Lawyers Publishing Co.

National Labor Relations Board - Board Decisions

Dec 7, 1984

273 N.L.R.B. 129 (N.L.R.B. 1984)

LAWYERS PUBLISHING CO. 129
Lawyers Cooperative ,Publishing Company and
Office and Professional Employees Internation-
al Union, AFL-CIO-CLC and Stanley A. Dash,
Jr. and Robert H. Carduner and Irving Kensler.
Cases 30-CA-5603, 30-CA-6152, 30 7CA-
6332, and 30-CA=6339'
7 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
, On 19 August 1982 AdMinistrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions, supporting briefs, and answering briefs.
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, findings,' and
conclusions only to the 'extent consistent with .this
Decision and Order.
The Respondent is engaged in the publication
and sale of law books, and it markets its products
through approximately 100 commissioned. sales rep-
resentatives. The Respondent's supervisory hierar-
chy consists of President Gosnell, _Vice President
of Marketing Anderson, National Sales Manager
Bissett, Vice President of Personnel Bennett, Per-
sonnel Manager Roth, and approximately ,11 re-
gional managers. The regional managers are the
immediate supervisors of the sales representatives.
The sales representatives became dissatisfied-with
the Respondent's "subscription growth" plan of
compensation, and in December 1919 sales , repre-
sentative Stanley Dash initiated a union organizing
drive. The Respondent became aware of the _orga-
nizing activity on 9 January 1980, 2 and subsequent-
ly launched a campaign in opposition to the Union.
On 5 May the sales representatives voted, against
union representation ' and, beginning in late May,
Dash took a leave of absence because he had been
under stress. The Respondent threatened' to dis-
charge Dash on 30 May, and in June it delayed his
receipt of disability benefits and refused to provide
him with a ,copy of its insurance policy. Dash re-
turned to work on 22 September after the Re-
' The Respondent and the General Counsel have, excepted to some of
the Judge's credibility findings The Board's established policy is not' to
overrule an administrative law pidge'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 Or 1951) We have carefully examined the record and
find no basis for reversing the findings' •
2 Unless otherwise specified, all dates herein refer to 1980
spondent required him to undergo a psychiatric ex-
amination. On 5 November the Respondent dis-
charged Dash, and it subsequently challenged his
application for unemployment compensation bene-
fits. The Respondent also_ discharged Regional
Manager Warner on 22 May, sales representative
Kensler on 25 August, Regional Manager Carduner
on 11 October, and sales , representative Redd on 23
October.
On 14 January the Union filed. unfair labor prac-
tice charges in Case 30-CA-5603, and on 28 March
the General Counsel issued a complaint. The com-
plaint as later amended alleged that during the or-
ganizing campaign and prior to 5 May the Re-
spondent engaged in violations of Section 8(a)(1)
and (3). The . parties subsequently , reached a settle-
ment agreement which- was signed by' the Respond-
ent on 15 September, signed by the Union on 18
September, and approved by the Regional Director
on '1 October..
On 12 November Dash filed a charge in Case
30-CA-6152. The Regional Director set aside the
settlement agreement on TJannary 1981 and issued
a consolidated cdmplaint 'on. 15 January 1981. The
complaint alleged, inter alia, that on 15 'August the
Respondent violated Section 8(a)(3) by acting to
delay Dash's return to vireirk until 22 September.. It
further alleged that the Respondent violated Sec-
tion 8(a)(3) by transferring Dash to a different
region and manager on 22 September and by dis-
charging him on 5 Noveinber. The complaint also
alleged that the Respondent unlawfully threatened
to discharge Dash.on 30 . May,
. The complaint, as later consolidated and amend-
ed, also 'alleged that the 'discharges of Warner,
Kens/er, Carduner, and 'Redd were unlawful. It
further alleged that the Respondent violated the
Act by appealing .Dash's unemployment compensa-
tion award, by refusing to provide Dash's attorney
with a copy of its disability insurance policy, and
_by delaying the payment of Dash's disability bene-
fits. The complaint was also amended to allege ad-
ditional unlawful conduct prior to the 5 May elec-
tion.•
The judge found that the' Respondent engaged in
violations of Section 8(a)(1) prior, to the 5 May
election. He also found that the Respondent violat-
ed Section 8(a)(3) by requiring Dash to undergo a
psychiatric examination before his return to work
on 22 September. The judge further found that,
after the settlement agreement, the Respondent vio-
lated Section 8(a)(3) by discharging Dash and by
appealing his award of, unemployment compensa-
tion. The judge concluded, and we agree, that the
remaining postsettlement allegations , should be dis-
273 NLRB No. 31
130 DECISIONS OF NATIONAL * 'LABOR . RELATIONS BOARD
•
missed. ,3 Consequently,' the' Only remaining posisett-
lement allegations involve Dash's discharge and the
Respondent's appeal of his unemployment compen-
sation award. Because we find no merit to those al-
legations, we shall dismiss the complaint and rein-
state the settlement agreement. 4 ' •
1. The complaint alleges that on' 1 -5 August the
Respondent violated Section 8(a)(3) by delaying
Dash's return to work until 22 September. In this
connection the judge found that the Respondent
discriminatorily required Dash to undergo a psy-
chiatric examination before returning to work from
his leave of absence. We note that this conduct oc-
curred prior to 'the settlement agreement, and we
therefore consider it only for the purpose of shed-
ding light on the Respondent's motive for its post-
settlement conduct.. We conclude, for the reasons
below, that the Respondent was motivated by le-
gitimate concerns in requiring the examination.
Dash took a leave of absence from late May until
22 September after his psychologist informed him
that he was suffering from a "gross stress reac-
tion." On 9 June Roth sent Dash a disability form
and a letter stating that the Respondent was imme-
diately placing _him on disability status. Dash's at-
torney sent _the Respondent a letter from bash's
psychologist, which , stated that the purpose, of the
leave of absence was to enable Dash to obtain
"relief' from the job-related factors -causing him
stress. Roth testified that, because the letter did not
state that Dash was unable to work, he began .to
3 We agree with the judge- that the Respondent lawfully discharged
Hubert Redd on 23 October and Robert Carduner on 11 October In its
"exceptions the General Counsel notes-that the judge failed to find wheth-
er the Respondent acted unlawfully. by discharging Carduner instead of
merely demoting him to a sales representative position For the reasons
cited by the judge to find Carduner's discharge lawful, we find that the
Respondent:did not violate the Act by refusing to demote Carduner
We also agree with the judge that the Respondent did not violate the
Act by assigning Dash to a different regional manager on 22 September,
assuming, arguendo, that this conduct can be characterized as postsettle-
'ment conduct
4 A settlement agreement will be set aside if its provisions are breached
or if postsettlement unfair labor practices are 'committed Cambridge Con-
tracting, 259 NLRB 1374, 1381 '(1982), Ann's-Schneider Bakery, 259
NLRB 1151, 1152 (1982) Therefore, we must initially determine whether
the Respondent engaged in any postsettlement misconduct - which violat-
ed the settlement agreement However, the Board has observed that pre.
settlement conduct may be considered as background evidence in deter-
, mining the motive or object underlying a respondent's postsettlement
conduct Vore Cinema Corp, 254 NLRB 1288, 1291-92 (1981), Laborers
Local 185 (Joseph's LandsCaping), 154 NLRB 1384 (1965) We have given
appropriate consideration to the judge's findings concerning the Respond-
ent's presettlenient conduct but, in our view, these findings do not war-
rant the conclusion that the Respondent's postsettlement conduct was un-
lawfully motivated Although the Respondent's presettlement conduct
may constitute background' evidence in support' of the General Counsel's
prima facie case, we cOnclude, for the reasons set forth, infra, that the
Respondent . would have discharged Dash and appealed his unemploy-
ment compensation award, even in the absence of his union activity In
this connection we alsh emphasize our conclusion, discussed infia, that
prior to the settlement the Respondent was motivated by legitimate con-
cerns in requiring Dash to undergo a psychiatric examination before re-
••turning to work from his leave of absenee
doubt whether Dash was eligible for disability ben-
efits. On 30 June Dash's attorney returned the
completed disability claim fOrm, which siated that
Dash was totally' disabled from a "gross stress reac-
tion." However, in an accoMpanying letter - Dash's
attorney stated:
You have requested that Mr. Dash complete
and submit this form. His cooperation in doing
this should not be construed as any admission
on' his part that he is "ill" or "disabled" within
the meaning of these programs or for any
other purposes. While Mr. Dash may indeed
be entitled to benefits under these programs he
does not yet have sufficient information to de-
termine, whether it is in his interest to submit a
claim or accept benefits under them.,
The attorney's letter also noted that Dash' had not
signed that portion of the form which authorizes- a
general release of 'medical information to the Re-
spondent's insurance carrier. The letter indicated
that, because of- its "personal and sensitive" nature,
such- informatiOn would be released only pursuant
to "specific" and "reasonable" requests -by the' in-
surance carrier. ,
On 15 July Roth stated that the Respondent
cOuld nOt treat Dash as being On sick or disability
leave because he would-not release information or
admit that he was ill or disabled. Roth stated that
Dash Was instead being placed on inactive' status
pending clarification of his medical condition, and
he indicated that the Respondent was reserving the
right to have Dash examined by a physician of its
choosing before permitting him to return to work.
On '21 July Dash's 'attorney replied that the release
of medical information-would be authorized if such
information were "reasonably necessary 'to evalu-
:ke" Dash's claim. The attorney requested a copy
of the Respondent's insurance policy and indicated
that Dash "is unable to determine whether he is ill
or disabled within the meaning of the company in-
surance policy since 'he does not have a copy "cif
the policy." On 30 July Roth- responded that, be-
cause of the Uncertainty created by the attorney's
3. 0 June 'letter, 'the Respondent would continue to
keep 12-6:sh on inactive status' pending clarification
of his medical condition. Roth also enclosed a copy
of the Respondent's personnel policy concerning
illness and injury.
On 12 August the attorney informed Roth that
Dash had received his ,, psychologist's approval to
return to Work, but on' 15 August Roth indicated
that before resuming work Dash would have to un-
dergo an examination by the Respondent's physi-
cian. Roth stated that this procedure was necessary
to ensure that Dash was . "fully 'capable" of return-
. LAWYERS _PUBLISHING CO 131.
ing to -his-duties;-: and he requested that Dash's mec1,7.,
ical records be forwarded tot he Respondent's phy-
sician. Onr 2, September ,Dash's_Ottorney reiterated
that •the, medical: records were • '-obyiously of a
highly personal and_confidential i nature," and there:
is-.no„ evidence .that ,those_ records were ever- re- -
leased. On 9 September Dashi.was examined by a
psychiatrist selected .by, tbe Respondent, and he re-
sumed working as a .,sales representative on 22 Sep--„,
tember. ; - :
Wiesonclude that ,the Respandent, had legitimate:
reasons for ;requiring that Dash undergo a-separate,
medical , examination, prior, to-, -his return to work.,,,
We note particularly that bash, : through :his attor71,.
ney, lwas seeking) disabilityenefits while- refusing
to; concedes thattie :was ill ordisabled and while re7
sisting,the release of medical information ; We also,:
note tfthf the initial_letter from bash's i pSycliologist .
in did pot_ state whether . bash 'as^ ible, to
work,.and tht Dash's . 12^AnguSt offer to return to
worfc, ", was unaccompanied by any medical
ments. , We agree With ihe,Resporident that -,ba'sh'S
communications " raised Tlegitimate question's con:
cefriing the nature and extent of his 'medical prbb'z'
lems and his ability to, resume his duties.
, Further, 'the evidence - indicates that in requiring
the examination the Respondent Was mOtivated'.-
sólely by these , legitimate- coneernS arid not , by
Dash's union activity. The Resbondent consistently,'
communicated. Its doubts about Dash's condition bY -
informing the atfoiney that his ,letters had: created
"uncertainty" and that Dash would'remain on ink-
th',e' ,status . pending clarifiCatidn'of' his donditidn.','
Thé - Respohderif,:reSeived' the' right to require
examination bY phYsician of -its 'choosing'.'Alill''
month before' Dash indicated his availability^rto
resume work. This 'snggests „ that the Respondent -
decided an this requireinerii in-TeSPorise to unusual:,
circuritstinCes, 'arid that if did not simply present
Dash With a:• hastifY cOnceiYed i bbsticle to delayhis '
return to work.
*-Contrary to the judge we decline to draw an in-
ference of proscribed motive from the fact ,that
Dash was` the' firstemployee required . to undergo --a-,
serarate 'medicaVexanririatibKAltliouili other
abled employees were permitted to return to work
Without such an examination, we rare not persuaded
that .their '-circumstances Were. siniilar . to, Dash'S.'
Evidence -is lacking -that the-medical condition of
the ( other. employees' WaS .', eyer in 'doubt, or that
those employees hesitated, to release
mation 1-concerning : their condition. We 'also- find,
contrary to_the,judge, that -the:fa-Y(3ra* retort by':
the Respondents psychiatriSt, does not undermine
the Respondent's 'ci:intention that it Was 'concerned
about Dish's ability to perfOrria his job. In view.
the foregoing, .we, find that the Respondent was
motiyated .solely by . legitimate concerns in requir-
ing . the examination - •
.2. The Judge found that -the Respondent yiolated
Section 8(a)(3) and-(1) by discharging Dash on
November. -We find .merit in the Respondent's ex-
ceptions and- for- the reasons below .we find that
Dash's discharge was lawful. ,, •
The record discloses -that on 4 •November Dash,.
telephoned -the Respondent's customer service de-
partment-,and spoke. with Patrina Fulton,. a :collec-
tion correspondent. It is undisputed- that Dash and-
Fulton became involved, in an argument concerning
a problem-with a. customer's account, and it is also •
undisputed that Fulton immediately _reported the
incident to Michael Santangelo, the supervisor of
the Respondent's, customer-- service department.
Santangelo then telephoned- .Dash- to- ascertain his,
version; of the incident, but there is. conflicting tes-
timony ' about -the conversation that-- ensued. The
judge did not resolve the conflict between the. testi-
mony of Dash and Santangelo,, but he -concluded
that- Dash's discharge. was -unlawful -even assuming
the accuracy of. Santangelo's version: Contrary- to,
the judge, we conclude that the Respondent,-did
not violate the Act even if the accuracy of Dash's
version of the,: conversation is assumed. . 6 ,
According to. Dash, Santangelo began- the. con- -
versation by stating in an "insulting” tone of voice
that he had just:spoken, with Fulton and that he
now wanted to hear Dash's side of the story. Dash
responded„ "Mike, what, you want and _what . you -
get are two . different ,things.' . He told -Santangelo
that he was ,late for work. and that "right, now" he
did not want to talk' about the incident: Santangelo.
then said, "[Y]ou don't want --to talk- to. me right
now?" When. Dash said, 'That's right," Santangelo,.
responded, "Who . do, you think you .are? ;You
talk . to me or .1-I will rip up, return or lose every,-
order of yours that-comes through this department•
for: clearance." Dash testified that at that point , he,
"blew [his] cork" because his livelihood-was being
threatened, and- he, conceded that he "could very
well have" used profanity. Dash and Santangelo'
began "shouting': at each other, and after 2 minutes
they simultaneously hung up-their phones.6
6• The , Respondent contends that Dash was discharged because-of hiss,
conduct during- the conversation with Santangelo It 'does not -contend
that Dish's conduct with Fulton was sufficient to warrant discharge
6 According to Santangelo. Dash responded to his first question by
saying. "F—k you - I don't have to tell you a fking thing" Santan-
gelo,told Dail' to calm down and discuss the , problem,, but Dash stated,
that he did not ,have to do what Santangelosaid _Dash's voice became
extremefy lomkand Santangelo stated that if Dash'did not cairn down he
would "personally. watch over", all of Dash's orders and reject thOse„.:
which did .not have every 'dotted and "t" crossed When Dash continj.-
ued to _raise his voice.and, .told Santangelo not to threaten him, Santan-
gelo hung up • f
132 DECISIONS OF NATIONAL' LABOR' RELATIONS BOARD
UncontradiCted teStinidny cestablisheS- that San- --
tangelo immediately reldted the 'conversation' , to'
National Sales Manager Bissett and PerSdnnel Man;
ager Roth, and then-repeated it in the - presence of
Vice President 'of Marketing Anderson, Vice Presi-
dent of Personnel Bennett; Vice President of-Fi-
nance Fogel, his 'own supervisor, Smith, and Bis-i`
sett. 7 On the same day Santangelo and Fulton -
again discussed -the events with 'Bennett and-- the
Respondent's attorney. Dash testified that on 5 , No;
vember he received_ a phone call , from Bissett, who' -
told him that he was immediately -discharged be,
cause the" Respondent was tired of his -"rude, abu-
sive treatment" of employees. 8 Bissett declined to
listen when Dash-offered to explain his conduct.
Even : if we 'assume, - argtiendo, that Dash's pro-
tected activity was - a motivating factor - in -the Re-
spondent's . .decision to discharge- him,- we find,that
the Respondent met its' burden-of establishing that ;-
Dash would' have been discharged even in' the
sence, of •-his • protected -activity. In reaching- this:
conclusion; We' place 'particular reliance on the' ex=-
tenMve background evidence establishing. that the •
Respondent had - long considered, Dash-to be an ern-":
ployee ,with' serious behavioral Problems.- ; •
The rebord establishes ihat 'as early As 17 Octo-
ber 1977, the Respondent's national sales -. manager
observed in a memo that Dash harbored-, a "nega-
tive attitude" and often exhibited an "argumenta--
tive" and 'loud" . voice. The -memo indicated that
Dash's behavior was ,a "longstanding" problem
which "may- eventually lead to. termination." Sub-
sequently, -the Respondent began' to receive corn-
plaints --from customers' about Dash's conduct. In •
Jtine_-.1978 Marcia Koslov, the Wisconsin state laW
librarian, informed the Respondent that Dash's be-.
havior in a sales meeting had been `!rude" and ."ar-,-
rogant." In a memo to' Regional Manager, Murrell;
the- Respondent's national sales 'Manager described
the Koslov • complaint as "one more" pioblem
among the "ongoing" problems -that the Respond-
ent was encountering with Dash. The Respondent,
'directed Dash to write a' letter of apology - to
KosIov. • - -
On - 26' April 1979 the Respondent reCeived 'an-
other customer coinplaint from Gary Monson,---a.
Wisconsin attorney, who stated that Dash's .con-
duct had been "extremely arrogant, 'offensive, tin-
prafeSsional, and . extremely , obnoxibus." The 'tette?
7 As noted above, we are considering the issue of Dash's 'discharge iwa
light most favorable to Dash Consequently, 'we ' are assuining,"arguerido,
that Dash's version of the 'facts represents What actually 'transpired, that
those facts were related to the Respondent's officialby Santangelo, an'd'
that it was on those facts that the Respondent based its deciSion
AccOrdmg to his owni testithony, Dash ilso told'Bisseti that`his
charge did not come as a suipose ' in vteW Of his union activily' Dash's
testimony does not indicate whether Sissett responded to this 'statement
alsb indicated that Dash'S ,-"attitude: and derneanor'.'.,
had been "disgusting7 Vice 'President of Marketing
Anderson' apologized in' Writing to ,-Monson, arid:
Dash was remOved- from the a'cco'unt. In connec,
tion with this incident, Anderson-wrote , a= memo• to
Gosnell in 'which he noted that 'Dash suffers from,:
"moments of irrationality." •
The judge found,' and We agree,' that 'on' 9"Jariu--1
ark Murrell properly thieatened C ut "Dash 'On"
probation after he argued with some of the
sjiondent's- customer . service Cotrrèsjidnderits''in"the
fall of '1979° The- judge Also IOUrid- that late '-
May Dash tie'gan his leAve .lif absence With-out fir§t-,s;
informing' h ,is'2regional thanager -,-fl '-and'that 'On 30'
May the RespOndent sent liii -a 'relegranrthreaten--'.
ing ,him with -digcharge:If :he s-did confAC± the
offiee Within' 4' days...We agree With 'the- judg-OhAt -
the 30 May threat wasnot improper 6'
,When' viewed against this' hackgrOUnd, Dash's"'
conduct pn4 November' Was simply an egregious
manifestation of a longstanding
lem. 1 2 Santangelo was conducting a legitimate in-
vestigation of the Fulton incident, but Dash refused
to cooperate' at the : outset „when". he...belligerently.:
stated, "[W]hat you want and • -what .kou' get Are
tvkief , different things." Dash COncedecl , that he
beCame extremely angry and it is :clear that he
never gave' substantive aniwers to, Santangeto's'
questions.,
The. record therefore 6tablishes, that over Sever-,
al,years the, Respondent was repeatedik cOnfrpiited.„
with the issue Of .bash's behavior,- and we infer
from its previbus . reactiOns 'that. . the Respondent-
wOuld, have, discharged hirn , on, 5 Noyernber, even
in the.abience of his union activity-Its,previous,re- -
actions first demonstrate that it viewed the-problem .,,
as- seriou,s, long before, the. , onset of union.
The memo of ,17 bctober 1977 f ,discloses. that, 2,,
years hefore , Dask,initiated the ofganizing.
- s I
9 The.documents in connection with the Koslov_and Monson incidents,
as well as the 17 October 1977 memO, are relevnt in determining the,
Respondent's perception of Dash's behavioral 7piOblems and the motive
underlying its-discharge decision Weared not make factual findings with
respect to what actually -.transpired during Dash's encounters with
anil`MonsOn, ‘Ancrwe do not rely On the dOeumerits for that pur-
pose ' • ' • . _ '„ •
19., The judge • also found -that, Murrell discussed. the ,Koslov and
Monson incidents with Dash -When he threatened him sith probation •
" bash contends' that he' sent a telegram'tO the Respondent's riationali
sales manager, but the judge found that the Respondent never received it ,
2,, in fact, our dissenting colleague tacitly concedes the existence pf,
this" problem agreeliig that the RespOinient's requiring Dash "- •
to be exn-mined e by a psychiatrigt prior' to 'his ieturn to NA;OrV was "trim,-
vated by legitimate Concern In this regard, contrary to, our dissenting
colleague, we find it Irrelevant that the psychiatrist hired by the Re-
spondent cleared Dash of any problems, since the Respondent dB : -
charg.ed Dash for his unacceptable- behavior on the 'job, not for ,a medical,
disorder Thus, as we noted earlier, the ,favorable,medical report does not:
undermine the Respondent's contention concerning bash's ability, to pert
form his-job ' • r • " • +"
LAWYERS 'PUBLISHING 'CO 133
one - Of the Respondent's highest - officials recog-
nized that his "longstanding" behavioral problem.:,
(DILHR) 'determined : that Dash qualified for bene-
fits.' The Respondent filed an appeal o 'tfhe award
and a "telephone hearing" was 'held before an ex-
aminer of the Appeal Tribunal of the DILHR. The'
examiner issued a decision which upheld the award'
of benefits, and the , Respondent petitioned for
review to; the 'Wisconsin Labor and -Industry
Review. Commission, (Review Commission). The
Review. Commission, dismissed the • Respondent's
petition, :finding that it was untimely filed. The ,Re-
spondent. filed a. complaint in the circuit court of
Dane County,, Wisconsin, naming the State of Wis-
consin,- the•DILHR,, the Review Commission, and
Dash -as- defendants., The complaint requested that
the court Set aside:,the• decision of the Review
Commission, reverse the examiner's 'decision,, and
remand the proceeding to the Appeal Tribunal of,
the.DILHR to reopen the hearing de novo-. At the,
time •of, the hearing, in the , instant proceeding, the,.
Respondent's action ,in :the , circuit, cOurt was: still„
pending...
_
"may eventually lead to termination."
The Respondent's reactions Also demonitrate thaf
it took progressively stronger measures over time
to control Dash's conduct. The Respondent- first
compelled him to write the letter of apology noted
above, then threatened him with probation op 9
January, and finally threatened him with discharge -
on 30 May before actually terminating his employ-
ment on .5 November. This progressive response in- -
dicates that the discharge decision was the logical -
culmination of the Respondent's previous reactions
over several years._ What emerges from, the record
as a whole, therefore, is that the RespOndent gave -
Dashevery opportunity to rectify his behavior, , but
that it finally discharged him' when confrOnted,
with his insubordinate obstruction of Santangelo's -
legitimate investigation. In view of:all the above
evidence, we conclude that Dash's discharge 'did
not 'violate Section 8(a)(3) and (1). 13 - ,
3. The judge found that the Respondent's apPeal -
of Dash's award of unemployment conipensation,
benefits was discriminatorily motivated: We agre-e,'
with the Respondent that its conduct was not un- •
lawful.- ‘,• •
'Dash applied for , unemployment OomPensation--
benefits following his discharge. The ResPo -ndent` '
contested the application, but the Wisconsin; De-
partment of Industry, - Labor 'and Human RelationS:
•
13 We are aware that the Respondent did riot attempt to a`scertain
Dash's version of the . 4 November incident' before discharging 'him ., but.
we conclude in the circumstances of this case, that its failure to _do, so
does not warrant a finding of unlawful motive Although 'the Respond-
ent's iailuie to consult Dash is among the factors to-be conS'idered,'con-
trary to • our dissenting colleague, we_conclude that it is outweighed in -
this case by the 'extensive evidence discussed above that , the Respondent
could no longer ietain Dash in the face of his persistenf 'misconduct -We
also fihd it noteworthy that the 4 November incident was given extensive
consideranon,by several of the Respondent's highest officials Santangelo
discussed the incident with Bissett and Roth, and then discussedit again
in the presence of 'Anderson: !Sennett, Fogel, Smith, and Bissett Saritan-'
gelO ind Fulton then engaged in further discussions with-Bennett and the
Respondent's attorney We do not minimize, the Respondent's failure to.
ascertain Dash's version, but in light of the above evidence we cannot
say that the Respondent did not investigate th 4 Nci'vember incident
before deciding to discharge Dash , • •
In concluding that the Respondent's motive .was unlawful, our dissent-
ing colleague emphasizes Dash' previons pthform.ance as a sales repre--
senintive We do not dispute that Dash had been an excellent salesman,
but we think it fair to conclude that the Respondent determined that his
sales performance eventually came to be overshadowed by his loligStand:.
mg- behavioral problems
Finally, in ascertaining the Respondent's motive, we also disagree with
our dissenting colleague that,Dash did not present any problems to the
Respondent which were not common to the rest of the sales,force Al-
though the record contains examples of sales representatives who were
not disciplined after engaging in various types of abrasive conduct, there
is no evidence that any other sales representative exhibited the consistent
behavioral problem m;hich the Respondent , had long recognized in' Dash
There is also no evidence that any sales representativehad escaped , disci-
pline after obstructing a supervisor' S legitimate investigation °ran em-
ployee dispute An inference of unlawful motive based on disparate tieat-
ment is therefore unwarranted
,
In Bill Johnson's- Restaurants v. NLE B, 103 S.Ct.
2161. (1983), the Supreme Court set forth the test
which the Board mustapply in determining. wheth7.-.
er a state-court 'lawsuit may be enjoined' as, an
unfair labor practice'. The Court stated (103 S,Ct.
at 2 ,173) that - ,
. the ' Boaid may' net halt the prosecution' of--
a 'state-court lawsuit,' regardless of the plain;
fiffs motive, unles the' suit lacks a' reasonable
:
-.
basis in 'fact or law
the,'
motiVe and
lack of reasbnable basis ,are 'both essential tire-
requisites to the isshanee of a ceasezati&desist
Order against a state snit__, • .. ,
A -Suit has :a reasonable -baSis 'in 'fact' if it raises "al'
genuine issue of material fact that -turns On the
credibility of Witnesses or* the:properinferences
to be drawn from undiStiuted''faciS :." 1 !' , A-suif has a'
reasonable basis in law if there- Ts`"any realistic
chance- that the Plaintiffs _legal' . theory Might' lie-,
adopted 15 Applying thiS:•test;t6'
viefind:thaf the Respondent 'had , a reasonable basis
in fact and' law tO . support ifs':aPPal- of -Pash'S:'
av,',ard of tinemPloyment-eompensationSt,:i,!":',‘
, We find at the outset that the Respondent•had "A
reasbnable basis fOr 3-pilisuing atiPear.of: 'the
DILHR's initial determination. The examiner's de-
cision discloses that 'the ,issue ;the ',hearing was
whether Dash's conduct with 'Santangelo on 4 'No-
vember' 6 c8nstituted - "misconduet -connected *ith
14 103 S Ct'at'2171 ' • • •, •
15 103 S Ct at 2172
16 The decision also referred "to alleged -arguthents with ewo unnamed

customers in 1978 and 1979 - • - ••- • •:••• !x:
134 DECISIONS OF NATIONALI LABOR-RELATIONS BOARD
his employment ? ' .within the meaning the,appli-:.
cable Wisconsin statutory proyision. 1 -7 -
sion the examiner noted that the Supreme_Court of
Wisconsin ,has- interpreted , this :statutoryz language._
to-include:. _ '
• COndiiet , evincing' such willfUl 'or wanton dis:
-regard , Of an employer's interests as-is found-in
deliberate , violations or disregard of standards
_Ofbehavior which the employer has -a .right to
'expect -of his-employee, or in ,carelessnessi
negligence of such 'degree or :recurrence; as. to
manifest' equal .culpability,-, wrOngful: intent'of"
'evil design; Or to show aii intentional and -sub-I.
i; f -stantial disregard of the..ernployer's interests',or..--j
, of the employee's .duties rand 'obligations -to- his
emploer:1 8 - "-* ' •• t
As - noted 'above, 'there_ is a factual -dispute ,a.S„-tO,'"
the' ,substa'nee of the 4 NOertiber be-'
tWeen -Santangelo and , Dash.' According td Santaii-
gab; the' argument becanie-quitetheated; and -Dash
used profanity and refused to answer questions -,
ab6ut-the l Fulion incident:' Dash conceded that -he
"bleiv '[his]-'cork" 'and "Could ; have" used profanity; '
but' 'asserted' that he'did not - 13econie- angry-until- he
was provoked by Santangelozg•threat to- destroy
orders. - ' • 1
In view of the dispute between Dash and Santaii- • -
gelp.as. to the substance of their argument, we find
_th_at the itesPondent'S,-apPeal;Wa's.,baseci i„genu-'
ine issue- of material tact. i ?, The ,appeal - also had a
reasonable basis .in law because under Santangelo 's
version baki's -cOnduetl 'at leak at-viably fell Within
the ate-g81:Y . -set 'f'Ortli in the Wisconsin statute as
interpreted by the Wis ,cOhsin Supreme Court.
We cannot say that theftWas 'no "realistic chance!
that the , -ItespOndent's;legal -theory could_ have been._
adiopted. ; •
s:Furthertnore„ .we are _not , ,persuaded that „the,.;:ke,,,:',
sponcient , acted aniawfullyby, ,continuingys. appeal
after,: ,the examiner ,,issued' his_ deCision.-
sponCient,.contends that,* _was denied , an oPpOituniF,1
ty-to s presen,t;Wiinesses and be represented by coup
Selatthe.,teleph4he hearing?;as a result of ainb-ig71._,
uouS. and Mikeading,itistiuCtionsfiOrif ,-the
On .2 January„,181: the Respondent received , in!, • r - •.:-
structions WhiCli indicated that the 13 ,January pro-
ceeding would t be.,a "telephone hearing ' in _which
17 Under this provision, an employee who is discharged for ."miscon-
duct connected with his employm<" is ineligible foe-benefits
. 1..9 -.The examinei-:.quotèd'thedecision of,the Supreme Cou-rt of Wiscon-
tsupm,Boynton Fab,Co ,vVyeubeck & Ind Comm. , 237 Wisc 249,(1941)
1,9 Although, w'e"haiie found the discharge 'to be la'wful even if Dash's
version, is deemed accurate, we cannot say that the' conflicting_ versions
would not be-of significance to a Wisconsin state courtbattempng to
apply the test set forth above
:,?2,3,-:,VV,ei need . note,consyler ,whethert,Dash's conduct, according ;to his
own version, arguably fell within the statutory category , .; .
the, _Respondent „ would participate by telephone
front its :office ,in Rochester, New y,ork, while
Dash appeared in person at the DILHR's office _in
Madison, • Wisconsin. In pertinent part, the instruc-
tions further stated that.
This- Case: has* been scheduled for a telephone
hearing. ? Your testimony -will be taken and :re-
. cOrded over- the telephone.' The average hear-
',..Ing-length is One hour.
'telephone the Office Manager if
You Wish- tO: ''‘
Al Have 'witnesses' Present at the' hearing;
"(R'equires personal aPpeatance'hearing),
Be 'represented b'y an attOriley or anOther-
perS'on;y(Requires persionaraPpeaiince 'hearing)
- Pei§onar,appeararice hearings',W'ill be -Sched-
nled only upon your request::
Although there is no . evidence that either the:Re-
sp-ondent or Dash requested; that, a "personal ap-
pearance ,hearing' be -scheduled, Dash- nonetheless _
appeared at the- hearing on 13 January, with his at:,,
torney. When apprised .of this situation,- Personnel'
Manager Roth stated over the telephone that -he
had interpreted the instructions to prohibit counsel
at: a..."teleplione. hearing," and he requested an_ad-
journment—to obtain counsel for the Respondent.,
The -examiner denied the request and subsequently
asked Roth whether he intended to present any
witnesses. Roth again stated that he had interpreted
the instructions to prohibit. witnesses at a "tele-
phone' hearing,' and , the examiner denied his' re-,
quest'for'an adjournment to- Permiethe Respondent ,
to" call -witnesses. ,-Subsequently, in his decision . up- •
ho. laing the „ayvard 'of benefits, the examiner `relied,
on the 'kespondent!s failure to . .present a'n' wit-
ne'sses-' and' fOund , that it had' 'failed , to meet
bUiden ', "tV .:' ,Introdu'cè, , ,coinpefent, '''admisSible 'evi-
dence" concerning the 'circumstances, of Dash's dis-_,
charge. 2c The' Respondent's' subsequent petition' to
the- Review Conimission, , as noted abOV'e, Was, dis7,
missed solely on the ground that it was untimely
filed: 22 In the ,'complaint which it filed in the ocir-
cuit , court. of Dane County, 'Wisconsin, the ,Re-
spOriderit alleged a violatirm 'of due process and -re-
queked that the hearing be reopened to permit it to"
present _witnesses and be represented by counsel. -
, We find 'that , the Respondent had a reas,onable
basis in fact ,,and law for continuing its appeal after,
21 The. examiner, sated that Roth "had no first-hand knowledge" of
the incident between Dash and Santangelo
Although the Respondent's petition was dated 26 January, it was
not received,by the Review Commission until 30 January , The filing
deadline was 28 January
LAWYERS PUBLISHING CO 135
the examiner's decision. The instructions set forth
above present a genuine issue of material fact,- since
they arguably prohibit legal representation and the
presentation of witnesses at a telephone hearing. In
view of this ambiguity, in the instructions, we find
that the Respondent reasonably could häve con-
tended, as it did 'in its complaint before the , Wis-
consin court, that it was prejudiced by the examin-
er's refusal to adjourn the hearing to permit the
Respondent to obtain counsel, and by the ,examin-
er's reliance in his decision on the Respondent's
failure to produce witnesses. We cannot say that
there was no "realistic chance" that the court
could have adopted' the Respondent's legal theory
that it was denied due process. .
Because we find that the Respondent's appeal
had a reasonable basis in fact and law, we are -pre-
cluded from enjoining the appeal regardless of the
Respondent's motive. In any event, We'also find no
evidence that the appeal Was unlawfully motivat-
ed. 23 The judge inferred the existence of an unlaw-
ful motive from his finding that the appeal, WaS
marked by dilatory tactics, by lack of a serious
effort to prosecute the action, and by strategies that
differed from previous proceedings involving un-
employment compensation benefits. In , ,concluding
that the Respondent engaged in dilatorOactics, the
judge apparently relied on his finding that the Re-
spondent "waited until the last day" to appeal the
initial determination. The DILHR i'ssued- the award
on 1 December and the Respondent requested an
appeal by telegram on 15 December. The latter
date does represent the filing deadline, but We find
that the Respondent's timely filing of:its request; 2
weeks after the issuance of 'the decision,' hardly
warrants the conclusion that it engaged in dilatory
tactics.
In finding that the Respondent did, not make a
serious effort to prosecute the action, the judge
found that the Respondent "chose" not to present
witnesses or affidavits at the 13 -January hearing.
As discussed above, however, the hearing instruc-
tions arguably prohibit the 'presentation of wit-
nesses at a telephone hearing. We are not of the
view that the Respondent's confusion over the
proper procedure , is sufficient to SuppOrt a finding
that its effort was less than serious.
23 In Bill Johnson's Restaurants v NLRB, 103 S Ct 2161 (1983), the
Supreme Court stated that if genuine material factual or legal Issues exist,
the -Board must await the results of the state court adjudication The
Court further stated that "NI' the state proceedings result in a judgment
adverse to the plaintiff, the Board may then consider the matter further
and, if It is found that the lawsuit was filed with retaliatory Intent, the
Board may find a violation and order appropriate relief" 103 S Ct at
2173 At the time of the hearing the stale court had not rendered a final
judgment We consider the Respondent's motive at 'this point only to
avoid further proceedings should the state court 'render a judgment ad-
verse to the Respondent
.Contrary to the judge, we see no reason to draw
an inference of unlawful , motive from the fact that
the Respondent ' made a personal appearance, rather
than a telephonic appearance, at a prior unemploy-
ment compensation proceeding involving another
employee in New York. The Respondent was
simply acting within its rights under Wisconsin
procedure by participating by telephone in the 13
January hearing. We can find no significance in the
fact that the Respondent chose to pursue different
strategies in different proceedings, particularly
since the record discloses little evidence of the cir-
cumstances surrounding the prior New York pro-
ceeding. Indeed, if the limited evidence of that pro-
ceeding establishes anything, it establishes only that
the Respondent's challenge to Dash's claim was
not without precedent.,
We therefore find no ,evidence that the Respond-
ent's appeal of Dash's award of benefits was unlaw-
fully motivated. In view of this finding and our
conclusion ,above that Dash's discharge was lawful,
we find that the Respondent did not violate the
Act after the settlement agreement. Consequently,
we shall reinstate the settlement agreement and dis-
miss the complaint Cambridge Contracting, 259
NLRB 1374, 1381-83 (1982); Ann's-Schneider
Bakery, 259 NLRB 1151, 1160 (1982).
ORDER
The complaint is dismissed.
IT IS FURTHER ORDERED that the settlement
agreement in Case 30-CA-5603 be reinstated.
MEMBER ZIMMER-MAN, dissenting in part and Con-
curring in part.
dissent from my colleagues' reversal of the
judge's finding that union activist 'Stanley Dash
was discharged in violation' of Section 8(a)(3) and
(1) of the Act. Notwithstanding the factors cited
by the majority, the fact remains that Dash was an
excellent sales representative- who had won sales
prizes and been cOnsidered by the Respondent for
a position as regional manager, and whose previous
activities noted by my colleagues had always been
condoned by the Respondent. Indeed, the Re-
spondent was aware . prior to the organizing cam-
paign that aggressive behavior which sometimes
became abusive or profane was not unusual among
the sales representatives, and management tolerated
such behavior as long as the representative was
successfully making sales. That Dash's union activi-
ty was the sole motivating factor in the Respond-
ent's decision to discharge him on 5 November
1980 is evidenced by the fact that the Respondent
not only failed to seek out Dash's version of the
precipitating incident with Santangelo, but refused
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to listen 'when , Dash tried to 'explain his side of the
story. The Respondent's determination to hear only
Santangelo's version establishes that its interest was
in- finding a plausible pretext for the discharge, and
not in ascertaining what actually occurred.1
Because I find Dash's discharge unlawful, I
would not honor the' parties' settlement, as my col-
leagues do. Rather, I would' cthisider and essential-
ly affirm the judge's -finding- that the Respondent
committed numerous' violations of Section 8(a)(1)
of the /wt.
I do, however, CthiCur in my colleagues' finding
that the'Responderit' did no act unlawfully when it
earlier required Dash to undergo a psychiatric ex-
amination before returning- to work following a
prior leave of absence, 2 or when it appealed 'his
award of unemployment compensation benefits. In
contrast to its 'discharge of Dash, the record indi-
cates that the Respondent ' was motivated by legiti-
mate concerns with respect to these two actions,
and I agree with ri-67 colleagues that these allega-
tions of the complaint should be dismissed. •
I The fact that any number of the Respondent's highest officials may
have participated in the decision to discharge Dash does not detract from
the undisputed fact that these officials did not ascertain Dash's version of
the incident for which he was allegedly discharged prior to the decision
to discharge him Contrary to my colleagues, who find that the Respond-
ent's failure to consult Dash about the incident is outweighed by the "ex-
tensive evidence of his persistent misconduct," I find It more likely
that Dash's union activities eventually overshadowed his excellent sales
performance in the Respondent's view
2 My colleagues 'conclude that I tacitly concede the existence of a
longstanding behavioral problem on Dash's part because I agree with
them that the Respondent's requiring Dash to be examined by a psychia-
tnst prior to his return to work following an earlier leave of absence was
motivated by -legitimate concerns To the contrary, I find the fact that
the psychiatnst selected by the Respondent itself gave Dash permission
to return to work establishes that whatever psychiatric' problems the Re-
spondent may have perceived Dash to have had in the past did not war-
rant the Respondent's later actions in firing him Thus, the judge found
"The psychologist who Interviewed Dash on the Company's behalf com-
pletely cleared him of any problems.and Issued a fairly impressive report
about the state of Dash's condition" Notwithstanding this finding, how-
ever, I find that the evidence was insufficient 'to sustain the judge's con-
clusion that this examination was motivated by unlawful reasons Dash
refused to concede that he was ill or disabled and resisted the release of
his medical information while at the same time seeking disability benefits
from the Respondent In these circumstances, the General Counsel failed
to establish by a preponderance of the evidence that the Respondent's re-
quiring Dash to undergo an examination to determine his condition was
discriminatorily motivated
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Charges were filed against Lawyers Cooperative Pub-
lishing Company (Respondent) on January 1:4, 1980, by
Office and Professional Employees International Union,
AFL-CIO-CLC, on November 12, 1980, by Stanley
Dash, on February 20, 1981, by Robert Carduner, and on
February 20, 1981; by Irving Kensler, each resulting in
the issuance of complaints against the kespOndent. All' of
the Individual cases were consolidated for hearing. The
consolidated complaint alleges that during the course• of
a union organizing campaign and thereafter the Respond-
ent has unlawfully interrogated its employees,. created
the impression of surveillance of its employees, threat-
ened its employees because of tiniOn activity, granted
benefits during the course of the union campaign, dis-
charged employees Stanley Dash, Robert Carduner,
Irving Kensler, Richard Warner, and Hubert Redd, and
disciplined employee David Outlaw because of union ac-
tivity. The, consolidated cases were heard in Milwaukee,
WiscOnsin, on July 20-30, 1981; in Washington, D.0 , on
August 11-19, 1981; and again in Milwaukee, Wisconsin,
on August 24,25, 1981. Briefs were received from the
General Counsel and the Respondent._ .
I THE BUSINESS OF THE RESPONDENT
Lawyers Cooperative Publishing Company (LCP) of
Rochester, New York, engages . in the sale and publica-
tion of law books and other legal publications on a 'na-
tionwide basis. It has admitted the jurisdictional allega-
tions of the, I consolidated complaint. I find that it is an
employer within the meaning of the Act and that it will
effectuite the Policies of the Act to assert jurisdiction in
this proceeding.
• II, THE LABOR ORGANIZATION INVOLVED
- Office and Professional Employees International
Union, AFL-CIO-CLC is- a labor organization within
the meaning of the Act.
III. UNFAIR LABOR PRACTICE ALLEGATIONS
A Background
Lawyers ,Cooperative Publishing Company of Roches-
ter, New York (LCP), is one of the nation's leading pub-
lishers of law books and other legal publications It mar-
kets its products primarily through a large sales force of
commissioned 'salespersons. The Company has divided its
sales territory into various regions managed by regional
managers, who report to a national sales manager. This
manager is directly responsible to LCP's vice president
of marketing and its president.
The basis for the involved union organizing campaign
had its inception in 1977 when the Company abandoned
its former compensation plan for sales representatives
and introduced what it calls a "subscription growth"
plan. The details of this plan are unnecessary to the deci-
sion of this proceeding , It is sufficient to know that the
plan had the effect , of reducing sales commissions for
many senior sales representatives because of various fac-
tors beyond their 'control. The operation of the subscrip-
tion growth plan from the outset caused dissatisfaction
among many of the Company's field sales representa-
tives. Although this dissatisfaction was made known to
management in a variety of ways, LCP's management
was and is committed to the subscription growth plan.
Some 'adjustments to the plan were made in the first 2
years after its introduction to cure some of its deficien-
cies, but, opposition to the plan remained among the
Company's sales representatives. One of the LCP sales
LAWYERS PUBLISHING CO. 137
representatives, Stanley Dash, determined that the only
solution to the problem was to have the Company's field
sales representatives form or join a union. He also be-
lieved that with the aid of a union solutions could be
found to other perceived problems including the Compa-
ny's pension plan, its disparate treatment of salespersons
in the field compared with personnel in the home office,
and the manner in which sales quotas were computed
In early December 1979, Dash organized a conference
call between himself and several other sales representa:
tives including alleged discriminatee Irving Kensler.
Dash indicated that he had received union authorization
cards from the Chicago branch of the Office and Profes-
sional Employees International Union (the Union) as
well as advice on an organizing campaign with a list of
do's and don'ts to be used during the campaign. The
sales representatives participating in the conference call
indicated interest in the Union, and Dash had authoriza-
tion cards sent to these persons for distribution to the re-
mainder of the sales force
Knowledge of the organizing campaign which resulted
in a Board election on May 8, 1980, came to the Compi-
ny's management on January 9, 1980. Though, some of
the Company's lower-level management may have
known or heard rumors , that such a campaign was being
conducted at a slightly earlier date, I credit the Compa:
ny's witnesses that its top nianagement did not become
aware of the campaign until January 9. Immediately fol-
lowing receipt of knowledge of the campaign, the Com-
pany contacted its attorneys for advice on how to
combat the organizing drive. LCP admits that it did not
want the Union and sought advice On how to win the
campaign.
Acting on advice of counsel, Company Vice ,President
of Marketing Richard Anderson and National Sales Man-
ager Peter Bissett called each of the 11 regional manag-
ers on January 10 and 11 and sought their knowledge of
any union organizing campaign. The regional managers
expressed no knowledge of the campaign. Shortly there-
after, again after meeting with counsel, the regional man-
agers were called by Bissett and Anderson and asked to
telephone one or two of their sales representatives to
state that they had heard a rumor about union organizing
and ask if the representatives were aware of it. The re-
gional managers were instructed to say nothing further,
not to inquire who was involved, not to inquire whether
authorization cards had been distributed or signed, and
not to ascertain underlying issues or grievances. Howev-'
er, it is clear from the evidence that though these in-
structions may have been given, the regional managers 'in
varying degrees failed to carry them out with care. The
regional managers violated the Act by illegally interro-
gating their sales representatives, creating an atmosphere
of surveillance, and implying that benefits would result
from staying nonunion After the initial canvass of the
sales representatives by the regional managers, it became
clear that an organizing campaign was well underway.
Acting upon advice of counsel, LCP decided to have the
regional managers explain in one-on-one conversations
the significance of union authorization cards. The in-
structions given the regional managers were to. (1) meet
face to face with each sales representative, (2) state that
the Company was aware of the organizing attempt, (3)
state that cards had' been sent out, and (4) state that the
Company wanted its sales representatives to know the
significance of the cards
The Company also instructed the regional managers
not to ask questions about any individual's participation
in union activities and to state that they were not inter-
ested in whether the representatives received a card,
signed it, or sent one back. The regional managers were
also told not to make any threats and not to promise
anything. In explaining the significance Of the authoriza-
tion cards, the regional managers were to make the fol-
lowing statements. (1) If a majority of the sales repre-
sentatives signed the cards and sent them back, the
Union can go to LCP's management and say, "We have
a majority of the people who want a union and we want
to represent them." The Company can agree and there
will be no election (2) if a majority of the people sign the
cards and send them in resulting in an election, though
the election may be lost by the Union, it could go to the
National Labor Relations Board (NLRB) and tell it they
had a majority, that the Company Must have done some-
thing to cause the election against them, and a new elec-
tion can be held or the NLRB Can direct the Union to be
the repiesentative and (3) if the cards were signed, you
can request the cards to be returned.
The regional managers were told to listen and answer
questions, if questions were asked, but not to ask or ques-
tion anybody about anything They were also instructed
to report to Bissett and keep him informed but to be ex-
tremely careful about what they said and how they han-
dled themselves.
The face-to-face meetings between the regional manag-
ers and the individual sales representatives took place
generally between January 14-18, 1980 After these
meetings, LCP conducted " ,its campaign primarily
through letters, and the use of the . other officials in the
Company, including Thomas Gosnell, its president,
Donald Bennett, Vice President of Personnel Anderson,
and Bissett..Following the regional manager-sales repre-
sentatives meetings about the authorization cards, LCP
gave the, regional managers further guidelines on how to
conduct themselves during the organizing drive. On Jan-
uary 22, LCP mailed to each regional manager a four-
page summary of dos and don'ts for supervisors. On Feb-
ruary 4-6, a meeting for regional managers was held in
Chicago at .which time LCP's labor counsel explained
the election process, elaborated on the dos and don'ts,
talked of probable union campaign techniques, and ex-
plained how LCP's campaign would be run. .
At the same meeting, the regional managers were
, asked to fill out questionnaires on the sales representa-
tives working in their regions. These questionnaires,
among other things, required the regional managers to
give their best estimate of their sales representatives
union sympathies.
Following the, Chicago meeting, LCP carried out a
campaign based on letters from President Gosnell, com-
munication meetings with Gosnell, and informational
meetings where Bennett, Bissett, and Anderson explained
LCP's benefit programs and marketing procedures. The
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel urges that the initial meetings of the re-
gional manager's with the sales representatives, the meet-
ing of company management with groups of sales repre-
sentatives, the company letters to the sales representa-
tives, and changes in the company's pension 'program
and compensation program during the course of the cam-
paign, all constitute. violations of the Act.
During the course of the campaign, -LCP threatened
Stanley Dash with probation and placed sales representa-
tive David Outlaw on probation for 6 months. Following
the election, in May 1980, which the Union lost, the
Company discharged one of its regional managers, Rich-
ard Warner. It also engaged in a course of harassment of
Stanley Dash which is discussed in detail at a later point
in this decision. Region 30 and LCP entered into a com-
prehensive settlement in Case ,3-CA-5603 in September
1980, which was set aside when LCP . discharged Dash in
November. Earlier in August LCP discharged sales rep:.
resentative Irving Kensler. LCP discharged Regional
Manager Robert Carduner following , a meeting with
company attorneys in preparation of LCP's defense of
the reopened proceeding. In October, sales representa-
tive Hubert Redd was discharged. It is alleged that the
motivation for all of the above personnel actions was
LCP's union animus and thus each action is alleged to be
a violation of the Act.
B. Discussion and Conclusions
1. Implementation 'of five-percent buffer to
• subscription growth plan during the campaign
On March 4, 1980, the Respondent announced the im-
plementation of a so-called five-percent buffer, a 'change
in the existing compensation plan This - new plan was an-
nounced to sales representatives at meetings held in
March 1980. The purpose of the change was to ease
some of the more adverse effects of the subscription
growth plan which began in 1977 and about which there
had been much controversy among the sales representa-
tives Development of the five-percent buffer began in
April 1979, which LCP Vice President of Marketing An-
derson initiated discussions with his counterpart in Ban:
croft Whitney, a wholly owned subsidiary' of LCP. By
May 1979, both vice presidents were corresponding on
the elements of what was to become the five-percent
buffer plan and the plan had been placed on the agenda
of a July management meeting for discussion. During
June 1979, Anderson had some initial figures prepared
regarding the dollars that might be involved in changing
the then-current compensation plan.
At the July meeting, the five-percent buffer Plan Was
agreed on and a decision was made to' implement the
plan by January 1, 1980, conditioned on the Company's.
receiving a satisfactory indepth cost-benefit analysis The
plan, at this point, was detailed as indicated by a memo-
randum introduced into evidence. In August 1979, infor-
mation on how much the five-percent -buffer would
affect the sales representatives' commissions was being
collected. These figures were sent to LCP's comptroller
for verification and a discrepancy was discovered in the
calculations In September, Anderson decided that the
quantity of information for determining the cost-benefit
analysis was not sufficient and further information was
c011ected The comptroller recomputed the figures and
another meeting was scheduled for review of the plan in
November 1979. At the November meeting management
decided to get more information to further refine the cal-
culations. Because of this information request, the Com-
pany decided that it was impossible to implement the
five-percent buffer on January 1, 1980, because the final
figures'would still be coming in The decision was made
at 'this time to present the final revised plan to the re-
gional managers at a scheduled February 1980 meeting in
Hawaii before announcing it generally. It was also
agreed at that point that the five-percent buffer would be
made retroactive to January 1, 1980
At the November' meeting, the president of LCP gave
his final approval to the five-percent buffer plan subject
only to the final figures being simiar to the acceptable
calculations that had already been made.'
About January 3, 1980, the vice 'president of Bancroft
Whitney asked Anderson whether the final calculation
could be cOmpuied in, time to announce the buffer plan
at the Hawaii meeting. Anderson responded on January
8 that the figures were not yet completed but that he
would do his best. Anderson also testified that he also
decided at this time to hold a small- meeting of regional
managers from LCP and Bancroft Whitney to be sure
that there would be no differences of opinion between
the companies as there had been in the past. This meet-
ing was held in Dallas' with satisfactory results and the
five-percent buffer was announced to the regional man-
agers at a general management meeting held in Hawaii in
March The plan was announced shortly thereafter to
sales representatives.
I find from the evidence that the five-percent buffer
was developed and a decision to implement it had been
made prior to the beginning of the union organizing
campaign and the time that the Company gained knowl-
edge of the drive.
Thus, I find that the plan was not instituted and imple-
mented in order to influence the election in violation of
the Act. As both the decision to implement the plan and
the timing for the announcement of the plan was made
prior to the Company's knowledge of the campaign, I
conclude that the timing of the announcement of the
plan. was consistent with the Company's prior actions in
announcing changes in compensation plans and was not
unlawful See B. L. K. Steel, 245 NLRB 1347 (1979).
Therefore, I recommend that the complaint, insofar as it
alleges a violation of the Act in this regard, be dismissed.
2. Lowering the forecasts
The complaint alleges that LCP granted a. general re-
duction in sales quotas to sales representatives in viola-
tion of Section 8(a)(1) of the Act The 1980 sales quotas
were given to the representatives after LCP had knowl-
edge of the union organizing campaign. However, the
foreCasts themselves were prepared pursuant to a consist-
' The Dallas meeting is significant because it was mentioned by some
regional managers to their sales representatives in advance of the meet-
ing, with the implication that improved benefits might be forthcoming
LAWYERS PUBLISHING CO' - 139
ent company policy at a time well before January 9. The
procedure for developing forecasts begins about August
of the 'year preceding the forecast year- with sales repre-
-' sentatives submitting' their quotas These requests are
paired with'Company goals under a rather complicated
3procedure which results in final' quotas by December.
"Additionally, though many sales representatives' sales
forecasts were lowered, at least one-third of the sales
representatives' forecasts were increased for the year
'1981 The General Counsel failed' to meet the burden of
. proof to support the allegation that ther• Company: low-
, ered the forecasts :in' order to have-an effect on-the union
'organizing campaign and, accordingly,-I recommend that
the complaint, insofar as it alleges a violation of the Act
in this regard•be dismissed. _ . •
3.- Washington meeting between Gosnell, ,FOgel, - •
•, Mann„and Kensler, • .
A Meeting between' LCP' President Gosnell,' LCP
Treasurer •Seymour Fogel;' and • sales representatives
David Mahn and 'Irving Kensler was held in Washing-
ton, 'D.C.; in a' hdteron Aprir 11, - 1980. The, complaint
alleges that at this meeting Gosn'ell interrogated the .rep-
resentatives concerning-their union adtivities-and sympa-
thies, solicited Complaints and grievances from Mann and
Kensler, promised increased benefits' and 'improved con-
ditions of employment, created an impression of surveil-
lance by asking' Mann and Kensler- the names of- other
• employees involved in Organizing the Union, and 'sought
to undermine the Union's organizing drive' by soliciting
them' to inform other employees-of-their antiunion sym-
'pathieS in order to cause them : to abandon support for
the Union. '•' • •
• Everything about this meeting is in controversy - The
General Counsel contends, through the testimony of Re-
gional Manager Robert Carduner and Kensler, that the
meeting was set 'up at the insistence of KenSler in a mes-
sage relayed through Carduner. As to the meeting itself,
its content is in complete dispute. Kensler, on the one
,,hand, contends that his active participation was limited
:• to a momentary attempt ,to explain an. alternative -to ,the
Company's •subscription growth plan, after which he was
cut, off and ,interrogateclaby, Fogel' and Gosnell, A to the
union organizing campaign and what could be done to
defeat it GOsnell and Fogel, on, the other hand, submit
that Kensleil presented a' very detailed alternate compen-
sation . plan and other lideas on how to defeat the union
organizing campaign. They contend, that at no time did
they interrogate either representative, promise any im-
proved benefits, or request the identities of any persons
involved in-the organizing campaign.
With respect to this meeting, _I believe that the testi-
mony given by Fogel and Mann is the most credible.
The General 'Counsel points to the testimony of 'Car-
' -duner-ancrKensler to the effect that' Gosnell;•-through
• Bissett,'requested a meeting to be set up between Gosnell
and several influential sales representatives. Bissett testi-
' -fled that Carduner contacted him , ' in March -or- early
-April stating that he had been contacted by five repre-
• sentativ'es who wanted' to meet with Gosnell for the, pur-
pose of-resolving-the union problem 'Bissett further testi-
fied the he instructed Caiduner to have tile sales repre-
sentatives Contact Gosnell directly. Anderson testified
that Carduner•later called him to:tonflrm• that twO.repre-
sentatives identified' as Kensler• and- Mann. wanted to
'speak with Gosnell. Anderson 'also advised that they
Should-- ccintact GoSnell directly' Regional 1'Mana'ger
George Synder testified that Kensler/an 'late `Mareh,l.re-
quested that he 'Set up'' ,Ì€a meeting between Gognell,
Ken-sler, soihe influential sales representatives, and some
regional managers.
â– '
' One of the participants in the'ineeting, Rober Mann,-testified that Carduher called 'him about the meeting 'and
• said nothing about 'acting at Gosnell's''direetion:'Mann, •
,a1SO recalled that dardtmer said; that .s.eYeral Sale repre-
• sentatives:Were , gdihg tO he included in the meeting as of•fj.e
the firSt' call. Carduner,:testified that he. wA never seek-
ing more 'thantwO.Teleptione bills ' iritiOduced into _evi-
, dence show :that during the period , immediatelji beidre
i the rneeting-.Carduner ,talked:exte,nsively,with Mann and
KenSler, including . nine ,Calls td"-Mann on:Apri1 . 9. --As the•
Respondent points out, these . are, hardly the acts , of •pne
who is acting solely as an intermediary.
I also agree -with'.the Respondent that the hotel ar-
.rangements indicate , that . Kensler and Mann initiated the
meeting. A blackhoaid was Placed'in the nieeting' room
at Mann'4 recine4t • The Respondent Urges, and airee,•
that if Kensler and Mann
. were meeting with r, . osnell' d'
solely at his- request, the , purpose of, the meetink being
- left 'unstated then no arrangements would have been
made ' to , have availabie ' a blackboard fOr a 'Presentation.„
, With respect to, the,eyentsrat ,the,meeting, Kensler:s and
, Mann's testimony,. conflict sharply As noted earlier,
kensler testified that Gosnell interrogated Mann and him
with respect, to the identity of other union supporters, so-
_ licited grievances, and encouraged them to work against
the Union. .0n the other ,hand, „Mann testified that
Kensler made a lengthy presentation with respect to an
alternate compensation. plan that he had devised and..uti-
lized notes. Kensler denies haying , any„..notes ,Kensler
stated that he never vindicated- opposition to, the Union at
this meeting or at any-other time, although Manntesti-
fled that both he and,,Kensler ,stated at the meeting that
„ they were, opposed to the organizing drive. Seymour
Fogel, a yery credible witness based on demeanor -and
-manner, verified-,these ,portions of.. Mann's testimony.
•Fogel testified-that at the meeting Kensler stated his op-
position to the ,Union and that -he had 'a- plan to defeat
the Union:-X'ensler- then -explained the sales representa-
-lives' _opposition to the subscription growth 'plan pro-
' gram and offered in a lengthy fashion an alternative
compensation plan Kensler utilized the blackboard toes-
'plain his program:' 'Fogel also testified that Kensfer pro-
posed • that-•he be reinstated as national sales, manager to
replace Bissett.. I can find, no credible evidence at this
-meeting Gosnell actually interrogated Kensler. or' Mann
-about the 'identities of union supporters dr . promised any
benefits. However, Mann-testified-,that President Gosnell
asked him about what' he doing about defeating the
- . Union and why he was not on : the-telephone callin'g and
telling other sales representatives 'about his .view-of the
Union -Mann further testified 'that .Gosnell said thats'Was
What he should be doing 'Although Gosnell denies these
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements,-Fogel testified 'that-near the ,end of the-meet-
- ing •Kensler ,gratuitously said that, he was either, going to
the salespersons or if any of the -salespersons called
him he .was _going to tell them-to vote against the Union.
, Fogel testified that Gosriell!s response to that ,_was some-
• thing like, "Well, Irv, you know I cannot tell What you
, can or cannot do. -But, if you're to do that, that would be
„nice" or "ICs nice to know that you're on the Company's
side." .
I credit Mann's testimony corroborated, at least in
part, by Fogel, ,. that :Gos,nell urged both , Mann and
Kensier to take -action to discourage 'union support
' , Among their fellow, sales representatives I' find that Gos-
nell's:dctions in this iegard dOilgtitute a_direction to dis-
courage other einployee“rom sUpkOrting the Union and
is a violation of Section '8(a)(I)'of the Act. See Galax Ap:
T pare! Corp., 247, NIII3 159; ,In' all , Other re-
spects;, I find the actions , takenty the Respondent 's' nian-
agement at the Washingtonineeting tci he nonViOlative of
the Act and will re-commend that the 'other'-allegations
relating to this meeting be dismissed.
4. Gosnell- information meetings . ... •
.1,_During the campaign in the sprin 'g of the Re-
spondent, seheduled a series Of meeting's between itS'sales
rekreientatives and President Gosnell' At thee meetings,
Gosnell gave what' he char racterized as an unstructured
. presentation, of the Company's point of View- with re-
; Spect td the Union.. "After' this portion of the meeting,
Gosnell solicited comments from the sales idkresentatives
in an attempt 'to -answer' their- questions.: -The General
- - Counsel *es that" the ' Meetings -conkitiited an unfair
'labor practice -Tin that' they were 'a - departure from the
Company's past -practiCes in' 'Commu- iiicating! With -sales
ì-epresentatiVes,''that the-comment sessions constituted so
licitation 'of grieVanceS,''and that the answers 'given by
tO.- a 'pr-omise to remedy suCh' griev-
, ances- thereby constituting an impermissible prbmise 'of
-"benefits to 'discourage union-support:.
- -The Company's past' practice- with 'respect tO comniu-
-. mcating With 'sales' representatives had been throligh..the
nornial- - channels of' managemeni Management views
Weie 'passed- - through. -Bissett to the regional -managers
'Who-- then - 'discussed whatever subject management
- ::Wanted . them to with the sales representatives on a-one-
' . — tb-one basis . -Inforination 'that 'the 'sales ;representatives
r wanted to 'mike known to the management -generally
t passed back IO manageinent in the same fashion. Howev-
er, the Company had a practice of having regional sales
; Meetings and annual meetings at which to- p Management
•did speak to thcsales representatives and discuss compa-
-,,ny policy with them. Thus,-_'Gosnell's_meetings. with the
sales representatives were' not . unique to _the- organizing
— campaign. The Respondent has the right to communicate
: .its views 'and its policies : to-Ithe -Union 'during, the course
'of the , campaign. I cannot find- that the fact that Gosnell
met with the sales, representatives in and of itself was un-
• lawful.- -
, The question.of whether or not Gosnell, by asking for
-_,comments, .was soliciting grievances is 'anotherquestion
,- Clearly the Company wanted to explain its views.to the
- sales 'representatives and wanted to hear the sales repre-
sentatives' views or it would not have held the meetings.
..-Gosnell carefully avoided words such as grievance when
asking for comments or questions relating to the topics
about which he spoke, which included working ,condi-
tiOns,. benefits, and the Company's commission plan.
- However, under the circumstances, he was clearly asking
the employees to- air their grievances.. The Board has
,.- held -that the vice in solicitation of grievances is that, by
responding to the grievances, employers may either ex-
' pressly or impliedly promise to remedy them, thus prom-
ising a- benefit. From the best 'evidence introduced- into
. this record with respect to what Gosnell actually said, I
cannot find tha he ever promised.oreven implied a-bene-
lit in reponse to sales representatives' questions
'During the course of a question-and-answer session, a
sales representative made a recording and thus preserved
the questions and Gosnell's answers. This transcript re-
veals that Gosnell; at worst; defended the Company's ex-
isting policies There is not even a hint in the transcript
- that Gosnell intended to change any policies, commission
structure„ or other matters ,of interest to' the sales repre-
sentatives. As there is no showing that there was some
expressed or implied promise to-remedy real or , imagined
-grievances, I cannot find _that Gosnell's responses consti-
tuted an unfair labor, practice. There was some equivocal
testimony ;given about Gospel] promising to review, the
'Company's commission policy ,with respect to one.set of
books sold in New York: This testimony was not clear
and- is at odds•with Gosnell's demonstrated performance
as shown by the take of an actual meeting.. After review-
ing all of.the evidence with respect to these meetings, I
have concluded that, the , General , Counsel has failed to
prove that the meetings constituted an unfair labor prac-
tice and will recommend that the allegations of the com-
plaint, based on these meetings,.he dismissed
5. The Company's antiunion letters ..
'During the course of the campaign; the- Respondent
sent a series of letters to its sales representatives dealing
with campaign issues It is contended that cerfain of
these letters Contained statements which constitute unfair
; labor practices (a) In a letter dated April 2, '1980,'Presi-
deni Gosnell wrote' thesales representatives, inter'alia
Contrary to what you have been told, you do not
need _to sign a card in order to vote- If you have al-
" ready Signed a-card and you wish it back, you may
get it back by writing to the Union requesting that
' it return your card to you. The Union's address is.
' Office and Professional -Employees International
. Union, Local 2121, 290 Franklin Street, Rooin 203,
Buffalo, New York 14202: ;
The General Counsel urges that, this _statement consti-
, tutes an unlawful solicitation of the employees to return
their authorization cards. On brief, the General Counsel
draws an 'analogybetween , the clearly ,unlawful supply-
•ing of stamped, self-Addressed envelopes in a solicitation
. of employees to withdraw with their authorization-cards
to the Respondent's supplying the address of the Union,
relying on Deutsch Co, 180 NLRB 8 at 20 (1969). , In- that
case, the Board did find it unlawfuLfor, an employer to
LAWYERS PUBLISHING CO. 141
. supply self-addressed, stamped postcards which required
no More :than the employee's Signature to effect a revo-._
cation of his or ,her authorization. The question in the in-
stant case is Muc.' h .closer.,First,,there is clearly no solici-,
tation to Withdraw the , cards in the quoted paragraph
• The 'supiilYing 'Of the Union's adddress is certainly not
same 'as a stamped postcard w4lich only
needs a Sigiiâfurel The employee ,Would have to actually
• write - a. request' to withdraw antlioiiiation and supply
- postage to effeCt the ,request.:Yet'supplYing the address
and the-procedure for WithdraWing the 'Card, absent an
'employee -reqriest = for ' this infOrrnation, does iom. further
than Merely' informing 'emPlOyees Of their right' to. with-_ „ _ _
-''draw their authonzation-if they Choose voluntarily to do
• 'so On balarice,--in light Of' the 'strong campaign being
_Waged by the Company against the-Organizing campaign,
I find that the Employer in this regard_ has Pâ– rovided
more than information,to its employees and that its letter
April ' 2, 1980, clOes' conStitute an 'unlawful solieitation
to withdraw supp-ort from the- mon.
, ,(b) Gosnell sent a letter ,dated April 14 to the sales
-1-ePresentatives. Stating: ,
i‘ would- like you to take a' Minute to consider what„
• it would lbe. like living With : a Union;-'d the Union
should :win 'the . election. , • ; ,
: -
. NO LONGER Will you be able , to work directly
-, with the- company as an individual. With a Union,
an adversary seltio-riship between you and the com-
v,. pany will 'exist-As -a matter of fact, the usual way
- We will he required to work with you is through
,cy.Our.unioh.steward.'
NO LONGER will itbe possible to make ,"jiidg-
ment calls" in iridividnal, Sales situationS'. Strict rules
and ,regulatiOnS as specified in a union Contract will
, govern all aspects of your job and your relationship
with the cOmpany. " . -
'NO 'LONGER will you have .individuality, flexi-
bility, independence and , ability to completely plan
your Own Work .schedule.`With'a union, all Working
s 'dnditio'ns,, sales quotas, and ,other job-related condi-
'tins as PrOviderl the CellecOe-bargaining agree-
ment would have to be figidly and consistently en-
''''fOreed • . . -
COrisidei what yon would give, ;up if you be-
longed to a union.
Although the Respondent. has the right to make predic-
tions as to what 'might ,happen . as a_result of a union vic-
tory based on objective facts, it does not have the right
to make misstatements of .law, and threats. of worsened
. morking_conditions. The April 14:-letter is-not couched in
terms. of_ what :could-happen as a result of bargaining.
t Rather, _I believes it is . couched -in terms, of what will
..-happen.;Thus, -that, it constitutes a- threat of
harsher working conditions and thus is unlawful in its en-
, ttrety., See Colony printing, 249 NLRB, 223, 224 (1980),
_ntd. 651- Rai .502 (7th Cir. 1 .981)s The letter!s_ misstate-
tnent concerning .employees' rights to speak- directly to
management about terms' and conditiOn 's of ,employment
is,also impermissible under BOard law..
(c), In a letter dated April15,_ 1980, President Gosnell
, wrote.the sales representatiyes,.inter aim
What does a strike mean'to yon?
It means: .
1. LoSs of income, • .
2. Loss of custOrners to cOmpetition'• •
3. Logs of job (in the event Of an economic ' strike,
you can be permanently' replaced).
Remember, the-Onion's only real strength its
right to strike Don't take a chance vote "NO "
I find that this paragraph of -the letter constitutes an
unfair labor praCtice in that it both infers that permanent
'loss of job will be a 'result of a strike and fails to give
'even ;a hint Of the existence of an employee's poststrike
rights. See Laidlaw Corp., 171-NLRB 1366 (1968), enfd
414L -F.2d 99 . (7th Cif: -1969), cert: denied 397 ,-U S 920
(1970): - '
- " •
6 Changes in LCP's pension plan
On April 10, 1986, the Respondent advised its_employ-
_ ees that it had Changed its pension plan' to make it more
'generous. The credible eVidence reveals that ni April 'or
May 1979 Company Vice President Of 'Personnel Donald
Bennett began to,queStion whether the Cornpany's exist-
ing plan was adequate and competitive He , initiated a
StudY:of this' plan in 'Comparison with others using pri-
V,ate, actuarial Consultants..The'study . Wa cOmpleted and
, given to Bennett in Jiine 1979. Reviewing , the study,
Bennett decided, that the LCP _plan was not ComPetitive
- and began a program to 1determine how' to adjust the. .
plan to make it .mbre competitive The record refleCts
:correspondence respecting possihle. changes' in the retire-
Ment plan passing betweeti . the cOnsultants 'and J_,CP
throughout the period of August to November 1979 .
The Company initially had hoped to implement the
changes in this,-retirement plan , on January 1, 1980. The
Company had historically always announced and institut-
ed changes- in its retirenient program on either January 1
or July 1. Because the information required tO make a
final decision about_ the pension plan was put together
too 'late to meet the ,Januaiy , 1;_,deadline, the "Company
next set July 1,' 1980, ,as the date that the _new plan
wciuld be implemented.' The changes were made final
-and aPProved in 'the _latter part of March 1980.- These
changes -Were announced on 'April 16, 1980, 1 month- . ,before the union election _
, Based on the foregoing, I 6elieve that' the changes'in. „
the- benefit plan had nothing whatsoever to do with' the
union' organizing campaign: However, I do believe that
the timing of the announcement wasSelected because of
'theCompany's desire`to defeat the organizing effort. The
timing of the announcement appears to be a 'substantial
deviation from past practice.- :The,,Company's stated
. reason for the April announcement • Was that a large
amount of clerical work had tO be done to prepare the
date necessary to determine the proper amounts to be
paid to' each retiree ,on July . 1 The Company contends
that this work could not be done in ,a;"closet" and that it
' felt that the fact of' the, impending .changes in the plan
wOuld scion become widely known. It felt, therefore, that
142 DECISIONS OF'INIA el'IONACLABOR RELATIONS BOARD
` it had to 'make a' public-i annOtincement.-Whji these rea-
sons had never applied to 'the-announcerhent of dny 'pfe-
vious changes to a pension plan is ,not explained in the
record and I find thein undonVinZing:;Accordingly, I
find that the announcement of the pension plan changes
was motivated, at least in a substantial part, Tok the effect
it would haveiri resblYini one ,of the hales representa-„
plimary
,
grievances and *as designed to affect the
outcome of the election. - AccOrdingl5i, I find 'that' the Re-
spondent - violated SectiOn_8(a)(1)' by the,thning' of its an-
nouncement of the'PrOposed pension changes. '-
' 4 ‘Beimei't's 'promise of a benefit '-;
March' '1980; at a meeting-in which the-five:percent- In
..,..buffer program :was described:to several of the;sales rep-
•r:resentatives, in 'a private conversation,' sales representa-
tive Joseph Robinson asked(Personnel •Director Bennett
about possible changes in the Company's short-teriff.dis-
ability program. Bennett indicated to Robinson that the
program was •under-revieW by management:
The General Counsel ,contends', that Bennett's response
implies, a promise of 'beriefit§", especially so since it was
Made at a time when the' five percent buffer program
had'ju'st been anikunced. - _
, 'The ReSporident asserts thaii the program had, ' been
under for some time dating back to the 'fail ofrt • AT,' • . _
1979. -It also cites the'testimOhy, of Robinson that Bennett
did not say anything favorable about the review and did
nöt :indicate Whether 'there would or would riot be a
-change in the program. There is no, evidence that llen-
hett's response 'Was untrue. , In these circumstances''Ben-
nett's lacknowledgement of the review Without More
does not constitute arOimplied promise of benefit. AC-,
cordingly I would recommend itiat the c011iplainflie -dis-
' missed inofar'd§ fit allegesa` viOlation of Section 8fat(1)
• . ■iby virtue of Bennett 's response., • •-•-, . • . . = ,•';
•8. Bissetesv-threat of discharge of-Talbor-4- . •• •
f ---
,In March .1980, at ,a . mee*ig:. held for ,certain of the
salés representatives _irl'53,racuse; New York; to -OisCuss
the .five-percent"buffei,:National Sales Manager, BiSSeti•.is
alleged t6 have had a,threatening conversation N,Tvith sales„_•.
'representative Gregg -Talbot 'Talbot was a young sales
representative:, biought_ into the , Company by •Bissett,
who acted as his first.regional manager The ,ev,idence
:fleets that piisett considered 'Talbot 'something' of a, Pro-
k • t t- t •
tege. After the company meeting, the two went.tO,dinner
and then to a cocktail lounge„BiSsett remarked 'to Talbot
that:he had been doing rather well for .a young mah;
light , of his, baCkground, .that' "I 7was doing pretty,,good
for a kia, that typ,e Of a statenien. l." ,
-Talbot's. futiher Cestirriony .regardind this conv_-eisation
is as 'follows:
Q . What else did he say? - - .
- A. Well he'§ald I wa§ inaking" a lot of money to
7 'which I said,= "Well", I- said, `,1' am' Paying a - lot' of
ta;A'now.".,And that Was 'the thrust Of 'tile eonver-
':. -'s'atiorE_Well; following' that 'now' I' must saj, I Was
somewhat taken aback when I' said I was -Paying a
'hit of taxes.' He said,' "Well, we could fix that" And
'I 'said,' "How is that." And he said, "We cduld 'file
- • ' 011,7 Which Wa§ •otit 'of-the bide- to• geerily
.'breath back And I said","Hów could that happen
or il 'o'is-rtha0" And lie'said, "YO1.1‘. s̀hOuld be Care-
' ful how you act You should ` -ite'Re'inber where §ou
.- -c-aine -fro' rn." And'ihat . was'ihelnd'orthe- eonYei§a-
• .• • - • ,:,.... • l z ,07neon.
Now would hie fol-diteiCt":'iOtiC atVniionl'to
te next afternoon. Did you have an,othef convrersa-
'664 .with'Mr 'Bissett? •
• A. Yes. We mef intthe, lobby. There ,was a lot iof-
,, people i•hovinground ind the.,Holidayirin. , And he
. had a completely' differeni demeatiOr ` abOnt,huh: He, .
indicated .ihat. the ,futu,re. managers, were cOniing
, from you- ng people like thyself. Andlhat,I hd a lot
places, to (go.; And bnefly;.just said

„ -
, tt;at.„„,
The General Counsel contend's that •the threat to 'fire
Talbot was a serious one and was designed; to threaten
him about any union activ,- ity Bissell's yersion °-ç
ha
._-4
conversation is very §imilaf' to tt_ given ,,Iby ,albot
except the motivation for the staterriehi is far diffeient
,than that, suggested -by , the, General -Counsel!, Bissett testi-
fied.tliat the, conversation toolc-place out , ofhis pride in
the success enjoyed by Talbotjle explained,that, in the
past when he complamed ,aboutpayinga lot of taxes, his
former boss' had alWays told him that ilhe had no job he
'could pay no taxes: He testifieetlial'ite'inerely repeated
that `admit-lent te Talbot. He ` fhtheilii-med ihat his com-
ment -about watching 'how Talbot acted,Was-predicated- -
on the fact" that Talbot was Perfdr'ining far' better than .
many of the people his own , age. *He.:Wag , cOikcl 'eien'ed that
if Talbot with these belfille in'tlie evening he
cou no con mue to per orm successfully as a sa es rep- .I 't 1 f''
reseritatix)e: Based the demeanor'of the witnesses, I, . „
'fullj, credit Bissett's explaiiatiOn for ttieConyeisatiOn. His
.rentarks had nothing to do with -,Unio. ii' actiVitY. There
has been ,n6 showing .in'this. 'reeof