Fall River Savings Bank

National Labor Relations Board - Board Decisions

Dec 6, 1979

246 N.L.R.B. 831 (N.L.R.B. 1979)

FAI.I. RIVER
Fall River Savings Bank and Local 1325, United Food
and Commercial Workers International Union,
AFL-CIO,' Petitioner. Case I-RC- 15618
December 6, 1979
SUPPLEMENTAL DECISION AND
DIRECTION
BY CHAIRMAN FANNING ANI) MEMBERS JENKINS
AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amemded. a three-
member panel has considered determinative chal-
lenges to ballots and objections to an election held on
April 28, 1978, and the Hearing Officer's report rec-
ommending disposition of same.'
The Board has reviewed the record in light of the
exceptions and briefs3 and hereby adopts the Hearing
Officer's rulings,4 findings, s and recommendations. ex-
cept as modified herein.
On June 7, 1979, the Retail Clerks International Association and the
Amalgamated Meatcutters and Butcher Workmen of North America
merged. forming the United Food and Commercial Workers Union. AFL
CIO. The name of the Union herein, formerly Local 1325, Retail Clerks
International Association, has been amended to reflect this change.
2 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 23 for, and 21 against, the Petitioner;
there were 7 challenged ballots, sufficient in number to affect the results. The
Employer filed timely objections and on June 21. 1978. the Acting Regional
Director issued a Report on Objections and Challenged Ballots. recommend-
ing that all of the challenges and objections be overruled. On September 29,
1978. the Board (238 NLRB 1371), adopted the Acting Regional Director's
recommendation that Employer's Objections 1. 5. 7 and 8 be overruled and
that the challenges to the ballots of Phyllis A. Webster and Kenneth J
Gallant be overruled. The Board ordered a hearing to resolve factual issues
raised by parts of Objections 2. 3.4, and 6 designated by the Acting Regional
Director as pars. B. 1, B. 5, and D 2 and on the challenged ballots of
Assistant Branch Managers Joanne M. Camara, James T. Griffin Joan E.
Lamond Nancy A. Savage, and Gale A. Silvia. The hearing was held on
October 23 26 and November 15 17. 20. and 21. 1978. and the Hearing
Officer's report and recommendations issued on March 19. 1979.
3 The Employer has requested oral argument. This request is hereby de-
nied as the record, the exceptions, and briefs adequately present the issues
and the positions of the parties.
' At the hearing, the Hearing Officer denied the Employer's request to
sequester and schedule witnesses. The Employer excepts to those rulings We
agree with the Hearing Officer's rulings. In regard to sequestering witnesses.
we note that a representation case, unlike an unfair labor practice case. is not
an adversary proceeding and, therefore, the Board's reasoning and conclu-
sions in Unga Painting Corporation, 237 NLRB 1306 (1978). do not apply.
Moreover, since the Hearing Officer concluded that the presence of the
assistant branch managers was necessary to enable the Petitioner to present
its case. arguendo, even under Unga the Hearing Officer's ruling was a proper
exercise of discretion. See Unga Painting Corp., supra, fn. 14.
The Heanng Officer rejected the Employer's contention that he erred in
refusing to allow witnesses to be scheduled, thus unduly hampering the op-
eration of the Employer's business. We agree with the Hearing Officer's
ruling, We note that the work-scheduling problem was in large part one of
the Employer's own making by its prolonging for 9 days a hearing on a few
circumscribed factual issues and the supervisor status of only fise employ-
ees.
The Employer has excepted to certain credibiliht resolutions of the Hear-
ing Officer. It is the established policy of the Board not to ooserrule a hearing
officer's credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that the resolutions are incorrect. Connor lead-
SAVINGS BANK 831
We agree with the Hearing Officer's finding 6 that
the assistant managers are not supervisors, because
they possess none of the necessary supervisory indicia
and whatever direction they do give the tellers is rou-
tine and does not require the use of independent judg-
ment. For the most part, the duties the Employer
used as examples of supervisory authority, such as
assisting with the "proving process," approving and
signing checks, and using the supervisory override
key, pertain only to the security requirements of the
bank and are in no way indicative of supervisory au-
thority.
With regard to the involvement of the branch man-
agers (as opposed to the nonsupervisor assistant
managers), stipulated by the parties to be supervisors.
specifically, Boleski. Johnson, Mello, and Reed, in the
Union's preelection campaign, we agree with the
Hearing Officer's findings7 with the following modifi-
cations:
ing Co. In . 188 NLRB 263. fn. 4(1971). 7The (oca ('olu Bottling Comnparn
o[ Menmphis. 132 NLRB 481 ( 1961). We find no sufficient basis for disturbing
the credibility resolutions in this case
Additionally we are satisfied that the Employer's contention that the
Heanring Officer was biased is without merit In our opinion, there is nothing
in the record to suggest that his conduct at the hearing. his resolutions of
credibilihty or the inferences he drew were based on either bias or prejudice.
In support of its contention that it did not receive a fair hearing, the Em-
ployer asserts that it was not allowed to complete its closing argument or to
submit a brief to the Heanng Officer. We note that the Employer requested
and received a hearing officer from outside Region 1, the hearing extended
for 9 days, the hearing officer allowed the Employer to conduct a closing
argument for almost an hour, a privilege not afforded the other parties, and,
generally, the right to file briefs in hearings on objections and challenges is
discretionary with the hearing officer
" We do not adopt the Hearing Officer's finding, in regard to the Snell
incident. that then Senior Vice President Murray undertook his own nvesti-
gation and spoke to Snell himself befire she was discharged The record
indicates that after Griffin spoke to Murray about Snell. and requested that
she be transferred. Murray met with President Rigby and Assistant Vice
President Varanese and they decided to terminate her On the other hand,
however. the record also indicates that Snell had long been a problem em-
ployee who had not worked out at two or three other locations and was
being given her last chance.
'The Hearing Officer made the following inadvertent errors which, al-
though they do not affect our decision. we hereby correct. In discrediting
Carvalho's testimony that branch managers attended union meetings at the
end of April, i.e.. after having been told not to by Murray and Rigby. the
Hearing Officer noted that her testimony was in direct conflict with that of
all the other witnesses. In fact. Assistant Manager Silvia testified in a similar
vein.
The Hearing Officer found that there was no evidence that any branch
manager, including Boleski. ever visited any employees' homes. Gnffin. how-
ever, testified that Boleski had told him that he had visited some employees'
homes: no further details about the visits were elicited, however, and the
Employer did not call Boleski to testify.
Based on the testimony of Pires and Mello. the Hearing Officer found that
Reed never served as a union contact person, even though she had been
elected to that position While Pires actually did so state. Mello only testified
that she did not know whether Reed had ever served in that position.
We do not adopt the Heanng Officer's conclusion that the record does not
establish on what grounds Assistant Treasurers Poole and Pimental were
excluded from the unit. As the Hearing Officer himself stated. Pxoole and
Pimental were corporate officers o the Employer. In addition, there is much
evidence that Pimental exercised many supervisory duties as well.
Iinally, we do not adopt the Hearing Officer's findings that the LEmploy-
er's only response to the actions of its branch managers was Murray's letter
of April 23. 1978. to employees n which he dissociated the branch from the
prounion activities t Boleski Nor do we adopt his concluding comments
Continued)
246 NLRB No. 128
I)ECISIONS OF: NATIONAL LABOR RELATIONS BOARD
In overruling the Employer's objections, the Hear-
ing Officer relied in part on cases such as Brattleboro
Memorial Hospital. Inc.,8 which, in our opinion, are
not exactly on point. There, the alleged supervisors
wore buttons, attended meetings, and were members
of the union. Here, three of the five branch managers
attended some union meetings, and four of the five
attended the "open house" the night before the elec-
tion; Branch Manager Boleski made a prounion
speech at one meeting and wrote a prounion letter;
Managers Reed, Boleski. and Mello made phone calls
to employees to inform them about union meetings
and inquire whether they planned to attend. None-
theless, we agree with the Hearing Officer's recom-
mendation that the election not be set aside.
The Board held in Stevenson Equipment Company9
that supervisory participation in organizational ac-
tivity may have two objectionable effects on employ-
ees. The first occurs when supervisors actively en-
courage employees to vote for the union and the
employer takes no known contrary stance, thus possi-
bly leading the employees to believe that the em-
ployer favors the union. However, this impression
may be dissipated if the employer's antagonism to the
union is brought to the attention of the employees.' °
Here there is no question that the employees were
aware of the Employer's opposition to the Union. De-
spite this, the Employer urges that the election be
overturned because of a power struggle among its
managerial employees which ensued in part during
the organizational campaign and, therefore, resulted
in confusion among the employees concerning man-
agement's position. We agree with the Hearing Offi-
cer's findings that every employee who testified was
aware of management's antiunion position. More-
over, the power struggle within its management,
which caused the Employer to lose control over its
supervisors, placed the Union in a difficult position
here. In our opinion, an employer's inability to con-
trol its supervisors, especially where it has knowl-
edge" of their participation in the organizational
that the Employer made no attempts to dissipate the effects of its managers
activities. In addition to the aforementioned letter, Murray and Rigby had a
meeting with the managers to tell them to cease all union activities: Murray
had also called Mello and Boleski to warn them to cease their activities alter
having received a call from employee Paulhus who complained that they
were making calls (see infra) about union meetings. However. the Hearing
Officer correctly found that no manager was disciplined for his or her activl-
ties.
a 226 NLRB 1036 (1976).
9 17 4 NLRB 865 (1969).
l0 Stevenson Equipment Co., spra at 866.
H There are several instances in the record to support the Hearing Officer's
campaign, is not a basis for overturning an election.' 2
The second concern voiced in Stevenson about the
possible effect of prounion supervisors is the fear of
employees of being harassed or discriminated against
by a disappointed prounion supervisor." But again,
any such possible effect is mitigated if the employees
are aware of the employer's antiunion position and
feel free to report directly to the employer any unfair-
ness by a supervisor. This record presents no evidence
of coercion by a supervisor or of fear of retaliation
from a supervisor by an employee for voting against
the Union. Rather, as the Hearing Officer found, the
branch managers who participated in the campaign
were viewed as fellow employees who feared for their
own job security. Speculation is not to be substituted
for evidence of coercion or fear in finding an im-
proper effect on an election.'4 In addition, the record
shows that the employees did feel free to approach
the Employer with complaints about prounion activi-
ties of supervisors. Then Senior Vice President Mur-
ray testified that employee Paulhus had reported to
him that Branch Managers Boleski and Mello had
called her about union meetings and were calling oth-
ers as well."5 We, therefore, find that the supervisory
conduct present here did not produce either of the
objectionable effects outlined in Stevenson.
Accordingly, we adopt the Hearing Officer's rec-
ommendations that the Employer's objections be
overruled, the challenged ballots be opened and
counted, and a revised tally of ballots be issued.
DIRECTION
It is hereby directed that the Regional Director for
Region I shall, within 10 days from the date of this
Decision, open and count the challenged ballots of
Phyllis A. Webster, Kenneth J. Gallant,'6 Joanne M.
Camara, James T. Griffin, Joan E. Lamond, Nancy
A. Savage, and Gale A. Silvia, and thereafter prepare
and cause to be served on the parties a revised tally of
ballots, upon the basis of which he shall issue the
appropriate certification.
finding that the Employer had knowledge of its supervisors' activities. We
would add the following incident not mentioned by the Hearing Officer
which is particularly significant in view of his position. Assistant Treasurer
Poole testified without contradiction that then President Rigby had asked
him i branch managers or assistants were at the meeting at P.J.'s restaurant
that Poole had attended, and Poole told him the names o1) those he remem-
bered were present.
12 See Diversified Products Corporation. 199 NRB 1(124. 1025 1972).
I Stevenson Equipment Co., supra at 866.
1 See Stevenson Equipment Co. supra. Admiral Petroleum Corporation, 240
NLRB 894 (1979).
' It was because of Paulhus' complaint that Murray admonished Boleski
and Mello about their activities. See n. 7, supra.
iS As we ordered in our earlier Decision 238 NLRB 1371.
832