Bank of America National Trust & Savings Association

National Labor Relations Board - Board Decisions

Aug 6, 1940

26 N.L.R.B. 198 (N.L.R.B. 1940)

In the Matter of BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, A CORPORATION and UNITED OFFICE & PROFESSIONAL
WORKERS OF AMERICA, LOCAL No. 34
Case No. C-1530.-Decided August 6, 1910
- r,
Jurisdiction : banking industry.
Unfair Labor Practices
Interference, Restraint, and Coercion• anti-union' statements.
Discrimination - discharges for union membership and activities; charges of
discrimination as to two persons, dismissed.
Remedial Orders : reinstatment and back pay awarded.
Mr.'Jonathan H. Rowell `and Mr. Earle K., Shawe, for'the Board"
Mr. Louis Ferrari and Mr. George D. Schilling, of San Frtincisco,,
Calif., and Mr. Edmund Nelson, of Los Angeles, Calif., for the
respondent.
Mr. Joseph A. Padway, of Washington, D.' C., for the'A' F. of L.
Mr. Walter B. Wilbur, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Office
& Professional Workers of America, Local No. 34, herein called the
Union, the National Labor Relations Board, herein called the Board,
through its Regional Director for the Twentieth Region (San Fran-
cisco, California), issued its complaint dated November 22, 1939,
against Bank of America National Trust & Savings Association,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
With respect to the unfair labor-practices, the complaint alleged
in substance (1) that since June 1937, the respondent had interfered
with the rights guaranteed to employees under Section 7 of the Act
by surveillance of union meetings and activities, urging, persuading,
and warning against union affiliation, offering and giving wage in-
creases, promotions, transfers, and other inducements to refrain
26 N. L. R. B., No. 23.
198
BANK ,OF AMERICA NATIONAL TRUST &' SAVINCS.ASSOCIATION 199'
from union membership, publicizing its opposition to unions, discrim-
inatory transfers and demotions, and by other acts; and (2) than on
sundry dates the respondent discriminatorily discharged 12 of tits'
employees because of-membership in, sympathy toward, or activity-
in behalf of the Union.' Copies of the complaint, accompanied by
notice of hearing thereon to be held on, December 18,-'1939,,wire
duly served upon the respondent and the Union. ' ' ' 41 ' - t
Thereafter the respondent filed a special appearance and`statement
of objections to;.jurisdiction on the grounds that the respondent is
a national banking association and as such is not within ,the purview
of the Act,, and that its activities are not in commerce and do not
affect commerce within the, meaning of the Act. At the same time
the respondent filed its notice of motion to dismiss for-lack of juris-
diction, and its answer denying the material averments of the com-
plaint as to unfair labor practices, reaverring its objections to juris-
diction, and setting up certain special defenses.
Pursuant to notice, a hearing was held in San Francisco, California,
on various, days between December 18, 1939, and January' 9, 1940,
before Thomas S. Wilson, the Trial Examiner duly designated, by
the Board. The Board and the respondent - were represented 'by
counsel. Full opportunity to be heard; to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues, was
afforded. all parties. , „ I
At the opening of the hearing the'respondent presented-its motion
to dismiss, which was taken under advisement by the Trial Examiner.
At the conclusion of the Board's testimony in chief the respondent
renewed its motion upon jurisdictional grounds and upon the further
grounds that the evidence was insufficient to sustain the material
allegations of the complaint, that the proceeding was barred by lathes,
that the evidence showed that certain of the employees alleged to
have been discriminatorily discharged had since obtained other sub-
stantially equivalent employment, ' and that as to three. of said em-,
ployees 2 . there was no_ evidence in support of the allegations of, the'
complaint. The' Trial Examiner sustained in part, the motion to'
dismiss as to allegations of surveillance of union meetings and activi-
ties,' reserved ruling as to dismissing the complaint. with respect to
Arthur Slattery and Attilio Barbano, and in all other respects denied
the motion. , .
I The names of the employees alleged to have been discharged, and the dates of their respective discharges,
are as follows John E Devine , on August 5, 1937; Paul Kovacich , on September 4, 1937; Arthur Slattery,'
William Slattery , Thomas Rae Cochrane, Attilio Barbano, Edward McCarthy , John Marconi , William
Nicholas, Mario Petrocchi, Frank Ruggiero, on September 7, 1937; Albert J Ernst, on May 3, 1938.
2 Arthur Slattery , Attilio Barbano, and Paul R Kovacich
3 Paragraph 7 (a) of complaint alleged interference by the respondent with the rights of its employees to
self-organization by "maintaining surveillance over the activities of Union No. 20725 , Union No. 21030,
the U. 0. P. W A , and each of them , and the membership or participation in and assistance to said meetings
or activities on the part of its employees or any of them " The motion , to dismiss this allegation of the
complaint was granted as to Umoii No. 20725 and Union No. 21030.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the conclusion of the hearing the respondent interposed objec-
tions to the proceeding on constitutional grounds. The Trial Exam-
iner reserved ruling. The respondent further moved to dismiss on
all grounds previously urged and on the evidence. The Trial Exam-
iner reserved ruling. ,
During, the hearing the Trial Examiner granted a motion of Board's,
counsel to strike the third and fourth defenses of the respondent's
answer.4 The Trial- Examiner further denied the respondent's ap-
plication for subpoenas duces tecum for the attendance of certain
members of the regional staff of the Board and for the production of
certain papers and documents from the Board's files. During the
course of the hearing the Trial Examiner made a number of other
rulings on motions and objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds no
prejudicial error. The rulings are hereby affirmed.
Pursuant to agreement between counsel during the course of the
hearing, the respondent filed, subsequent to the hearing, a tabulation
of, acceptances outstanding on the last day of each month in 1937 and-
1938, which said tabulation, together with- the letter of transmittal
thereof, dated January 8, 1940, from Paul Dietrich to R. G. Smith,
together with the letter of transmittal thereof dated January. 25,
1940, from R. G. Smith to Johnathah H. Rowell, was ordered by the
Trial Examiner in his Intermediate Report herein to be admitted in
evidence as' Board Exhibit No. 21•. This order is hereby affirmed.
Under, date of February 14, 1940, counsel for the Board and the'
respondent filed 'a stipulation dated February 9, 1940, providing for
the correction of the transcript, the admission into evidence of
-Respondent Exhibits Nos. 1 and 2, and further' providing that motion
of Boa'rd's counsel to conform-the complaint to the proof be deemed
to have been made and granted. The Trial Examiner, in his Inter-
mediate Report, ordered that said stipulation be admitted in evidence
as Trial Examiner Exhibit No. 1, and that Respondent Exhibits Nos.
1 and 2 be received in evidence. Said orders are hereby affirmed.:
It is further ordered that the official report of proceedings be, and the
same hereby is, corrected in conformance with the provisions of said
stipulation. It is, further ordered that motion of Board's counsel to
conform the complaint' to the proof be deemed to ' have 'been' made
and granted. .
Pursuant to leave granted, the respondent filed a brief with the
Trial Examiner.
On March 23, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, wherein
the respondent's motion to dismiss was denied except as consistent
The respondent 's third defense challenged the good faith of the Board in the institution of this proceeding.
The respondent 's fourth defense alleged that the proceeding was barred by lathes.
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION '201
with, the findings of fact and conclusions of law therein. He found
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 '(1)
and (3) and Section-2 (6) and (7) of- the Act and recommended that
the respondent cease and desist therefrom and take certain affirmative
'action adjudged appropriate to effectuate the policies of the Act,
including the reinstatement with back pay of 11 employees held to
have been discriminatorily discharged. The • Trial Examiner con-
eluded that the discharge of one employee, Albert J. Ernst, had, not
been discriminatory as alleged in the complaint.
On May 6, 1940, the respondent filed exceptions to the Intermediate
Report and to other parts of the record, and on May 20, •1940, the
respondent filed a brief. The Union filed no' exceptions.
On June 4, 1940, counsel for the respondent was heard. in oral
argument before the Board, at Washington, D. C. No appearance
was made by the Union.
The Board has considered the briefs and • exceptions of the re-
spondent, and finds that the exceptions, in so far as they are incon-
sistent with the findings, conclusions, and order set forth below, are
without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 5
The respondent is a national banking association organized under
the laws of the United States, with its main office in,San Francisco,
California, 495 branches located in 307 California communities, and a
foreign branch in London, England. As of December 31, 1937, its
.total resources "amounted to approximately $1,493,000,000, and as of
December 31, 1938, to approximately $1,574,000,000. It is the ninth
largest bank in the world and the fourth largest in the United States.
In 1937 the respondent made loans to corporations, partnerships,
and individuals amounting to more- than $629,000,000. It was esti-
mated at the hearing that approximately one-half of its loan,portfolio
of 700, million dollars in July 1939 were commercial loans, of which
approximately 105 million dollars were for consumer credit to purchase
automobiles, Household eouipment, and similar consumer goods,, and
250 million dollars were loans to corporations, partnerships, and
individuals in all lines of business, including petroleum production
and refining, food canning and processing, lumber, mining, clothing,
transportation, manufacturing of transportation equipment, news-
papers and publishing, and stock exchange brokerage. The composi-
n The findings of this section are in accordance with findings of the Trial Examiner to which the respondent
takes no exception,
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion of the loan portfolios for 1937 and 1938 was approximately' the
same. As of December 31, 1937, the respondent had an outstanding
liability of nearly 24 million dollars for letters of credit, acceptances
and foreign bills, •on which it was either acceptor, endorser,' or maker.
The same liability for 1938 amounted to over 20 million dollars.
During 1937 the respondent executed acceptances of more than 34
.million dollars and purchased acceptances of other i banks-payable in
States other than the State of California, of more than 17 million
dollars. During 1938 the comparable figures were 46 million` 'and 6
million dollars, respectively. As of June '30, 1937, the responden't
maintained deposits in New York, Chicago, and other cities, and had
cash' items in.process of collection, amounting to 66 million dollars.
As of June 30, 1938, this figure amounted' to over 82 million dollars.
The respondent also had deposits from banks outside the State of
California in the amount of 30 million dollars.
In 1937 the respondent sent to out-of-State banks from its Los
Angeles and San Francisco offices, notes, drafts, bills, and coupons for
collection outside of California in the amount of-157 million dollars.
It was estimated that at least half of the above would be drafts cover-
ing bill of lading shipments of commodities to points outside the State
of California or to foreign countries. In 1937 the respondent made
telegraphic transfers of money to points outside the State of California
in the sum of more than 463 million dollars and received telegraphic
transfers of money, from banks located outside the State of California
in the sum of over 606 million dollars. In the same year it purchased
upwards of 96 million dollars worth of foreign exchange, and sold
travellers' 'cheques, recognized throughout the world,' in the sum of
10 million dollars, 23 million dollars being sold by correspondent
banks. These cheques may be purchased in some 31 foreign countries
and in many States of the United States. The respondent also sold
in 1937 letters of credit to an amount of more than 2% million dollars.
The London branch of the respondent is maintained solely to accom-
plish the purposes permitted by the National Bank Act and more
particularly by Title 12, Section 601, United States Code.' It handles
accounts of many California companies who do business in London
and helps finance the shipment of commodities between California,
the United States, and England. It facilitates the handling of the
respondent's business in California with London banks and services the
needs of the respondent's customers who may be travelling abroad.
II. THE ORGANIZATIONS INVOLVED
United Office & Professional Workers of America, Local No. 34,
is a labor organization affiliated with the Congress ' of Industrial
Organizations, herein called the C. I. O, It admits to membership
employees of the respondent.
BANK OF' AMERICA NATIONAL TRUST 3i SAVINGS ASSOCIATION 203
Bank & Insurance Clerks & Office 'Employees Union No. 20725,
hereinafter called Union No. 20725, was at all times from and including
June 1937, until on or about July 27, 1937, a labor organization
affiliated with the American Federation of Labor, herein called the
A. F. of L. It admitted to membership employees of the respondent.
Bank Employees Union No. 21030, hereinafter called Union
No. 21030, was at all times from and including July 1937, until
approximately March 1938, a labor organization affiliated with the
A. F. of L. It admitted to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The first steps toward the organization of the respondent's'employ-
ees in the San Francisco area were taken in the spring of 1937. At
that time a number of meetings were held in San Francisco under
A. F. of L. auspices to enlist the interest of office and white-collar
workers in unionization. Some of the respondent's employees attended
these meetings and in May 1937 became charter members of Union
No. 20725. In July 1937, as a result of a referendum vote of the
membership, this local changed its affiliation from the A. F. of L. to the
C. I. 0., and was rechartered on August 4, 1937, as United Office &
Professional Workers of America, Local No. 34..A minority, opposed
to this change of affiliation, reorganized, as Bank Employees Union,
No. 21030, affiliated with'the A. F. of L. Both Local No. 34 and Local
No: 21030 were represented among the employees of the respondent
and competition for membership was especially active in the various
branch banks of the respondent during July and August 1937. Ulti-'
mately, in February or March 1938, Local No. 21030 became dor-
mant and surrendered its charter, turning over its membership to
Local No. 34.
Officials of the respondent were cognizant of the membership
campaign. Solicitation was open and union pamphlets were distrib-
uted widely.' Some of these found their way to the desks-of several of
the' respondent's officials, among others to that of George K. Plummer,
assistant personnel director, through whose office all personnel prob-
lems were cleared in the Northern California division of the re-
spondent. ' Plummer brought the matter to the attention of A. Fenton,
vice president in charge of personnel, and asked what the policy of the
respondent was to be. Fenton in turn consulted counsel and later
advised Plummer that "he had been advised to tell us . . . that
we did not consider ourselves subject to the Act; however, we were
to'get copies of it; read it, and abide by the spirit of the Act." Copies
of the Act were procured as soon as possible. '
204 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record contains uncontradicted evidence of a number of state-
ments made by various officials of the respondent reflecting the
respondent's attitude toward the Union and toward the unionization
of, bank employees. In an interview in January 1938 with the presi-
dent of Local No. 21030, who was not an employee of the respondent,
A. P. Giannini, chairman of the respondent's board of directors, stated
that "he had done so much for the employees of the bank that he
didn't think,it was quite right for them to organize." Louis Ferrari,
vice president and counsel of the respondent, declined at the same time
to discuss the terms of a contract with Local No. 21030, not on the
ground that this union did not represent the employees in an appro-
priate unit for the purposes of collective bargaining, but on the ground
that the respondent did not come within the jurisdictional provisions
of the Act.
From these and other statements of the. respondent's officials, and
on,the whole record, it is clear that the respondent viewed with un-
easiness and hostility the attempt to organize its employees, and, at
the same time, believed that the latter were not within the protection
of,the Act.
B. Interference,, coercion, and restraint
When Local No. 20725 changed its affiliation from the A. F. of L.,.
Thomas McCullough, then an assistant vice president in the respond-
ent's Market-New Montgomery branch, made the statement to
Angela Gizzi, an employee, that in his opinion the Union made a great
mistake when it "went CIO," that the C. I. O. would not get anywhere
because there were too many Communists and radicals in the organi-
zation.
During the summer or early fall of 1937, some 15 bookkeepers of
the No.'1 Powell Street branch of the respondent attended an adver-
tised meeting of Local No. 21030. Upon being advised that this
was a membership meeting, they signed application cards and made a
partial payment on dues. After the meeting there was some discus-
sion among the group as to the advisability of their remaining mem-
bers. The matter was first discussed with one Ghiselli, the head.
bookkeeper, who suggested that they talk it over with R. F. Schacht,
the chief clerk. Schacht was sent for and met with the group. Al-
though he informed them that the decision was up to them personally
and that he could not tell them whether or not to join, lie spoke to
them "about his experience with a union; about the stagnation of the
employees due to unions themselves; and that the salaries for unions
would remain more or less on a'permanent level unless you will be
able to rise according to . . In other words you wouldn't be
able to get a raise until you got up above that stagnation in which you
were in at the present moment, and it all runs in seniority rights."
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION 205
After further discussion in the light of Schacht 's talk, , Ghiselli, was
asked by the bookkeepers to prepare letters of resignation for them,
to send to Local No. 21030. Letters of resignation were typed ac-
cordingly , signed by nine of the bookkeepers and mailed in a batch to
the local . Every one of the bookkeepers who is shown by the record
to have heard Schacht 's talk sent in his resignation . As chief clerk;
Schacht acted as contact man between the No. 1 Powell Street branch
and the main office of the personnel department , with the responsi-
bility for recommending promotions . Under the circumstances it is
impossible to interpret his meeting with the bookkeepers , and the
'tenor of his advice, relating directly to their chances of promotion, in
any other terms than that of subtle but effective coercion.' '
We find that by the statements related above, in connection with
the respondent 's other conduct herein set forth, the respondent
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7. of the Act.
C. The discriminatory discharges
1. The discharge of John E. DeVine
John E. De Vine was first employed by the respondent on August
17, 1936, as a messenger at a salary of $65 a month. Within a year
he was promoted to junior clerk at a salary of $95 per month.
DeVine ,was among the first of respondent's employees to become
interested in union organization. He was a member of Local No.
20725 and among the group that voted affiliation with the C. 1. O. He
was chairman of the organizing committee of the Union for the
respondent's employees. Between August 3 and 5 he made three trips
with other organizers to solicit members and distribute union circulars
among groups of employees at the 550 Montgomery Street branch
during working hours.
On the afternoon of August 5, 1937, shortly before closing hours
at the 16th and Mission Street branch, Plummer sent for DeVine
and told him' that he was to be transferred to the Centerville branch,
effective next morning. DeVine stated that he could not accept the
transfer- on account of the condition of his mother's health. Plummer
did not credit his excuse and referred him to the terms of his contract
with the bank under which he obligated himself to accept transfer to
any other locality at any time at the respondent's option.' DeVino
' The attitude of the bookkeepers toward Schacht, as shown by the record , their desire for his counsel
and advice in what they felt was a consequential step , "like you would go to your father „' make pertinent
in this connection the language of the Court in National Labor Relations Board v Falk Corporation, 102 F.
(2d) 383 (C. C. A 7): " The position of the employer , where, as here , there is present, genuine and sincere
respect and regard , carries such weight and influence that his words may be coercive when they would not
be so if the relation of master and servant did not exist
7 The pertinent clause reads as follows "That , realizing the scope of the Bank 's activities and the wide
opportunity this feature of the institution affords me , I (the employee) shall hold myself in reasonable
readiness to move to whatever place of occupation the Bank may desire."
206 DECISIONS , OF NATIONAL LABOR . RELATIONS BOARD
continued to insist that he could not take the Centerville appointment.
Plummer elected to treat his decision as an "automatic resignation"
and arranged for a settlement of his salary account and other funds -to
his credit as an employee of the respondent.
The Trial Examiner found that Plummer's insistence upon DeVme's
going to Centerville "with knowledge of his statement that he,was
unable to go there was tantamount to discharging him," and that
such discharge was because of his membership in a labor, organization
and his activities in-its behalf. , 'I , , : ,
We are of the opinion that the record does not support the Trial
Examiner's findings in this respect.- ^ There is no evidence, that prior
to DeVine's assignment to.the Centerville post Plummer, knew of any
impediment to his accepting it; and in view of DeVine's confused testi-
mony we are not satisfied that any: such impediment did exist,.. Plum-
mer testified that it was a common occurrence for employees in the
San Francisco area to try to avoid being transferred to other points
and that he assumed that DeVine was trying the same tactics
There was nothing exceptional' in the transfer of an employee from
one branch of the, respondent to another, there having been 2969
such transfers during the year 1937 alone. There is no question on the
record that the position at Centerville had to'be filled-at once. When
DeVine refused to' go, another employee of-less experience-had to be
sent in his place, and reported for duty thb following 'morning. The
transfer'was in the nature, of a promotion, and was apparently in line'
with the respon'dent's policy of training employees: by increased
responsibility within the system. + - ; ' ;' - , " ' ' '
Upon the entire record, we do not find that DeVine was selected
for transfer with the knowledge that he was unable to accept it, or that
the respondent used his refusal as a' pretext for his, discriminatory
discharge. We find that John E. DeVine was 'not discharged because
of his union membership or activities.
2. The discharge of the,automotive messengers
' The complaint alleges that the: respondent discriminatorily dis-
charged Paul Kovacich on September 4, 1937, and discharged Arthur
Slattery, William Slattery, Thomas 'Rae Cochiine, Attilio' Baibano,
Edward McCarthy, John Marconi, William Nicholas; Mario Petroc-
chi, and Frank Ruggiero, on September,7, 1937.
The employees in question constituted all the personnel, with the
exception of C. C. Kerins, the manager, Charles E., Gloeckner, his
assistant, and John P. Carrick, a temporary employee, of what was
known as the automotive messenger department of the respondent in
the' San Francisco area. It was the function of this department to
service the numerous branches of the respondent in, this area, with
supplies and to transmit between the branches and' from the branches
BANK, OF,AMERICA NATIONAL TRUST. &, SAVINGS ASSOCIATION 207
to the•central clearing house of respondent's system, at'No. 1 Powell
Street,. customers' checks and other -records., The city branches were
allocated among nine routes, one messenger being regularly assigned
to 'each. Two additional routes, established during the spring or
summer of 1937, serviced the banks between San Francisco and Santa
Rosa and between San Francisco and San Jose.
Some method of providing inter-branch service had been employed
by,, the respondent since 1909 or 1910, when the first, San Francisco
branch was opened., Until 1931 this service was contracted for, with
C. C. Kerins, doing business as the Kerins Delivery Service, who
supplied motor equipment and drivers. In 1931 the respondent dis-
continued the contract with Kerins and brought the automotive mes-
senger service under its direct control. Kerins was, employed as man-
ager, of the new automotive messenger, department and the drivers
employed at the time by the Kerins, Delivery Service were placed on
the respondent's,pay roll.. New messengers were thereafter employed
as needed through the respondent's personnel department.
Some time in August' 1937; while the automotive messengers were
at lunch, organizers. from the Union- appeared; rat the,garage at 550
Montgomery Street. Summoned by one Stewart, his assistant, Hector
Campana, the branch manager, came out with Kerins, the manager
of • the, automotive messenger service, and told the organizers that,
while he could not interfere with their soliciting the employees they
must keep, off, the bank ,property. ,As the organizers moved away
Camppna remarked,to Kerins, "They are trouble-makers." ,
About August 20 organizers for the Union again came to the garage
at lunch hour and this time most of the men present signed up.
Cochrane, one of the messengers, upon. being questioned- by Kerins,
told him, that they had all signed.. • , _ ,
. On the morning of September 3 Campana informed the automotive
messengers, that the respondent,had abolished their, department, and
then held separate interviews with Carrick, Kovacich, and Ruggiero.
Each,was asked by Campana whether he had signed anythil g or joined
any;'organizations;8, Carrick, the latest of the messengers to be, em-
ployed, and•who had not applied,for membership in the Union, denied
that, he had applied. Campana thereupon told Carrick that he,
would speak. to Plummer, about another job for. Carrick., Shortly
thereafter the respondent gave him temporary employment which
lasted, about,1 month. Kovacich, who had applied for membership,
told.Campana that lie had not done so., Campana told him not to
lie.because.he had the names of all who' had joined. Kovacich was
then discharged. • Ruggiero, first denied having joined the Union and
them admitted,it,when Campana told him lie had better tell him the
truth as-he, had all ,their ,names.
8 Campana denies having questioned Carrick, Kovacich, and Ruggiero about their union affiliation.
We accept the Trial Examiner's findings as to the relative credibility of the witnesses and find as above
208 ' •' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On' September 7 the respondent discharged Ruggiero, Arthur
Slattery, Cochrane, Barbano, McCarthy, Marconi, Nicholas, and
Petrocchi. William Slattery, who had been laid up for several weeks
with a broken leg, did not report' for duty until September 30. He
was then discharged on the asserted ground that the respondent
could not discriminate between the employees of the abolished de-
partment. We have already noted, however, that Carrick obtained
other employment with the respondent; and Gloecknor, who had not
joined the Union, was employed in the department which took the
place of the one, abolished.
The- respondent, in discontinuing the automotive messenger
department as 'such, on September 3, 1937, abandoned the routes to
Santa Rosa and San Jose, transferred this and other services to other
departments, and reduced the number of city routes to six. Individual
service contracts were made for each of the six routes with a bonded
driver who supplied and maintained his own equipment. The
respondent assigned Gloeckner to one of these jobs and gave the
remaining five to persons employed in other departments. The
respondent did not fill the jobs from which these five persons were
transferred.'
The -respondent contends that the automotive messenger service
was changed solely in the interests of efficiency after a long period
of unsatisfactory service. The respondent lays stress on the accident
record of the department and complaints of-delayed service originating
with the several branches. Both Plummer and Frank M. Dana,
testifying as officials of the personnel department, had difficulty in
documenting these grounds of dissatisfaction by reference to par-
ticulars, and it is clear that the difficulty was not so much with the
work records of individuals as with factors that pertained to the
system itself. The methods of correction were primarily changes of
system. Redistribution of work eliminated to some extent the need
for, automotive -equipment in the congested' areas, besides relieving
the 'automotive messengers of certain functions. These changes
would have a bearing on' both punctuality and accidents. The
alleged desiderata'of greater care and added sense of responsibility.
were'sought'through increased pay and through having the messengers'
supply and maintain their own equipment, not through change of
personnel alone.
Although the main features of the change in the automotive service
thus related to method rather than to personnel, none of the auto-
motive messengers, with the exception of Gloeckner, was given an
opportunity to qualify for the contract jobs, although Cochrane had
been in the employ of either Kerins or the respondent since 1929,
McCarthy since 1931, Arthur Slattery since 1932, William Slattery
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION 209
since 1933, and Nicholas since 1935.9 It is inconceivable that these
employees would have been retained in Kerins; and the respondent's
employ over these periods of time if their work had been individually
unsatisfactory. Moreover, Ruggiero was discharged although Kerins
recommended him for a position that was then open in the warehouse.
Kerins testified: "I picked him out of all the other boys in my opinion
to be very qualified. He was a very good penman, very; courteous,
,very interested in his work, and a very pleasing personality. I
thought he would be a potential banker or. he had the possibilities of
being developed into something worth while . . . It was common
knowledge that. he was slated for the position."
The respondent does not contend that the change was. inaugurated
in response to any immediate change of circumstances calling for
abrupt adjustment. Yet the change itself was effected suddenly and
the automotive messenger department abolished at a day's notice,
after 6 years' experience, before detailed plans for the new service
had even been perfected., The respondent offers no explanation for
this sudden crystallization of decision. Plummer, assistant personnel
director, did not know it was being contemplated. Dana, assistant
personnel director, who ordered the change, was uncertain as to
whether the decision was made 1 week or 5 weeks before the change
was effected. Kerins, manager of the department, learned of the
change the day before it was made effective.
In view of the precipitancy of the respondent's action in, changing
its system of automotive messenger service immediately upon learning
of the interest of the personnel of the automotive messenger depart-
ment in unionization; its failure to offer employment in the new
department or in other departments to any of the messengers employed
in the old automotive messenger department except Gloeckner, the
assistant manager, and Carrick, who were not union members; Cam-
pana's interrogation of Carrick, Kovacich, and Ruggiero concerning
union membership at the time the respondent abolished the old auto-
motive messenger service and his asserted knowledge of the status of
the automotive messengers in the Union; and the respondent's. hostile
V The continuous ser%ice records of the automotase messengers from date of employment by either the
Kerins Delivery Service or the respondent ace as follows
Employed' Salary atstart
Salary Sept.
2, 1937
Cochrane , Thos. R----------------------------------- 211/29 $60 $85
Gloeckner , Chas E . (Asst . Foreman) ------------------- 12/6/29 70 135
McCarthy, Edw------------------------- -------------- 9/1/31 65 85-
Slattery, Arthur F--------------------- _- - ---_-_-- 2/1/32 60 85
Slattery, Wm J---------------- ----- ------------ -- 8/3/33 65 90
Nicholas , Wm----------------------- ----------------- 3/12/35 65 85
Marconi, John------------------------------------------ 7/28/36 65 80
Petrocchi , Mario -------------------------------------- 9/17/36 65 80
Ruggiero , Frank -------------------------------------- 9/28/36 65 80
Barbano, Attilio ---------------------------------------- 2/8/37 70 70
Kovacich , Paul---------- ----------------------------- 8/10/37 75 75
Carrick, John P---------------------------------------- 8/-,37 -------------- --------------
'210 ' DECISIONS OF'NATIONAL LABOR RELATIONS BOARD '
attitude toward the unionization df its employees as shown by the
record, we are convinced that, the respondent timed the change in the
automotive messenger 'service and discharged the automotive mes-
sengers named in the complaint' in order to rid itself of a nucleus of
union members 'and' sympathizers.
On the record as a whole we find that the respondent on September
3; 1937, discharged Paul Kovacich, on-September 7, 1937, discharged
Arthur Slattery, Thomas Rae Cochrane; Attilio Barbano, 'Edward
McCtirthy, 'John Marconi, William Nicholas, Mario Petrocchi, and
Frank Ruggiero; and on September 30, 1937, discharged William
Slattery, thereby discouraging membership in a tabor organization by
discrimination in regard to hire and tenure of 'employment, and that
the respondent by such discharges 'and by Campana's interrogation
of employees on September 3 concerning•union membership interfered
with, restrained; and coerced employees inn ' the' exercise of rights
guaranteed in Section 7-of the Act.
3. The discharge of Albert J. Ernst
The complaint alleges ' that -Albert J.' Ernst was discriminatorily
discharged by the respondent on May 3, 1938. The Trial Examiner
found that the evidence did not sustain the allegations of the com-
plaint with'respect to this employee. The Union filed no exception to
this finding We have reviewed 'the testimony and agree with the
Trial Examiner's conclusion. We find that the respondent did not dis-
charge Albert J. Ernst because of his union membership or activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE 'REMEDY
' In order to effectuate the purposes of the Act, we shall order the
respondent to cease and desist from certain unfair labor practices in
which we have found it to have engaged. Further to effectuate the
purposes of the Act we shall order the respondent to take certain
affirmative action, more particularly described below, and hereby
found to be appropriate to counteract the effects of such unfair labor
practices.
We have found that the respondent discriminatorily discharged
certain of its employees. We shall therefore order the respondent to
offer full reinstatement in their former or substantially equivalent
positions to those employees whom we have found to have been dis-
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION 211
criminatorily discharged, and to make them whole for any loss of
pay they.suffered by reason of'theti discharge by payment to each of
them of a sum of, money equal to the anio>lt which lie normally
would have earned as wages or salary from the date of his discharge
to the date of such offer of reinstatement, less his net earnings 10
during said period.
The respondent contends that all of the employees whom .we have
found to' have `been' discriminatorily discharged, have since obtained
substantially : equivalent employment and therefore 'are no longer
"employees'' within the meaning•of Section 2 (3) of the At, or within
the jurisdiction of the Board for remedial action. Employees who
havc'obtained other regular and substantially equivalent employment
are not thereby beyond-the reach,of the remedial orders of the Board,
11eitheri for -purpose's of back pay, or of reinstatement.
Moreover, the record fails to establish that the employees here
concerned have obtained substantially equivalent employment since
their discharge. The facts in this connection, as shown by the record,
are summarized as follows:
Salary
Sept 2, 1937
Employment since discharge
Per month
Cochrane, Thos R______________ $85 135 days City Street Dept at $5per day; June 10 to July
cCarthy, Edw________________ 85
20, 1939, earned $128 35, since November 1939 employed
when work available at $19 60 per week at Foderer's
Cornice Works
6 weeks with Rwy Express at $20 per week, out of work 6
Slattery, Arthur F______________ $85
mos.; now on WPA at $52 per mo.
No testimony.
Slattery, Wm J_________________ $90 WPA at $55 to $65 per me ; bus boy in restaurant about 6
icholas, Wm___________________ 85
mos at $20 per week, 3 weeks at Embassy Club at $18
per week, now getting 2 hrs work per day at 75¢ per hr.
at Foster's Lunch
Odd jobs at $8 and $10 per wk ; 2 wks for Rwy. Express
Marconi, John -__ _ _______ ______ $80
at $6 per day, truck driver for contractor at $18 per week.
13.5 mos as carpenter at $25 per week, unemployed ever
Pctrocchi, Mario___-____-____--_ $80
since
Sunrise Produce Co , 2 mos at $15 per week; drug store
uggiero, Frank________________ 80
clerk 6 mos , earned $200, Valley Produce Co , 2 mos. at
$15 per wk ; Sunrise Produce Co , bookkeeper at $25
per week
Employed last 2 yrs at hotel news stand at $20 per week
Barbano, Attilio_________________ $70 No testimony
Kovacich, Paul__________________ $75 135 mos as carpenter, earned $200, clerk in grocery store 6
mos at $20 per wk , unemployed ever since
Taking into consideratiow the various factors that affect the ques-
tion of equivalence of,employment, and specifically those of stability
ii By "net earnings " is meant eainmgs less expenses , such as for transportation , room and board , incurred
by such employee in connection with obtammg woi k and workmg elsewhere than for the respondent, which
would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking
employment elsewheie See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
JoinersofAmerica , Lumber and Sawmill Workers Union, Local 2590 , 8N. L R. B 440 Monies received for
work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as
earnings , but, as provided below in the 'Order, shall be deducted from the sum due the employees , and the
amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal,
or other government or governments which supplied the funds for said work-relief projects See Republic
Steel Corporation v , N L R B ,107 F (2d) 472 '(C C A 3), Bert granted May 20, 1940, enf 'g as mod Matter
of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L. R B. 219.
11 See Matter of Eagle-Picher Mining & Smelting Company, a corporation and International Union of Mine,
Mitt & Smelter Workers, Locals Nos 15, 17, 107, 108 and 111 , 16 N L R B 727 1
212 . , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and security in the job, we do not find that any of the employees here
involved has obtained substantially equivalent employment.
Upon the basis of the foregoing findings of fact and upon the entire
record in. the case, the Board makes the following:
CONCLUSIONS OF LAW
1. , United Office & Professional Workers of America, Local No. ,34,
is alabor organization within the meaning of Section 2 (5) of the Act.
2. Bank & Insurance Clerks & Office Employees Union No. 20725
and Bank Employees Union No. 21030 were labor organizations within
the meaning of Section 2 (5) of the Act.
3. By discharging Paul Kovacich, Thomas R. Cochrane, Edward'
McCarthy, Arthur F. Slattery, William J. Slattery, William Nicholas,
John Marconi, Mario Petrocchi, Frank Ruggiero, and Attilio Barbano,
thereby discouraging membership in United Office & Professional
Workers of America, Local No. 34, the respondent has ,engaged in
and, is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section•7 of the Act, the respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Bank of America National Trust & Savings Association, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Office & Professional
Workers of America, Local No. 34, or any other labor organization
of,its employees, by discharging or refusing to reinstate any of its
employees, or in any other manner discriminating in regard to its
employees' hire and tenure of employment or any term or condition
of their employment;
(b) In any other manner interfering with, restraining, or coercing,
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of 'collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION 213
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Paul Kovacicll, Arthur F. Slattery, William Slattery,
Thomas Rae Cochrane, Attilio Barbano, Edward McCarthy, John
Marconi,•.William Nicholas, Mario,Petrocchi,, and Frank Ruggiero
immediate and full reinstatement to their former. or, substantially
equivalent positions,, without prejudice to, their seniority, and other
rights and privileges;
(b) Make whole Paul Kovacich,,^,Arthur F. Slattery, William
Slattery, Thomas Rae Cochrane, Attilio Barbano, Edward McCarthy,
John Marconi,' William. Nichola`s,' Mario' Petiocchio, and Frank
Ruggiero for any loss of pay they may have suffered by reason of the
respondent's discrimination in regard to''their hire and tenure of em-
ployment, by payment to each of them, respectively, of a sum of money
equal to that which he would have earned as wages during the period
from the date of the discrimination to the date of the offer of reinstate-
ment, less his ,net, earnings 12 ,during said period; deducting, however;
from the amount otherwise due: to, each of the said employees monies
received, by said employee during said period for work performed
upon Federal, State, county, municipal; or other work-relief projects
and pay over the amount, so deducted, to the-appropriate fiscal agency
of the Federal, State, county, municipal, , or other government or
governments which supplied the funds for, said work-relief projects;
(c) Post immediately in conspicuous places at its main office and
in. its;brdnches at San Francisco, California, and maintain fora period
of,aV east sixty (60) consecutive days from the date of posting, notices
to its'employees stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paiagraphs 1
(a) and (b) of this^Order;- (2) that the respondent will take the affirma-
tive action set forth, in .paragraphs 2 (a) and (b)'of this Order; and (3)
that the respondent's, employees are"free to become or remain-members
of United Office & Piofessional Workers, of America,, Local No. 34, and
the respondent will not discriminate against any employee because
of membership or' activity in that organization;
(d) Notify the Regional Director ' for 'the Twentieth' Region _in
writing within ten (10) days from the date of this Order what steps
'it has taken to comply herewith. -_
AND IT IS FURTHER ORDERED that the complaint, in so far as it
alleges that the respondent discriminated in regard to the hire and
tenure of employment of John E. DeVine and Albert Ernst be, and it
hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.
12 See footnote 10, supra.
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