Michigan Bell Telephone Co.

National Labor Relations Board - Board Decisions

Feb 26, 1979

240 N.L.R.B. 945 (N.L.R.B. 1979)

MICHIGAN BELL TELEPHONE COMPANY 945
Michigan Bell Telephone Company and Sally Bier.
Cases 7-CA 13975(2) and 7-CA-14261
February 26. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANDl) MEIBiRS JNKINS
AND MI RPM'
On September 27. 1978, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this pro-
ceeding. Thereafter the Charging Party and the Gen-
eral Counsel filed exceptions and supporting briefs.
and Respondent filed an answering brief, cross-ex-
ceptions. and a supporting brief. The Charging Party
then filed a reply to Respondent's cross-exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings? and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
iThe ('harging Parit filed a reply to Respondent's ansver to eceptlons
Respondent then filed a motion lo strike the reply brief. correctll asserting
that it was an improper filing under Sec. 102.46(g) of the Board's Rules and
Regulations. The Charging Parts filed an answer to the latter and a miotion
for special leave to file said replN. Respondent then filed a response in
opposition to the Charging Partl's motion. In the circumstances of this case.
we hereby grant the Charging Part's motion for special leave to file a repl\
brief. tHaving accepted and considered the Charging Part's repl 5 brief. we
note that it contains absolutely nothing that was not previously argued in its
original brief.
'Respondent has excepted to certain credibility findings made b the
Administrative Law Judge. It is the Board's established polico not to er
rule an administrative law judge's resolutions ith respect to crediblhilit
unless the clear preponderance of all of the relevant evidence consinces us
that the resolutions are incorrect. Standiird Dri H/ll Prdl,i Inr aI. 91
NLRB 544 (1950). enfd. 188 F.2d 362 3d (ir 1951) We have carefili
examined the record and find no basis for reversing his findings.
We do not adopt the Administrative aw Judge's finding that Bier he-
lieved that management as engaging in a "ser) conscious1 plot to entrap
her, because the evidence does nlot support that finding
240 NLRB No. 155
DECISION
SIAI Mt:N1 t)l I1tll CSF
PAL BSCYitR. Administrative Law Judge: This consoli-
dated proceeding, with all the parties represented, was
heard before me on December 12 15. 1977, in Detroit.
Michigan. on the amended consolidated complaint of the
General Counsel issued on August 26, 1977, as further
amended at the hearing t and the answers to the original
and amended complaints of Michigan Bell Telephone
Company, herein called Respondent or the Company. The
principal question presented for decision is whether Re-
spondent, in violation of Section 8(a)(l) and (3) of the Na-
tional Labor Relations Act, as amended,2 assigned Charg-
ing Party Sally Bier low work performance ratings, issued
verbal and written warnings to her that she risked dis-
charge if her work did not improve, temporarily suspended
her from her job, and finally terminated her, all in reprisal
for her union activities and aggressive performance of her
duties as chief union steward at the Livonia facility. Also in
issue is the question whether Respondent engaged in other
independent acts of interference, restraint, and coercion of
employees prohibited by Section 8(a)(I) of the Act. At the
close of the hearing, the General Counsel and Respondent
argued their cases orally. Subsequently. Respondent and
the C'harging Party filed briefs in support of their re-
spective positions.
Upon the entire record,3 and from my observation of the
demeanor of the witnesses, and with due consideration
a, a resull of amendment at the hearing. the consoldated complaint is
hased n sparatc charges filed bs Salls Bier n Ma, 20. 1977. in (se 7
('A 139751
2
i and on July 25. 1977. ill (ase 7 ('A 1426i1, copies oIf hich
acre duls sersed on Respondent h registered mail ion Mlas 23 and Jul 2.
1977. respectisels
Initially. a charge was also filed h Marie hornton in Case 7 ('A
13975( 1 ). and cops was dub served on Respondent. On the basis of that
charge, allegations of dlscritlnlation against hornton were included n the
original consolidated omplaint If ov eer. prior to the hearing an informal
settlenilt as reached b the parties respecting hornton. which the Ad-
imlnlsirllle I .Li Judge a.pprosed on the record On motion of the General
('ouisel. the consolidated complaintl was amended to delete reference to
Ihorntlol and permnission was granted to remove the charge in Case 7 CA
13975 I) from the formal documents presiousl, received n evidence. As
indicated .abihsc. the title of this case was also antended to reflect this
change.
2 Sec 8a(; I I of the Act makes it an unfair lahbor practice for tin emploier
"o iInterfere v.ith. restrain. or coerce employees in the exercise of the rights
guaranteed in ection 7." Insofar as pertinent. Sec. 7 provides that '[elm-
plo ees shall hal e the right to self-organlzation, to form. join or assist labor
organialtioins. to hbargain collectiel through representatives of their own
cho.osing. and to engage in other concerted actliitles for the purpose of
collecti e hargaining or other mutual aid r protection .. "
Sec 8(al 3). With certain qualificatlons not material herein. prohibits an
emplo er h dscri mination in regard toi hire or tenure f emplo menl or
ans teril oir condittn of emplo\ ment to encourage or discourage member-
sh In an\ labor organllatn . . "
After the close of the hearing, the Charging Part' moved to correct the
officil.l transcript of testimon' In various respects Subsequentl. Respon-
dent filed a response. agreeing with some of the proposed corrections. op-
posing ilhers. nd clarf? ing one f the suggested corrections The Charging
Partl .accepts the latter clarificatlln I therefore grant the motion with re-
spect to hich there is agreement and clarification As for the items on
which there is disagreement. I dens the motion l( ertain correctilns have
been noted nd made n the transcript Appendix A oimltted from publical-
tlmn
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I 1HE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation with its principal
office and place of business in Detroit, Michigan, is en-
gaged in the business of furnishing telephone and related
services throughout Michigan. Its facility located at 31100
Plymouth Road, Livonia. Michigan, is the only office in-
volved in this proceeding. For the 1976 calendar year Re-
spondent's gross revenue derived from telephone services
was in excess of $20 million of which more than $1 million
was gross revenue derived from interstate messages. Dur-
ing the same period it purchased from out-of-state sup-
pliers goods and materials valued in excess of $100,000
which were shipped directly from points outside the State
to various facilities of Respondent located in Michigan.
It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
11 rle LABOR OR(iANIZAIION INVOLV-.)
It is conceded, and I find, that the Communications
Workers of America. AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5)
of the Act, representing the employees here involved.
II IHi All EGED) NFAIR LABOR PRACTIICES
A. The Evidence
I. The employment of Sally Bier; her transfer to the
Livonia New Number Information office: and her
6-month training period in the new computerized service
Sally Bier was first employed by Respondent in July
1974 as a toll operator in one of its downtown Detroit
offices, handling long-distance and local calls. Because Re-
spondent had installed a new computerized information
service, it closed that downtown Detroit office on or about
May 30, 1976, and transferred Bier and some 20 other op-
erators from this and other facilities to the Livonia new
number information (NNI) office as NNI operators under
the new system. The Livonia office was the last of four
facilities opened up in September 1975 to utilize this com-
puterized equipment.4 In charge of the Livonia office at the
time of the events herein was Marguerite E. Peck, the man-
4 This new system is known as Directoor, Assistance NMicrfil l[)AS Nl)
and replaced the former practice of operators using telephone directories Io
secure requested information. tInder DAS M. when a customer dials "41 ."
the call is received by a central computer In downtown Detroit and then
automatlcallY transmitted to an available NNI operator at one of the four
NNI offices in the I)etroit metropolilan area. Thereupon. the operatior. v ho
sits at a console with a keyboard and siewing screen in front of her. keys I
the customer's request for information, and a minicomputer in her office
electronically displays on the screen the appropriate segment of the tele-
phone directors with complete. updated information.
ager of operator services, under whom were assistant man-
agers of operator services (AMOS) who were the immedi-
ate supervisors of the NNI operators. 5
To train newly assigned NNI operators in the computer-
ized information service, Respondent provides a thorough
training program, beginning with an initial orientation in
office and procedures. Following this, the new operator
receives supervised instruction for approximately 5 days at
a training board which is identical to the standard DAS/M
console, except that it does not receive live customer calls.
One instructor is assigned to work with two operators dur-
ing this period. Thereafter, the operator is assigned to a
training supervisor for a 6-month training period. During
this time the operator handles live calls and receives regu-
lar appraisals of her performance which furnish a basis for
determining what additional training is needed to over-
come her difficulties and to correct her mistakes. Such fur-
ther training includes drills, reviews, coaching, and role-
playing. Generally, the progress made by the operator in
training, as well as her performance after becoming a full-
fledged operator, is measured by the results of "remote
observations" which are regularly taken of the operator by
her supervisor, the assistant manager, or by an assigned
service assistant or senior operator to determine the
operator's accuracy and courtesy in handling calls. A re-
mote observation is taken by plugging a headset into an-
other location in the office so that the conversation be-
tween the operator and the customer can be heard by the
observer. Upon the completion of the 6-month training pe-
riod, the operator is expected to be fully capable of per-
forming her duties and is normally assigned to a line super-
visor.
Bier underwent the foregoing 6-month training program,
starting in June 1976 with Jacqueline Larese as her training
supervisor, who was in charge of about 22 to 25 new opera-
tors. Larese. however, was replaced by Acting Assistant
Manager Yolanda Merlo the following month, when
Larese temporarily left on disability. From that month on,
Merlo took regular observations of Bier's handling of calls
through January 1977,' subsequently discussed her faults
and performance with Bier. and role-played, conducted
iOn a later datl the title of "'AN1()S" was changed tio "group chief opera-
tor. anid sime resin,lns in the supervisors selup were made.
' Accuracs a;nd colurtes, are measured hb the number of "faults" the
opera tor conmmits during the remote obsersatioln t nti aboult a month or
two befiore Bier's discharge. faults were divided into errors and irregulari-
ties. with the fornmer being given double the weight accorded to irregulari-
ties, but since that date no distinction is made between both tpes of faults.
lo obtain a mlonthls performance rating or monthly index from the remote
obserslatons f an operator made during the month. the number of faults is
divided h the numnhber of calls observed to determine percentage of faults
Ihis percentage figure is used to determine from a table devised by the
Respondent's parent compan?. American Telephone & Telegraph Co
(A & 1 h, the monthl index of the operator's performance during that pe-
riod. I hce tionhl, index for a current and the II preceding months are
averaged together to develop an overall cumulative index. Monthly and
cumulative indexes are also utilized to measure the speed (average work
time. or AW ) with which calls are handled but are not as significant as
accurao and courtesy indexes. Unless otherwise indicated. the nionthlx and
cuiula;live indexes relate to performance fr accuracy and courtesy.
Because f unavailability f supervisor? tor other assistance, no observa-
tion of Bier or other emplo,,ees was taken it December 1976.
It is the practice for the assistant manager or other individuals cnduct-
lmg the observation to make notes of the operator's performance and within
24 hours to discuss the results with the operator. Thereafter, the notes are
MICHIGAN BELL TELEPHONE COMPANY 947
drills, and took other steps to remedy Bier's mistakes. Dur-
ing this 6-month training period Bier never questioned
Merlo concerning the faults charged to her which Merlo
found in the observations. It also appears from the docu-
mentary evidence in the record that during Bier's 6-month
training period. ending in December 1976. she never made
the monthly objectives established by the Company ex-
cept once in October, and that rating dropped in Novem-
ber, from 98 to 78. It further appears that Bier's cumulative
index reached in December l0 was 90. which indicates un-
satisfactory performance. being below the satisfactory level
of 97. the cumulative objective for accuracy and courtesy
set for the Livonia office.
2. Bier's declining performance ratings: warnings.
suspensions and ultimate discharge
On Januars 7. 1977,1 2 Supervisor Merlo conducted the
first remote observation of Bier's performance since the
previous November and charged her with 3 errors in han-
dling 50 calls. In their ensuing interview. Bier expressed
disagreement with one error.
The following week, Merlo discussed with Manager Peck
the advisability of reducing the size of her training group.
which was becoming entirely too large to manage. Peck
was agreeable. and it was decided to reassign several oper-
ators who were about to complete or had completed their
6-month training period. Bier was one of those in that situ-
ation, and she was assigned to Assistant Manager Margie
Benton. At the same time it was decided that those opera-
tors with unsatisfactory performance records would be giv-
en verbal warnings before their transfer and that this re-
sponsibility should fall upon Merlo, who was the one best
familiar with their work. Accordingly. Merlo placed on
verbal warning Bier. Mary Driver. and Linda Ryles on
January 14 and Marie Thornton on January 17. Appar-
ently, the latter three were also assigned to another super-
visor, as was JudN Standish, who had already been placed
on verbal warning on November 19. 1976.3
turned in ) Ma.n.ager Peck's ffitce ianid. iafter record of the re lt is liere
mnade are destrolsed ulthin 7 dIas. is required h the RespoIldeItI , i c nilir.Li
wtlh he t nun
1 he ohlbecItes fr the 6-molnth trainilfl perkid lncres;e eaclh ilucceedlne
month and are based upon the a.itual perfornllnce of the operalors in trlill-
ing the presious sear B the end of the i-nnonth tra.inil perirod. I opera-
lor is expected to meet the regular ohleietlIes f o h perflilnl.,.c if a. fili
Irained perator toiewcer il nalts cises the perator fail, t) a.tlifx l,
Since no ohseratillons ere made Il D)eieniher. the cu1ulallse index of
90 appears ito he a carroser from \osemnher.
Accordilg to an.il.iaer 'Ck .a LUltilUI1.isC inidex. ot ')7 98 is atlsfiC-
ior%. 98 99 is fulls saililfactorr\ 99 I() is exLeptonal, and .ianthl helow
97 is unsatlsfacort lloneer. there is itoelnllmon hb Supert,or ler0 thaniI
an Linsatisfracltor perforniance rllnc heein s at 94. belo u . hlichl a erh.ll
warning ma\ he gloen. depending In the scores chiesed b\ the o.per.alirh in
training ll he group.
I nless ther. lse inidicated. all suhbequenlt dates relate to 1977
I)riser. Standish. Rles,. and hornion are the first four nained )1i tihe
t)ecenlher 1976 list of "under -nilonth" ,operaltors itllh the ow est cunliilal-
ti'e indexes. while Bier is the eighth I here i sufflclenl evidellce cotncerl-
ing the trining statuls of the three opilor with o ehu cl ltll\ e Inde\cs
than Bler's o h did noil recel.e erhal airiilnr i. Soireosr, %'1erlo. ill het
tesnnin\. expl.iied that she did nlol plc on erh.al awlirite se\enl other
operators n the uillnder t -nitionth" list .althugih te had iultial.iors l-
'o give Bier her verbal warning. Merlo summoned her to
the office, where Merlo reviewed with Bier the latter's work
performance and reminded her that it was unsatisfactory
and that her cumulative index was low and did not meet
established objectives in view of the number of faults she
was making. For these reasons. Merlo stated that she was
obliged to place Bier on verbal warning, adding that if she
did not show improvement and her performance continued
to he unsatisfactory., she risked discipline, including dis-
missal. Bier challenged the fairness of Merlo's action, as-
serting that she was erroneousl) charged with one or two
faults in an observation. Bier also complained that her re-
quests to discuss with Manager Peck Bier's purported er-
rors and Merlo's attitude to her were refused. Merlo's re-
sponse was that Bier had made such complaints before and
that there was no need for Bier to see Peck, as Bier's com-
plaints related to matters solely of concern to Bier and
Merlo, as her immediate supervisor. Before the conversa-
tion ended Merlo informed Bier of her transfer to Assistant
Manager Margie Benton's supervision.
About January 18 Bier's new assignment under Benton
began. and on January 28 Benton took her first remote
observation to Bier. When in the ensuing customary inter-
view Benton charged her with committing one error and
two irregularities, Bier expressed disagreement respecting
the error and one of the asserted irregularities.
On Februarv 4 Benton took another remote observation
of Bier. Charging Bier with one error, Benton role-plaved
this fault and then reinforced the verbal warning which
Supervisor Merlo had previously issued to Bier on the as-
serted ground that her performance in Januar was poor
without the trend getting better.
A day or so later, the Company's "Top Ten List" of the
worst operators with more than 6 months' service issued
for the preceding month. January. Bier was number 5 on
the list of 17 names, with a monthly index of 0 and a cumu-
lative index of 82, evidencing poor performance. This was
the first time Bier appeared on a 6-month list. After review-
ing Bier's recent work performance. including the cumula-
tive index. which Benton considered to be unsatisfactory.
Benton consulted with Manager Peck and. with her ap-
1ltiil.itl\ Ie dexes which were. hes er. hetter than Bier'. hbecause she (Mecr-
lot) helchccd Ihlt t .as ler )o limi the total number recciine eribal
n.riliIn, I1 .Iddllnn. shIe estified that she look nl accounl other factoirs.
such as tire priogress Ihe operator as generall making. in determining
whelhec tIt .lke iscilplll.rx action,
It etablhlished practice for Respondenl io draw up such a l rp len
li it cer i mointh on thle hasis if the cumullrve indexes hich ach issi-
tarll ni.lnaecr ubl titto \.lnatger Peck at the end f each monnth in regard
to he prf rillanie if the perators with more than 6 months' sers ice work-
Il ti lller lle prticular a s'tant i;ln;ler. i-romn these dat;a clerk tinder
Peck' dirertion prep.ares an o,cr;all h It if the top ten poorest prforllers In
the I .ioni fcilt riankled ac.ordill t their cuniulatire ide\es,. iih those
I,t tlihe low e t nlde ses hbein pla;ced on top. alithough referred to a te op
I el I Ist. II nlal include more than 10 names here there are eseral Inll-
idual, s with lie nittle low cutttul.ati\e index numbers. his liht is drain ip
hrabout dis after the en ad f the repored month and a cp is sered upton
eC.Ih cl .i isit t ilanil.ger Separlate list, are prepared for l.arllus categories,
such .as a.trur.ac\ and cortes\. aliiendance, and 4WVI nless oicherwise
indicated. he reference to cumulatixe index herein relates to the caltecrrs of
accLur.c aL1d c(LlFItes. A ni)onthlx Iop I el LitI fr ilnder -month opera-
t r 0 ll i r el Cinr irll l tinti 1i rlh i ttllitanlal1cd l eCe\r. sllr h .i list .actuall\
o tnills tlhe In le s f ll the perilt r-iil-tralilningi ranked a.IC r dlne i their
tiLlniishe niidees, nth the lesl n tiop. hether r nolt heir performlnrce
ix utllstlfilactor
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proval, prepared and issued a written warning for Bier.' 5
Thereupon, on February 10, Benton summoned Bier to
the office, and in the presence of Union Vice President
Donna Malboeuf Cook read the letter of warning to Bier,
in which Benton referred to the unsatisfactory quality of
her work performance manifested in the observed faults
committed by her. Continuing, the letter stated:
One of your responsibilities as an operator is to fur-
nish accurate customer service. Your failure to do
your job accurately has resulted in highly unsatisfac-
tory service to our customers.
In the many interviews conducted with you regard-
ing the quality of your work, you have been advised
that the company regards your work as unsatisfactory,
and that you will be subject to discipline unless im-
provement is made. On January 14, 1977 Mrs. Merlo
reviewed your work record with you and indicated
that continuation of this poor performance can not be
accepted.
Since the January 14 interview your work perfor-
mance has continued to be poor. We have counseled
you and have given you additional drills and other
training to assist you in correcting this problem.
The final responsibility, however, for an acceptable
work performance is yours. This letter is a warning
that unless your work performance improves to meet
company requirements, further disciplinary action up
to and including dismissal will be taken. I hope you
will take this opportunity to effect improvement in
your work.
In response. Bier stated that she felt that she was being
harassed for her union activity and that the observations of
her performance were not objective. She also complained
that she was not being given the recognition as chief union
steward to which she was entitled and was denied the right
to discuss her problems with Peck. Upon Bier's request,
Peck was brought in to join the group. Bier testified that
the reasons for this request were her belief that manage-
ment was harassing her for her union activity and engaging
in a "very conscious plot to entrap" her; her previous re-
quests to discuss management's hostile attitude toward her
union activity, which prevailed among the assistant manag-
ers throughout the office; and her belief that reprimanding
her, a chief union steward, and placing her on written
warning was "a serious matter." When Peck joined the
group, Bier raised the question of Peck's refusal to meet
with her concerning her problems with Benton. Peck justi-
fied her position on the ground that disagreements between
Bier and her supervisor were not matters in which Peck
should get involved. She further testified that she treated
other operators similarly.
The following day, February II, Benton conducted an-
other observation on Bier, which admittedly resulted in no
faults being charged to her. However, in the next observa-
tion of Bier, on February 17, Benton attributed an error to
Bier, who vehemently denied making it. Four days later,
February 21, Bier was again observed by Benton. This time
] At the hearing Benton named oither employees she had disciplined n
different occasions hby erhal and written varnings and dismissal.
Bier was charged with two irregularities. However, in the
next observation of Bier, on February 25, Benton found no
errors. Since Bier's monthly index for February was, never-
theless, 20 and since her cumulative index was 78, Bier
continued to be on the Top Ten List for that month,' 6
remaining there with the same indexes for March.'7 It is
clear that after Benton took an observation of Bier, in ac-
cordance with company procedures, Benton discussed the
results of the observation with Bier and role-played the
faults with her, although Bier was reluctant to do so. Invar-
iably, Bier denied making the faults or could not recall
them or accused Benton of fabricating her job record in
order to lay the groundwork for her dismissal.
At the end of March Benton transferred from the Livo-
nia facility to another office. Her group of some 20-odd
operators was assigned to Assistant Manager Dorothy
Kortas, who on April 4 transferred to the Livonia facility
from another office where she had served in a staff position
responsible for developing the Company's NNI operators
training program. Soon after her arrival at Livonia, Kortas
had an introduction meeting with Bier, as she did with
other operators, in order that she and Bier might become
better acquainted. Thereafter, Kortas took four observa-
tions of Bier in April on the basis of 10 calls each. As a
result of the first one, on April 7, Kortas charged Bier with
three irregularities. Bier testified that she did not believe
she had committed any of the charged irregularities. With
respect to the April 12 observation, where Kortas claimed
that Bier committed an error, Bier disputed that claim and
unsuccessfully sought to speak to Peck about it. As for the
next two observations, on April 25 and 28, Kortas found
no faults. However, the Top Ten List for April, which came
out during the first week in May, listed Bier as the second-
worst performer, with an unsatisfactory monthly index of
10 and a cumulative index of 7418
Because of Bier's position on the Top Ten Lists for April
and March, and after reviewing her indexes for those and
prior months, Kortas testified that she decided to reinforce
the written warning that Benton had previously given Bier,
thus again alerting Bier to the serious fact that her work
performance was unsatisfactory. She further testified that
although no faults were charged to Bier in the April 25 and
28 observations, the overall general trend indicated by the
indexes and other factors was not promising. To convey
this disciplinary action to Bier, Bier was summoned to
Kortas' office, where Kortas discussed Bier's total perfor-
mance, asserting that it showed no improvement, and noti-
the 1'ebruary Top Ten ist contained 14 names. with Bier's name
being the fourth and the names of operators Thornton Higley. and Ryles
preceding her
tI he March Top Ten List named 12 operators. with Bier listed as num-
ber 5. while Thornton. Rvles. Standish. and Driver preceded her. It appears
that l'hornton was dismissed in April for the asserted reason that she was
unqualified for an operator's job and that Sheets. who was just below Bier
on he I ebruar, list. was dismissed for unsatisfactory work in about March.
I he "Operator Performance Summary" for Bier discloses the following
results of observations made by Benton on the basis of 10 calls each: March
4. 1 irregularity: March 9. no errors or irregularities: March 21. no errors.
but 3 irregularities: March 25. 1 error, no irregularities: and March 29 no
errors or irregularities.
Although named as number 2 on the April list of 10 for all practical
purposes Bier was number I. since R les, the operator listed above Bier. was
absent n disability that month and subsequently.
MICHIGAN BELL TELEPHONE COMPANY 949
fied Bier that her prior written warning was being rein-
forced. Bier's reaction was to accuse Kortas and Merlo,
who Bier testified was present, of lacking in objectivity in
their observations and of harassing her on account of her
union activity. When Merlo denied any interest in union
activity, Bier alluded to the fact that Merlo had voted in
the first chief steward election.
On May 19, concerned that observations of her perfor-
mance were not objective and that management had a bias
against her because of her union activity and position as
chief union steward,' 9 Bier discussed the matter with Kor-
tas and requested the presence of a steward whenever she
was called in to review her performance during an observa-
tion which could lead to discipline. Kortas declined to
grant the request. Kortas also commented that manage-
ment was solicitous about her poor performance and that
she thought it advisable that Bier have more training be-
fore any further observations were taken. At the end of the
meeting, Bier again unsuccessfully sought an audience with
Peck to discuss her request. 20 Subsequently. Bier was given
more training by Kortas, senior operators, and service as-
sistants. Bier testified that the kind of training she thus
received did not relate to the problems management said
she was having but was "fairly superficial and elementary."
On May 23 Bier had a 15-call observation by Kortas.
who charged her with 3 errors and 2 irregularities. Bier
disputed that she had those faults. Concerning the first
fault charged, when Bier, in response, inquired of Kortas
whether she realized that Bier had equipment trouble dur-
ing the observation and did not hear well, Kortas replied
that that was what Bier said.
On May 26 Kortas completed Bier's regular 6-month
evaluation covering the period from November 1976
through April 1977. Based on the points Bier scored, Kor-
tas placed her in "Performance Rating Group Ill," which
is an unsatisfactory rating.2' When Kortas called Bier into
the office to discuss this evaluation with her, Bier asked for
the presence of a union steward, since she feared that the
evaluation might lead to discipline or might affect her job
and work record. Kortas denied the request. After Kortas
went through several categories of the evaluation, Bier
voiced her disagreement and remarked that there was no
need to proceed further, as the whole evaluation was false,
specifically referring to Kortas' assertion that Bier refused
to role-play. Kortas, nevertheless, continued, stating that it
was her responsibility to apprise Bier of the evaluation
even though Bier was not in agreement with it.
In the first or second week in June, Bier, prompted by
her concern over her job, again spoke to Kortas about her
work performance. In reply to her request for her cumula-
tive index, Kortas told her that she had not yet had her
| On Mas I a sernlce assistant cnducted an obhservalion on Bier v th-
out anv faults being charged.
' The next da., Ma) 20. Bier fled an unfair labor practice chare in this
proceeding Case 7 A 13975(2) n Ahlch it as alleged that ',lince n or
about Januar I3. 1977 [Respondenil has discrmuniated against
[Bierl b threatening her ith discharge and assigning her unfounded rii-
ten warning letters on account of her union slews and acillvltles
This document is entitled 'Sumniars of Obsersatlon" and covers is
rating areas Productiiit. Qualis. Attendance & lardiess. )ependabilh-
it Safet,. Job & (' knoi ledge. and Interpersonal Relations
records "cumed up," that she had not caught up with her
bookwork, and that she would get back to Bier when she
had the requested information available. Bier testified that
Kortas added that in the meantime Bier ought to relax and
not to worry about it. According to Kortas' testimony.
which I credit, she made such a remark with respect to
Bier's slow AWT. since it was more important at that time
for Bier to concentrate on improving the accuracy and
courtesty aspect of her duties. In the same conversation,
Bier's attendance record was raised. Acknowledging that
Bier had improved in that area, Kortas assured Bier that
the verbal warning which Bier had previously received
would be removed from the records.
The next disciplinary action taken against Bier was on
June 13. when she was suspended for the rest of that day,
Before doing so Kortas consulted Manager Peck, with
whom she discussed Bier's number I ranking on the Top
Ten List for May 22 for unsatisfactory work; that Bier had
not met objectives except a few times during her entire
period of employment at the Livonia facility; and that,
despite the extensive training Bier was given, her perfor-
mance showed no improvement, while other operators
were being neglected by Kortas because of lack of avail-
able time. Kortas testified that she therefore recommended
that Bier be dismissed. However. Peck conferred with her
superior, and both of them decided that suspension at this
point would be sufficient, and Kortas was so advised. Con-
sequently, Kortas summoned Bier into the conference
room on June 13. In the presence of Steward Susan Ducher
and Peck, Kortas reminded Bier of the prior verbal and
written warnings she had received and informed her of
Kortas' decision to suspend her for the rest of the day
because of her failure to improve. In response Bier com-
mented that she had not been given fair observations and
that Kortas was not objective in suspending her.
On June 28 Kortas took another observation of Bier. in
which she was charged with I error and 2 irregularities on
the basis of 40 calls.23 Before reviewing these faults with
her, Bier asked that a union steward be present. Kortas
refused the request on the ground that Bier was not entitled
to a steward during an interview respecting an observation,
which was not disciplinary in nature. Declaring that she
was sitting there under protest, Bier submitted to role-play-
ing the calls on which she was faulted, although she insist-
ed that she had not committed such faults.
In early July the Top Ten List for June issued, with
Bier's name leading the list as number I with an unsatisfac-
tory monthly and cumulative index of 50. Kortas conferred
by telephone with Manager Peck, who was then on vaca-
tion, with respect to the disciplinary action to be taken
against Bier in view of her continued unsatisfactory work
performance without any improvement despite the addi-
tional training she was receiving. At Peck's suggestion Kor-
tas discussed the Bier situation with District Manager De-
Bicl .as Iltunber I on the
1
.is top Ten List ,f 1I0 operators, with a
rionihl Indes of and a cumulative index of 60 Biers "Operat.or Perfor-
nillane Slnimarrs discloses that three olbseratllons ere taken of Bler's
calls, Mas 18 b a service asslstani. n faulls in 0 calls: Mas 23 b Korta,,
3 errors ind 2 irregularities in 15 calls: Na A1, b. Korlas. no faults in I5
Al abhour his time Respondent changed its obser ation procedure from
mill 1lntibt er of alls sescr.al t e s month to one bsersaltion of 4 calls
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cost, who authorized Kortas to suspend Bier for the rest of
the week. Accordingly, on July 11 Kortas called Bier into
the conference room and, in the presence of Steward
Standish and a member of management, informed her of
her week's suspension on account of her continued defi-
cient job performance, noting that she was number I on
the Top Ten List of worst performers for the second con-
secutive month, with a monthly and cumulative index of
50, and had shown no improvement in her work. Bier made
her usual response that management did not act in good
faith in suspending her: that it was harassing her because
of her union activities, which actually prompted her sus-
pension: and that she was being disciplined because she
had filed an unfair labor practice charge with the National
Labor Relations Board.
The final episode occurred on July 22, when Bier was
discharged under the following circumstances: Assertedly
disappointed with the lack of progress Bier was making in
her job, Kortas urged Peck that more determinative action
be taken against Bier. Peck then directed Kortas to con-
duct another observation of Bier while she (Peck) consult-
ed her superior. Kortas thereupon proceeded with the ob-
servation and, in the followup interview with Bier,24
charged her with 3 errors and I irregularity in the 40 calls
observed.25 Although Bier role-played the calls, as directed
by Kortas, she denied committing the faults, declaring that
they were lies. When, in the course of role-playing. Bier
repeated that she could not believe that she was being
charged with all these faults, Kortas left Bier to see Peck.
After apprising Peck of the results of the observation and
Bier's reaction, Peck consented to Bier's dismissal.
Thereupon, Kortas met Bier in the conference room,
where, in the presence of Steward Standish and Manager
Spicer, Kortas informed Bier that the decision was made to
terminate her because of her unsatisfactory performance
notwithstanding the extensive training and help that she
had received. In so doing, Kortas also referred to Bier's
uncooperative attitude and frequent accusations that Kor-
tas was fabricating her work record. Bier's answer was to
reiterate her consistent position that she was being disci-
plined-on this occasion, terminated--on account of her
union activities, and not for poor work performance. Bier
also warned Kortas that the NLRB was well aware of the
pressures placed on her by the Company and that she in-
tended to file another charge with the Board.2 At Bier's
request, Peck was called into this meeting. On Peck's ar-
rival Bier protested that Kortas was not objective or fair in
her observations. Peck replied that the faults were commit-
ted and that she regretted that Bier felt the way she did.
At the hearing Kortas categorically denied that she was
building up a case to get rid of Bier because of her union
activities, as Bier accused her of doing. Instead, Kortas
testified that the only reason for the warnings, the suspen-
sions, and the ultimate discharge was Bier's unsatisfactory
:4 Here, lot). Kortas denied Bier's request that a sleeward be brought in to
wiltness the observalionl inierview.
: The "Operalor Performance Summar' discloses that as a result Iof the
observation. Bier's monihly index was 0 and her cumulative index was 40
2- As prellousl idicalted. Bier filed a second charge ith the Board in
(ase 7 (A 14261 on July 25, alleging a dlscriminatory 5-da suspenilon in
Jul I I and discharge on July 22.
work performance. A similar reason is indicated in the tes-
timony of other supervisory employees. Indeed, Manager
Peck testified to the termination of six or seven employees
for unsatisfactory performance since the Livonia NNI fa-
cility was opened up. Bier conceded that she was not sub-
jected to more remote observations than were other opera-
tors.
3. Bier's union and campaign activities; election as chief
union steward and aggressive performance of those duties
Before her transfer to the Livonia NNI facility about
June I. 1976, Bier served as a steward at one of the Com-
pany's downtown Detroit offices for a year. According to
the credible testimony of operator Susan Ducher, 2 weeks
after Bier started working at the Livonia office, Assistant
Manager Benton asked Ducher whether Bier was causing
any problems in the employee lounge. When Ducher an-
swered in the negative, Benton commented that Bier had a
reputation for being a rabble-rouser and involved in the
Union. 2 It was not long before Bier became active at the
Livonia office in an employee effort to secure better and
more effective representation from the Union, their bar-
gaining agent, and, in particular, to replace Shirley Wisner,
the then chief union steward, who, it was believed, lacked
either the disposition or the ability to deal with Respon-
dent in resolving the employees' complaints and various
problems related to their working conditions. Bier also
made it known to union officials that she was interested in
a steward's position. At a special employee meeting held in
the early part of August 1976, the employees discussed
among themselves their dissatisfaction with working condi-
tions, the inadequate union representation they, were re-
ceiving, and the chief union steward's lack of accomplish-
ment. The upshot of this meeting was the placement of the
chief steward on 3 weeks' 'probation" to see if the situation
changed.
Toward the latter part of the month (August), Bier draft-
ed the first of numerous leaflets which she wrote and
placed on tables in the employee lounge for employees to
read. In this one Bier reminded the employees of the con-
sideration they gave at their prior meeting to the need for
better union representation and suggested that thought be
given to the replacement of the chief steward. However,
Manager Peck soon summoned Bier into her office and
ordered Bier to remove those leaflets from the lounge, as it
was against company policy to distribute unauthorized lit-
erature on company property, but adding that Bier could
distribute the matter outside the building.8 Peck was then
I)ucher also credibl testified that in the spring and summer of 1976
Beinton made a sinilar inquirN of her concerning another new employee.
Marie I hrnton, and stated that Ihorntiton had reputation for being a
"kind of trouble maker in our other office" and that Thornton would not be
allowed to become a union steward in the ivonla ioffice, as she desired.
Judith Standlish. a new operator also testified that in July 1976. while
Peck as outlining her duties Peck remarked that there were some "bad
influences" in the office to avoid but that Peck neither clarified what was
imteant b the phrase nor identified any individuals.
I or this reason Bier filed an unfair labor practice charge with the
Board. alleging that the prohibited dlsribution of leaflets on company prop-
crts iolaled her statutory rights and amOunted to harassment for engaging
II uion Uactiities This charge was subsequently ithJran when Bier was
adicd bh I an ttorney in the Regional Office that the (ompany in the
MICHIGAN BELL TELEPHONE COMPANY 951
under the erroneous impression that only official union lit-
erature was permitted in the employee lounge and that a
bulletin board was available there for the Union's use.
Upon checking with the Company's labor relations depart-
ment and being informed that she was wrong, Peck reme-
died her mistake. Admittedly, neither Peck nor any man-
agement representative subsequently interfered with Bier's
further distribution of her leaflets, which were numerous.
or her posting of campaign material, despite the fact that
the leaflets contained unrestrained attacks on the Compa-
ny, as will presently be discussed.
In October 1976, employee Ducher credibly testified.
Assistant Manager Benton told her to watch out for Bier
and operator Thornton because they were rabble-rousers
who were getting the girls to turn against management and
each other, that Bier and Thornton were doing the kinds of
things which would create trouble for the girls, that Bier
and Thornton were trying to hurt "all of us." and that
Ducher should be careful what she said in front of them.
What appears to be Bier's next written progaganda effort
after the August leaflet was another leaflet which she pre-
pared and placed in the lounge in early December 1976. In
it she attacked Respondent's scheduling of operators to
work on Christmas Day. a Saturday, which caused the em-
ployees much distress and anxiety. The employees were
under the belief that the Livonia facility was a Monday-to-
Friday operation, with no weekend or holiday work, while
Respondent's position was that Christmas Day work was
to be rotated among the Livonia and other facilities and
that it was Livonia's turn to take that assignment that year.
This leaflet was followed by a petition drawn up and circu-
lated by Bier, protesting Christmas Day work. and another
leaflet prepared and distributed in the lounge on December
28, sharply criticizing the Respondent for various things it
did, including the Christmas Day assignment and the sus-
pension of employees who were absent from work that da.
The leaflet also attacked the Union for its failure to defend
employee rights.
In the latter part of December 1976, Wisner resigned
from her position as chief union steward. This led to a
series of leaflets prepared and similarly distributed by Bier
in the employee lounge, promoting her candidacy as chief
steward. In the leaflet issued the first week in January
1977, after reviewing the chief steward situation, Wisner's
resignation, and the Christmas problem, Bier announced
her candidacy and invited others to run. Shortly thereafter
she issued another leaflet, declaring her determination to
change working conditions, such as "oppressive attendance
control and harassment over [remote observations]" and
voicing the need for "a democratic union."
A chief steward nomination meeting was held on Janu-
ary 12, at which Bier, Thornton, and another operator.
Jean Hurst, were nominated. In support of her candidacy,
Bier continued issuing several leaflets, which she also
placed in the employee lounge, and engaged in the usual
electioneering, as undoubtedly the other candidates did. In
one leaflet Bier discussed working conditions and referred
future would refrain fronm inierfering with her right to distribute Lunion liter-
illture.
to company harassment. She also drew a caricature of an
assistant manager dealing in a duplicitous manner with
employees. which she placed on the Union's bulletin board
in the lounge in refutation of an appeal made in a poster
put up by an individual.
According to the credited testimony of employee Paula
Doolev. at a company orientation meeting of new employ-
ees in January. Manager Peck was questioned by employ-
ees concerning rumors they had heard regarding troubles
and problems prevailing at the Livonia facility. Peck ad-
mitted that problems existed but stated that they did not
involve the new employees. She then advised the employ-
ees to be careful whom they choose as friends in the office.
because they could get into trouble. However, Peck did not
identify any individuals or mention union activities or the
Union as the cause of unrest.
There is also credited testimony given by employee
Ducher that prior to the scheduled chief steward election
Benton asked her why she did not run for chief steward, as
she had leadership qualities and employees would listen to
her. When Ducher stated she did not want the responsibil-
ity. Benton predicted that Hurst would win because she
was more levelheaded than Bier or Thornton.2 > Ducher
also indicated her interest in being a steward. Benton
thought it was a good idea, as it would be a calming force
if Bier were the chief steward. 30
In the election, which was held on January 27.31 no can-
didate received a majority of the votes, with the result that
Bier and Hurst went to a runoff election, conducted on
February 3. With Thornton's support Bier won and be-
camne the chief union steward.
As chief steward Bier continued to issue leaflets, desig-
nated "Steward Reports." which were placed in the lounge
for employees to read. In the first one, Bier invited employ-
ees to file grievances, notified them when she would be
available to discuss their problems, solicited applications
for steward appointments. and protested the Company's
suspension and harassment of Thornton. which Bier attrib-
uted to Thornton's union activities. In a leaflet issued in
late March. Bier included a cynical poem directed at Re-
\pparenlll further it denlon,trarle Benlon's opposion l to Bler's canid-
dacl. te (cler ral ( ullsel presented eldcince that Belton ll dtrectld Bier to
rerlli,ie¢ fiolklcs whlch she put the lunge for ellloi[i-eeh 1i eat 0o cle-
bra.e her inning a place on the runoff ballot I appears thai Bentoin or-
dered the rrnmLsal at he iillsltalne of the house maintenance departmenl to
asild Mliractilig mice and roaches Mloreoser. there was a sign in he lounge
prohbiinilg cating Ithere. althoLuh it appeairs thai eniploiees ignored it.
Aftet Ber wort Ihe runoff eleliion. she appointed l)ucher to be a Uiloli
stev. rd I hereupon. Dueher informed Benton oif her appointmenit n.Itd stal
ed hat sihe hoped things w.ould calm down. Beinton epressed . sililr hope
and the absence of prohleims, dding. howeer. that she had heard that the
cleclil had created .i lo i t had feelings among the operators
t1 t appea.rs that two act lulg supervisrs. Shirles \ilsner Iltd llnda
1cerlo. siled in the Jllu.lr\ 27 election because the\ ere under the nlpre,-
s1,ol that tile were ehlihle io ote. since as union members. their dues were
still being deducted According to the undisputed testlmon\ of Merlo, be-
fore so1ihn stie discussed her chltblhlt\ with the nion', presiden. who
ads.lsed her that she ;us entitled i cl aI hallotl After the nitial election
hut hefore Ihe scheduled runoff elechtilon on Fehruar, 3. Bier issued a leaflel
complatining that to siuperls.ors representing management interests had
soied. hile the Ulniotn as indifferent On Febhruars I Bier followed the
leaflet up it h Ia letter o the tliiion. which was first shown to employees. n
which she hadllenged the riiti of Wisner and Merlo to ole in the then-
upcoming runoff election erlo did notl s\e in he latter election. while it
is otl cluear hetheel 1. ilrit did
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, and in another leaflet, in April, Bier protested
Thornton's discharge.
In addition to Bier's foregoing militant union activities,
the General Counsel presented evidence pertaining to
Manager Peck's dealings with Bier, as the chief union stew-
ard, to demonstrate Respondent's hostility to Bier and
thereby to account for Bier's low performance ratings, the
warnings, the suspensions, and her ultimate discharge. In
particular, the evidence relates to the delay in Peck's recog-
nition of Bier and the argumentative nature of their discus-
sions at grievance meetings and their other differences. On
February 4 Bier approached Peck and inquired why, as
chief steward, she was not informed of Thornton's suspen-
sion. Peck explained that although she was aware of Bier's
election a day before, the Company had not yet received
official notification from the Union of Bier's authority as
required by the parties' collective-bargaining agreement
and that, therefore, she was not obligated to deal with Bier.
Nevertheless, Peck did advise Bier that Thornton was sus-
pended for insubordination, but declined to discuss the
matter further until the required notification was re-
ceived.32 Although Respondent's labor relations depart-
ment subsequently received the required notification from
the Union-apparently on February 8-there was a further
delay in written notification being transmitted to Peck by
the labor relations department, as was the practice. As a
consequence, Peck delayed her first grievance meeting with
Bier to February 23 on the basis of a verbal confirmation
of Bier's authority. On this occasion, to Peck's surprise,
Bier presented some 22 grievances covering three or four
subjects. Eight of these grievances concerned different as-
pects of Thornton's suspension. Because of the multiplicity
of the grievances relating to a single incident, Peck refused
to sign them in, and the meeting ended. After consulting
with the labor relations department, Peck communicated
with Bier, as she said she would do, and advised her that
the grievances would be signed in the next day, which was
done. This was the only time that Peck refused or delayed
signing in any grievance.
Admittedly, Peck thereafter met regularly with Bier on
the first level of the grievance procedure. As expected, dis-
agreements and vigorous exchanges undoubtedly took
place at these meetings concerning the subjects of the
grievances. In addition to grievance meetings, Peck in
March or April voluntarily consented to meet with Bier I
hour a week to discuss with her problems other than griev-
ances. During the 5 months of Bier's chief-stewardship,
Bier filed approximately 69 grievances, only 3 or 4 of which
were resolved at the first level. On two occasions union
officials advised Bier to consolidate certain grievances. The
first occasion involved Thornton's grievances mentioned
above, but Bier declined to consolidate them because of
Thornton's objection. On a subsequent occasion Bier ac-
cepted the Union's advice to consolidate other grievances
! Employee Ducher. with whom Peck was on friendly terms. also had the
same experience when in March, following Bier's appointment of Ducher as
steward. Peck withheld recognition of Ducher's steward status until she
received official notification of her appointment. Although on this occasion
Peck refused to discuss an operator's complaint with Ducher, as steward.
Peck nevertheless reviewed the matter with Ducher because it also affected
Ducher as an operator.
on the first level in order to avoid trouble negotiating them
on the second level.
B. Contentions of the Parties, Concluding Findings
1. Discrimination
It is essentially the position of the General Coun$el and
the Charging Party that Respondent, irked by Bier's mili-
tant, dissident union activities in opposition to the Com-
pany's policies and practices and her subsequent aggressive
representation of employees as their chief union steward,
assigned her false work performance ratings, issued verbal
and written warnings and suspensions, and ultimately dis-
charged her in reprisal for her protected union and con-
certed activities, thereby violating Section 8(a)( ) and (3) of
the Act. Respondent, on the other hand, insists that its
actions were solely motivated by legitimate business con-
siderations, namely, Bier's continuous unsatisfactory work
performance, despite the extensive training she had re-
ceived and the opportunity she had been afforded to im-
prove.
The critical question thus presented is purely a factual
one of motive. Since it is the rare case where there is direct
evidence of unlawful motivation-and this case is certainly
not one-all the facts and circumstances surrounding the
employee's discipline or termination must be carefully
evaluated in an effort to ascertain the true reason for the
Employer's action, with due recognition being given to the
settled principle that an employer may discipline or dis-
charge an employee for any reason, good, bad, or indiffer-
ent, so long as its decision is not prompted, in whole or in
part, by the employee's union or other protected concerted
activities. Of course, an employee's involvement in such
protected activities does not insulate him from discipline or
discharge for nondiscriminatory considerations. From my
analysis of the evidence, I am led to the conclusion that the
General Counsel has failed to sustain his burden of prov-
ing by a preponderance of the evidence that Bier's low
ratings, warnings, suspensions, and ultimate termination
were unlawfully motivated to get rid of a union activist and
an aggressive chief union steward.
There can be no question that Bier was an open and
sharp critic of working conditions at the Livonia facility
and one who was determined to secure and afford the em-
ployees more effective union representation to resolve their
problems and grievances both before and after being elect-
ed chief steward. Nor can there be any serious doubt that
management was well aware of Bier's efforts in this direc-
tion. However, Bier's involvement in protected union and
other concerted activities, even to her employer's knowl-
edge, standing alone, is insufficient evidence that the low
ratings, discipline, and discharge were prompted by unlaw-
ful considerations. Indeed, the long duration of Bier's ac-
tivities, extending as it did over a I-year period, before her
termination, without interference from management except
the one occasion in August 1976, when Manager Peck mis-
takenly informed her that the distribution of union litera-
ture on company property was prohibited, but which error
Peck soon acknowledged and rectified, tends to negate an
inference of discrimination underlying Respondent's ac-
tions.
MICHIGAN BELL TELEPHONE COMPANY 953
Further militating against a finding of discrimination is
the lack of convincing evidence in the record to substanti-
ate the General Counsel's and Charging Party's contention
that three of Bier's successive supervisors deliberately gave
her false performance ratings to lay the groundwork for her
discipline and final discharge. The mere fact that Bier
voiced her disagreement to her supervisors over the faults
they assertedly found during their observation of the calls
handled by her or the fact that Bier made repeated accusa-
tions--obviously self-serving in nature-that the charged
faults and low ratings were fabrications designed to penal-
ize her for her union activities certainly does not demon-
strate the truth of such accusations or the otherwise pretex-
tual character of Respondent's actions. More must be
shown than was adduced in this case to establish such su-
pervisory deception and motive.3 Nor is the Charging
Party's criticism of Respondent's evaluation and rating
procedures as being unfair, inexact, undefined, and capa-
ble of disparate application the equivalent or proof of dis-
criminatory treatment, even were the criticism supportable.
In any event, it appears that the evaluation and rating pro-
cedures have been in use throughout Respondent's opera-
tions before the inception of Bier's employment in the Li-
vonia facility.3 4 Clearly, it is management's prerogative to
formulate its own personnel program, provided union-re-
lated factors do not enter into its formulation and applica-
tion. Here, no evidence was presented which taints this
program as applied to Bier.
I further find, contrary to the contention of the General
Counsel and the Charging Party, that the evidence reveals
nothing exceptional in the timing of the observations of
Bier, the warnings, the suspensions, or her discharge which
reasonably lends support to an inference of discriminatory
motivation. It is true that summary discipline or discharge
of an employee purportedly for poor work performance,
which comes on the heels of his participation in union ac-
tivities without prior warning or notice to improve his per-
formance, might be strong evidence of discrimination un-
der certain circumstances. However, this cannot be the
situation here, where Bier's militant activities continued
unhampered by management over a period of a year, the
last 6 months of which she served in the capacity of chief
union steward; where the observations of Bier's perfor-
mance were of the same type and frequency as those regu-
larly given to all NNI operators: where the warnings and
suspensions meted out to Bier cannot reasonably be associ-
ated with her union activities at any particular time: and
where the Respondent resorted to disciplinary measures
and final discharge only after Bier was given sufficient ad-
vance warning and additional training to improve her per-
formance. I find little, if anything, in the record to impugn
the sincerity of Bier's supervisors in their efforts to assist
Assistant Manager Benton's remarks Ito operator Ducher hat Ber as
a rabble-rouser and her other unfriendly statements concernling Bier. he
last ones being made about 6 months before Bier's discharge h another
supervisor. Kortas. are clearls weak reeds Ito support a finding f dicriliil-
nation.
ta Similarlv untenable is the (Charging Partss challenge o, the use of a
cumulative index table to score the operators' accuraco and c,urles, II hi,
table was devised some time ago Resipondent's parent cormpan. A 1 & I
her to achieve the job objectives set by the Company, al-
though. to be sure, Bier unhesitatingly questioned their
honesty and on occasions threatened to file charges of dis-
crimination with the National Labor Relations Board.
Lastly, I find also unsubstantiated the assertion of the
General Counsel and the Charging Party that the unlawful
motivation for Respondent's treatment of Bier is betrayed
by the more favorable treatment accorded other NNI oper-
ators whose performance was no better than Bier's. Wheth-
er or not the performance of other operators was really on
a par with Bier's, it appears either that other factors were
present in a particular case in determining whether discipli-
nary action should be taken, such as employment history.
the amount of training received, the trend of improvement.
and health conditions interrupting the training, or the rec-
ord lacks sufficient evidence upon which a comparison
could adequately be made to ascertain whether there was
disparity of treatment and the reason. In the case of one
operator cited to show disparate treatment, that individual
was away from work on disability for several months. In
the case of another individual, a steward appointed by
Bier, that was an operator who had received a verbal warn-
ing and several reinforcements but whose cumulative in-
dexes and progress trend were superior to Bier's. In con-
trast, there is undisputed testimony that six or seven
operators had been terminated for unsatisfactory work per-
formance, the same asserted reason for Bier's discharge.
All the facts and circumstances surrounding Bier's per-
formance ratings, warnings, suspensions, and ultimate dis-
charge having been carefully considered, I conclude that
the General Counsel failed to carry his burden of proving
that Respondent discriminated against Bier on account of
her protected union and other concerted activities and that
her poor work performance. relied upon by the Respon-
dent to justify its actions, was really a fabrication or pre-
text to conceal Respondent's real, unlawful reason. While
there might be indications in this case which might arouse
suspicions of discrimination, it is clear that suspicion is no
substitute for proof by a preponderance of the evidence.
which the Act requires to support a finding of discrimina-
tion prohibited under Section 8(a)(I) and (3) of the Act.
Accordingly. the relevant allegations of the consolidated
complaint will be dismissed.
2. Interference. restraint, and coercion
Paragraph 9 of the amended consolidated complaint al-
leges as independent violations of Section 8(a)(1) of the
Act the following conduct of the Respondent:
a) On or about January 13, 1977, Respondent,
through its agent Margie Benton, informed employees
that the election of either Sally Bier or Marie Thorn-
ton to the position of chief steward of the Union at the
Livonia place of business would cause harmful disrup-
tions among the employees and between the employ-
ees and the Respondent and the employees should,
therefore, vote for candidates other than Sallyv Bier or
Marie Thornton in the election for chief steward.
b) Sometime between March 19 and March 31.,
1977. the exact date being presently unknown to the
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned, the Respondent through its agent Marge
Peck, informed employees that Respondent was dis-
pleased with Sally Bier and Marie Thornton, who Re-
spondent termed "rebels" and "troublemakers," for
raising, during the preceding months, various protect-
ed concerted complaints concerning the terms and
conditions of employment at the Livonia place of
business, which complaints were described as having
led to a disruption of office routine, harmful to the
other employees.
The General Counsel did not refer to these allegations in
his oral argument at the hearing; nor did the Charging
Party discuss such 8(a)(I) findings in his brief to the Ad-
ministrative Law Judge. I find insufficient factual and legal
support for unfair labor practice findings based on the
quoted allegations. Accordingly, the amended consolidated
complaint will be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCIlUSIONS oF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has not engaged in the unfair labor prac-
tices alleged in the amended consolidated complaint
herein.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section I0(c) of
the Act, as amended, I hereby issue the following recom-
mended:
ORDER 35
It is ordered that the amended consolidated complaint
issued herein against Respondent, Michigan Bell Tele-
phone Company, Livonia, Michigan, be, and it hereby is,
dismissed in its entirety.
In the event no exceptions are filed as provided hb Sec. 102.46 of the
Rule, and Regulalions of the National Labor Relations Board. the findings.
c0ilnclsions. and recommended Order herein shall. as provided in Sec.
1I) 48 f the Rules and Regulations. be adopted b the Board and become
It fiindings. conclusions, and Order, and all objections thereto shall be
deelrled wai. ed for all purposes