Citizens Trust Bank

National Labor Relations Board - Board Decisions

Oct 10, 1973

206 N.L.R.B. 320 (N.L.R.B. 1973)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Citizens Trust Bank and Evelyn Roman. Case 10-
CA-9711
October 10, 1973
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS KENNEDY
AND PENELLO
On April 24, 1973, Administrative Law Judge Eu-
gene F. Frey issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and General Counsel filed a brief
in support of the Administrative Law Judge's Deci-
sion.
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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Citizens Trust Bank, Atlanta, Georgia, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C.A. 3, 1957) We have carefully examined the record
and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Administrative Law Judge: This case
was tried before me, on due notice, on November 6 and
December 19, 1972, at Atlanta, Georgia, with General
Counsel and Respondent, Citizens Trust Bank, appearing
by counsel, and the Charging Party, Evelyn Roman, appear-
ing in person, after pretrial proceedings in compliance with
the National Labor Relations Act, as amended, 29 U.S.C.
§ 151, et seq., (herein called the Act). The issues are whether
Respondent violated Section 8(a)(1) of the Act by imposing
more onerous working conditions on its employees and
discharging two of them because they engaged in a concert-
ed walkout with other employees which is protected by the
Act.'
At the close of General Counsel 's case-in-chief, I granted
Respondent 's motion to dismiss paragraphs 6 and 8 of the
complaint insofar as they alleged that Respondent had im-
posed more onerous working conditions upon its employees
in violation of the Act. At close of the testimony decision
was reserved on Respondent 's motion for dismissal of the
complaint on the ments ; that motion is now denied in view
of the findings and conclusions in this Decision . All parties
waived oral argument, but written briefs filed January 22,
1973, by General Counsel and Respondent have been duly
considered in preparation of this Decision , which was
signed and released by me on April 17, 1973, for distribution
to the parties in the usual course.
Upon the entire record in the case , observation of wit-
nesses on the stand , and consideration of arguments of the
parties, I make the following:
FINDINGS OF FACT
L RESPONDENT'S BUSINESS
Respondent is a Georgia corporation, with an office and
place of business located in Atlanta, Georgia, where it is
engaged in the banking business. In the calendar year be-
fore issuance of the complaint, Respondent in its business
received money and credit valued in excess of $50,000 di-
rectly from customers outside the State of Georgia. Respon-
dent admits, and I find, that it is and at all material times
herein has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Treatment of Edwards and Roman
Roman was hired about September 1, 1970, to work in the
bookkeeping department under Assistant Cashier Lucretia
C. Rosser, supervisor of that department. She worked tem-
porarily at a wage of $75 a week for 2 weeks, and was laid
off. She was rehired a week later at a starting wage of $85
a week. She was called the savings clerk, with the duty of
verifying withdrawals, mailing out periodic statements to
depositors, opening new savings accounts and preparing,
and filing the proper signature cards and other documents
on such accounts. Before her discharge on May 3, 1972, she
had worked in turn under recent supervision of Ronald Hill
and Dorothy Brown. Edwards was hired May 17, 1971, in
the same department, with the same successive supervisors
up to discharge, and the same starting salary. She handled
commercial account records.
About the end of March 1972, Edwards, Roman, and
four other bookkeepers, including Dorothy Brown, confer-
1 The issues arse on a complaint issued October 13, 1972, by the Board's
Regional Director for Region 10, after Board investigation of a charge filed
August 2, 1972, by Evelyn Roman, and answer of Respondent admitting
jurisdiction but denying the commission of any unfair labor practices.
206 NLRB No. 98
CITIZENS TRUST BANK 321
red together in the department about the chances of getting
a raise, and decided to talk to then Supervisor Ronald Hill
about it. Before talking to him they agreed that they would
act "through channels," 2 and if they did not get a raise, they
would walk out. During the discussion Rosser came into the
department and overheard Brown suggest a walkout if they
did not get the raise . When Hill came to work that af-
ternoon, Rosser told him the girls were getting ready to
strike because they were not satisfied with their pay, and
that Brown had been doing most of the talking . Hill asked
Brown about "this walkout." Brown replied the workers had
not told Rosser about it , but she had just heard the last part
of their discussion, that they had discussed their complaint
about poor pay, and if it took a strike to solve it, they would
walk out, but they did not plan on a walkout until they had
talked to him about a raise. Hill met with all the bookkeep-
ing employees late that afternoon . They told him they de-
served raises because of the work pressure and increased
workload . He agreed , and said he would present it to Ros-
ser, along with some other grievances they stated, and that
Rosser would have to take it up "through channels." He
made notes of the grievances and gave them to Rosser,
recommending all the bookkeepers should get a raise; they
discussed the demand in terms of the hours of work and pay
of bookkeepers compared to that of workers in other de-
partments ; Rosser felt some bookkeepers deserved more
money, but not others including several new employees. Hill
also told Rosser what the employees had said about a strike.
Rosser said she would present the claim to higher officials
and talked first to Masten and then to President Reynolds.
About April 10, Hill reported to the employees that Ros-
ser had asked to have the pay claim put in writing. That day
seven bookkeepers , including Brown, Roman, and Ed-
wards, signed and delivered to Masten a request for a con-
ference on their grievances . On April 11, Masten sent back
a memo, addressed to all but Roman and Brown , advising
them to follow the "chain of command" by talking first to
Rosser, and if the matter was not settled there, they could
talk to him. The seven at once retyped and signed the claim,
addressing it to Rosser , and Edwards gave it to her. That
afternoon, the seven conferred with Rosser . As their spokes-
man, Brown said the bookkeepers wanted a 5.5-percent
merit raise, with a starting salary of $95 per week; Brown
also asked for a separate telephone for her desk to handle
inquiries about customer accounts . Rosser said Brown
could not get that , but agreed that all were entitled to a raise,
because of the increased work in the department, and that
she would recommend it to Masten . On April 12 she sent
Masten a memorandum of the request for the raise and new
starting salary. Masten discussed it with Reynolds. Within
the next week the seven employees again agreed to walk out
if they did not get a raise ; Brown suggested a walkout May
1, when the bookkeeping department would have a heavy
workload in getting out monthly statements to customers.
This discussion was not made known to Hill , Rosser, or any
other bank official.
On April 17, Rosser showed the group a letter of that date
from President Reynolds to her, indicating he had discussed
their grievance with Masten and concluded the starting sa-
laries in that department were in line with pay for similar
work in other banks, and denying the request for a blanket
raise, as it was not a true "merit" raise, which had normally
been given to individuals on their merits after discussion
with Masten ; Reynolds offered to explain the bank 's posi-
tion to each employee if desired . As the employees indicated
dissatisfaction with letter , on April 21 Masten and Rosser
called the group together and gave them copies of Reynolds'
April 17 letter. After they read it, Edwards asked Masten if
this meant they were not getting the raise. He said that was
right, and explained , in answer to questions , the difference
between a merit raise and an annual pay raise , and the
bank's procedure and policy on granting merit raises under
which each worker would have to apply individually for a
raise. Masten and Rosser also told the group that this was
Hill's last day working for Respondent, and that Brown
would be their supervisor from that date onward. In re-
sponse to an earlier inquiry,' Brown handed out copies of
job descriptions to all the workers present except Roman,
after she had checked them over and made some changes
to conform with each employee 's actual duties. When Ed-
wards read hers and saw that she was being moved into the
commercial section to handle business checks , she asked
Masten the reason for the transfer . He replied that she had
experience and could do that work. Edwards asked Masten
if Brown could recommend them all for a raise . He replied
that he had already told them that anytime a supervisor
recommended them for a raise, it would be considered.
Edwards read in her job description (which she had never
seen before) that she was required to count all commercial
checks, so she asked Brown if she "meant that." 4 Brown
looked at the wording and said, "No, scratch it out." Then
she said , "No, leave it in," that this was part of her job.
Edwards asked when this had started , Brown replied this
had always been her job , but that other bookkeepers had
been helping her out by counting their own checks each
month . Edwards said that Brown was a "damn fool" if she
thought Edwards was going to count all those checks.
Brown replied it was her duty, but all employees could
continue to count their own checks as in the past if they
wanted to . Brown did not thereafter insist that Edwards
count all checks going through the department , and Ed-
wards continued to count only checks on her own accounts,
as in the past, until her discharge . Before giving Edwards
her job description , Brown had crossed out the duty of
verifying signatures on all commercial checks, which Ed-
wards had not been doing while Hill was supervisor.
Sometime in the week of April 24, Edwards asked Brown
if she would recommend Edwards for a raise . Brown replied
3 The day before a bookkeeper had told Hill or Brown she had never seen
her job description, and did not know what her duties were, so asked to see
it. Apparently Hill did not show it to her.
4 Prior to April 21, each bookkeeper , including Edwards, had been han-
2 The channels for handling personnel requests including grievances were - dling a certain group of customer accounts, each making up statements for
initial discussion with Supervisor Hill, then with Assistant Cashier Rosser , her own accounts and counting the checks , which went through such ac-
and cashier Charles Masten in turn , and final appeal to President Charles M counts The checks averaged about 2,000 a month per bookkeeper The total
Reynolds, Jr.; on some matters , a further appeal to the board of directors of number of checks counted and checked for signature each month in the
Respondent was available. department averaged about 15,000.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"when you show me you deserve one." Edwards comment-
ed, at that rate Brown would "never recognize it." Shortly
after, Edwards arranged a meeting between former Supervi-
sor Hill and the bookkeeping employees for Friday evening,
April 28, in a nightclub in Atlanta. Edwards, Roman, and
four other bookkeepers attended. They asked Hill what they
could do to make Respondent realize their heavy workload
and that they were entitled to a raise. He suggested they
might call in sick on Monday, May 1, which would stop the
work of the department and make Respondent realize how
heavy their workload was. They agreed.
On May 1, the five called in sick to their department,
some speaking to Rosser and others to Brown , and all
stayed out. In a later call that day, Roman learned that a
rumor was going around the bank that the bookkeeping
employees were on strike. When Roman reported in sick to
Rosser, the latter said she was short of help , and asked if
Roman could get in shortly if she felt better. Roman replied
she might come in at noon if she felt better. Rosser then told
her not to bother, as there were not many phone calls into
the department after noon.
On May 2, Edwards did not call in to report her absence,
as Brown had previously given her that day as one of two
personal absences allowed her each year. When Roman
called in to tell Brown she was absent for illness, Brown
replied that Rosser had told her to advise Roman that Re-
spondent no longer needed her services . Roman repeated
she was sick. Brown replied, okay and repeated the prior
statement . As each of the other girls called in , Brown told
them the same thing.
On May 3, the five employees who had been absent
clocked in as usual . Shortly after they went to work, Rosser
told each individually that management no longer needed
her services. When the five employees did not leave, Rosser
told Reynolds about it, and he asked the five to come to his
office.
Reynolds told the five he had tried to be fair, mentioning
his memo of April 17 to Rosser and indicating he was avail-
able for individual talks with them about their grievances.
He then added "we do things for people and we sometimes
get slapped in the face by people, and they get slapped
back," and that "management no longer needs your serv-
ices." Johnson said that was not the issue and asked if he
wanted to hear their side of the story. One or more workers
said they had been out sick. Reynolds repeated the termina-
tion remark. Edwards asked if they were being discharged
because they all called in sick. Reynolds denied that, and
repeated the above remark. Edwards reminded him that she
had been given a personal holiday on May 2. Reynolds
repeated the same remark, and then turned to Vice Presi-
dent Sutton, saying "maybe you can explain it." Sutton told
the employees "I find it hard to believe all of you were sick
the same day." Roman asked if he was "God or a doctor."
Sutton said he was not, and then Reynolds closed the dis-
cussion by saying there was no point in this kind of talk, that
"management was through with it, you ladies can pursue it
further if you wish'." The employees then left, with one
saying "we do not have to take this." About 2 weeks later
most of the five began picketing the bank and its branches
with signs indicating among other things that Respondent
had been unfair to employees and paid poor wages. Shortly
after the discharge interview Edwards and Roman received
identical letters from Respondent dated May 5, saying it
could "no longer gainfully employ your services ." Company
records show that both were given final separation and
vacation pay through April 28, their last day of work. Sepa-
ration notices sent by Respondent to the Georgia Depart-
ment of Labor under date of May 8, with copy to each
employee, stated that Edwards and Roman had been dis-
charged "because of absences due to alleged illness." 5
B. Arguments of the Parties, and Conclusions
Thereon
Respondent does not deny, and I find, that Edwards,
Roman, and other bookkeepers named above engaged in
protected concerted activity in group discussion in March
of their desire for more pay, group discussion of the claim
with Hill in late March, group presentation of the grievance
in writing in April to Masten and Rosser, with ensuing
group discussions of it with both officials. Respondent also
recognized the concerted nature of their action by Masten's
memo of April 11 to five of them, and Reynolds' reply of
April 17 on the "grievances expressed by the employees of
the Bookkeeping Department" in which he rejected their
collective claim and relegated them to individual discussion
of merit raises with management.
Respondent's defense is two-fold: (1) It did not have
direct or indirect knowledge, nor any reasonable basis for
inferring, that Edwards and Roman were engaged in a con-
certed walkout on May 1 and 2, and (2) they were dis-
charged only because of a demonstrated record of excessive
absenteeism, and as a means of enforcing discipline on this
widespread problem in the bank.
While there is no record proof that any top official of
Respondent, from cashier Masten upward, had direct
knowledge of the bookkeepers' concerted discussions in
March and later about use of a strike to enforce their wage
demands, other facts compel the inference that Respondent
knew or had ample grounds for the belief from at least April
17 onward that at least six bookkeepers (Edwards, Roman,
Johnson, Crawford, Ellison, and Durant) were dissatisfied
with the rejection of their collective demand for a blanket
wage raise, and were likely to take further concerted action
to enforce it. It is clear that Brown, while an employee, was
a leader in the first discussion of ways to get a raise and
suggested a walkout. Assistant Cashier Rosser overheard
this suggestion, told Supervisor Hill about it, and Hill then
learned from Brown that a strike was a distinct possibility.
The knowledge of both Rosser and Hill is imputable to
Respondent .6 As the record shows that, when Brown suc-
5 The above sequence of events is found from a composite of credible
testimony of Edwards , Roman, Reynolds, Masten , Rosser, and Hill, which
is mutually corroborative in the main. Testimony of any of these witnesses
at variance therewith is not credited.
6 While Hill had no authority to hire or fire employees , the record clearly
shows he had power to change work assignments of bookkeepers within the
department to get the work done , to grant employees time off with pay,
effectively to approve leave with pay, effectively to recommend employment
and discharge of applicants, and generally to use his own discretion and
judgment in improving the work of bookkeepers in order to keep the opera-
tion of the department flowing smoothly. On any one or more of these aspects
of authority , Hill was a supervisor within the meaning of Section 2 ( 11) of the
CITIZENS TRUST BANK 323
ceeded Hill as. bookkeeping supervisor, she exercised practi-
cally the same supervisory authority as Hill, it follows that
after April 21 her personal knowledge that the bookkeepers
were likely to strike over their pay, based on her own earlier
suggestions, is likewise imputable to Respondent. In addi-
tion, Hill testified credibly that, after Rosser had told him
about the possibility of a strike, he had talked to seven or
eight people in his departments about the subject, and the
subject became a topic of conversation among employees in
the main bank, where the workforce totaled something less
than a hundred people. It is inferable that in an operation
this small, the discussion among the employees inevitably
came to the ears of management.
Finally, I find that Reynolds believed or strongly suspect-
ed on the date of discharge that the five workers before him
including Edwards and Roman had stayed out of work on
May I and 2, not for illness, but in order to disrupt the work
of the bookkeeping department at a crucial time, as a means
of retaliation for his rejection of their wage demand and in
order to force Respondent to accede to it. He admitted:
absence of five bookkeepers out of a workforce of seven or
eight on the same day was unusual. After he learned
through Masten on May I which workers were absent that
day, he felt he had been "slapped in the face" by at least
three, including Roman, for whom he had made special
efforts to have them employed at the request of relatives,
because of friendship, and in the case of Roman by evasion
of a bank hiring, policy. He felt "slapped" and "hurt" be-
cause all of them had "turned around and something like
that happened as far as them being out, in a group." This
explanation of his first remark•that'he lead been "slapped in
the face by people" for whom he had done-things, and "they
get slapped back" clearly shows that he was angrily retaliat-
ing against at least the three by firing them because of their
collective absence on, the same day. Further, Reynolds de-
nied to Edwards that the discharge was because the five had
called in sick, and then induced and adopted Sutton's expla-
nation of the absence, clearly indicating management did
not believe they were out for sickness. Having thus ruled out
the "alleged illness," of May 1 and 2 as the reason for
discharge, and refusing to offer any other explanation for
the discharge, the only reason for the collective action of the
five which could have been in his mind was their unsuccess-
ful presentation of the wage grievance in mid-April. I can-
not believe that, when he turned down that claim on April
17 and 21, he was not apprised by Rosser, if not Brown or
Hill, of the strong probability of a strike over the rejection;
and when the actual "sickout" of the same five who made
the claim came at a crucial time only 6 workdays after its
final rejection, I can only infer that an intelligent, educated
man like Reynolds must have realized at once that the walk-
out stemmed from that rejection.? His angry retaliation by
discharging them for this "slap in the face" given by them
"in a group" clearly shows that his motive was discriminato-
ry.
Respondent argues there can be no reasonable basis for
inferring it knew or believed on May 1, 2 or 3 that the
employees were acting in concert because of its prior rejec-
tion of their group wage demands, because admissions of
Edwards and Roman show that the bookkeepers never re-
newed their demand or asked for reconsideration of it after
the turndown on April 21 by Masten, and testimony of
Masten and Reynolds shows that the silence of the book-
keepers thereafter led them to believe they were satisfied
with Respondent's answers on that date and had dropped
their demand, so that the concerted walkout on May 1 and
2 came as a complete surprise. This argument is without
persuasive merit because (1) Respondent had the clear
knowledge through Hill, Rosser, and Brown both before
and after the meeting of April 21 that a strike was a strong
possibility if the wage demand was rejected, and (2) the
lapse of only 5 working days (or 9 calendar days) between
that event and the walkout is not so great as to warrant
exclusion of the demands of April 21 from consideration in
deciding if Respondent believed the walkout was caused by
their rejection. In a similar set of circumstances, where the
time between rejection and walkout was much longer, the
Board held that the walkout was still protected concerted
activity without any repetition of the concerted demand on
or close to the time of the walkout, and that since the em-
ployer (as here) was aware of the continuing unsatisfied
demands of a group of employees, it knew or had reason-
able basis for inferring that the walkout was only a further
step by employees to improve their employment terms.
(Electromec Design & Development Co., 168 NLRB 764,
764-765). This ruling is apposite here, particularly in view
of Reynolds' and Sutton's clear indication to the five absen-
tees at discharge that management-did not believe they had
been absent for illness, Reynolds' express rejection of ab-
sence for sickness as the reason for discharge, and his indi-
cation that they were being "slapped back" because they
had given him a "slap in the face" by the walkout "in a
group." See also N.L.R.B. v. Washington Aluminum Compa-
ny, 126 NLRB 1410, enforcement denied 291 F.2d 869 (C.A.
4, 1961), reversed and remanded rnr enforcement of Board
Order, 370 U.S. 9.8
Other circumstances convince me that the defense of dis-
charge for excessive absences is without merit and a mere
pretext and afterthought, and strengthen the conclusion
that the discharges were discriminatory. In support of the
defense, testimony of Reynolds, Masten, and Rosser, with
some admissions of Edwards, Roman, and Hill, tends to
show that: Over the past year of 15 months, Edwards and
Roman had each had paid absences in excess of eight; each
had six for illness in 1972 up to their discharge. In addition,
both had at least four tardy reports of varying amounts
excused by Hill in 1972. They had also paid sick leave in
1971, but the amount is not proven by Respondent. All their
absences in 1971 and 1972 had been approved by Hill and
paid by management without question by higher officials.
Act.
7 Before joining Respondent in February 1971, Reynolds had been a na-
tional bank examiner with the Federal Reserve Bank for 6 years. His testimo-
ny and demeanor on the stand clearly indicated he was a man of substantial
education.
8 On the issue of inferred knowledge as well as discriminatory motive, see
also Ballard Motors, Inc, 179 NLRB 300, 307; Wiese Plow Welding Co, Inc.,
123 NLRB 606, 618
In view of the above findings, I deem it unnecessary to make findings on
other conflicting testimony dealing with the existence of strike rumors in the
plant on or before May I
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before Reynolds became president in May 1971, constant
absences for illness and other reasons and tardiness had
been prevalent among all employees, particularly in the
bookkeeping department. When Reynolds took office, he
took steps to tighten up personnel policies, including rules
on absences and tardiness, by formulating new and specific
limiting rules and having Masten talk to Rosser, Hill, and
other supervisors about reducing absences and tardiness. In
October 1971, the employees were advised orally that bank
policy would henceforth allow each employee 5 paid sick
days per year, the first three consecutive absences being
paid without a doctor's certificate, and two paid personal
holidays; employees could carry over into the next year any
allowable sick days unused in 1 year, but not the personal
holidays; all paid absences were to be given only on written
approval of the department supervisor .9 Sometime later the
new policy was detailed in a new personnel handbook is-
sued to all employees. Management relied on the supervi-
sors to follow the new rules, as there is no proof that Masten
or other management officials maintained a specific check
on absences in the bookkeeping or other departments, or
made any attempt to enforce the new policy by any sort of
discipline prior to May 3, 1972, other than general discus-
sions by Masten or Rosser with supervisors. Rosser had
talked generally to Hill about absenteeism in the whole
bank and how Respondent was trying to eliminate it, but
had made no specific complaint to Hill about the extent of
absenteeism in the bookkeeping department, nor made any
specific check on his compliance with bank policy in allow-
ing paid sick absences generally or for specific employees,
although Rosser already knew something about the absen-
tee record of Edwards from past observation; in discussions
with Hill, the latter had mentioned only Durant as having
more absences for illness than any other employee in the
department, but there is no proof that Masten or Rosser had
at any time directed or even suggested that Hill give warn-
ings to Durant or any other employees. According to Mas-
ten, Respondent was relying solely on Hill to follow and
enforce the bank absentee policy, and did not discover until
May 1 (after his resignation) that he had failed signally to
follow it by his approval for Edwards and Roman in 1972
alone of more than the allowable number of paid sick ab-
sences, with some approvals without the required written
excuse . As Masten testified that each absence for illness
must be reported by the supervisor to Rosser, with recom-
mendation for or against approval, it is inferable that Ros-
ser knew of the 1972 absences of Edwards and Roman but
did not check, question, or disapprove any of them. Rey-
nolds testified credibly that one of the reasons for Hill's
resignation was dissatisfaction with the continued absences
in his department, along with other deficiencies. Hence, it
is clear that Respondent did nothing about the violations of
bank policy on sick leave to Roman and Edwards, other
than to have talks with Hill which led to his resignation.
There is no credible proof that, prior to that event, the bank
operation suffered noticeably from the excessive absences
of these or other employees, nor that any attempt was made
by higher management prior to May 3 to discipline them for
9 The record does not credibly show what limitations, if any, on absences
had existed before Reynolds came with the bank
violations of the absence policy which was patent in their
personnel files." Hence, I can only conclude that prior to
May 3 Respondent had condoned such violations, either
through laxity of higher management or its realization that
the bank had not suffered any real detriment therefrom.
Management first learned on May 1 the names of the
bookkeepers who reported in sick that morning, after their
absence brought the bookkeeping department almost to a
standstill and required emergency measures to have vital
recordkeeping safes opened and employees transferred
from other departments to handle the work of the absen-
tees; Rosser first tried by phone talks to get Edwards and
Roman to come in, but without success. Masten and Rosser
examined the personnel records of the five absentees and
discovered that two were probationary employees, Ellison
had less than 6 months of service, while Edwards and Ro-
man were permanent employees but had accumulated paid
absences for illness in the past year in excess of the allowa-
ble number, particularly six apiece in 1972 to that date, as
well as at least four excused tardy reports apiece. When
Masten reported the situation to Reynolds, and expressed
"concern" about the illness of the five, the latter told him
to do nothing but wait until they came in or contacted
Respondent the next day. After they still reported ill on
May 2 (except Edwards who had previously received ap-
proval from Brown for a personal day off that day), Masten
recommended discharge of the five, citing the past excessive
absences of Edwards and Roman, and because their contin-
ued absence was affecting the ability of the bookkeeping
department to handle its work. About 2 p.m., Reynolds
accepted the recommendation and told Masten to prepare
discharge letters. He knew that Edwards had a previously
approved absence for that day. ll Reynolds also testified that
the five were terminated as an example to the rest of the
workers to emphasize that the absence policy would be
enforced by drastic discipline.
In addition to the aspect of condonation, I am led to
conclude the defense is a pretext by the following circum-
stances:
(1) When he learned of the excessive absences, Reynolds
admits he knew that Hill must have been the one responsi-
ble for their approval, and that the employees who benefited
had no reason to assume they were violating bank policy
because he was the supervisor, approving pay for the ab-
sences.12 I think this explains why he repeatedly refused on
May 3 to cite excessive absence as the reason for the dis-
charge, and shows it could not have been the true reason.
(2) Although Respondent had instituted a discharge pro-
cedure involving investigation, followed by warning letters
to employees and discussions of their misconduct in "griev-
io Hill testified credibly that the absence records of Edwards and Roman
since he took over the bookkeeping department in December 1971 were
"comparatively good," they were not "excessively absent in proportion to the
rest of the people", in this aspect the whole department had a bad record.'
While his testimony was in general terms, and given from memory, Respon-
dent does not contradict it with specific records in its possession
11 The two probationers and Ellison were terminated because they were in
that status, and General Counsel has not questioned the validity of their
discharges.
12 In this connection, Edwards also testified credibly that Hill had led her
to believe her 1972 absences for illness (before May 1) were a legitimate
carryover of unused sick leave from 1971, and he told her dust before he
resigned that she still had 2 sick days and 2 personal days unused for 1972.
CITIZENS TRUST BANK 325
ance" meetings, and then final discharge in writing, Masten
admits this was-not done for Edwards and Roman, where
the hasty investigation and decision to discharge occurred
in I day, without prior discussion with them or warning
notices; the procedure was clearly not satisfied by past oral
discussion of management with Hill about the absentee
problem, absent any order that he talk to the alleged delin-
quents or proof that he did so. The procedure was also
significantly ignored when Reynolds refused to tell Ed-
wards and Roman, on request, the reason for discharge,
adopting instead the clear implication of Sutton's remarks
that Respondent had decided they were no longer needed
because they had engaged in a concerted walkout.
On all the pertinents facts and circumstances discussed
above, I conclude that the defense prof erred by Respondent
was a pretext, hastily devised after examination of the per-
sonnel records of the five who were absent May 1 and 2, in
a weak attempt to cover up their concerted deliberate walk-
out as the true reason, and that General Counsel has sus-
tained his ultimate burden of proof on the whole record that
Respondent discharged Edwards and Roman on May 3,
1972, and has failed to reinstate them, because they engaged
in that protected concerted activity on May 1 and 2. 13 I
conclude that Respondent thereby coerced, restrained and
interfered with employees in their exercise of their right to
engage in concerted activity for purposes of collective bar-
gaining and for mutual aid or protection, as guaranteed to
them by Section 7 of the Act, in violation of Section 8(a)(1)
of the Act.14
III. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above,
occurring in connection with its operations described in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
13 This conclusion makes it unnecessary to make findings of fact or conclu-
sions of law on later conduct of the discharged employees in filing complaints
with other Federal agencies, or later statements regarding the discharge
motive made by Respondent in termination documents or to other govern-
mental agencies
14I have made specific findings of the discussions between Edwards and
Supervisor Brown on April 21 regarding the scope of Edwards' duties under
her job description, only for purpose of review by the Board and other
tribunals , if necessary , of my dismissal for lack of a prima facie case of the
allegations of the complaint charging the imposition of more onerous work
mg conditions on employees. In view of that dismissal, I make no conclusive
findings of fact or law thereon. Although Respondent offered evidence on
this issue through Brown in course of its defense , I assume this was done out
of an abundance of caution rather than as acknowledgement that the issue
was still open. Neither party argued the issue in briefs. Hence, although
General Counsel claims the issue is still open , I do not consider this as a
motion for reconsideration of ruling, butwill treat the failure of both parties
to argue it on the facts or law as an acceptance of my initial ruling.
effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Evelyn Roman and Julia Edwards and failed to reinstate
them, because they engaged in protected concerted activi-
ties, I shall recommend that Respondent offer to each im-
mediate reinstatement in the usual manner, with backpay
from the date of their unlawful discharge to the date of a
proper offer of reinstatement, the amounts to be computed
under the formula set forth in F. W. Woolworth Company,
90 NLRB 289, with proper interest added. Isis Plumbing &
Heating Co., 138 NLRB 516. As unlawful discharges strike
at the heart of the Act and the fundamental rights of em-
ployees thereunder, I shall recommend a broad cease-and-
desist order.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. By its discharge of Evelyn Roman and Julia Edwards
and failure to reinstate them because they engaged in con-
certed activities with other employees for purposes of collec-
tive bargaining or other mutual aid or protection, thereby
interfering with, restraining, ad coercing employees in the
exercise of rights guaranteed to them by Section 7 of the
Act, Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and 2(6) and (7) of the Act.
3. Respondent has not imposed more onerous working
conditions on its employees in violation of the Act as al-
leged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER15
Respondent, Citizens Trust Bank of Atlanta, Georgia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, failing to reinstate, or in any other man-
ner discriminating against employees because they engaged
in concerted activities with other employees for purposes of
collective bargaining or other mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Offer to Evelyn Roman and Julia Edwards immedi-
ate and full reinstatement to their former or substantially
equivalent positions, without prejudice to seniority or other
rights and privileges, and make them whole for any loss of
pay suffered by them as a result of Respondent's discrimi-
nation against them, in the manner set forth in the section
15 In the event no exceptions'are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purpose's.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, and all other records relevant and ne-
cessary to a determination of the right of reinstatement and
the amount of backpay due, as provided under the terms of
this recommended Order.
(c) Post at its Atlanta, Georgia, office and place of busi-
ness copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 10, shall, after being duly signed by
Respondent's authorized representative, be posted by it im-
mediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director of Region 10, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges that Respondent violated the Act
by imposition of more onerous working conditions on em-
ployees.
APPENDIX-
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, fail to reinstate, or in any
other manner discriminate against employees because
they have engaged in concerted activities with other
employees for purposes of collective bargaining or
other mutual aid or protection.
WE WILL NOT in any other manner interfere with, re-
strain or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act, including
their right to act together for collective bargaining or
other mutual aid or protection.
WE WILL offer to Evelyn Roman and Julia Edwards
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
seniority or other rights and privileges, and will make
them whole for any loss of pay suffered by them as a
result of our discrimination against them.
CITIZENS, TRUST RANK
(Employer)
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by Dated By
Order of the National Labor Relations Board" shall be changed to read (Representative) (Title)
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Peachtree Building Room 701, 730
Peachtree Street N.E., Atlanta, Georgia 30308, Telephone
404-526-5760.