nine instances of
tardiness during the period January 1, 1978, through
February 16, 1978. 9 Thereafter, on April 26, 1978, Willis
was given a second warning for an additional occurrence
of tardiness, explicitly acknowledging that she would be
placed on probation if she were to arrive late again.10
As of May 9, 1978, Willis was late again and placed on a
90-day probation as of that date, with the terms thereof
reciting "should you have an additional occurrence of
e See G.C. Exhs. 2 and 3.
' See G.C. Exh. 4.
a See G.C. Exh. 7.
9 See G.C. Exh. 8
10 See G.C. Exh. 9.
MEDICAL MUTUAL OF CLEVELAND 445
tardiness, you could be subject to termination." During
her probation, Willis was late on at least five additional
occasions.
On August 3, 1978, Willis was again late for work by
some 3 minutes. This was the sixth occurrence of tardi-
ness accumulated by Willis since she was placed on pro-
bation on May 9. In consequence thereof, Mendelsohn,
her manager, advised Willis that, though authorized by
the guidelines to effect a discharge, he would not do so
at the time, but instead would issue a final warning,
which recited as follows:
As of 8/3/79 you have exceeded the terms of your
probation issued 5/9/79. This is to inform you that
your next tardy will mean immediate discharge. 2
Mendelsohn assumed the position of manager of Willis'
department in July 1978. He explained, with corrobora-
tion from Gayle Thompson, that because he was new
and still familiarizing himself with company policies and
procedures as well as the employees under his supervi-
sion, he elected to give Willis a break, through a final
warning rather than to discharge her on August 3. 3
On August 31, 1978, Willis reported for work 2 min-
utes late. At 4:30 p.m. that afternoon, Mendelsohn dis-
charged her.
While I am willing to accept as entirely likely and be-
lievable the testimony of former Personnel Director
Baier that the absence-tardy guidelines were adminis-
tered with flexibility and a degree of variance from de-
partment to department, the General Counsel's cause is
enhanced with respect to the treatment accorded Willis
thereunder, when considered against the timing of Re-
spondent's discovery of her union involvement. Thus,
the General Counsel observes accurately that prior to
August 3, Willis on a number of occasions had violated
her probation through at least five instances of lateness.
Respondent reacted by condoning these occurrences
until August 3, and then decided, in an act of leniency,
to disregard the prerogative of discharge. '4 In the inter-
" Although Willis' recording period would ordinarily run from May
7, 1 find that the probation on which she was placed on May 9 was not in
violation of the guidelines. Based upon the credited testimony of former
Director of Personnel Sharon Baier, I find that it was the intention of the
guidelines that a new recording year not commence until satisfaction of
all pending discipline, whether a warning or probation. As the 90-day
warning issued to Willis on April 26 had not expired, there was no viola-
tion of the guidelines when she was placed on probation even though this
occurred after her anniversary date.
12 See G.C. Exh. 12.
Is The final warning of August 3 was open-ended, lacking in time limi-
tation. Willis testified that she was told by Thompson at the meeting in
question that the warning would only last until her probation expired on
August 9. But Mendelsohn and Thompson credibly denied Willis' testi-
mony in this respect. Although I held reservation as to Mendelsohn's
credibility, particularly with respect to his attempted denial of knowledge
of Willis' union activity, I regarded Willis as an untrustworthy witness
generally. In this instance, her testimony was highly improbable. Mendel-
sohn and Thompson were aware that Willis was to begin her vacation on
August 7. Since August 3 was a Friday, if Willis were to be believed,
Mendelsohn and Thompson went to the trouble of issuing a final warning
which would be effective for only a single working day. I do not believe
that this was their intention or that they made any expression along that
line to Willis. In passing it is noted that I regarded Willis as a most un-
impressive witness.
"4 There is no merit in the allegation that Respondent in July unlaw-
fully applied the guidelines against Willis. During that period, deviations
im, which preceded her discharge of August 31, Willis'
name appeared on the union leaflet as a member of the
organizing committee. Former Personnel Director Baier
testified that on August 31 she was consulted by both
Thompson and Mendelsohn concerning the decision to
discharge Willis. She admits that prior thereto, and in
mid-August, she discovered that Willis was a union ad-
herent, learning thereof through the union leaflet distrib-
uted in mid-August which named her as a member of the
organizing committee. Thompson also admitted that she
had learned of Willis' union activity from the same
source, and that she knew this prior to the discharge. 5
Mendelsohn, although denying having seen the union
leaflet identifying the members of the employee organiz-
ing committee, admitted his awareness that Willis was a
union protagonist, and that he learned this prior to the
discharge. However, he claims that he was first informed
of this fact when he consulted the personnel department
on August 31, when he expressed his intention to pro-
ceed with the discharge. 6
Troublesome is the fact that Thompson and Mendel-
sohn, at a time when unaware of Willis' union activity,
acted with hesitancy, though the latter on five separate
occasions presented cause for discharge. This, coupled
with the discharge, on the heels of a 2-minute lateness,
after her union activity became known generates an aura
of suspicion. Yet, on the other hand, Willis' inability to
respond to discipline during 1978 was marked by compi-
lation of an atrocious record for tardiness. Discharges for
that reason were not uncommon in Respondent's oper-
ation and no evidence exists that Respondent condoned
any record approaching that of Willis among nonunion
employees. Although the issue is not entirely free from
doubt, in these circumstances, I am unwilling to find that
union activity contributed to the decision to effect this
discharge. To hold otherwise is to assume that Respon-
dent, by virtue of its supervening discovery of Willis
union activity, had to withhold the discipline which was
both clearly communicated and the subject of a prior
warning based upon considerations bearing no relation-
ship to union activity. Inasmuch as Respondent showed
no propensity during the preelection campaign to engage
in acts of discrimination or to single out known members
of the employee organizing committee for adverse
action, I am convinced that Respondent has substantiated
its defense, and that the General Counsel failed to estab-
lish by a preponderance of the evidence that the August
31 discharge of Willis was in whole or in part a reprisal
for union activity. Accordingly, I shall recommend dis-
missal of the 8(a)(3) and (1) allegations in this respect.
from the guidelines in the face of her attendance record actually benefit-
ed Willis. Further there is no evidence that Respondent was aware of her
union activity during that time frame.
i5 In addition, Rose Incarnato, an employee of Respondent and the
roommate of Thompson, testified that she attended a union meeting in
August 1978 wherein she observed Willis seated in the area occupied by
the employee leaders of the union drive. Incarnato testified that on that
same evening she conveyed this fact to Thompson.
ie Mendelsohn's testimony reflects considerable confusion on the ques-
tion of his knowledge of Willis' union activity. Thompson testified that
she could not recall whether or not she had discussed this subject with
Mendelsohn prior to the discharge. I am inclined to believe that she did.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Mickey Woods
Woods was hired on August 4, 1975. In October 1977,
she was promoted to the position of technical trainer in
the training and development department.
The allegation in the complaint pertaining to Woods
sets forth that in October 1978 she received an unfavor-
able performance rating causing her to receive a reduced
wage increase, and that in November 1978 Woods was
placed on probation, all because of her activity in sup-
port of the union.
In connection with the October 1978 performance
evaluation, pursuant to Respondent's established policy,
employees are evaluated on the anniversary of their pro-
motion. In consequence of the October 1978 evaluation,
Woods was rated "highly effective" by Patricia James,
her immediate supervisor, and George Morgan, a train-
ing department manager. Morgan at that time recom-
mended and Woods received a $20 weekly, or 9.3 per-
cent, increase in her salary. 7 Nonetheless, at least
through the pleadings, the General Counsel placed this
rating under interdict.
The rating form used as part of the evaluation required
the supervisor to evaluate performance in a number of
different areas by awarding a point value within a I to
10 range. On the evaluation in question, Woods was
downgraded in the area of cooperation and judgment.
Woods' with apparent endorsement of the General
Counsel,' 8 claims that the relatively lower grades that
she received in these areas were based on resentment of
her union activity and involved discrimination, causing a
reduction in the amount of her annual increase.
Supervisor Pat James, who prepared the written evalu-
ation, as well as Department Manager George Morgan
admitted to an awareness of Woods' union sympathy at
the time the evaluation was prepared. Both denied that
this factor entered into their consideration of Woods'
performance. However, to avoid belaboring the issue, I
am convinced from the record that union activity did not
enter into the evaluation process. Prior thereto, going
back several months, there was evidence that Woods and
three other trainers were having difficulties with their re-
lationship to Pat James, who had been promoted to the
position of supervisor in June 1978. She had not previ-
ously served as a trainer, and apparently had no experi-
ence in that type operation. The friction that existed be-
tween the trainers and James resulted in several meetings
between them in an effort to resolve differences. It is a
documented fact on this record that Woods, prior to the
evaluation in question, openly expressed her disagree-
" The evaluation form utilized by Respondent and that which is in
question here consisted of five ratings in terms of overall performance:
outstanding, highly effective, effective, fair, and marginal.
's Counsel for the General Counsel in his post-hearing brief developed
no argument or claim in support of this allegation. Additionally, in the
remedy he proposes therein, no provision was requested which would
reach this alleged incidence of discrimination. Nonetheless, the issue was
the subject of extensive litigation through parole testimony and documen-
tation, and the General Counsel has not indicated an intention to drop
this allegation. Indeed, if that were the intent and counsel for the General
Counsel elected to remain silent, his action would only serve as a burden
to the administrative process, by requiring me to study the evidence, ana-
lyze it, and draw the inferences arising thereform, all as part of a mean-
ingless charade.
ment with James and Morgan and made charges that
Morgan "is using poor judgment in department matters
. . .[and] . .. has misrepresented the department in a
few matters."' 9 Indeed, Woods, starting in September
1978 began keeping logs of her disagreements with
James and Morgan. In these circumstances it is conclud-
ed that the limited downgrading of Woods in the area of
judgment and cooperation stemmed directly from these
differences and had nothing to do with her union sympa-
thy. Significant in this connection is the fact that the 9.3-
percent increase accorded Woods on the heels of this
evaluation was not unrepresentative of those received by
trainers upon their 12-month review in the relevant time
period. I also believed the testimony of Morgan that the
lower rated scores afforded Woods in the area of judg-
ment and cooperation did not bear directly upon his
salary increase recommendation. Finally, her overall
classification as "highly effective" is hardly suggestive of
a vendetta against Woods. In the above circumstances, I
find that the allegations that Woods' performance evalua-
tion was influenced adversely by her union activity has
not been substantiated and I shall dismiss that allegation.
It is further alleged that Respondent violated Section
8(a)(3) and (1) of the Act by discipline meted out to
Woods on November 9, 1978, on the heels of a confron-
tation between Woods and Pat James. That morning, the
trainers were scheduled to participate in a parallel train-
ing session and to teach an afternoon session. Previously,
James and Morgan had scheduled themselves to teach
the morning classes. When the parallel training session
scheduled for that morning was canceled on the previous
evening, James early on the morning of November 8 re-
quested Woods to teach the morning class so that she
could take care of other obligations she had. She asked
Woods to do so. Woods refused, a response which ulti-
mately grew into a heated exchange and a display of
emotion on the part of both Woods and James, within
earshot of employees in another department. Thereafter,
Woods approached Department Manager Morgan re-
porting that she had just had a heated discussion with
James, stating that she was "tired of this type of thing
and would not take it anymore." Morgan asked Woods if
she would like to discuss it further, and when she re-
sponded in the affirmative he suggested that they return
to his office. Morgan told Woods he would meet with
her but only in the presence of James. Woods agreed. In
the office, Woods and James afforded their respective
accounts of what had occurred earlier that morning.
Once more a heated debate ensued, with James insisting
that Woods teach the morning session, and Woods re-
sponding that she would not do so. An exchange along
this line continued repeatedly until James pointed her
finger at Woods insisting that Woods take the session.
Woods then responded, "Do not point your finger at me;
the only person that is allowed to point their finger at
me is my mother." After this, James indicated, "Well,
you will do the session." Woods replied, "I won't," and
walked out of the office without giving any indication as
ig See Resp. Exh. 19 (Employee's Comments).
MEDICAL MUTUAL OF CLEVELAND 447
to where she was going or whether or not she would
honor the instruction from her supervisor. 20
On November 9, Woods was given a written warning,
the text of which recited as follows:
This is to inform you that because of your refusal to
accept an assignment to teach a 9 a.m. class on
Wednesday, November 8, 1978 and your unwar-
ranted outburst of shouting and abusive language di-
rected at your supervisor, you are being placed on
probation for insubordination. This action follows a
series of similar outbursts, in the recent past.
Your probationary period will be in effect for 30
days from today, Thursday, November 9, 1978 until
Friday, December 9, 1978 at 5 p.m.
Any repetition of insubordinate acts within the 30
day period will result in your termination.
A copy of this memo will be forwarded to the per-
sonnel department and placed in your file.
The General Counsel does not dispute the accuracy of
the acts recanted in the above warning. Nor does he dis-
pute that Woods was entitled to some form of disciplin-
ary action. Instead, it is the General Counsel's claim that
under the guidelines for insubordination published by Re-
spondent as applicable to the training department, Re-
spondent should have responded first with an oral warn-
ing, rather than probation. It is true that under the appli-
cable guidelines a progressive system of discipline was
endorsed, commencing with an "oral warning" for the
first infraction, "written warning" for the second infrac-
tion, and probation, for a third infraction. As of Novem-
ber 8, Woods had received no prior warnings. Thus, it is
obvious that strict observance of the guidelines would
have resulted in issuance of an oral warning. Instead Re-
spondent proceeded to the third step in the progressive
disciplinary system. Former Personnel Director Lewis
(Baier) testified that this action was taken because of the
seriousness of Woods' offense.2'
James, Morgan, and Lewis admittedly were mindful of
Woods' prounion sentiment. 2 2 Indeed, on November 3,
1978, the date of the representation election, Woods ap-
proached several employees who were concerned as to a
suggested voting schedule offered by their supervisor.
Woods attempted to allay confusion among the employ-
ees and to assure them that they would in no way be
denied the opportunity to vote within the polling period.
20 Woods did appear at the morning training session, auditing the 9
a.m. session which was in fact given by another trainer, and then going
on to teach the 10 a.m. session.
21 Respondent's testimony as to the origin of this decision is in dishar-
mony. Lewis testified that she discussed the matter with Morgan and
James, both of whom recommended that Woods be placed on "written
warning" the second step under the guidelines. Lewis goes on to relate
that she overruled them favoring probation, a recommendation which
they ultimately accepted. Morgan testified that in his conversation with
Lewis, he "felt that we should go directly to probation." Morgan testi-
fied that Lewis agreed with his recommendation James testified that she,
together with Morgan, had decided on a probation, and that Lewis made
no specific recommendation
22 It will be recalled that uncontradicted testimony establishes that
prior to the election Woods departed from a antiunion meeting, and that
Woods was informed by Morgan that Lewis had inquired as to the
reason for Woods' action in this respect.
Shortly after this, Morgan called Woods to his office,
stating, "Mickey, I don't want you harassing the employ-
ees with union talk during company time." This incident
was repeated some 15 minutes later when Morgan, with
Lewis present, again called Woods to his office, warning,
"Mickey, I don't want you harassing the employees with
union talk."
There is no question as to Respondent's departure
from its established system of discipline in placing
Woods on probation on November 9. While I would
agree that the offense of Woods was serious in that she
persistently and repeatedly violated a direct instruction
and did so in the presence of employees in another de-
partment, insubordination is always serious and it is diffi-
cult to make gradations where the conduct is limited to
emotional diatribe. Although it is not within my author-
ity nakedly to speculate as to the wisdom of manage-
ment's judgment, for what it is worth, the reaction of
Lewis, Morgan, and James, in skipping the first two
steps of the recommended disciplinary system as a result
of this offense, strikes as somewhat excessive. At the
same time, however, the Union on November 3, about a
week earlier, had been decisively rejected at the polls, in
an election which was not challenged by the Union.
Against that background, I have difficulty accepting the
proposition that Respondent would allow old wounds to
fester through harassment, particularly in the case of
Woods, who was bright, effective, and occupied an im-
portant position in Respondent's overall training pro-
gram. Instead, on the entire record, I conclude that
Woods was regarded by her superiors as a talented, but
troublesome employee, who had shown propensities to
resist authority in the past, and who had to be dealt with
strictly, when on November 8 she allowed herself to be
carried away in resisting the instructions of her already
embattled supervisor. While conceding again that the
question is not free from doubt, it is my conclusion that
the discipline afforded Woods on November 8 was in no
sense motivated by her union sympathy.2 3 I shall dismiss
the 8(a)(3) and (1) allegations in this regard.
3. Mary Jane Olsen
Olsen enjoyed a history of employment with Respon-
dent dating back to April 1962. However, in July 1963
she resigned and was rehired in September 1964. In
March 1967, she again resigned and was again rehired on
November 18, 1974. She remained continuously in Re-
spondent's employ thereafter until discharged on March
28, 1979.
The General Counsel alleges that Respondent violated
Section 8(a)(3) and (1) of the Act by orally warning
Olsen on October 6, 1978, that her level of production
was too low, and by issuing a second warning to Olsen
in November 1978 and on February 27, 1979, placing her
on 30-day probation by virtue of her productivity. It is
further alleged that Respondent violated Section 8(a)(1)
and (4) of the Act by discharging her on March 28, 1978,
2: It is noted that Woods was at no time a member of the employee
organizing committee, and that her name did not appear on the handbill
identifying its members
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of her activity in connection with a pending
unfair labor practice charge.
Olsen was an active union protagonist during the cam-
paign. She attended her first union meeting on May 19,
1978, and signed a union card at that time. Thereafter
she attended union meetings regularly, solicited employ-
ees to sign union authorization cards, and was a member
of the union organizing committee. Her name was among
the 13 employees openly identified as serving on the em-
ployee organizing committee through handbills distribut-
ed by union forces in August 1978. Additionally, she was
one of the few employees who, on behalf of the Union,
attended a preelection conference held at the National
Labor Relations Board on August 1, 1978. Upon occa-
sion, while attending antiunion meetings presided over
by members of management, she voiced opposition to or
questioned the accuracy of information communicated to
employees in support of the effort to defeat the Union.
It appears that Olsen was first assigned to the Special
Accounts Department in June 1977 where she served in
the classification of "claims analyst." As such she was re-
sponsible for handling and, where possible, favorably re-
solving telephone and letter inquiries from union and
company representatives disputing action on claims sub-
mitted on behalf of insured subscribers.
Management was first alerted to a problem of produc-
tivity, including backlog and excessive timelags, in the
special accounts area in the period coinciding with
Olsen's assignment to that department. In consequence, a
reporting system was devised subsequently enabling the
tracking of both receipt-disposition data and information
on pending inventory. This system went into effect in
October 1978. Olsen's output became a subject of con-
cern to management in November 1978. In connection
therewith, Olsen herself testified that in November 1978
at her annual review, her supervisor, David Dubay, told
her that her productivity was low. She claims that noth-
ing further was said on that occasion, but that she in-
formed Dubay that she would try to increase her output.
Olsen testified that in December 1978 she was again
called aside by Dubay and informed that he was obliged
to write a letter through which Olsen would acknowl-
edge her low productivity, that she was doing all that
she could to correct it, and that she would be working
overtime in the attempt to reduce backlog. Olsen read
this letter and signed it.2 4
On February 27, 1979, Olsen received the following
memorandum from her department manager, Mendel-
sohn:
24 The complaint issued on behalf of Olsen also alleged that Respon-
dent violated Sec. 8(a)(1) of the Act by, in October or November 1978,
instituting production standards to discourage union activity. The record
does not substantiate that discussions between Olsen and supervisors bear-
ing upon her lack of productivity during 1978 was in any sense related to
her union activity. Credible evidence establishes that prior to the fall of
1978, a productivity problem had been disclosed in the special claims de-
partment and that Olsen was among the lowest producers, if not the
lowest, during that time frame. There being no evidence that the "warn-
ings" issued during that time frame reflected disparate treatment, I con-
clude that the October and November incidents described by Olsen
amounted to no more than a temperate, nondiscriminatory effort to prod
and to increase output Respondent did not violate Sec. 8(a)(l) and (3) in
either respect.
Recent performance reports reflect a degree of per-
formance which does not meet the average perfor-
mance level of the other employees in the Special
Accounts unit. In November and December 1978,
your supervisor notified you that your productivity
was below the acceptable level. Performance re-
ports for January and February 1979, do not reflect
an improvement in your productivity. Therefore, I
must advise you that you are being placed on pro-
bation for a period of 30 days.
If your performance does not improve during the
30-day probationary period or does not reach an ac-
ceptable level of production, you will be subject to
termination. During your probationary period a
review of your productivity will be made to exam-
ine your progress. 2 5
Olsen testified that upon receiving this memorandum, she
was shocked and upset. She told Mendelsohn that be-
cause of backlog she could not work under the pressure
of probation, and that therefore she would resign. All
agree that at that point efforts were made to reassure
Olsen. Betty Lencses, who apparently was a group
leader in the special accounts unit, was present on that
occasion and told Olsen to sleep on it. Mendelsohn indi-
cated that, with Lencses, he had been working on meth-
ods to simplify completion of inquiries and that the
matter could be worked out, and that there definitely
was a place for Olsen in the Special Accounts unit.2 6
The next morning, Olsen was approached by Lencses
who advised the former that she would do all she could
to help Olsen increase her productivity, going on to indi-
25 I find no merit in the allegation that Olsen was unlawfully placed on
probation. Although once again, the issuance of the probation did not
strictly follow the policy specified in the employer's handbook (see G.C.
Exh. 29), 1 am inclined to view this as mere oversight attributable to zeal,
albeit belated, on the part of Respondent's managers to correct a work
flow problem in the special accounts department. I find Respondent's tes-
timony that productivity levels, backlog, customer complaints, and the
failure of the special accounts department to meet national standards on
responses to and processing of claimants' inquiries had reached serious
proportions in the fall of 1978. It is noted that Olsen's productivity level
was the lowest of the six analysts during that time frame She admittedly
had been informed of this problem by her supervisor at the time of her
annual review in November and had again during the following Decem-
ber been asked to acknowledge a written expression as to her low pro-
ductivity and the need to improve it. Furthermore, prior to her filing an
unfair labor practice charge, Olsen was not the only analyst placed on
probation. Thus, Ann Weaver, another of the analysts, was placed on 30-
day probation. See Resp. Exh. 16(a). Considering my belief of Respon-
dent's testimony that productivity was a serious problem, together with
the timing of the probation, long after the Union had failed to achieve
designation by a majority, I am convinced that this action against Olsen
was based solely upon Respondent's desire to foster increased output
from an analyst unable to achieve acceptable levels of output. According-
ly, I shall recommend dismissal of the allegation that Respondent violated
Sec. 8(a)(3) and () in this respect.
26 On March 2, 1979, Olsen approached Mendelsohn inquiring as to
what level of output would constitute "an acceptable level of produc-
tion." Mendelsohn, using the output figures for the entire section for I
month, divided by the number of days worked, computed an average of
21 cases per day. Olsen told him that she did not feel that she would be
able to meet such standard because the cases in her backlog involved dif-
ficult breakdowns and collection cases. On March 7, Alfred, a special as-
sistant to the president, met with the entire special accounts unit. In the
course thereof, the question was raised as to how the productivity stan-
dard was determined and when it had been instituted. Alfred gave no de-
finitive response, but indicated that he would respond in the future.
MEDICAL MUTUAL OF CLEVELAND 449
cate it was not just Olsen's problem but that of the entire
unit. 27
Respondent, in defense of the discharge, urges that its
action in this regard was predicated solely upon Olsen's
failure satisfactorily to fulfill the probation. During its
term--that is until the discharge--supervision in the spe-
cial accounts unit appeared to act toward Olsen with the
same compassion that was manifested at the time her
probation was announced. Thus, on March 12, Marilyn
Rosul was assigned permanently as the replacement for
David Dubay as supervisor in the special accounts unit.
On March 15, Olsen met with Lencses and Mendelsohn.
Her tally for that week was reviewed and Mendelsohn
indicated that there were signs that she had increased her
productivity. 28 On March 20, Olsen met with the Rosul
and Mendelsohn. Mendelsohn gave Olsen a copy of a
letter he had written in response to Olsen's memo
through which she had protested her probation.29 Olsen
informed Mendelsohn that she thought it was unfair to
have the same average for everyone in the special ac-
counts unit because the assigned cases varied greatly.
Rosul indicated that some form of standard was neces-
sary and that she felt that the 15 cases daily was a good
average figure stating that Lencses thought that the rate
should be higher. Rosul and Mendelsohn discussed meth-
ods which would enable Olsen to increase her productiv-
ity and Olsen indicated that she would try to improve.
Before concluding the conference, Mendelsohn advised
Olsen that he would be going on vacation and that
during the interim, Rosul would meet with Olsen while
he was gone.3 0 Mendelsohn was out of town on vacation
from March 21 to 27, 1979. He admits that it was his un-
derstanding when he departed for vacation that supervi-
sion would continue to work with Olsen to improve her
productivity.
Olsen was discharged on March 28, 1979, 2 days after
a complaint had issued on the charge filed by Olsen on
March 7, 1979. That complaint, which issued on March
26, 1979, included a notice, scheduling a hearing thereon
for April 9, 1979.
Events of March 28, 1979, weigh heavily in support of
the claim that Olsen was victimized by an unlawful dis-
charge. Thus, Olsen credibly, and without contradiction,
testified that at approximately 11 a.m. that morning she
27 At the hearing, Respondent's counsel objected to this testimony on
grounds of hearsay, since Lencses was not shown to be a supervisor or
agent. Although I indicated that I would make no finding on this evi-
dence offered by the General Counsel, it was my intention to ignore it
only insofar as prejudicial to Respondent. I rely upon it only as a confir-
mation of statements attributed to Mendelsohn disclosing his intent to
assist Olsen in her effort to achieve an acceptable level of productivity.
28 On March 16, Rosul met with the special accounts unit and an-
nounced a productivity standard of 15 cases daily. Rosul indicated that
she felt that this figure was fair and that the difficult cases would average
out and still allow employees to meet this level of productivity.
29 On March 5. 1979, Olsen forwarded a memorandum to Mendelsohn
protesting her probation. See G.C Exh. 26.
30 Olsen testified that her work was more difficult than that of the
other six analysts. No foundation exists for this conclusory testimony
Her testimony in this regard seemed argumentative and self-serving and I
do not deem it reliable. Indeed, that it was based upon Olsen's specula-
tion and assumption is pointed up by her expression that her knowledge
that she had more court cases than the others was derived from the fre-
quenc) with which "the girls would talk about when they had gotten
them or when they had gotten them to do"
received a telephone call from an individual identifying
herself as Attorney Pat Kablach of the law firm repre-
senting Respondent in this proceeding. The latter indicat-
ed that she was representing Medical Mutual in Olsen's
case before the National Labor Board, and inquired if
Olsen would be willing to agree to a postponement of
the hearing date since knowledge of her case had just
been acquired on March 27, the day before. Olsen indi-
cated that tentatively she would not agree to a postpone-
ment. Kablach indicated that she would put Olsen down
as undecided whereupon Olsen corrected her advising
that she should be put down as "no," but that she would
talk to her husband and would contact Kablach later.
Kablach advised Olsen that she would be at Medical
Mutual between I p.m. and 4 p.m. to meet with Mr.
Buss, Respondent's in-house counsel. Olsen indicated that
she would telephone Kablach at Mr. Buss' office.
Later, Olsen talked with her husband, who agreed that
the hearing should not be postponed. At approximately I
p.m., Olsen tried, without success, to reach Buss or his
secretary. At approximately 2 p.m., she again called, and
was informed by Denise Barr, a receptionist, that they
were in conference. Olsen advised Barr that she would
like to speak to Mr. Buss, or the attorney who was with
him, and gave her name and extension. By 3 p.m., Olsen,
having received no response, called Buss' secretary, Ms.
Ackerman, this time reaching her. She informed Acker-
man that Ms. Kablach had asked her about a postpone-
ment of the hearing date and that Ackerman should
inform the former that Olsen would not agree.
At approximately 4:10 p.m. on March 28, 1979, Men-
delsohn approached Olsen at her work station and asked
her to come to his office. Mendelsohn informed her that
she was being terminated because her production had
failed to reach an acceptable level. Attending the dis-
charge interview were Paul Milo, director of claims,
who was responsible for the special claims division, Men-
delsohn, Olsen, and Rosul.
The credible facts substantiate the General Counsel's
claim of discrimination in this respect. Olsen was an em-
ployee of long standing, and though legitimately placed
on probation, during the early stages thereof through
March 20, the day before Mendelsohn's departure for his
vacation, Olsen was given assurances that management
would assist in whatever way it could to enable her to
meet its output demands. In fact her production in-
creased during her probation by at least 26 percent when
considered against her February 1979 figures.31 She was
discharged on the first day that Mendelsohn returned to
work,32 but only after an unfair labor practice complaint
had issued on her charge, and Olsen had expressed to
Respondent's counsel that she would not cooperate and
assent to their request for a postponement of the hearing
31 See Resp. Exh. 12(b) It is noted in this connection that Mendelsohn
testified that during the meeting in which Olsen was notified of her pro-
bation, he told her that he "would like to see over the next 30 days some
improvement."
a: During the meeting with Olsen on March 20, according to Mendel-
sohn's testimony, he informed Olsen that she should try to increase, and
"the next week, if the standards are met then possibly the probation-
ary period would have been completed successfully"
449
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on her cause.33 The foregoing furnishes the predicate for
a persuasive prima facie case that the discharge was
prompted by Olsen's actions in pursuit of statutory re-
dress, an inference of illegality actually enforced by the
unbelievable facts offered in defense.
Respondent's claim that the discharge was divorced
entirely from the pending unfair labor practice charge
rests critically upon testimony of Tom Mendelsohn and
Paul Milo. Milo claims that he was consulted by Mendel-
sohn in connection with the decision to discharge Olsen
and supported Mendelsohn's decision. He testified that,
in the week of March 26 through 28, he asked Mendel-
sohn if Olsen during her probation had made any signifi-
cant improvement. Mendelsohn indicated that there was
"minor improvement," but her performance was below
the expected output. Mendelsohn, according to Milo, at
that point recommended termination, and Milo con-
curred. When questioned as to when this conference
took place, Milo first indicated he had no specific recol-
lection, but expressed the belief that it was Tuesday,
March 27. With respect to the Olsen unfair labor prac-
tice charge and the complaint, Milo admitted that he was
aware that Olsen had filed "some sort of complaint," but
denied knowing the subject matter thereof.
Indeed, although Milo testified that after he and Men-
delsohn agreed to discharge Olsen, he talked to the per-
sonnel department, and to Mr.Buss,3 4 "to make sure
whatever procedures we use to terminate the employee
would be acceptable," he claims that, in making these in-
quiries, there was no discussion of the unfair labor prac-
tice charge filed by Olsen or the pending complaint.
Mendelsohn testified initially that he reached the deci-
sion to terminate Olsen on Marche 27. However, when
confronted with the fact that he had been on vacation
between March 21 and 27 and did not report to work
until March 28 he conceded that the decision was made
on March 28. According to Mendelsohn, in his conversa-
tion with Milo that morning, the latter asked what his in-
tentions were with respect to the probation. Mendelsohn
could not give a response, indicating that he first had to
review the reports.3 5 He claims that after reviewing the
reports,36 the discharge interview took place. Mendel-
33 Respondent made no effort to counter Olsen's testimony as to her
conversations with Kablach, Barr, and Ackerman on March 28. Kablach
and Buss, though present during the entire hearing, were not called. Barr
and Ackerman, also uncalled, were not shown to be unavailable. Thus,
there is no denial that Kablach and Buss or both were informed of
Olsen's decision to proceed with the unfair labor practice hearing prior
to her discharge that day,
s4 Milo testified that he met with Buss at approximately 10 a.m. on
March 28.
a~ Mendelsohn testified that he met with Marilyn Rosul to check the
last statistical report on Olsen's production so that he could determine
whether or not she could be terminated. He claims, upon reviewing these
documents and finding there had been no increase, he again met with
Milo and the decision was finalized. It is noted that, on 3 of the 5 days
while Mendelson was out on his vacation, Olsen either met or exceeded
the newly established productivity standard. On Monday, March 26, and
Tuesday, March 27, the 2 days immediately preceding the discharge,
Olsen's output met the standard. See Resp. Exh. 18
36 Mendelsohn testified that in reviewing Olsen's output tallies, he pos-
sessed all of them for the weeks Olsen was on probation Thus, on March
28, only a few weeks prior to the opening of the hearing, and while
Olsen's unfair labor practice charge was pending, if Mendelsohn is to be
believed, these documents were in Respondent's possession. Mysteriously,
however, during the interim between March 28 and the opening of the
sohn denied knowledge that an unfair labor practice
charge involving Olsen was then pending. He testified
that he did not learn of this or the complaint until a
couple of weeks after the March 28 discharge.
The testimony of Milo and Mendelsohn struck me as
incredible. Their testimony as to knowledge held in con-
nection with Olsen's activity before the National Labor
Relations Board seemed entirely improbable. On March
7, some 3 weeks earlier, Olsen had filed an unfair labor
practice charge which stated as follows:
On or about February 27, 1979 . . . by its officers,
agents, and representatives, placed on probation,
Mary Jane Olsen, special account analyst, because
of her activities on behalf of Local 17, Office and
Professional Employees International Union, a labor
organization.
This was the sole averment in the charge, and it was the
action of Milo and Mendelsohn of February 27 to which
it was addressed exclusively. Yet, both testified to the
effect that they were never informed as to the substance
of the proceeding initiated by Olsen in this regard.
Indeed, Milo, though having consulted with Attorney
Buss on the day of the discharge, claimed that the
charge and the complaint, which had been served on Re-
spondent's counsel the day before, had not entered their
discussion as to the "procedures" to be followed in ef-
fecting the Olsen discharge.
Furthermore, the initial erroneous testimony of both
Milo and Mendelsohn that this decision was actually
made on March 27 impressed me as more than either co-
incidental or a byproduct of faulty recollection. Quite
obviously, had their decision been made at that time, sus-
picion arising from the timing of that action in relation to
the issuance of the complaint and Olsen's refusal to agree
to a postponement would have been mitigated.3 7
In sum, I am convinced that Milo and Mendelsohn af-
forded untruthful testimony, and that their adventure
with the oath was in furtherance of a transparent effort
to conceal the illicit considerations which prompted the
Olsen discharge. I find that on March 28 the entire char-
acter of Olsen's probation changed from that of assis-
tance and assurance to harsh disregard for her length of
service solely because of the intervening issuance of the
hearing, some of these documents disappeared and could not be relocated
for presentation as part of the record in the instant proceeding.
a7 It is entirely possible that the above was not the only false effort to
"smoke screen" the timing of the discharge. Thus, Milo testified that
Olsen was terminated upon completion of her 30-day probation. It will be
recalled that Olsen received the probation notification, as dated, on Feb-
ruary 27. Unless one were to count February 27, the date of issuance of
the probation letter as being part of the probation period, contrary to
Milo, the 30-day period actually would have expired on Thursday,
March 29. However, Milo testified that February 27 was included in
counting the probation period in the case of Olsen. In the case of Ann
Weaver, however, for unexplained reasons the computation was made
differently. Thus, Weaver received her probation notification on March
5, as dated. See Resp. Exh. 16(a). By memo dated April 4, 1979, Weaver
was notified that "as of today" you have successfully completed your
probationary period. If the duration of Weaver's 30-day probationary
period had been tabulated as Milo testified to have been done in the case
of Olsen, the former's probation would have ended on April 3, rather
than April 4, as is documented on this record. See Resp. Exh. 16(b). No
effort was made to reconcile this discrepancy.
MEDICAL MUTUAL OF CLEVELAND 451
complaint on March 27 and/or Olsen's refusal on March
28 to cooperate with Respondent's request for a post-
ponement of a scheduled hearing thereon. Accordingly, I
find that Respondent thereby violated Section 8(a)(l) and
(4) of the Act.
CONCLUSIONS OF LAW
1. Respondent Medical Mutual of Cleveland, Inc., is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Office and Professional Employees International
Union, Local 17, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(1)
of the Act by coercively interrogating employees con-
cerning their union activity.
4. Respondent violated Section 8(a)(4) and (1) of the
Act by discharging Mary Jane Olsen on March 28, 1979,
because she elected to pursue her statutory remedies pur-
suant to the National Labor Relations Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Except as found above, Respondent has not engaged
in any unfair labor practices alleged herein.
THE REMEDY
Having found that Respondent has 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 policies of
the Act.
As Respondent unlawfully discharged Mary Jane
Olsen, I shall recommend that it be ordered to offer her
immediate reinstatement to her former position or, if not
available, to a substantially equivalent position, and to
make her whole for any loss of earnings she may have
sustained by reason of the discrimination against her by
payment of a sum of money equal to the amount she nor-
mally would have earned from the date of her discharge
to the date of a bona fide offer of reinstatement, less net
interim earnings during that period. Backpay shall be
computed on a quarterly basis in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
shall include interest as specified in Florida Steel Corpora-
tion, 231 NLRB 651 (1962).38
[Recommended Order omitted from publication.]
38 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The General Counsel urges that the remedial interest rate be increased to
9 percent Consideration of that issue at this level would involve a need-
less administrative delay with respect to an area of remedial policy best
left to the Board itself.