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

National Labor Relations Board - Board Decisions

Jul 30, 1990

299 N.L.R.B. 167 (N.L.R.B. 1990)

RESPOND FIRST AID 167
Plouffe & Stuff, Inc., d/b/a Respond First
Aid/Complete First Aid System/Dot Health
Care Products and Deborah S. Johnson. Case
7-CA-28524
July 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHE
â– 
NS AND MEMBERS
DEVANEY AND OVIATT
On July 12, 1989, Administrative Law Judge
Elbert D Gadsden issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief The Respondent filed cross-excep-
tions and a supporting brief and an answering brief
to the General Counsel's exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findmgs,2
'The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We correct the following errors in the judge's decision, which do not
affect the result In sec B, "Respondent's Business Organization and Op-
eration," par 7, Johnson's sales territory was "Southfield, Sterling
Heights, and the north side of Eight Mile Road", rTar 8, referring to
O C Exh 6, should read "your bad attitude", and par 9, referring to R
Exh 6C, should read "1 Very negative toward Co changes[,] 2 D J
poor attitude is a detriment to the morral [sic] of the staff', and] 3 D J
poor attitude is a lunderence [sic] toward acheiving [sic] Co goals"
In the subheading of sec B, "Johnson Placed on Probation," the refer-
ence to Exh I, should be to Exh IA In the last paragraph of this sub-
section, the record indicates that Hickey defined Johnson's bad attitude
as le]xpressing dissatisfaction with the operations of the Company, of
the policy changes within the Company, packaging changes within the
Company, procedural changes within the Company A verbal expression
of dissatisfaction"
In the first paragraph of sec C, "Union Activity of the Respondent's
Sales Representatives," the correct name is "Bonnie MacPetne", and in
par 10, regarding the offer of proof, the record indicates that the quota-
tion's second paragraph is "In that first conversation Susan May's tone of
voice and manner were abrupt"
In sec C, "Testimony [1st]," par 5, the record indicates that employee
Dann's testimony is "Mark said that indeed It was a free country and we
had a right to meet with whoever we wanted to in public" In the first
paragraph of sec C, "Testimony [4th]," it was Susan May, not Johnson,
who did not explain whether the perceived increase in Johnson's sales
was May's own conclusion
In sec C, "With Respect to Lawful Motivation," par 6, the last phrase
of Item 2, should read "the first six months of fiscal "87-'88" In par 12
the judge quotes Hickey as saying to Johnson that she would have to
"correct the deficiencies during the current quarter" The record indi-
cates that Hickey testified "she had to the end of the third quarter [July
31] to correct that problem"
We also make the following corrections to the judge's citations NLRB
v Wed-Mart Stores, 488 F 2d 114 (8th Or 1973), and Storer Communica-
tions of Jefferson County, 287 NLRB 890 (1987)
and conclusions only to the extent consistent with
this Decision and Order
The complaint alleges that the Respondent dis-
charged employee Deborah Johnson in violation of
Section 8(a)(3) and (1) of the Act because of her
support for and activities on behalf of Teamsters
Local 247 The judge recommended dismissal of
the complaint The General Counsel filed excep-
tions to the judge's decision We find merit in the
General Counsel's exceptions, and we conclude, for
the reasons set forth below, that the Respondent's
discharge of Johnson violated Section 8(a)(3) and
(1) of the Act
I FACTS
The facts, as more fully set forth by the judge,
are summarized as follows The Respondent sells
medical and first aid supphes and equipment Each
of its sales representatives has a territory to cover
using company-owned vans In October 1987,
James Plouffe, the Respondent's chairman, deter-
mined that there had been no gain in sales for the
second year in a row He thereafter implemented
internal changes, including changes in the product
line
During early 1988, 3 the Respondent continued to
make changes, including changes in the pay struc-
ture and working conditions of employees The Re-
spondent's sales representatives, including particu-
larly Deborah Johnson, 4 expressed their dissatisfac-
tion with these changes The employees expressed
their complaints during their weekly Monday night
sales meetings as well as in other gatherings
In response to the employee complaints, the Re-
spondent, on or about April 12, issued a memoran-
dum to employees stating that complammg about
the changes to other representatives was the
"wrong way" to address the problem The Re-
spondent suggested that the right way was to put
the complaints in wntmg and bring them to man-
agement The sales employees were told that the
"wrong way" would not be tolerated and if they
continued to "plague" coworkers with their "bad
attitudes" they would be viewed as insubordinate
and written up
On May 12, the Respondent's president, Mark
Hickey, met with Deborah Johnson He told her
that he expected her to resign from her job because
of the strong dissatisfaction that she had expressed
the week before at a sales meeting Johnson re-
fused According to Hickey's notes, he then ad-
vised Johnson, inter gm that she needed to in-
3 All dates refer to 1988 unless otherwise indicated
4 Johnson began her employment as a sales representative about March
17, 1986
299 NLRB No 21
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
crease her sales, make more prospecting calls, and
return the company van to the office by 6 p m
Hickey's notes also reflect that he considered John-
son to be very negative about company changes
and that her poor attitude was detrimental to em-
ployee morale and to achieving company goals
Thereafter, in a memorandum dated May 18,
Hickey notified Johnson she was on probation,
"until further notice "5
On June 6, the Respondent implemented a
straight commission system and eliminated paid va-
cation and sick days This act generated further
complaining by the sales representatives, with
Johnson being particularly vocal in her complaints
Subsequently, on June 12, 20, and 26, Hickey met
with Johnson and discussed her failure to return
the van to the office On June 20, he also discussed
her failure to turn in her paperwork
On July 25, the sales representatives held their
regular sales meeting at the company office After
the meeting, most of the sales representatives went
to the Press Box Restaurant and Bar to meet with
David Schuler, a Teamsters organizer The meet-
ing had been arranged by employee Doris Ander-
son However, Johnson had notified the other sales
representatives about the meeting
While the meeting was taking place, Hickey
stopped for gasoline at a station next door to the
restaurant He noticed the company vans parked
behind the restaurant He then went into the res-
taurant and over to the employees who were sit-
ting at a table Schuler was weanng a Teamsters
jacket, and Teamsters authonzation cards were on
the table 6 Hickey was introduced to Schuler and
shook his hand Hickey asked Schuler if he was an
attorney Schuler said "no" Hickey then asked
Schuler if he represented the employees Schuler
said "if they want me to" Hickey then left the res-
taurant
On July 26, the next day, according to the cred-
ited testimony of Susan May, a former executive
administrator of the Respondent, Hickey told May
that he thought that Schuler was a union organizer
and that the employees were trying to organize
Hickey told her that he thought Johnson was the
instigator of the organizing campaign He asked
May to compile Johnson's sales statistics for the
end of July He told May that he was going to dis-
charge Johnson at the end of August "based on her
probation for [sic] sales performance" and because
he felt she was a "troublemaker, [and] she had a
5 The complaint does not allege that the Respondent's placing Johnson
on probation violated the Act
6 Employees Johnson and Dann testified that Schuler's business cards
were on the table Employees Johnson and Puhl testified that Schuler
was wearing Teamsters Jewelry and had his name and insignia on his
shirt
bad attitude" Hickey also told May that he had
seen employee Wanda Schut and her husband,
Keith, talking to Johnson and he thought Keith
had been the one to help Johnson contact the
Union
On Wednesday, July 27, Hickey arranged a
meeting with Sales Representatives Mickey Dann,
Pat Puhl, and Barbara Smith Hickey discussed
their benefits with them and asked who the man
was at the restaurant The sales representatives said
"no comment" After this meeting Hickey told
May that he felt more comfortable—that the em-
ployees were scared of losing their jobs
On Thursday or Friday, according to May's
credited testimony, there was a meeting among
Plouffe, Hickey, and May In a loud and angry
voice Plouffe said that "there had never been a
union there [at the Company], that there never
would be a union there, that he hated unions, and
that he would fire the employees and close the
Company before he would allow a union" He told
Hickey to get nd of Johnson because he "believed
once Deborah was gone that all the commo-
tion and the upheaval and dissention [sic] among
the employees would just die with Deborah's leav-
ing "7
The following Monday or Tuesday, Hickey told
May that Johnson's termination had been moved
up to that Fnday, August 5 He told May to pre-
pare Johnson's sales statistics May gave Hickey
Johnson's sales statistics on August 4 or 5 and told
Hickey that there had been an improvement m
Johnson's statistics Hickey told May that he would
have to terminate Johnson immediately, given the
increase in her sales if they had waited until the
end of August to fire Johnson, Hickey noted, "they
wouldn't have been able to use the terms of [her]
probation as the basis for the termination" Johnson
was discharged on August 5 8
II ANALYSIS AND CONCLUSIONS
In Wright Lzne, 9 the Board set forth its test of
causation for cases alleging violations of Section
8(a)(3) of the Act First, the General Counsel must
make a prima facie showing sufficient to support
the inference that protected conduct was a moti-
vating factor in the employer's decision Once this
7 The Respondent also canceled all sales meetings, an action the Judge
found was to keep the sales representatives from talking to each other
8 According to employee Alan Budlong's credited testimony, during a
meeting in October, Plouffe and Hickey told him that Johnson had been
"behind the Teamsters trying to unionize and that she is bringing
action before the National Labor Relations Board, but as far as they were
concerned, she was let go because of her work performance"
a 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cu . 1981), cert
denied 455 U S 989 (1982), approved in NLRB y Transportation Manage-
ment Corp, 462 U S 393 (1983)
RESPOND FIRST AID 169
is established, the burden shifts to the employer to
demonstrate that the same action would have taken
place even in the absence of protected conduct 10
The judge found, and we agree, that the General
Counsel made a prima facie case supporting an in-
ference that the Respondent discharged Johnson
because of her union activities
Clearly, Johnson engaged in union activity by
publicizing to other employees and attending the
union meeting with a Teamsters orgamzer on July
25 As discussed below, the Respondent had
knowledge of these activities The Respondent's of-
ficials expressed considerable animus towards John-
son's and the other employees' union activities 12
Also, the judge found, and we agree, that the Re-
spondent made the initial decision to discharge
Johnson on July 26—the first day after the union
meeting This highly suspect timing of the dis-
charge decision lends substantial support to the
General Counsel's pnma facie case
In contending that the General Counsel failed to
establish a prima facie case, the Respondent ex-
cepts, inter aim, to the judge's finding that it had
knowledge of Johnson's (and the other sales repre-
sentatives') union activities Contrary to the Re-
spondent, the record amply supports finding that
the Respondent was aware of Johnson's union ac-
tivities In particular, the Respondent's knowledge
is evidenced by Hickey's July 26 remarks to May
He told May that he thought the man in the bar
the previous night was a union organizer and that
the employees were trying to organize Hickey also
stated that he thought Johnson was the instigator
of the campaign 13 Accordingly, we find that the
'° In his exceptions, the General Counsel argues that the Respondent's
alleged lawful reasons for Johnson's discharge were pretextual and were
not the true reasons for the discharge The General Counsel argues that
the Respondent did not rely on the alleged lawful motivations for the dis-
charge and therefore the judge should not have relied on Wright Line,
supra, to resolve the Issues before him Contrary to the General Counsel,
we agree with the judge that Wright Line, supra, provides the correct
framework for the analysis of the Respondent's motivation for Johnson's
discharge See Roadway Express, 279 NLRB 302 (1986), and Lawson Co
v NLRB, 753 F 2d 471 (6th Or 1985)
" The judge found that "the General Counsel has established a pnma
facie case by a preponderance of the evidence that in furtherance of its
opposition to unionization, Respondent's discharge of Deborah Johnson
was motivated by protected union and other concerted activities, and
that such actions by the Respondent had the effect of discouraging the
employees in organizing a union" Shp op at 17
i2 noted, Chairman Plouffe explicitly stated that he would never
permit a union at his business He further stated that he would fire em-
ployees and close before allowing a union President Hickey's July 26
reference to Johnson as a "troublemaker"—m context—demonstrates his
animus toward Johnson's union activity
13 We reject as totally without ment the Respondent's argument that
employer knowledge is not established when It is proved that an employ-
er thought but did not know for certain that union activity occurred The
Board and the courts have long held that when the General Counsel
proves an employer suspects alleged discrimmatees of union activities, the
knowledge requirement is satisfied See, e g, Turnbull Cone Baking Co v
NLRB, 778 F 2d 292, 296 (6th Cir 1985)
General Counsel established that the Respondent
had knowledge of Johnson's and the other employ-
ees' union activities
Having found that the General Counsel estab-
lished a prima facie case, the burden shifted to the
Respondent to show that it would have discharged
Johnson even in the absence of her union activity
The judge concluded that the Respondent would
have fired Johnson even without her union activi-
ties We disagree with the judge, and find that the
Respondent did not carry its burden
The Respondent contended that it discharged
Johnson because of her poor sales performance
However, on July 26, when Hickey told May that
he was going to fire Johnson at the end of August
because of her sales performance, he was not
aware of her sales statistics It was only after
Hickey made the decision to discharge Johnson
that he asked May to compile Johnson's sales statis-
tics Further, on August 1 or 2, when Hickey de-
cided to accelerate Johnson's dismissal, he again
did not review her sales statistics On August 4 or
5, when May, having compiled Johnson's statistics,
told Hickey that Johnson had improved her sales
statistics, Hickey never reconsidered his decision to
discharge Johnson To the contrary, Hickey com-
mented to May that he would have to terminate
Johnson immediately in order to avoid recognizing
any improvement in her sales, which would satisfy
the conditions of her probation
From the above facts, the conclusion is inescap-
able that the Respondent was not relying on John-
son's sales statistics in deciding to discharge John-
son Hickey's statements and course of conduct
demonstrate that he did not know or care whether
Johnson's work performance had improved
Rather, he had a predetermined decision to dis-
charge Johnson His comments in response to
learning of Johnson's improved sales show that he
sought to conceal the real reason for the discharge
Under these circumstances, the Respondent's rebut-
tal case fails to establish that Johnson would have
been discharged for poor work performance in the
absence of her union activity Indeed, the Respond-
ent's efforts to rely on facts of which it was not
aware (i e, Johnson's sales statistics as of the date
of the decision to discharge)" and to hide the real
reason for Johnson's discharge supports the infer-
ence that it was acting for unlawful reasons See
i4 Board recently emphasized that in a case turning on employer
motivation an employer obviously cannot be motivated by facts of which
It is not aware at the time It makes its decision See Philips Industries, 295
NLRB 717 (1989)
170

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shattuck Denn Mining Corp v NLRB, 362 F 2d
466 (9th Cir 1966) 16
The Respondent argues that Injected Rubber
Products Corp, 272 NLRB 418 (1984), is similar to
this case and warrants a dismissal here We dis-
agree In Injected Rubber, the Board concluded that
an employer had established that it had discharged
an employee for poor work performance Initially,
the Board found that the General Counsel had
failed to establish a prima facie case of a violation
of the Act Even assuming a prima facie case, the
Board concluded that the employer was motivated
to act by the employee's poor work There, the
employer made its discharge decision after confirm-
ing that the employee's production was not increas-
ing and that the employee was not responding to
warnings Ultimately, the employer established that
it relied on the employee's poor work performance
in making its decision to discharge Here, unlike in
Injected Rubber and as discussed above, the Re-
spondent failed to demonstrate that its action was
based on Johnson's poor work performance
Accordingly, having found that the General
Counsel established a prima facie case warranting
an inference that Johnson was discharged for union
activities and having found that the Respondent
failed to rebut the General Counsel's prima facie
case, we conclude that the Respondent's discharge
of Johnson violated Section 8(a)(3) and (1) of the
Act 16
15 recommending dismissal of the complaint, the judge found that
the Respondent "carried its burden of establishing that Deborah Johnson
would have been discharged any time during or at the end of the current
quarter (July 30, 1988) for cause—legitimate business reasons, absent any
union activity by the employees" The judge's statement suggests—incor-
rectly in our view—that the Respondent's motivation was lawful because
the Respondent put Johnson on probation before she engaged in union
activity Probationary employees are entitled to the full protection of the
Act See Trice Industrzes, 283 NLRB 848, 854 (1987) Although Johnson
was placed on probation in May, the Respondent's discharge decision
was not made until at least July 26, the day after the union meeting The
motivation for that decision is at Issue here Although it is relevant that
Johnson was on probation, that fact is not determinative in deciding the
Respondent's motivation for the discharge
If the judge meant to Imply that he found that the Respondent had
demonstrated that It had relied on Johnson's work statistics in making its
decision to terminate, we disagree, for the reasons set forth above, and
thus reverse any such finding
16 General Counsel, though acknowledging that the complaint
does not specifically allege that the Respondent's discharge of Johnson
was for her protected concerted activities (I e, as opposed to her union
activities), urges the Board to find that Johnson was discharged for her
protected activities The General Counsel contends that the matter was
fully and fairly litigated at the heanng Presumably, the General Counsel
is urging that we find that Johnson was discharged for consistently ex-
pressing dissatisfaction at employee meetings about the Respondent's
changes in working conditions In light of our finding that the Respond-
ent discharged Johnson for her union activity, we need not pass on the
General Counsel's additional theory
CONCLUSIONS OF LAW
, 1 The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act
2 By discharging Deborah Johnson on August 5,
1988, the Respondent has violated and is violating
Section 8(a)(3) and (1) of the Act
3 The unfair labor practice found above consti-
tutes an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act We
shall order the Respondent to offer Deborah John-
son immediate and full reinstatement to her former
position, or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to
her seniority or other rights and privileges We
shall further order the Respondent to make John-
son whole for any loss of earnings or other benefits
she may have suffered as a result of the discrimina-
tion against her Backpay shall be computed as pre-
scribed in F W Woolworth Co, 90 NLRB 289
(1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987)
We further shall order the Respondent to
remove from its records and files any reference to
the unlawful discharge and to notify Johnson, in
writing, that this has been done and that the dis-
charge will not be used against her in the future
Sterling Sugars, 261 NLRB 472 (1982)
ORDER
The National Labor Relations Board orders that
the Respondent, Plouffe & Stuff, Inc , d/b/a Re-
spond First Aid/Complete First Aid System/Dot
Health Care Products, Plymouth, Michigan, its of-
ficers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating
against any employee because of the employee's
union activities
(b) In any like or related manner mterfenng
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer Deborah Johnson immediate and full
reinstatement to her former job or, if that job no
RESPOND FIRST AID

171
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
nghts or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section
of the decision
(b) Remove from its files any reference to her
unlawful discharge and notify Johnson in writing
that this has been done and that evidence of her
unlawful discharge will not be used as a basis for
further personnel action against her
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its place of business in Plymouth,
Michigan, copies of the attached notice marked
"Appendix " 17 Copies of the notice, on forms pro-
vided by the Regional Director for Region 7, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other matenal
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
,
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board' shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these nghts
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
r
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for engaging in union ac-
tivities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Deborah Johnson immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest
WE WILL remove from our files any reference to
the unlawful discharge of Deborah Johnson and
WE WILL notify her in wntmg that we have re-
moved from our files any reference to her dis-
charge and that the discharge will not be used
against' her in any way
PLOUFFE & STUFF, INC , D/B/A RE-
SPOND FIRST AID/COMPLETE FIRST
AID SYSTEM/DOT HEALTH CARE
PRODUCTS
Ellen J Dannzn, Esq , for the General Counsel
Bryan S Ahearn, Esq and Janice A Kyko, Esq (Strinqari,
Fritz, Kreger, Ahearn, Bennet & Hunsznger, PC), of
Detroit, Michigan, for the Respondent
DECISION
STATEMENT OF THE CASE
ELBERT D GADSDEN, Administrative Law Judge On
October 12, 1988, Deborah S Johnson filed a charge of
unfair labor practices against Plouffe and Stuff, Inc ,
d/b/a Respond First Aid/Complete First Aid
System/Dot Health Care Products (the Respondent) A
complaint was issued on November 8, 1988, by the Re-
gional Director for Region 7, on behalf of the General
Counsel
In essence the complaint alleged that on or about
August 5, 1988, Respondent discharged the charging
party employee because of her support for, and activities
on behalf of, the Union, in violation of Section 8(a)(1)
and (3) of the Act
On November 16, 1988, Respondent filed an answer
denying that it has engaged in the unfair labor practices
set forth in the complaint
A hearing in the above matter was held before me in
Detroit, Michigan, on March 2 and 3, 1989 Briefs have
been received from counsel for the General Counsel and
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
counsel for the Respondent, respectively, which have
been carefully considered
On the entire record in this case, including my obser-
vations of the demeanor of the witnesses, and my consid-
eration of the briefs filed by respective counsel, I make
the following
FINDINGS OF FACT
I JURISDICTION
Respondent, Plouffe & Stuff, Inc d/b/a Respond First
Aid/Complete First Aid System/Dot Health Care Prod-
ucts is, and has been at all times material, a corporation
organized under, and existing by virtue of, the laws of
the State of Michigan
As such, the Respondent is, and has been at all times
material, engaged in the nonretail sales and distribution
of first aid and safety equipment to manufacturing plants
and other businesses
During the year ending December 31, 1987, a repre-
sentative period, Respondent, in the course and conduct
of its business operations purchased and caused to be
transported, first aid supplies and other goods and mate-
rials valued in excess of $50,000, which were transported
and delivered to its place of business in Plymouth,
Michigan, directly from points located outside the State
of Michigan
The complaint alleges, the answer admits, and I find
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO (Local 247 or the Union) is, and has been at
all times material, a labor organization within the mean-
ing of Section 2(5) of the Act
HI THE ALLEGED UNFAIR LABOR PRACTICES
A Background Facts
Respondent is engaged in the nonretail sale and distri-
bution of first aid and safety health equipment, through
10 sales and service representatives operating from its fa-
cility located at Plymouth, Michigan Each sales repre-
sentative covers a designated geographical territory in
which he or she calls upon managers of various manufac-
turing plants and other businesses within their respective
territories
In the spring of 1988, Respondent made certain busi-
ness operating changes, including the method of paying
and allowing vacation time for its sales representatives
Several of the sales representatives were dissatisfied with
these changes, and when Respondent did not restore
those conditions or amend its policy changes to be more
satisfactory to the sales representatives, some of them
proceeded to organize a union One of the sales repre-
sentatives, the alleged discnmmatee, was discharged
shortly after the organizing activity commenced The
discharged employee contends her employment was ter-
mutated because of the union organizing activity of the
employees Respondent contends the alleged discnmina-
tee was on probation for low and declining sales, and
that she was discharged because she failed to improve
her sales record in accordance with the conditions of her
probation
The complaint alleges and the Respondent admits that
the following named persons occupied the positions set
opposite their respective names, and have been and are
now supervisors and agents of the Respondent, within
the meaning of Section 2(11) of the Act
James G Plouffe—Chairman of the Board
Mark Hickey—President
Counsel for the General Counsel's unopposed motion
to correct errors in the transcript as outlined on page 29
of her brief is granted
B Respondent's Business Organization and Operation
Respondent's chairman of the board, James G Plouffe,
is over the entire business operation of the Company He
travels and is frequently out of the office However,
whether or not he is present, or was not in fact present
during the period May 30—August 31, 1988, business
was carried on as usual by Plouffe's executive adminis-
trator, Susan May, who is in charge (supervisor) of the
four or five clerical personnel in the office May has a
masters degree in nursing and graduate hours toward a
masters in business and finance
Respondent's president, Mark Hickey, is the supervisor
of approximately 10 of Respondent's staff sales and serv-
ice representatives, and he is in charge of the daily sales
operations of the Plymouth facility
Each sales and service representative works in his or
her assigned territory by traveling in a company supplied
van (vehicle), stocked with sales products which they ex-
hibit or demonstrate while visiting established customers,
and replenishes their depleted or out-dated inventory of
stock by introducing them to new products The sales
and service representatives also solicit new customers by
telephone "code calling" and visiting prospective cus-
tomers
Before and during early 1987 Respondent's sales per-
sonnel was paid on a commission basis However, James
Plouffe, after an absence from the business of several
months, returned to the Plymouth office August 18,
1987 At the end of the fiscal year, October 31, 1987,
Plouffe noted there was no gam in sales for the second
year and he proceeded to institute several changes, in-
cluding changes in the product line After a business
planning meeting in December 1987 with President Mark
Hickey, the Company bought a new computer, rear-
ranged the offices, and in February 1988, ran off a de-
clining sales report on all salespersons, gave each of
them a copy of the report, and directed them to visit
each account holder to determine whether or not it was
still a customer or had not been serviced, and to submit
their findings to Hickey Plouffe also finally implemented
a sales foundation program—based on the prior year
sales of each sales representative Thereafter, he imple-
RESPOND FIRST AID 173
mented a pay increase based on increase revenues gener-
ated, and some bonus dollars
In May 1988, Plouffe said he evaluated the sales repre-
sentatives' compensation operation since not many sales
representatives were producing enough Meanwhile, he
said he discussed the sales performance of Deborah
Johnson with supervisor Hickey during May, June, and
July 1988
On June 6, 1988, Plouffe implemented the straight
commission system of paying the sales representatives,
eliminated the 3 weeks' vacation, the paid sick days, and,
instead, paid $350 for 1 week's vacation, with a maxi-
mum of 2 weeks
Deborah Johnson was one of Respondent's sales and
service representatives who was employed March 17,
1986, and assigned to the sales temtones of Southfield,
Sterling Heights, and Northside Eight Miles All sales
and service representatives were given a base of custom-
ers by Respondent to call on, and they were to expand
upon that base by obtaining referrals from those custom-
ers Johnson's supervisor was Mark Hickey Johnson and
other sales representatives were quite dissatisfied with
many of the new changes announced and/or implement-
ed by Plouffe They expressed their dissatisfaction in
Monday night sales meetings or in groups as they con-
gregated in, near, or away from the office Respondent
was aware of the sales representatives expressing dissatis-
faction with many of the changes
In a memo dated April 12, 1988, President Hickey no-
tified the sales representatives that the changes in busi-
ness operation being made were made to promote effi-
ciency and profitability for management and the sales
representatives He advised them that taking issue with
any of the changes in private among themselves was the
"wrong way" to address the problem The "right way"
was to state their opposition in writing on a form fur-
nished to employees by the Respondent, turn it into man-
agement or talk to management about it He assured the
sales representatives that no punitive measures would be
taken against them for stating their opposition to the
Company's policies because that is the "right way" The
sales employees were told the wrong way would not be
tolerated and if they continued to verbally plague co-
workers with "your bad attitudes," this will be viewed as
insubordination and will be followed by written repri-
mand (G C Exh 6)
Shortly after issuance of the memorandum on May 12,
1988, Hickey met with Johnson and told her he expected
her to resign from her job because of her very strong
dissatisfaction expressed at the sales meeting a week ear-
lier Johnson refused to resign Hickey's notes of that
meeting indicate he told Johnson she was very negative
towards the Company's changes, that she had a "poor at-
titude which was a detriment to the morral [sic] toward
achieving [sic] Co goals"
However, Johnson and other sales representatives con-
tinued to discuss their benefits and other company policy
changes while loading their vans ;Sales meetings were
held at 5 or 5 30 p m each Monday During those meet-
ings Johnson was one of the sales representatives who
voiced her dissatisfaction with certam policy changes
made by management, such as the change in their
method of pay—and the benefits package (personal leave
days, vacation, health insurance, and the company's "la-
belling a first aid cream as a burn cream")
Johnson acknowledged that she had no indication
management knew she was involved with the Union
Nor did any member of management say anything to her
about the Union before her termination
Johnson Placed on Probation
Hickey testified that having noticed from the profit
and loss statements that there was a decline in Deborah
Johnson's sales in fiscal 1987 and 1988, as compared with
her sales in 1986 and 1987, he met with Johnson May 12,
1988 At that time he asked Johnson to resign from the
Respondent and accept his assistance in having her hired
by another company Johnson refused to resign unless
Respondent offered her a year's severance pay In lieu of
insisting on her resignation, Hickey outlined areas in
which Johnson needed to improve her performance,
sales, and increase her reported telephone calls per day,
which were considerably less than the reported tele-
phone calls of other sales representatives, to improve her
delays in turning in paperwork timely, and to improve
maintaining proper inventory control on her company
van Since the office staff had reported that Johnson usu-
ally returned her van to the office after 6 p m, causing
the office staff problems in closing the business day,
Hickey directed Johnson to return the van to the office
before 6 p m at the end of each business day At the end
of their meeting, Hickey testified he informed Johnson
that these deficiencies would have to be corrected during
the current business quarter in order for her to remain in
the employ of the Respondent Johnson did not dispute
Hickey's testimony in this regard Hickey said these di-
rectives were imposed on Johnson to expose her to the
office more, and to influence her to make more tele-
phone calls daily, increase her communications with the
office staff, and enable her to restock her van more effi-
ciently See Respondent's Exhibit I—Probation
Hickey's summary notes of that meeting dated May
18, 1988
Problems
1) Decrease of sales and route number 3 under
Deborah Johnson's direction Decrease is $12,400 00
in volume (147%) through first 6 months of fiscal
year 1987-1988
2) Failure to meet foundation all three months of
new pay program, (February, March, & April) of
1988
3) Number of calls per day for fiscal 1987-1988
Year to date 558, lowest in company Approximate-
ly one half of the calls of other sales staff
4) Constant delays in turning in paperwork (Ex-
ample December through May have caused inter-
nal problems in processing invoices
Corrective Action
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
EFFECTIVE MAY 18, 1988
1) Deborah Johnson will be on probation till fur-
ther notice.
2) Condition—Van will be returned to the office
at end of each business day without exception.
3) Failure to return van at the end of each busi-
ness day (6:00 P.M.) will be viewed as violation of
probation directive as well as company policy re-
garding unauthorized personal use of company ve-
hicle during non-business hours. This will be
grounds for immediate dismissal.
4) Daily paper work will be turned in at end of
each day.
Subsequent to the meeting with Hickey, Deborah
Johnson said Hickey acted a little cool with her.
Hickey testified that the office staff continued to com-
plain about having difficulty dealing with Johnson and
her attitude towards them, as well as her continued fail-
ure to return the van by 6 p.m. Consequently, Hickey
met with Johnson again on June 20, 1988, during which
time he discussed these matters.
Hickey held a third meeting with Johnson on June 26,
1988, but all he could recall discussing with her was her
failure to return the van to the office before 6 p.m. daily,
and that she had a bad attitude, about which he said he
had told her in the two previous meetings. When asked
what did he mean by a bad attitude, Hickey said, "Ex-
pressing dissatisfaction with operation—company policies
and procedural changes—verbal expression of dissatisfac-
tion."
C. Union Activity of the Respondent's Sales
Representatives
A composite of the uncontroverted evidence of record
established that, Respondent held a sales representatives'
meeting between 5:30 and 6:30 p.m. on Monday, July 25,
1988. At the meeting, employees, including Deborah
Johnson, expressed their dissatisfaction to President
Hickey about some of management's new policies, in-
cluding the new pay method for the sales representatives.
Subsequent to the sales meeting, the sales representatives
(Pat Puhl, Mickey Darin, Doris Anderson, Barbara
Smith, Barbara McPetrie, and others), responded to
Deborah Johnson's earlier notice to them, to meet at the
Press Box Restaurant and Bar with Union Representative
David Schuler about 8 p.m. Schuler, who was wearing a
jacket with the Teamsters' symbol on it, proceeded to
discuss and explain unionization. He gave the sales repre-
sentatives union authorization cards which were laying
on the table in front of them.
Meanwhile, after the sales representatives' meeting on
July 25, President Hickey testified that he started for
home but noticed his car was low on gasoline. He turned
in the opposite direction to visit a gasoline station which
was just past the Press Box Restaurant. As he passed the
restaurant, he noticed several of the Company's vans
parked behind the restaurant. He was concerned about
whether the sales representatives were consuming alco-
hol while using the company vans prompted him to in-
vestigate. He parked his car, entered the restaurant, ap-
proached the table where the employees were sitting,
and said "Hello." He asked them whether they were
drinking alcoholic beverages. They said "no," and told
him what beverages they were drinking. Seeing the
strange gentleman (Schuler) at the table with them, he
asked Schuler was he an attorney, and Schuler said "no."
According to Hickey, Deborah Johnson introduced him
to Schuler and they shook his hands. He also asked
Schuler if he was representing his (Hickey) staff and
Schuler said, "If they want me to." Since Hickey noted
that the employees were drinking only water and soda
he told the employees good evening and left the restau-
rant. The lighting was dim and it was not established
whether Hickey could or did see the union label on
Schuler's jacket or the union cards on the table.
Susan May, the since terminated former executive ad-
ministrator to Jim Plouffe, against whom criminal
charges were filed by Respondent and are pending dispo-
sition, testified that on July 26, the day after the employ-
ees met at the Press Box Restaurant, Hickey came to her
office, which was right across from his, and told her
about his visit to the Press Box Restaurant while the em-
ployees were there. However, May said Hickey also told
her he thought the stranger (Schuler) was a union represent-
ative and the sales employees were engaged in organizing a
union; that he thought Deborah Johnson was the instigator
of the organizing activity, and that he was going to termi-
nate her employment upon her probation sales perform-
ance and her "troublemaker attitude." He told her (May)
Johnson was very vocal about her dissatisfaction with
the Company's change in the pay structure of the sales
representatives. May said Hickey then asked her to
update and compile Deborah Johnson's sales statistics for
the end of July; that he was going to discharge Johnson
at the end of August when he would have hired new
sales representatives, and when he and Plouffe would be
on vacation at the time. She said he wanted her to wit-
ness the termination of Johnson. She also said this was
the first time Hickey had ever told her Johnson would
be terminated.
Susan May also testified that Hickey told her he saw
employee Wanda, and her husband, Keith Schut, talking
to Deborah Johnson in the warehouse; and that he be-
lieved Keith was the person who helped Johnson contact
the Union because Keith would be familiar with organiz-
ing activity by virtue of where he is employed. Hickey
however denied that he made any such statements to
May about Wanda and Keith Schut, or any of the above-
described statements attributed Co him by Susan May.
However, a part of May's testimony is corroborated
by her successor, Allen Budlong, who was employed by
the Respondent September 27, 1988, as comptroller, with
the understanding that either party could terminate his
employment at will. He replaced Susan May as executive
administrator to Plouffe. Budlong testified that on Janu-
ary 13, 1989, Jim Plouffe walked into his office at 5 p.m.
and told him he (Budlong) was terminated because they
had agreed that either party could terminate the relation-
ship without a reason. Budlong testified that during a
conversation in October 1988 with Jim Plouffe and Mark
Hickey, they told him they thought Deborah Johnson start-
RESPOND FIRST AID 175
ed the Union, but that she was discharged for her per-
formance and she was bringing an action before the Na-
tional Labor Relations Board I credit Budlong's testimo-
ny because I was persuaded by his demeanor that he was
testifying truthfully, and because his testimony is consist-
ent with Susan May's that Hickey said he believed John-
son instigated or started the Union
On cross-examination Susan May acknowledged she
was fired by the Respondent on August 31, 1988, that
she was not given any reasons for her discharge, and
that she believes she was treated unfairly
Several times during the hearing, counsel for the Re-
spondent attempted to attack the credibility of Susan
May on the grounds that criminal charges involving
fraud (dishonesty) had been filed against May Counsel
for Respondent conceded that no civil or criminal dispo-
sition has been made on the charges against May None-
theless, counsel for Respondent tried on several occa-
sions to impeach the testimony of May on a legally unre-
solved credit card dispute between May and the Re-
spondent On nearly each such attempt, the witness
(May) would decline to answer pursuant to the fifth
amendment to the Constitution (on the grounds that her
answer might incriminate her), or the General Counsel
objected to such questions and was sustained by the
bench pursuit to Rule 609 of the Federal Rules of Evi-
dence, since May has not been convicted of a crime in
accordance therewith Under these circumstances, the
parties voluntarily enter into the stipulation descnbed
below
During the heanng the parties stipulated that
1 Following the termination of Susan May, a dispute
arose as to certain credit card charges Susan May was
notified by the company about these by letter on Sep-
tember 16, 1988
2 On September 30, 1988, Plouffe and Stuff filed a
complaint with the Plymouth police alleging credit card
fraud
3 No conviction or indictment or information has re-
sulted from the complaint
4 There is a dispute between Plouffe and Stuff and
Susan May as to any amount she might owe
5 Susan May is in the process of paying money into
an escrow to the Plymouth police to be paid to Plouffe
& Stuff
At a later period during this proceeding, counsel for
the General Counsel and counsel for Responaent at-
tempted to reach a stipulation on conversations Susan
May held with Plouffe subsequent to her discharge
They were unable to reach a stipulation However, in the
interest of expediting the hearing, counsel for Respond-
ent was allowed to make the following offer of proof
without objection from counsel for General Counsel
MS KYKO If allowed to testify, Mr Plouffe
would say that there were two conversations be-
tween Susan May and James Plouffe after she left
her employment with Plouffe & Stuff, that both
conversations resulted from Susan May telephoning
James Plouffe The first phone call was in the be-
ginning of October of 1988 In that first conversa-
tion Susan May asked James Plouffe if she could
sign a promissory note and asked if he would drop
the Complaint with the police
In the second conversation on December 2, 1988,
Susan May said that because James Plouffe would
not drop the Criminal Complaint, she said she
hadn't yet gone to EEOC or the Michigan Depart-
ment of Labor, or the IRS, but that two attorneys
wanted to take her deposition and she said she
would force Plouffe & Stuff to open up its Compa-
ny's files and records
In that second conversation Susan May's tone of
voice conveyed a worried anger, was abrupt, and
was very forceful
Susan May was fired from her position by the Re-
spondent on August 31, 1988, without any reason given
by Respondent The dispute remains between the parties
concerning May's use of a credit card Thus, a determi-
nation of the ultimate issues in this case depends largely
upon a credibility resolution of the testimony of wit-
nesses Susan May and Mark Hickey While it is difficult
in such instances to resolve such vexed questions of fact
to which the parties alone bear witness, I have neverthe-
less resolved such questions by considering the strained
relationship between Susan May and the Respondent the
subpoenaed testimony of witnesses still in Respondent's
employ, the respective interest each witness might have
in the outcome of this case, and how readily responsive,
nonselective, and consistent each witnesses' version is
with the total direct and circumstantial evidence of
record
Although I approached the resolution of these credi-
bility issues with some suspicion about the veracity of
Susan May as a result of the nature of her separation
from the Respondent's employ and the on-going dispute
between them, I could not refuse to recognize how
straightforward, self-assured, and responsive she was as
she testified on direct and cross-examination I particular-
ly noted how logically consistent her testimony is, with
certain aspects of the testimony of witnesses Dann,
Smith, Puhl, Johnson, and in part with Manager Mark
Hickey, as well as how it coincides with other credited
evidence of record Additionally, Susan May is a highly
educated and intelligent woman She withstood cross-ex-
amination essentially without any contradiction or indi-
cation that she was not sure about what she testified, and
what actually happened while she was employed by the
Respondent
Correspondingly, as I observed the demeanor of Mark
Hickey, I received the impression that he was not telling
the whole truth, and that he was fairly well acquainted
with employee's organizing rights, and was testifying
very carefully to avoid conveying any impression that he
said or did anything which constituted a violation of the
Act I also considered how strongly Respondent ex-
pressed its opposition to employees expressing their dis-
satisfaction with Respondent's changes in their pay struc-
ture, sick days, and allowed vacations In fact Respond-
ent directed its employees to express their dissatisfactions
with the Company's policy changes in writing directed
to the Respondent and that to express their dissatisfac-
tion among themselves was considered insubordination
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consequently, when I consider Respondent's knowl-
edge of the widespread dissatisfaction of its employees
with its policy changes, particularly the frequently ex-
pressed dissatisfactions by Deborah Johnson, I am per-
suaded that Mark Hickey, as nearly any employer would
have, suspected or believed that its employees were dis-
cussing unionization of the Company in their gathering
at the Press Box Restaurant, and that Deborah Johnson
was a likely suspect of spearheading the organizational
drive Under these circumstances, I am further persuaded
that Mark Hickey told Susan May he thought David
Schuler was a union representative and that Deborah
Johnson was the instigator of the organizing activity,
that he (Hickey) was going to terminate Johnson's em-
ployment upon her probation sales performance (statis-
tics) and her "trouble-maker attitude"
Hickey's belief that Deborah Johnson was the instiga-
tor of the Union is reenforced by the additional account
of May, that he told her he believed Johnson was the
person who contacted the Union because he observed
her talking to Wanda and Keith Schut, since Keith
would have known how to contact the Union by virtue
of where he was employed May's testimonial account in
this regard is corroborated in part by her successor,
Allen Budlong, who testified pursuant to subpoena, that
during a meeting with Plouffe and Hickey in October
1988, they told him they thought Deborah Johnson start-
ed the Union Although Budlong said Plouffe and
Hickey told him they terminated Johnson for her sales
performance, I nevertheless credit his account that they
told him they thought she started the Union
Testimony )
Susan May further testified without dispute that Mark
Hickey thereafter instructed her to call each of the sales
employees and set up a meeting for himself, Mickey
Dann, Pat Puhl, and Barbara Smith as well as another
meeting for himself with Bonnie McPetne and Doris An-
derson, and a separate meeting for himself and Deborah
Johnson
Consistent with May's testimony, Mickey Dann still in
Respondent's employ, and pursuant to subpoena, testified
that the day after the sales representatives met at the
Press Box, he was paged by Susan May and advised "to
meet with Mr Hickey the next day at 4 30 p m, that it
was important"
Mickey Dann testified that Dons Anderson arranged
for the union meeting at the Press Box Restaurant, and
that no one in management ever talked to him about the
Union
Likewise, Patricia Puhl, still in Respondent's employ
since July 1986, and also pursuant to subpoena, testified
that a day or two after the meeting of sales representa-
tives at the Press Box, she was beeped by Mark Hickey
and instructed to attend a meeting with him, Barbara
Smith, and Mickey Dann at 4 30 p m
Mickey Dann further testified that during the meeting,
Hickey asked them whether or not they were with the
Company and they told him they were with the Compa-
ny, that Hickey asked them who was the gentleman with
them at the Press Box and they said "no comment"
Hickey said, "Indeed it is a free country and you have a
right to meet with whomever you want to in public"
Patricia Puhl testified that during the 430 p m meet-
ing, Hickey, in a subtle manner, tried to induce them to
voluntarily tell him what was going on at the meeting at
the Press Box When none of the employees responded,
he asked them what would it take to keep them on
board, what would management have to change to keep
them in its employ Most of the employees reiterated
their dissatisfaction with the changes in their pay struc-
ture, sick days, and vacation allowed Hickey was taking
written notes during the meeting and told them he would
not promise them anything but would talk to Plouffe and
get back to them,'but he did not get back to them
On that weekend, Patricia Puhl called Hickey and told
him the sales representatives expected some kind of re-
sponse from Plouffe about their concerns, because they
were very serious She said Hickey told her Plouffe was
in business a long time, and he would know how to
remain in business and move ahead She told Hickey the
sales representatives would like to have a response from
him (management) within a couple of days after the
weekend, but they did not hear from Hickey or from
management in general
Susan May further testified that subsequent to Hickey's
meeting with Mickey Dann, Pat Puhl, and Barbara
Smith, Mark Hickey told her he felt more comfortable
after talking with the employees because he felt their
loyalty was with the Company, and they would not be a
problem regarding the union activity because he felt they
were scared of loosing their jobs
Credibility Determination
It is readily apparent from the undefiled testimony of
Mickey Dann that Respondent was trying to avoid
unionization, when a day or two after the employees met
at the Press Box Restaurant, Hickey asked Dann, Patri-
cia Puhl and Barbara Smith, whether they were with the
Company? Who was David Schuler9 and what would
management have to do to keep them in Respondent's
employ? When the employees (Dann, Puhl, and Smith)
told Hickey they were with the Company and would not
tell him who David Schuler was, I am persuaded that
Hickey wanted to believe them, that he did for that time
believe they were with him, and that it was this belief
that prompted him to tell Susan May he felt more com-
fortable after talking with the employees, that their loy-
alty was with the Company, and that they would not be
a union problem because they were scared of losing their
jobs
Testimony
May further testified that near the end of the week of
the July 25, 1988 regular staff meeting with Plouffe,
Hickey, and herself, she could tell Plouffe was unusually
agitated—angry When the subject of union activities
came up he got very loud and angry and said, there has
never been a Union there, there will never be a Union
there, he hated unions, and "that he would fire the em-
ployees and close the company before he would allow a
union" May said such an emotional outburst was unusu-
RESPOND FIRST AID 177
al for Plouffe She said he also told Hickey to get to the
bottom of this and get rid of Deborah Johnson so that all
of the commotion and upheaval would die down, al-
though he did not say Johnson was behind the union ac-
tivity because he did not actually know who was behind
It
However, in testifying, Jim Plouffe denied he made
any of the aforedescnbed statements attributed to him by
Susan May Likewise, Mark Hickey denied he ever
heard Jim Plouffe make any such statements in his pres-
ence or that Plouffe directed him to ,get to the bottom of
the union activity and get rid of Deborah Johnson
Credibility Determination
I am persuaded by the demeanor of May and the fact
that since near the end of the week of July 25, after
Hickey had ample time to think about the employees dis-
satisfactions and demands expressed in the meeting with
him, and the meeting of employees at the Press Box Res-
taurant and the stranger (Schuler) who was with them It
was only natural for him and Plouffe (Management) to
hear the footsteps of the Union on their heels and
become concerned, as Susan May described Plouffe in a
meeting with she and Hickey Under these circum-
stances, considenng the previous and subsequent evi-
dence of Respondent's opposition to employees' ex-
pressed dissatisfactions and their union activity of July
25, I am persuaded that Plouffe angrily stated "there has
never been a union there, there will never be a union
there, he hated unions, that he would fire the employees
and close the company before he would allow a union",
and that he told Hickey to get to the bottom of the
union activity and get nd of Deborah Johnson, so that
all of the commotion and upheaval would subside
Hickey complied with his directive
Conclusions
I conclude and find upon the foregoing uncontrovert-
ed and credited testimony, that Respondent's sales em-
ployees, including Deborah Johnson, became engaged in
union activity when they met with Union Representative
Schuler at the Press Box Restaurant on July 25, 1988
I further conclude and find on the foregoing credited
testimony and circumstantial evidence, that on the next
day, July 26, 1988, Respondent (Hickey) thought and be-
lieved that David Schuler was a union representative and
that the sales employees were engaged in union activity
While Hickey might have only thought or believed the
sales employees were engaged in union activity on July
25 and 26, 1988, and such belief alone may not have been
sufficient to constitute knowledge of union activities on
those dates, the evidence demonstrates that 3 or 4 days
thereafter, Respondent's (Hickey) belief became much
more convincing Not only did Hickey communicate his
belief to Executive Administrator Susan May, but he
proceeded to meet with small groups of employees and
asked them whether they were with the Company
Hickey also told May he believed Deborah Johnson
instigated the union activity, and in October, both
Hickey and Plouffe told the new executive administrator
(Budlong) the same thmg Respondent's belief about
Johnson was not only partially correct, but logically
predicated upon the uncontroverted evidence that John-
son was a vocal dissident of Respondent's policy changes
affecting the employees pay, sick days, and vacation
The evidence also demonstrates that Respondent mani-
fested union animus when Plouffe stated in the presence
of Susan May that there never was a union there, that
there never will be a union there, that he hated unions,
and that he would fire the employees and close the busi-
ness before he allowed a union I therefore conclude and
find that it may be reasonably inferred from Respond-
ent's (Hickey and Plouffe) statements and actions that
during the week of July 25-30, 1988, Respondent had
knowledge that Deborah Johnson and other sales em-
ployees were engaged in protected concerted and union
activity NLRB v Wal-Mart Stores, 488 F 2d 114, 116-
117 (8th Cir 1973), Stoner Communications, 287 NLRB
890 (1987)
Testimony
Durmg the first week in August, Susan May said
Hickey told her to prepare the sales performance statis-
tics on Deborah Johnson, that the termination time for
Johnson had been moved up so that it could be executed
while he and Plouffe were on vacation Plouffe was al-
ready on vacation However, Hickey denied he gave
May any such reasons for terminating Johnson on
August 5 Notwithstanding, May compiled the statistics
and her actions and testimony are consistent with what
actually occurred
May was instructed to place a help-wanted ad for a
sales representative in the Detroit News and the Lansing
Journal newspapers, which May testified she sent in
around the end of July This was the first time she had
been personally asked to place a help-wanted ad in the
newspapers
Credibility Determination
In this regard, the undisputed evidence shows that
May, in compliance with an order from Hickey, placed a
help-wanted ad in the newspaper for a sales representa-
tive Although the specific date the ad was placed is not
more accurately established by a copy of the newspaper
ad and date, I am persuaded by May's account that it
was placed m the newspapers in late July because Debo-
rah Johnson was terminated August 5 If Johnson was
going to be terminated as early as Hickey said she would
be, it may be reasonably inferred from such fact that Re-
spondent would have wanted a replacement for her
almost simultaneously with her departure Moreover,
Susan May was not employed by Respondent after
August 31, and I find it difficult to believe that Respond-
ent would have waited until near the end of August to
place such an ad, when the job vacancy of Johnson was
going to occur August 5 Hence, I find that Respondent
had Susan May place the help-wanted ad in the newspa-
pers a few days before it terminated Johnson on August
5, as May testified it did Again, May's testimony is con-
sistent with the total evidence of record of what tran-
spired, and Hickey's denial is not
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In accordance with instructions from Hickey, Susan
May typed the notice (G C Exh 5) to all sales repre-
sentatives advising them that there would be no more
weekly sales meetings on Monday evenings until further
notice Although prior to the latter notice attendance at
sales meetings was mandatory, May said Hickey said
cancellation of the meetings would prevent the employ-
ees from congregating and discussing the Union, or
taking issue with the working conditions, since meetings
were the only times the sales representatives were all
brought together by the Company Hickey denied he
gave any such reasons for canceling the sales meetings
Instead, he testified that the meetings were canceled be-
cause employees and management personnel were going
on vacation and only a few employees would be present
Credibility Determination
Although Hickey denies he told Susan May he can-
celed the weekly sales meetings until further notice to
prevent the sales representatives from coming together
and enabling them an opportunity to express their dissat-
isfaction with company policy changes and discuss
unionization, May's testimony is consistent with the
record evidence as a whole, and Hickey's denial is not
Even if Hickey's testimony that the meetings were can-
celed because too many people would be on vacation
was in fact true, the record does not contain any evi-
dence which persuades me that Susan May lacked the in-
tegrity or had the labor relations insight to fabricate her
testimony on this issue, anymore than she did on other
versions of her testimony adverse to the Respondent's in-
terest It is particularly noted that Respondent did not
give its sales representatives any reason for canceling the
weekly sales meetings While Respondent was not obli-
gated to give its sales representatives a reason for cancel-
ing the meetings, it would appear both reasonable and
practical to me that an employer in all probability would
have given its personnel a reason for canceling meetings
which were held so regularly Thus, the Respondent's
failure to give the sales representatives a reason for can-
celing the meetings suggests, under the circumstances
here, that Susan May's testimony is truthful as to why
the sales meetings were terminated, and Hickey's latent
explanation given at the hearing is not As stated earlier,
I was comfortably persuaded by the demeanor of May
that she was testifying truthfully
Conclusions
When Respondent's July 28, 1988, cancellation of the
weekly sales meetings is considered in the context of the
continuity of the evidence of Respondent's conduct after
it learned about the employees' union activity on July 25,
1988, I am persuaded, and I find, that Respondent can-
celed the sales meetings to make it less convenient for
the sales staff to collectively discuss their dissatisfactions
with management policy changes and also engage in
union activity
Testimony
On the day she presented Hickey with the sales per-
formance statistics of Johnson, May said there was an in-
crease in Johnson's sales statistics for the last 2 weeks in
July and going into August Johnson did not explain
whether this was her personal observation and conclu-
sion, or that of management's Nevertheless, she said
Mark Hickey said he would have to terminate Johnson
immediately, otherwise the increase in her sales was
going to obviate the conditions of her probation letter
that had been issued to her several months before be-
cause her sales volume would have improved as she was
advised to do Again, Hickey denied that he made any
such statements to Susan May regarding the termination
of Johnson Although Hickey denies he told Susan May
the termination date for Deborah Johnson was moved up
to August 5 so that Johnson's improved sales record
would not obviate the conditions of her probation and
also allow her termination to occur while he and Plouffe
were on vacation, the credited testimonial and circum-
stantial evidence of record tends to support May's ac-
count
However, in accordance with instructions from
Hickey, Susan May typed the discharge notice (G C
Exh 4) issued to Deborah Johnson and she witnessed its
presentation to her on August 5, 1988
On August 5, 1988, at 345 p m Deborah Johnson was
called to a meeting in Mark Hickey's office where Susan
May and Hickey were present Hickey advised Johnson
that the reason they were meeting was because she was
being terminated He handed the termination notice to
May and asked her to witness it and directed Johnson to
read it, saying "that will explain everything" Johnson
said she read it and told him Respondent owed her for 4-
1/2 sick days that she was not allowed to take Hickey
told Johnson to get with May concerning her last pay-
check and that John (warehouse manager) would ob-
serve her removing her personal belongings from the
van
Conclusions
I therefore conclude and find upon the foregoing cred-
ited evidence
1 That during May-July 1988, Respondent had
knowledge of its employees' dissatisfactions with work-
ing conditions and changes in company policy affecting
their working conditions
2 That for at least 5 months prior to her discharge,
Deborah Johnson was frequently expressing her dissatis-
faction with company policy changes relating to working
conditions, and she was by no means a favored employee
of the Respondent
3 That Respondent prohibited its employees from ver-
bally discussing or expressing their dissatisfaction among
themselves about changing company policies affecting
their working conditions, and that if they engaged in
such discussions, Respondent deemed it insubordination
4 On and after July 25, 1988, Respondent (Hickey)
told Executive Administrator Susan May, it suspected
and believed its employees were engaged in organizing a
union, that it thought Deborah Johnson was the instiga-
tor of the organizing activity because she frequently vo-
calized her dissatisfaction with company policy affecting
working conditions, and because it saw her talking to
RESPOND FIRST AID 179
one of its employee's husband, whom Respondent be-
lieved was knowledgeable about unionization, and that it
was going to terminate Johnson's employment on her
probation sales performance record and "trouble-maker
attitude
5 That Respondent (Hickey) tried to solicit the sup-
port of employees who would not favor the Union,
which effort indicated Respondent (Hickey) was opposed
to the Union It was later venfied that Respondent was
not only opposed to the Union, but that it (Plouffe) said
there was never a union there, there will never be a
union there, he hated unions, and that before he allowed
a union, he would fire the employees and close the busi-
ness Such statements by Respondent clearly manifested
evidence of union animus, and that it had decided to ter-
minate Deborah Johnson to quell the expressed dissatis-
faction with management's policies and the organization-
al efforts of the sales representatives
6 That initially, Respondent decided to terminate
Johnson at the end of August but it later decided to ac-
celerate her termination to August 5, in order to under-
mine the organizational efforts of the sales representa-
tives, and cancel the weekly sales meetings to avoid
making it convenient for the representatives to come to-
gether and express their dissatisfactions with the compa-
ny's policy changes and discuss unionization
After Susan May was discharged, she said she called
Deborah Johnson to inquire about the status of her case
with the Board and to apologize to her for several of the
things that had happened during her termination, about
which she felt badly At that time Deborah Johnson
asked her if she would mind if an agent of the Board
contacted her, and she said she did not mind
Issue
The issue raised by the pleadings and the evidences is
whether the Respondent discharged Deborah Johnson on
August 5, 1988, because she and fellow employees en-
gaged in union activity, in violation of Section 8(a)(1)
and (3) of the Act, or whether the Respondent dis-
charged Johnson for cause, as Respondent contends, fail-
ing to improve her poor sales performance?
Analysis and Conclusions
The facts in the instant case appear to be governed by
the Board's decision in Wright Line, 251 NLRB 1083
(1980) There, the Board held that in determining lawful-
ness of alleged discnmmatory discharges is determined
by the traditional precepts of Board law in 8(a)(1) and
(3) discharge cases, as modified by the Board's decision
in Wright Line, supra That is, where both a lawful cause
and an unlawful cause for discharge is presented, the am-
biguity must be resolved by the following causation test
in all 8(a)(1) and (3) cases involving employer motiva-
tion
First the General Counsel is required to make a
pnma facie showing sufficient to support the infer-
ence that protected conduct was a "motivating
factor" in the employer's decision
In establishing a pnma facie showing, the General
Counsel must establish
1 That the alleged discnminatees engaged in union or
other protected concerted activities
2 That the employer had knowledge of said activities
3 That the employer's actions were motivated by
union animus
4 That the discharge had the effect of encouraging or
discouraging membership in a labor organization
WMUR-TV, 253 NLRB 697, 703 (1980)
5 The General Counsel has the burden of proving
these requisites by a preponderance of the evidences
Gonic Mfg Go, 141 NLRB 201, 209 (1963)
Once the General Counsel has established a prima
facie case, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct
In the instant case, the General Counsel has not al-
leged any independent 8(a)(1) violation of the Act, as
evidence of unlawful motivation Correspondmgly, I
have found that Respondent did not engage in any inde-
pendent 8(a)(1) activity However, 8(a)(1) violation is not
essential to finding an 8(a)(3) violation Actual motive is
seldom established by direct evidence Notwithstanding,
motive may be inferred by the tner of the facts from the
total circumstances established If the alleged or estab-
lished motive for discharge is found false, the trier can
infer that there is another motive providing the sur-
rounding facts and circumstances tend to support that in-
ference Shattuck Denn Mining Corp v NLRB, 362 F 2d
466, 470 (9th Cir 1966), the principle therein quoted by
the Board in Best Products Go, 236 NLRB 1024, 1025
(1978)
Consequently, I am compelled by the 8(a)(3) allegation
here, to determine from the total evidence, whether Re-
spondent's discharge of Deborah Johnson was motivated
by union activity, as alleged, and/or for cause (unsatis-
factory sales performance), as the Respondent contends
WMUR-TV, supra
With Respect to Unlawful Motivation
Having previously found that Deborah Johnson and
her fellow employees were engaged in union activities
on and after July 25, 1988, and that Respondent had
knowledge of that union activity and Johnson's involve-
ment in it as of July 25 and 26, 1988, the question pre-
sented is whether Respondent discharged Johnson on
August 5 because of her union activity In this regard,
the credited evidence also established, and I find, that on
July 26, 1988, Hickey initially decided to discharge
Deborah Johnson on August 31, 1988, that later during
the week of July 25, Plouffe directed Hickey to find the
instigator of the union activity (whom management be-
lieved to be Deborah Johnson) and get rid of her
However, after Hickey had received the statistics he
had requested on Johnson's sales performance, he decid-
ed to terminate Johnson August 5, 1988, while both
Plouffe and himself would be on vacation
The evidence established and I also find that Respond-
ent placed advertisements for a sales representative in the
local newspapers on or about July 30, and that Hickey
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
canceled the weekly sales meetings for its sales represent-
atives in order to avert providing them a convenient op-
portunity to congregate, and collectively express their
dissatisfaction with management's policy changes and
discuss unionization Consequently, I further find on the
foregoing findings that the General Counsel has estab-
lished a prima facie case by a preponderance of the evi-
dence that in furtherance of its opposition to uniomza-
tion, Respondent's discharge of Deborah Johnson was
motivated by protected union and other concerted activi-
ties, and that such actions by the Respondent had the
effect of discouraging the employees in organizing a
union Storer Communications, 287 NLRB 890, (1987),
Murphy Oil USA, Inc , 286 NLRB 1039 (1987),
WMUR-TV, supra
With Respect to Lawful Motivation
It is well established by the essentially uncontroverted
evidence of record that since January 1988, Respondent,
for legitimate business objectives, proceeded to imple-
ment a number of policy changes which affected the
sales employees' pay, sick days and health insurance It is
also established by uncontroverted evidence that Debo-
rah Johnson and other sales employees made their dissa-
tisfactions with these changes known to management,
and that as early as May 1988, the statistics of Deborah
Johnson's sales performance indicated her performance
was at the bottom of the list of her sales peers Although
Respondent did not appreciate the dissatisfactions ex-
pressed by employees about policy changes, and had ac-
tually prohibited verbal discussions of such dissatisfac-
tions amongst the employees, Deborah Johnson was not
only the most vocal dissident with management in this
regard, but she also did not get along well with Re-
spondent's clerical office staff The source of her poor
relations with the office staff was due to her neglect in
turning in her paperwork to them timely
However, when Deborah Johnson's fiscal 1987-1988
statistical performance was compared with her 1986-
1987 performance, it indicated a significant decline and
Hickey met with her on May 12, 1988 At that time
Hickey asked Johnson to resign and allow him to assist
her in securing employment for her with another compa-
ny Johnson refused, and I find that it may be reasonably
inferred from these circumstances that Respondent
wanted Johnson to resign because of her frequently ex-
pressed dissatisfactions with Respondent's policy
changes But that fact alone cannot be held against Re-
spondent since Johnson's work performance was declin-
ing Consequently, Respondent placed Johnson on proba-
tion May 18, 1988, and Hickey outlined the areas in
which she had to improve her performance to retain her
employment as follows
(1) Increase her reported prospecting telephone
calls per day
(2) Abate her delays in turning in her paper work
timely
(3) Maintain proper inventory control on her
van
To ensure timely turning in of her paperwork and in-
creasing her telephone calling, Hickey said he directed
Johnson to return her company-furnished van to the
office by 6 p m every workday Johnson was undeniably
warned by Hickey that all of these deficiencies had to be
corrected during the current business quarter for her to
remain in Respondent's employ Although it is noted that
Hickey stated in his May 18 summary of the meeting
that Johnson was put on probation until further notice, I
have given Johnson the benefit of Hickey's credited testi-
mony that she had the current quarter to correct the de-
ficiencies outlined
Although the General Counsel characterized Respond-
ent's prescribed probation conditions for Johnson as "dis-
ciplinary," "punitive," "more onerous" and imposed be-
cause she verbalized her dissatisfaction with company
policy changes, the evidence alone does not necessarily
support that characterization Johnson was not the only
sales employee expressing dissatisfaction with company
policy changes However, the evidence shows she was
the only employee who did not get alone with the office
staff, and in May 1988, she was the employee with the
lowest sales performance record It is therefore particu-
larly noted, that Johnson's expressed dissatisfactions to
management, her relation with the office staff, and the
matter involving her probation all occurred prior to any
union activity While this is true, the crucial question
presented by Respondent's defense of "cause for dis-
charge," is whether the Respondent terminated Johnson
August 51 for poor work performance, as it contends,
and has Respondent's evidence demonstrated that John-
son would have been discharged for that reason absent
any union activity by the employees, or is Respondent's
contention of discharge for "cause," a mere pretext to
conceal an unlawful discharge of Johnson
A careful analysis of Respondent's justification for dis-
charging Johnson reveals, as Susan May credibly testi-
fied, that Monday, August 1, Hickey told her Johnson
must be terminated immediately, that there was a lot of
commotion and talk among employees and he wanted to
get rid of Johnson before he and Plouffe were away
from the office on vacation, and he ordered her (May) to
gather statistics on Johnson's sales immediately because
he was going to discharge her Here, it is particularly
noted that Hickey had already decided to terminate
Johnson on July 26 even though he had not yet had
access to the latently provided statistics on her sales At
this juncture, Hickey could not have known what results
Johnson's statistics were going to reflect Moreover, sales
statistics would not have normally been available until
August 10, and on August 1, Hickey ordered May to
obtain Johnson's statistics by hand to avoid a delay in
obtaining them due to the implementation of a new com-
puter system His order to May is clear evidence that he
was accelerating Johnson's discharge from August 31 to
early August
May presented Johnson's sales statistics to Hickey
August 4 or 5, and there was a large improvement in her
sales during the last few weeks Hickey told May he had
to terminate Johnson immediately in order to avoid rec-
ognizing any improvement in her sales, which would ob-
RESPOND FIRST AID 181
viate the conditions of her probation Johnson was dis-
charged August 5
In an attempt to show that absent any union activity,
Johnson was going to be discharged anyway, Respond-
ent (Hickey) stated that it discharged Johnson because
the statistics gathered by May, revealed that Johnson's
sales were still low and had not improved during the
current quarter Respondent's letter dated August 8, 3
days after Johnson was discharged, provided
Reason for Termination Declining sales in Route
#2 under the control of Deborah Johnson
Evidence
1 On May 18, 1988, Deborah was placed on pro-
bation
2 Number one problem cited was decreased sales
figures thru the second quarter of fiscal '87-88 as
compared to the corresponding period in fiscal '86-
87 (Decrease was $12,400 00 or 14 7% thru the first
six months of fiscal '87-99)
3 Review of sale figures thru the third quarter
'87-88 show that the problem has continued
May '87 $15,251
June '87 14,811
July '87 13,663
Total $43,662
May '88 $11,588
June '88 14,253
July '88 12,216
Total $38,057 00
Difference in third quarter, $5,605 00-12 8%
Difference in YTD, $18,005 00-13 9%
The Respondent conceded that the figures in the
above exhibit are not entirely accurate
The record shows that the duration of a business quar-
ter constituted 3 months, and that the quarter in question
included May, June, and July 1988 The General Counsel
argues that since Johnson was placed on probation May
18, Hickey's evaluation of her performance included only
the remainder of May, and all of June and July In other
words, she argues that Hickey considered only 52 out of
62 working days since Johnson worked approximately 52
days of the official quarter after she was put on proba-
tion Hickey's evaluation did not consider or give credit
for the 4 and a fraction days Johnson worked in August
and Johnson was discharged August 5 While General
Counsel's argument is correct, it is particularly noted
that Hickey did not tell Johnson during their May meet-
ing that she had to correct her sales performance during
a business quarter (3 months), but according to his undis-
puted testimony, he told her she had to correct her sales
performance during the current quarter By his language,
Hickey obviously did not intend to give Johnson the
benefit of a full 12 weeks' working quarter
Hickey's summary notes attached (R Exh 1A) of the
May meeting with Johnson indicates she was put on pro-
bation until further notice By this language, Hickey
could have discharged her at an even earlier date
I am compelled to recognize the evidence that John-
son's working relations with Hickey and Respondent's
office staff was not good any time in 1988 before and
after May With this fact in mind, it is unlikely that
Hickey was going to grant Johnson the gratuity of 12
additional working days to make up for the first 12
working days of May After all, Hickey had asked John-
son for her resignation during the May meeting and she
refused to tender it Certainly it is true Johnson was the
most vocal dissident with management policy changes
But she was also the lowest performer While there were
other, perhaps less dissident employees, they obviously
enjoyed better working relations with management and
the office staff None of them were as deficient in sales
performance and telephone calling as Johnson in May
1988 Most significantly, all of the expressions of dissatis-
faction by employees, including Johnson's and her proba-
tion, occurred prior to the onset of any union activity by
the employees Therefore, Hickey, by his undisputed tes-
timony, granted Johnson the remainder of the current
quarter (May, June, and July) to correct her deficiencies
(sales performance, including an increase in reported
telephone calling) Since the first 5 days in August was
not a part of the current quarter, Respondent was not re-
quired to extend the quarter to include those days simply
to accommodate the evaluation of Johnson's perform-
ance
Counsel for the General Counsel made a diligent effort
to analyze and evaluate the Respondent's statistics on
Johnson's performance She was able to show that there
was a little improvement, which Respondent acknowl-
edged In an effort to establish that Johnson's improved
performance was more significant, General Counsel con-
tinued to allude to the fact that Respondent should not
have included in its evaluation the first 12 days of May,
before Johnson was put on probation, and that he could
have mcluded the first 4 or 5 days in August, during
which period, she argued, showed even more improve-
ment by Johnson The General Counsel further argues
that had 12 additional working days been so considered
by Hickey, the corrected statistics of record, plus the re-
sults of the additional 12 days, would have shown that
Johnson had turned around her declining sales perform-
ance, showing an improvement of 56 48 percent Howev-
er, Respondent was not required to consider the addi-
tional working days suggested by General Counsel be-
cause such consideration was not consistent with Hick-
ey's undisputed language of the probation meeting, when
he said "correct the deficiencies during the current quar-
ter" Nor is the word "improvement" consistent with
Hickey's undisputed probation language (testimony) re-
quiring Johnson to correct the deficiencies during the cur-
rent quarter In any event, since Johnson's sales perform-
ance was still considerably lower than her sales peers,
neither the General Counsel nor the undersigned can de-
termine, under the circumstances in this case, what meas-
ure of improvement in performance, short of correcting
the deficiencies, should be acceptable to the Respondent
The Charging Party presented uncontroverted evi-
dence that her sales were not higher because she lost
three or more accounts due to customers in her sales dis-
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tnct going out of business or moving from the city
While this is essentially true, no evidence was presented
by her to show that during the quarter she conferred or
discussed with Hickey these lost accounts and how they
impacted on her performance On the contrary, Hickey
testified, essentially without dispute, that some, if not all,
of the lost accounts could have been made up by John-
son with diligent work and additional telephone pro-
specting He further testified without dispute that John-
son's reported telephone calls were still substantially de-
linquent in comparison with the record of other sales
representatives
Hickey testified that Johnson continued to return her
van to the office after 6 p m However, Johnson ex-
plained how difficult it was for her to return her van
timely, owing to the distance she had to drive, the routes
she had to travel during rush hours, and her efforts to
get as much sales work out of the day as possible to im-
prove her sales I credit her testimony that she did expe-
rience difficulty returning her van before 6 p m but this
was only one requirement of her probation It can not
serve as an overriding factor for her inability to satisfy
the other conditions of her probation (correcting her
sales deficiencies and telephone calling) outlined by
Hickey during the May meeting
It is therefore clear from the evidence of record that
before and during May 1988, Deborah Johnson was the
employee who more vehemently expressed her dissatis-
faction with Respondent's policy changes being imple-
mented by Respondent for objective business consider-
ations She was also the employee with the lowest sales
statistics and reported telephone callmgs, as well as the
employee with the poorest working relationship with Re-
spondent's office staff and management Although other
employees expressed their dissatisfaction with Respond-
ent's policy changes, the evidence does not show that
any of their records of performance was a low as John-
son's Nor is it shown that any of them had poor work
relations with the office staff and management None of
them was put on probation prior to the onset of union
activity Under these circumstances, it is equally clear
from the evidence that Respondent wanted to get rid of
Johnson when Hickey asked her to resign during his
meeting with her on May 12 or 18, 1988 When she re-
fused to resign, she was put on probation by Hickey and
directed to correct the deficiencies enumerated by him
dunng the current quarter It was at this juncture in
Johnson's employment with the Respondent that she was
put on the skids for discharge As of this time, and up to
more than 2 months later, there was no union activity
Although sales representative Bonnie McPetne's per-
formance was low, it was higher than Johnson's, and the
evidence does not show that she had poor work relations
or a personal problem with the office staff and manage-
ment McPetne was put on probation August 1, 1988,
after the onset of union activity, but no 8(a)(3) charge
has been filed on her behalf and I do not find that it may
be reasonably inferred from Respondent's not putting
McPetne on probation sooner, that such failure constitut-
ed discrimination against Johnson because Respondent
put Johnson on probation earlier
Consequently, I conclude and find on all of the fore-
going credited evidence and reasons, that although the
General Counsel has established a prima facie case that
Respondent's discharge of Johnson was motivated by
union activity, I also conclude and find that Respondent
has carried its burden of establishing that Deborah John-
son would have been discharged any time during or at
the end of the current quarter (July 30, 1988) for cause—
legitimate business reasons, absent any union activity by
the employees Downtown Toyotas, 276 NLRB 999, 1014
(1984), Wright Line, supra
On these findings of fact and conclusions of law and
on the entire record, I find that the complaint herein
should be dismissed
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is dismissed
i If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses