First National Bank of New Smyrna Beach

National Labor Relations Board - Board Decisions

Jun 13, 1973

204 N.L.R.B. 127 (N.L.R.B. 1973)

FIRST NATIONAL BANK OF NEW SMYRNA BEACH 127
First National Bank of New Smyrna Beach and Office
& Professional Employees International Union,
AFL-CIO, Local No. 73. Cases 12-CA-5501 and
12-CA-5675
June 13, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
2 As it is clear that Respondent terminated Jones because she was a proun-
ion adherent, we find it unnecessary to reach the issue of whether her dis-
charge also violated Sec 8(a)(4)
7 In The Remedy section of his decision , the Administrative Law Judge
found that a broad order was warranted because the discriminatory dis-
charge of employees strikes at the very heart of the Act In his recommended
Order, however , he inadvertently omitted to make provision for such an
order. Accordingly , we have included a provision in our Order requiring the
Respondent to cease and desist from in any other manner infringing upon
the rights guaranteed employees in Sec 7 of the Act
APPENDIX
On December 29, 1972, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as mod-
ified below Z and to adopt his recommended Order, as
herein modified.'
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 , as herein
modified , and hereby orders that Respondent, First
National Bank of New Smyrna Beach , New Smyrna
Beach , Florida , its officers , agents , successors, and
assigns , shall take the action set forth in the said rec-
ommended Order , as modified below:
1. Delete paragraph 1(b) of the Administrative
Law Judge 's recommended Order and reletter the fol-
lowing paragraphs accordingly.
2. Add the following paragraph as the new para-
graph 1 (e) of the Order:
"(e) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act except
to the extent that such rights may be affected by law-
ful agreements in accord with Section 8 (a)(3) of the
Act."
3. Substitute the attached Appendix A for that of
the Administrative Law Judge.
i In the absence of exceptions , we adopt, pro forma, the Administrative
Law Judge's dismissals of an alleged 8(a)(I) violation in denying employee
Norton 's request to have her union steward present at the meeting at which
she was demoted, and an alleged 8(a)(4) violation involving the demotion of
employee Norton
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Office &
Professional Employees International Union, AFL-
CIO, Local No. 73, or any other labor organization,
by discharging, demoting or otherwise discriminating
against our employees because of their union or con-
certed activities.
WE WILL NOT interrogate our employees concerning
their union activities, sympathies, or membership, nor
will we interrogate them concerning the union activi-
ties , sympathies, or membership of any other employ-
ees.
WE WILL NOT institute new rules or changes in work-
ing conditions in order to discourage union activity or
membership among our employees.
WE WILL NOT maintain or enforce any rule prohib-
iting our employees, when they are on nonworking
time , from distributing union literature in behalf of
any labor organization in nonworking areas of our
property.
WE WILL NOT promulgate and maintain a rule pro-
hibiting our employees from wearing union buttons or
insignia.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
WE WILL offer Patricia Jones and Burtie Norton
immediate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or rights and privileges, and make them
whole for any loss of pay they may have suffered as
a result of the discrimination against them.
FIRST NATIONAL BANK OF
NEW SMYRNA BEACH
(Employer)
204 NLRB No. 11
128
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Representative) (Title)
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 compli-
ance with its provisions may be directed to the
Board's Office , Federal Office Building , Room 706,
500 Zack Street , P.O. Box 3322 , Tampa , Florida
33602 , Telephone 813-228-7711, ext. 227.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR , Administrative Law Judge: Upon
charges , duly filed , the General Counsel of the National
Labor Relations Board , for the Regional Director of Region
12, issued a consolidated complaint on August 25, 1972,
against the First National Bank of New Smyrna Beach,
herein called the Respondent or the Bank , alleging that it
engaged in certain unfair labor practices within the meaning
of Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act, as amended , herein called the Act . The Respon-
dent filed an answer denying the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice , a hearing was held before Administra-
tive Law Judge John P. von Rohr in New Smyrna Beach,
Florida on October 2 , 3, 4, and 5 , 1972. Briefs were received
from the General Counsel and the Respondent on Novem-
ber 20, 1972, and they have been carefully considered.
Upon the entire record in this case , and from my observa-
tion of the witnesses , I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a banking corporation duly organized un-
der the laws of the State of Florida and the United States
and is engaged in the general banking business at its sole
location in New Smyrna Beach , Florida. During the 12
months preceding the hearing , Respondent received gross
income in excess of $500,000, held United States Govern-
ment Security valued in excess of $2 million and has out-
standing loans to persons outside the State of Florida in
excess of $500,000. During the same period , Respondent
received interest in excess of $100 ,000 from United States
Government agencies and income in excess of $50 ,000 from
out-of-state loans. Respondent concedes , and I find , that it
is engaged in commerce within the meaning of Section 2(5)
of the Act.
II THE LABOR ORGANIZATION INVOLVED
Office & Professional Employees International Union,
AFL-CIO, Local No. 73, is a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background; the Issues
As a result of the issuance of new work rules by the
Respondent , several employees contacted the Union and an
organizing campaign was conducted beginning in January
1972. Pursuant to a representation petition filed on Febru-
ary 3, 1972, an election was held on April 12, 1972. The
employees voted 10-5 in favor of the Union , with 2 chal-
lenged ballots.'
On June 2, 1972 ,2 Respondent discharged Patricia Jones,
a teller, and on May 24 it demoted Burtie Norton from her
position of head teller to that of a regular teller . The com-
plaint alleges that Respondent 's actions as to both these
employees were in violation of Section 8(a)(3) and (4) of the
Act. Although Respondent's defense to Jones is that she was
terminated for lawful cause , Respondent 's principal defense
as to Norton is its position that Norton was a supervisor
within the meaning of the Act at the time of her demotion.
General Counsel , on the other hand , contends that the head
teller was not a supervisor within the statutory definition of
the term.
In addition to the foregoing , the complaint also alleges
that Respondent engaged in various conduct independently
violative of Section 8(a)(1) of the Act.
B. The Demotion of Burtie Norton
1. The Supervisory Issue
Since the merits of Norton's case are in large part depen-
dent upon whether or not she was a supervisor within the
meaning of the Act , I discuss this issue first.
Norton has been in Respondent 's employ since 1964, at
which time she was hired as a teller . Having previously
worked for other banks , she was an experienced teller at the
time she started with Respondent . Describing her duties as
an ordinary teller, Norton testified , "A paying and receiving
teller takes deposits from customers , cashes checks, and in
a smaller bank like ours we take savings deposits , withdraw-
als, cash 'E' Bonds , issue `E' Bonds and just about ev-
erything."
In the summer of 1965 , Maitland Knox , Respondent's
president ever since its founding in 1963 , announced at an
employee meeting that Norton was being appointed to the
position of head teller . Norton testified without contradic-
tion that she was not given any increase in pay at this time
and that she could not recall being given any instructions
concerning her new duties or authority other than that Mr.
Spangler, then the cashier and a vice president, instructed
1 Case 12-RC-4038. The appropriate unit included all tellers, bookkeepers,
secretaries, a mail clerk messenger, and a regular part-time utility employee
2 All dates hereinafter refer to 1972 unless otherwise noted.
FIRST NATIONAL BANK OF NEW SMYRNA BEACH
her how to make up shipments of currency to the Federal
Reserve in Jacksonville. She testified, "I just kind of fol-
lowed his [Spangler's] path, the way that he did, on my own
initiative." In any event, it is undisputed that certain addi-
tional duties ultimately were bestowed upon Norton in her
position as head teller. These included the following: (1) she
was responsible for seeing that there was enough cash in the
vault to carry on the daily operations; (2) she was responsi-
ble for daily providing the tellers with a sufficient amount
of cash to carry out their customer window transactions;
and (3) at the end of public banking hours she was responsi-
ble for "checking tellers that are out of balance, counting
their cash to verify the fact that they are over or short,
whichever might be the case." Other than the foregoing,
however, Norton continued in the daily performance of
routine teller duties.
As head teller, Norton did not have authority to hire,
discharge, suspend, layoff, recall, demote, reward, or disci-
pline. Neither, as the record demonstrates and as further
discussed below, did she have authority to effectively rec-
ommend any such action. A particularly helpful test in bor-
derline cases is whether or not the individual in question has
authority to grant other employees favors, such as time off.
Norton testified without contradiction that she had never
been granted, nor did she ever exercise, any such authority.
Thus, she testified that if any teller ever requested time off,
she would never grant it without clearing with Spangler, or
later, with James Swift who succeeded Spangler as cashier
and vice president about 1969. Indeed, according to
Norton's credited testimony, the tellers frequently made
such requests directly to Swift; and on such occasions, she
testified, it was not uncommon for her to appear at work in
the morning and find a teller absent without having received
prior notification from Swift. Norton was also asked con-
cerning her authority to transfer tellers from window to
window . Her testimony in response was as follows:
First of all, I went to Mr. Swift and talked to him,
whichever window it was that was short of a teller and
I may or may not suggest to him what I thought might
be best, because he always said, "Well, you know
what's best; what do you think?" We worked it out that
way. I can't remember ever making a switch in the
years I've been head teller without his permission."
From the above testimony, which is unrefuted, I can but
find and conclude that Norton did not have authority to
transfer the teller employees without first consulting Nor-
ton.
Norton was also queried about two specific incidents in-
volving possible supervisory authority. One occurred in
about 1969, at which time she was training a girl to relieve
her from the function of proof operator.' Norton testified
that "the girl just couldn't do the job" and that she therefore
recommended to Swift that "he put her on the teller line or
something that she could do." However, Norton said that
at this point Swift stated that "with her personality he felt
the bank would be better off without her, just to let her go,"
and that she was thereupon terminated. I am unable to
3 Norton testified that at this time she also performed the job of proof
operator . She remained at thisjob , which she described as a desk fob , for only
4 or 5 months and then resumed her full-time teller duties.
129
conclude that Norton's participation in this isolated inci-
dent, wherein Swift did not even concur in her "recommen-
dation," is indicative that Norton held such supervisory
authority as defined in the Act .4 The second incident in-
volved the hiring of one Eva Hiles, concerning which Nor-
ton testified as follows:
She was a good friend of Mr. Knox's and mine and
I told Mr. Knox that she was very much in need of
work and he asked me if I would call her and ask her
to talk to him, which I did, I could only give a character
reference like-he knew the girl quite well. She was
hired while I was away on vacation.
I think it clear that Norton's involvement in the above
incident is insufficient to establish that she was cloaked with
authority to effectively recommend the hiring of employees,
as contemplated by the Act.
Although Norton was paid somewhat higher than the
other tellers,' Norton credibly attributed this to the fact that
she was the most senior of the tellers. As previously noted,
Norton did not receive a raise when assigned to the position
of head teller. Indeed, she credibly testified that apart from
general increases given to all employees, the only individual
raise she ever received was a $10 monthly increase in 1969
when she took over the heretofore noted work of proof
operator. Respondent also has a timeclock which all em-
ployees except officers are required to punch. As head teller,
Norton is also required to punch the timeclock; and like the
other employees, she is also paid time and a half for over-
time.
Upon consideration of all the foregoing, I am convinced
and find that Norton in her position as head teller was not
a supervisor within the meaning of the Act. As indicated
above, the evidence does not establish that Norton either
exercised or was vested with the various supervisory func-
tions defined in Section 2(11) of the Act. At best, I would
find Norton's position comparable to that of a nonsupervi-
sory leadman. The record reflects that whatever assistance
or direction she may have given to the other tellers was of
routine nature and did not require the use of any mean-
ingful independent judgment. In this connection it is note-
worthy that the tellers, of whom there were seven, are not
only the general supervision of Vice President and Cashier
Swift, but that in between there is the position of assistant
cashier, the latter also an officer of the bank. It is true that
Norton was responsible for the amount of cash to be re-
tained by the bank as well as that to be utilized by the other
Even if Norton's participation in this incident involved a degree of super-
visory authority, the Board has recently held that isolated or sporadic exer-
cise of such authority is insufficient to establish an individual as being a
supervisor Thus, in Directors Guild ofAmerica, Inc., 198 NLRB No 103, the
Board stated as follows
We have thus considered the duties of the second assistant directors
which led the Trial Examiner to find them to be supervisors and we
conclude that the evidence does notjustify his findings. It may well be
that second assistant directors do, from time to time, perform functions
which are supervisory, dependent on their experience and the responsi-
bilities conferred upon them by a particular director as first assistant
director But basically the position is administrative or clerical in nature
and the record is wanting in evidence to show that the supervisory duties
are performed regularly or extensively by the second assistant directors
We therefore conclude that the second assistant directors are not super-
visors and are entitled to the protection of the Act
On May 24 Norton's monthly salary was reduced from $432 50 to that
of the next highest paid teller, which was $385
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tellers in their daily transactions. However, as any skilled
employee is generally higher paid because of his peculiar
skill, Norton's money responsibilities were more directly
related to her peculiar job function than they were to her
relation with the other teller employees.' In my view, her
functions in this regard are not a sufficient basis for finding
her to be a supervisor. With respect to her checking the
tellers cash balances (i.e., whether they were "over or
short" ), I am persuaded that this, too, was a routine func-
tion and does not meet the "responsibility to direct" require-
ment of Section 2(11) of the Act.
I have thus far considered the facts bearing upon the
supervisory issue only to the extent that they were shown to
exist prior to the advent of the Union. However, insofar as
Norton's status is concerned, the record discloses that vari-
ous developments occurred after the start of the organizing
campaign which merits further consideration. Thus, on or
about February 9, which was the day after Respondent
received a copy of the Union's representation petition, Nor-
ton was called into the director's room by Swift. According
to Norton's testimony, which is undenied, on this occasion
Swift, who first stated that he had a discussion with Knox
the night before, for the first time addressed her as a "super-
visor." He thereupon proceeded to state that she would have
to remain at the bank with the other tellers until all tellers
had balanced out or until any balancing problem had been
resolved. It is also undisputed that on or about February 10
Knox held a meeting with all the employees, during the
course of which he turned to Norton and Billy Jean Hohen-
stein, the latter at this time the head bookkeeper, and stated,
"You know you are supervisors and in view of that you
cannot vote or talk about Union matters."' As thus revealed
in the record, and as conceded in Respondent's brief, nei-
ther Norton or Respondent's employees were ever told,
prior to the advent of the Union, that Norton was a supervi-
sor. Without belaboring the subject, applicable here is the
following holding by the Administrative Law Judge, which
the Board adopted, in Robert D. Loggins, d/b/a Loggins
Meat Co., 199 NLRB No. 38:
I am cognizant, in this connection, of the fact that
Respondent informed McKeever that he was a supervi-
sor 2 days before his discharge. However, as this
change in title left unaltered McKeever's duties and
functions, and as "the important thing is the possession
and exercise of actual supervisory duties and authority
and not the formal title," [See N.L.R.B. v. Southern
Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A.
4, 1958), cert. denied 359 U.S. 911 (1959)] it follows
therefrom that this attempt of Respondent to "beef up"
McKeever's job through a title change, which occurred
after the Union commenced its organizational activity
and after it learned of McKeever's part therein, did not
result in a genuine change in his status either in fact or
in law. [See Ross Porta-Plant, Inc., 166 NLRB 494; also
Ward-McCarty Hot Oil-Paraffin Service, 171 NLRB
731.]
During the period of the organizing campaign, the follow-
6 Norton also was authorized to sign bank checks up to the amount of
$2,500 The other tellers could sign checks up to $500
7 Credited and unrefuted testimony of Patricia Jones
ing additional steps were taken by Respondent with re-
spect to Norton's functions and duties as head teller:
1. At some point between the advent of the Union and
the time Norton was demoted, Swift gave Norton evalua-
tion sheets and directed her to evaluate the performance of
each of the tellers .8 Norton proceeded to do so, although
ultimately three of her rating recommendations were reject-
ed by Knox. However, the principal point here is that Nor-
ton had never been requested to make any evaluation of the
other tellers prior to this time.
2. Swift testified that on May 6 he held a conference with
Norton "to re-aquaint her with and talk over her duties." It
is undisputed that at this time Swift presented Norton with
a document, a copy of which is attached to this Decision as
Appendix B. As indicated thereon, this document purports
to set forth the duties of the head teller, including such
authority as to effectively recommend promotions, discipli-
nary actions, and the like. The bottom of the document
bears a space for the signature of the head teller and states
that she "agrees that the position of Head Teller as outlined
above is a management supervisory position." Although on
cross-examination Swift at first was evasive as to whether he
requested Norton to sign this document, he finally conced-
ed, "I related to her that there was a place for her signature;
if she wished to sign she could. If she didn't wish to sign,
then she didn't have to." Norton chose not to sign.
Concerning the items described above, the fact that Re-
spondent did not take any action in either respect until after
the advent of the Union in a large sense speaks for itself.
Beyond this, and as will be discussed and elaborated below,
Respondent was strongly opposed to the unionization-of its
employees, and as will also be seen, engaged in conduct
independently violative of Section 8(a)(1) of the Act in fur-
therance of its efforts to defeat the Union. With all this in
mind, I strongly question the bona fides of Respondent's
motives in taking the steps outlined above. In short, I am
persuaded and find that following the advent of the Union,
Respondent took these steps in order to create the impres-
sion that the position of the head teller was a supervisory
one. In fact, I deem it more likely that this was done in
furtherance of a purpose to diminish the strength of the
Union. That this would appear so is manifested not only by
the timing of the foregoing conduct, but also by Knox's
statement to the employees, upon receipt of the petition,
that Norton and Hohenstein were "supervisors" and that
therefore they could not vote.'
Finally, I have not overlooked Swift's testimony on direct
examination concerning the duties and authority of the
head teller. This testimony is strikingly similar to the lan-
guage describing the duties of the head teller as reflected in
the heretofore described document attached hereto as Ap-
pendix B. Concerning this testimony, suffice it to note that
Swift did not relate any of these duties to Norton at any time
prior to the beginning of the organizational activity.
8 The rating sheets called for the evaluation of such factors as work perfor-
mance, accuracy in teller work , willingness to get along with others, and the
like
9 Respondent at this time took similar steps to establish that the position
of head bookkeeper, then occupied by Billy Jean Hohenstem , was a supervi-
sory position. However, I do not deem it necessary to further detail
Respondent's conduct in this regard. Hohenstein was subsequently dis-
charged but her termination is not alleged to have violated the Act
FIRST NATIONAL BANK OF NEW SMYRNA BEACH 131
2. The merits of Norton's case bank time ." When she thereupon asked "If I tell you that
During the period between the filing of the petition on
February 3 and the holding of the election on April 12,
Respondent 's officials held a number of meetings with its
employees concerning the Union and organizational activi-
ties . It also held numerous individual discussions with the
employees . While many of the conversations involved only
Norton, insofar as is practical I shall discuss below the
pertinent aspects of all such meetings , conversations, and
events in their chronological order. Much of this evidence,
of course , will also be applicable to the case of alleged
discriminatee Patricia Jones , whose case is discussed later
herein . I would also note here that the testimony of employ-
ee witnesses concerning the various meetings and discus-
sions between management and the employee is almost
entirely undenied . Accordingly, absent any contradiction, I
do not deem it necessary always to refer to the specific
witnesses who gave such testimony.
Preliminarily , with respect to Norton it is to be noted that
she was an active union adherent at the outset of the organ-
izing campaighe was one of the employees who attended
the first unon eeting and was one of the first employees
to sign a union,card. She also attended a meeting held in
latter January where a majority of the employees signed up.
It will be re alled that on about February 9, the day after
Respondent received a copy of the petition , Norton was
called in and told that she was a supervisor . It will also be
recalled that wit$in a day or two after receipt of the petition,
Respondent called a meeting of all the employees in the
foyer of the bank and announced that Norton and Hohen-
stein were supervisors , and that therefore they could not
vote or talk about union matters . With further respect to this
meeting, Knox , after first stating that he had received a
petition wherein tile Union claimed to represent a majority,
told the employees that he could not believe that the Union
in fact did represent a majority and that the bank "was
going to fight it all the way."
The next mo ing the employees were again assembled in
the foyer of the bank. In addition to Knox, two of the bank
directors, Frank Edwards and Frank Hall, also were in
attendance. Pointing out various disadvantages of the
Union, Knox went on to say that in the event of a strike the
bank would have to remain open because of a Federal law
requiring banks to remain open a certain number of days,
that replacements would then have to be hired , and that the
employees in this event would not have a job. At this point
one of the directors spoke up to say that if a strike occurred
he would come in and assume a teller position, but that he
would not be as fast as Norton.10
On February 16, Knox summoned Norton into his office.
They first discussed the termination of the head bookkeep-
er, Billy Jean Hohenstein , which had taken place that morn-
ing. Norton testified without contradiction that after this,
"he (Knox) wanted to know how much I had participated
in union activities , how many meetings I had attended and
if I was for management or if I was for the Union. He had
to know the answers to these questions ." She said he also
wanted to know if she had talked about union matters "on
10 Jones testified to all the above.
I am union will I have a job or not?" Knox responded that
he did not know, that he would have to consult with the
board of directors to see what they had to say. During this
conversation Knox also asked Norton what reply she would
give to an employee if the employee sought her advice as to
whether or not she should loin the Union. Norton re-
sponded that she thought her reply would be: "Well, do
whatever you think is right." The conversation finally ended
with Norton telling Knox that she would give her answer to
his first two questions the next day.
The following day, February 17, Norton met with Knox
in his office. According to her unrefuted testimony she
thereupon advised him as follows: "The answer to both of
your questions is no . I will be for management and I haven't
talked about the Union on break time since you announced
that we could not."tt
The next conversation with Norton occurred when Knox
returned to work after being hospitalized in the latter part
of February. Calling her into his office at this time, Knox
first stated that during his stay in the hospital he became
disturbed about her statement during the February 16 con-
versation concerning what she would say to employees who
might ask if they should join the Union, viz., that she would
tell them to do whatever they thought was right. He then
asked if she thought she had used good judgment in propos-
ing that such would be her response. To this Norton replied,
"No, sir I don't suppose so, but I don't know what I would
tell them." Knox thereupon turned to a list of names which
he had on his desk. Reading off the names of some six
employees, he asked Norton if any of them had attended
union meetings . Norton testified that she told him, "Sir,
some of them you have on there have not attended union
meetings."
Norton's account of the further conversation which she
had with Knox during this period is best summed up in her
own words as follows:
Well, I met with Mr. Knox just about every af-
ternoon for a period of time and I can't remember these
dates. But one of the-couple of meetings, he talked to
me and asked me if I thought there was any hope in
getting some of the girls to pull their union cards out
so that the election would not go over, and he would
tell me some of the bad things that they would be faced
with if the bank went union and if we should go out on
strike-and asked me to pass them along and see if I
could encourage them to pull their union cards out.
In the afternoon of March 2, Norton and two other em-
ployees received a telephone call from a union representa-
tive wherein they were advised that they were being
subpenaed to attend the representation hearing which was
scheduled to begin the next day, March 3. The three em-
ployees advised Swift about their being subpenaed before
11 Prior to this point in her testimony, Norton did not testify of having been
apprized by Knox that she could not talk about the Union on her break time
However, Norton conceded that she had so many conversations with Knox
during the 3 or 4 months prior to her demotion that she could not always
be certain as to what was said during each specific conversation Not only
did Norton impress me as a credible witness, but virtually all of her testimony
is undemed I am satisfied that her testimony concerning the conversations
with Knox on February 16 and 17, as well the later conversations concerning
which she testified , were substantially correct versions as to what occurred.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaving the bank that day. Norton gave the following unre-
futed testimony concerning a telephone conversation she
had with Knox upon arriving home later that day:
And we went home-and I hadn't been home but a
few minutes and Mr. Knox called my house and he
wanted to know where I got this subpoena and I told
him as best I knew, and he couldn't believe that I
hadn't gotten a subpoena from the union and I wasn't
that familiar with it at that time, and I told him who
made the telephone call and he talked at length. He
wanted to know how many people had been attending
the meetings, and I hesitated to give him any informa-
tion, as much as I could, and I realized I would not, that
I was going to have to tell him. So, I started calling off
the names of the employees that were there. I named
about six or eight, and he said, "My God, Burtie , that's
enough to bring the union in," and by that time he was
getting really aggravated with me and wanted to know
how many union meetings I had attended and if I had
attended any union meetings since he and I had dis-
cussed our management situation.
I asked him did he want me to resign my position at
the bank and he said, no, that we would talk about it
later. He said that he had the authority to fire me just
like he did any other employee, and I knew that. He
asked me in particular if Norma Ware and Carolyn
Keeler had attended the union meetings, which I said
that they had. This discussion lasted from between 30
to 45 minutes.
With reference to the union meeting referred to in the
above testimony, Norton testified that she, in fact, did at-
tend a union meeting on February 19 or 20. 1 should also
relate here that on the next morning, March 2, Respondent
refused to grant Norton and the other two employees per-
mission to leave work for the purpose of honoring their
subpenas and attending the hearing scheduled for later
that morning. However, since this matter is the subject of
an independent Section 8(a)(1) allegation, I reserve further
details for later discussion herein.
Norton testified that during March and April, she had
further conversations with Knox wherein he continued to
speak against the Union. However, with one exception she
did not relate further details concerning the conversations
which took place during this period.'
An unfair labor practice hearing against the Respondent
was scheduled for 1 p.m. on May 22. Apparently under
subpena, Norton came to the courtroom at this time to
appear as a witness. This case, however, was settled and the
hearing did not take place.13 On the morning of the next
day, May 23, Knox came up to Norton and said he wanted
12 As to the exception, this concerned a conversation wherein Knox spoke
to her about the bank 's no-solicitation rule. However , since there is no
allegation in the complaint of any violation having occurred during this
conversation or at this time , the details of this conversation need not be
related . [The complaint alleges that Respondent announced an unlawful
solicitation rule on February 10, and further, that it published and distributed
an unlawful no-solicitation rule on May 25 ]
13 The settlement agreement was later set aside by the Regional Director
and the matter was consolidated with the complaint involved in the instant
hearing . However, the record does not identify the particular allegations in
the consolidated complaint which were covered by the settlement agreement
to talk with her. Because she was busy at a teller window
at the time, they agreed to meet at 3:30. However, at about
3 p.m. Knox came back to Norton and advised that the
conference would have to wait because he did not have
"legal permission" to talk to her then.14 During the course
of the following day, May 24, Swift advised Norton that
Knox would like to meet with her at 3 p.m. Obviously
apprehensive as to what might occur, Norton requested
employee Ruth Perrenod, who had just been appointed
union steward, to accompany her. At the appointed hour
Norton came to Knox's office and sought to bring Perrenod
in with her. Knox, however, would not permit Perrenod to
be present.15
Instead, he summoned Swift into his office, as well as two
other bank officers, Mr. Bar and Mr. Cardwell. Following
brief preliminaries , Swift stated that he did not want any "if
ands or buts," that he wanted a "yes or no answer," namely,
did she want to remain with the Union or not. After a
moments thought, Norton replied that she "could not take
the job as supervisor and such."16 Knox thereupon told
Swift to reduce Norton's salary to the next highest paid
teller, that she be relieved of her vault responsibilities, and
that she turn her vault keys over to him. According to the
unrefuted testimony of Norton, upon being apprised of her
reduction in pay she protested that she was the senior em-
ployee and therefore was entitled to receive some additional
monetary compensation. According to Norton, Swift re-
plied, "You are not entitled to anything, I don't know what
we are going to do with you."
It is undisputed that at this point Norton's monthly salary
was reduced from $432.50 to $385. Several days later anoth-
er employee was appointed head teller.
C. Conclusions as to Norton
I have previously found that at all times material hereto
Norton's position as head teller was not, as contended by
the Respondent, a supervisory position within the meaning
of Section 2(11) of the Act. From the recitation of facts set
forth above, there can be doubt, indeed it is conceded, that
Norton was demoted on May 24, 1972, because she failed
and refused to renounce her support of and/or affiliation
with the Union. Accordingly, it having been found that
Norton was an employee at the time, I am impelled to find
that she was discriminatorily demoted from a nonsuperviso-
ry position to a lesser paying nonsupervisory position in
violation of Section 8(a)(3) and (1) of the Act. Although the
complaint alleges that Norton's demotion also involved a
violation of Section 8(a)(4) of the Act, I am not satisfied that
the General Counsel has met his burden of proof in this
14 Unrefuted testimony of Norton I would assume that by this Knox
meant that he first wished to consult with his attorneys
1s The complaint raises a separate issue as to whether Knox refused to
permit Perrenod , as a union steward , to be present during the meeting which
ensued . This is discussed as a separate matter later in this Decision
16 The testimony of Norton. Concerning the above conversation, Swift
testified, "Mr. Knox asked Mrs. Norton if she wished to continue in her
present position of head teller and as supervisor Mrs Norton said, no, she
did not wish to continue in that capacity because of health reasons " Insofar
as this testimony differs from Norton's, I do not credit it Knox, who conced-
ed that Norton was at this point demoted, was not asked to testify concerning
this conversation Neither did Respondent call Bar or Cardwell who were
present
FIRST NATIONAL BANK OF NEW SMYRNA BEACH 133
respect . 17 It is accordingly recommended that this allegation
be dismissed.
D. The Discharge of Patricia Jones
Prior to her discharge, which took place on June 2, 1972,
Jones was employed by Respondent for 2-1/2 years as a
paying and receiving loan teller. An active union adherent,
Jones signed a union authorization card and attended all of
the early organizational meetings in January and February.
As previously related, in the afternoon of March 1 a
representative of the Union telephoned the bank and ad-
vised employees Patricia Jones, Burtie Norton, and Sharon
Draper that they were being subpoenaed to testify at the
representation hearing to be held at Orlando, Florida, at 10
a.m. on March 2. The representative gave the employees
their respective subpoena numbers and asked that they meet
her in Daytona Beach that evening to pick up the subpoe-
nas. This they did. However, before leaving the bank on
March 1, the three employees broached Swift and told him
they had been subpoenaed by the NLRB. Jones testified,
"He didn't tell us we couldn't go at the time. We sort of
laughed about it and it was let go at that and assumed we
were going the next morning." [ In point of chronology, it
will be recalled that Knox, upon learning of the subpoenas,
engaged Norton in a lengthy telephone conversation that
evening concerning the subpoenas and other union activity.
This conversation is previously set forth herein. ]
The three employees reported to the bank the next morn-
ing, March 2, intending to drive to the hearing a little later.
However, upon reporting to work, Swift approached the
three girls, individually, and asked that they give him their
subpoenas so that he could make copies of them . The girls
complied and Swift made copies with a copy machine. It is
undisputed that when Swift returned the subpoenas to the
employees he told them that they must remain at work, that
they would not be excused for the hearing.
At the hearing, which took place on March 2 as sched-
uled, Respondent contested the Board 's jurisdiction. Al-
though some commerce data was furnished by Vice
President Swift on his direct examination by company
counsel , counsel for the Union sought to interrogate him
concerning additional jurisdictional information. Thus, he
specifically asked Swift ( 1) to state the amount of mortgages
and loan business as between the bank and Rolling Hills
Enterprises, and (2) to state whether the bank participated
in a loan involving the Federal Pacific Electric Company.
As to (1), Swift testified that he did not have the figures
available. As to (2), the Hearing Officer sustained an objec-
tion by company counsel and Swift was not required to
answer . Nevertheless, it was the posing of these two ques-
tions that led Respondent to take a course of action which
17 The General Counsel states in his brief that "Norton was the only
employee of the Bank who appeared at the hearing as a potential witness "
The record, however, does not support this statement . Although Norton
testified that she appeared at the hearing , the evidence does not reflect that
she was the only employee to appear. Indeed, the record elsewhere reflects
that 20 employees were under subpoena to appear.
ultimately led to the discharge of Jones, which is here at
issue.
At this point it becomes relevant to note a particular
aspect of Jones' duties which are involved in the discussion
below. Thus, Jones testified that each month she prepared
a list of so-called "participation loans." Swift testified that
these are loans involving specific customers which a bank
may buy from another bank or may sell to another bank.is
Jones testified that from past experience she became aware
that Knox would request a list of participation loans at the
beginning of each month. However, she said that since she
was busy with other work at this time of the month, she
made it a practice to prepare the list near the end of the
month and deliver it to Knox at this time. She also testified
that for a number of months prior to her discharge she had
provided Vice President Swift with a copy of the participa-
tion loan list.
Turning to the commerce questions which union counsel
posed to Swift during the representation hearing, it is noted
that the name of Rolling Hill Enterprises appeared on the
latest participation list but that the name of Federal Pacific
Electric did not. It is also relevant to note that a number of
other employees beside Jones had access to information
concerning the identity of customers involved in
Respondent's participation loans. These employees includ-
ed Mrs. Sweat, a paying and receiving loan teller, Anita
Hutchenson, the proof operator, Beckey Deitz, a secretary,
and Ruth Perrenod, a secretary.19 Indeed, with respect to
Perrenod, Knox conceded that this employee prepares a
monthly director's report, copies of which are submitted to
Respondent's nine bank directors. It is undisputed that this
report contains the same information as that shown on the
participation lists prepared by Jones. 0
On the morning of March 3, which was the day following
the representation hearing, Jones was called into the office
of President Knox. Present also were Swift and Cardwell.
Knox had in his hand the participation list which Jones had
prepared several days earlier. According to Jones, Knox
began by stating that "he believed the information came off
the list," whereupon he proceeded to charge Jones with
preparing the list without his having previously requested
that she do so. According to the unrefuted testimony of
Jones, when she responded, "Well, why would I do it now,
Mr. Knox?", Knox replied, "This is just why I think you did
it, to cover up giving out information." He continued, Jones
said, by stating that he felt that the reason she had been
subpoenaed to attend the hearing in Orlando was "so that
she could give out this information."21 The conversation
terminated with Jones protesting that this was not true, that
in previous months, because of her busy schedule, it had
been her practice to prepare and submit the list at the end
18 In further explanation of a participation loan, Swift testified: "In selling
a participation , it indicates that a bank is a customer who has a loan require-
ment greater than the lending limits of the bank itself. It will ask its corre-
spondent to share in a portion of that loan A participation bought is another
bank who has a customer in the same situation , and the participating bank
ma' buy a share of that note "
1 Unrefuted and credited testimony of Jones
20 Testimony of Know (R 469-470) and of Perrenod (R 199)
21 Testimony of Jones
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the month without awaiting his specific request. Later the
same day Swift approached Jones and engaged her in a
conversation of similar content. During the conversation he
asked how many copies she had made. Jones replied that
she made only one copy and that this had been furnished
to him.
In addition to the foregoing private discussions which
Knox and Swift had with Jones on March 3, Respondent on
this date also held a meeting with all of the employees. At
this meeting Knox announced that certain confidential in-
formation had been given out and that he intended to ascer-
tain who was responsible. According to the uncontroverted
testimony of employee Sharon Draper, Knox stated "he
knew one of us had and he was going to find out if it took
taking all of us to court to find out."
On March 31, Respondent filed a civil action against the
Union seeking to enjoin it from "divulging, printing, dis-
seminating, or otherwise using specific accounts of the
Plaintiff banks not a matter of public record."
The trial of the above lawsuit and the heretofore men-
tioned unfair labor practice heanng were both scheduled at
the same courthouse on the same date, May 22. Several days
prior to this date Knox advised Jones that she was being
subpoenaed to give a deposition in connection with the civil
suit. Jones testified without contradiction that during this
conversation Knox told her that "I should be careful not to
trip myself up because it was a preliminary statement to a
court hearing to find out who gave out this information and
that they would fight it no matter how long it took."
Respondent's attorney in fact did take a deposition from
Jones at the courthouse at 8:30 a.m. on May 22. During the
taking of the deposition Jones was asked, inter alia, if she
knew certain union representatives, if she had attended any
meetings with them, and if she had provided the Union
representatives with any information to prove the Bank was
in interstate commerce. Jones was also queried about her
involvement in the preparation of the bank participation
loan lists. In response to the various questions, Jones testi-
fied that Knox had asked for the list at various times, but
that on several different occasions she had prepared the list
and submitted it to him "on her own," the latter including
the list which she prepared and submitted to him at the end
of February. She also testified that she provided a copy of
that list to Swift, and that she had previously given him
copies of the participation loan lists.
In the afternoon of June 2, Swift handed Jones a letter
which stated as follows:
Dear Mrs. Jones:
Your services with the first National Bank of Smyrna
Beach are hereby terminated effective immediately.
The reason being that we believe you gave false in-
formation under oath concerning confidential busi-
ness of the bank in a deposition on May 22 , 1972, in
a law suit involving the First National Bank of New
Smyrna Beach and the Office and Professional Em-
ployees International Union-AFL-CIO.
/S/ Maitland B. Knox, President
With the above, Jones was discharged.
D. Conclusion as to Jones
Knox testified that he decided to discharge Jones not
because he believed that she had provided confidential in-
formation to the Union, but rather ( as is also indicated in
the letter of termination) because she gave "false testimony
in a deposition [on] the date of May 22nd in relation with
her duties at First National."
Upon the entire record, and from my observation of the
witnesses , I do not credit the reason thus given by Knox for
Jones' termination. With respect to the alleged false testimo-
ny given by Jones, Knox testified in the instant hearing that
it was Jones' duty to prepare a solicitation list only when he
requested one, that he did not request that a list be prepared
on a regular monthly basis, and that "there could be at least
2 months in a row when I did not require the list." In this
connection it will be recalled that in giving the deposition
Jones testified that "Mr. Knox had been asking me for a list
at various times but that on several different occasions,"
including the occasion of her preparing the list in latter
February, 1972, she prepared the list at her own initiative,
i.e., without his having asked for one. From the foregoing,
there would appear to be very little difference between the
testimony of Knox in the instant hearing and that which
Jones gave in the deposition proceeding. Additionally,
Jones testified that she gave a copy of the February list to
Swift and that she had done so "on other occasions, too."
Swift testified in the instant hearing that although on Febru-
ary 29 Jones gave him a copy of the participation loan list
which she prepared at that time, she had never provided him
with a copy of the list on any previous occasion.
Whatever the fact of the matter, I am persuaded that
Jones did not deliberately or maliciously give false testimo-
ny either in the instant hearing or in the deposition proceed-
ing. Whatever differences there may have been in her
testimony and the actual fact of the matter concerning her
duties and conduct in connection with the preparation and
submission of the participation loan list, these were at best
trivial and inconsequential. Indeed, and assuming Jones to
have been mistaken in certain of this testimony, Respon-
dent could not attribute, nor can I perceive, any particular
motive adverse to Respondent's interests that Jones might
have had for deliberately fabricating any such testimony.
In short, I can but regard Respondent's assigned reason
for the discharge of Jones as frivolous and incredible. More
indicative of Respondent's true motive, it will be recalled
that on the day after the representation proceeding Knox
told Jones that he felt she had been subpoenaed to the
hearing so that she could provide certain information, the
source of which was the participation loan list which she
had prepared and the subject matter of which was raised
during the course of the heanng. Following the hearing he
also informed the employees that he intended to ascertain
the identity of the employee who released this information
even if it meant taking all of them to court. In view of the
foregoing, and also in the light of Respondent's uncon-
cealed and demonstrated animosity toward the Union, I
think it clear, and I find, that Respondent terminated Jones
because she was a prounion adherent and also because it
suspected her of giving evidence to be utilized at a Board
representation hearing. By such conduct Respondent viola-
FIRST NATIONAL BANK OF NEW SMYRNA BEACH 135
ted Section 8(a)(3) and (4) of the Act.22
E. Interference, Restraint, and Coercion
Turning now to conduct alleged to be independently vio-
lative of the Act, I consider first the allegation pertaining to
Respondent's no-distribution rule. It is undisputed that on
or about May 25, 1972, Respondent called a meeting of its
employees and distributed to each of them a document
setting forth certain rules . Rule 3 provided as follows:
Employees are not permitted to distribute any printed
matter for any purpose during working time, or non-
working time in working areas or in the bank or on its
premises.
It is well established that a rule prohibiting the distribu-
tion of union literature on company property by employees
during their nonworking time is presumptively invalid un-
less the employer can show special circumstances making
the rule necessary in order to maintain production or disci-
pline.23 The Respondent having shown no special circum-
stances as justification therefor, I find that Respondent's
distribution and promulgation of the rule to have violated
Section 8(a)(1) of the Act 24
According to the undenied testimony of employee Ruth
Perrenod, Swift also informed the employees, at the time of
his distributing copies of the no-solicitation rules on May
25, that they were not permitted to wear any pins or other
insignia that would designate they were union or union
affiliated. In the absence of any showing that special cir-
cumstances existed which justified the need for this rule, I
find that the rule prohibiting employees from wearing union
buttons or insignia violated Section 8(a)(1) of the Act.25
Paragraph 5(f) of the complaint alleges that Respondent
violated the Act by directing employees not to honor Board
subpoenas requiring their attendance at the representation
hearing on March 2. As heretofore discussed, it is undisput-
ed that on March 1, employees Jones, Norton, and Draper
were subpoenaed to attend the hearing to be held the next
day. They so informed Vice President Swift. It is undisputed
that upon arriving at the bank the following morning they
were apprized by Swift that they "were not to attend hear-
ing, that he would stand for us being absent."26 Upon the
entire record in this case, I am persuaded that Respondent's
conduct in instructing the employees that they were not to
attend the hearing, as required by their respective subpoe-
nas, interfered with the rights of the employees as provided
22 See N.L R B v Robert Scrivner, d/b/a A A Electric Company, 404 U.S
821. Cf. N L. R. B v. Northwestern Mutual Fire Association, et al, 142 F 2d 866
(C.A. 9, 1944).
23 Walton Manufacturing Company, 126 NLRB 697, enfd 289 F.2d 177, 180
(C.A 5, 1961), Lexington Metal Products Company, 166 NLRB 878
24 Respondent subsequently posted a revised rule which corrected the
unlawful aspect of the above no-distribution rule However , it did not distrib-
ute copies of this rule to the employees, as it did on May 25, nor did it make
any announcement concerning the posting of the rule as modified Accord-
ingly, with respect to the above violation I deem it necessary that Respondent
take the remedial action as hereinafter proposed
25 Floridian Hotel of Tampa, Inc., 137 N LR B 1484; Brewton Fashions, Divi-
sion of Judy Bond, 145 NLRB 99, 127
26 Unrefuted and credited testimony of Draper Although Swift advised
Jones that the bank had not been given sufficient notice to make adjustments
for their being absent, Draper credibly testified that he made no such state-
ment to her
in Section 7 of the Act and thereby violated Section 8(a)(1)
of the Act. This is not to say that certain situations might
apse where the last-minute subpoenaing of numbers of em-
ployees might unduly interrupt an employer's work opera-
tions. I can readily perceive that in such situations an
employer may indeed be justly concerned. However, and
having had considerable experience in situations of this
kind, I have found that it is usually not at all difficult to
make appropriate arrangements so that all parties will be
accomodated. For example, in the instant case Respondent
well might have arranged that the employees stagger their
appearances at the hearing, thus avoiding the necessity of
all taking off work at the same time. But whether or not this
would have been practical in the instant case, the determi-
native point here is that Respondent offered no evidence
whatsoever to show that in fact it would have suffered any
financial loss or undue interruption in its operations if these
employees absented themselves to attend the hearing. The
employees having been served with a subpoena which legal-
ly required them to appear and give testimony, the burden
here, at the very least, was upon the Respondent to show
that they were needed 27
Paragraph 6(f) of the complaint alleges that Respondent
violated the Act by denying Norton's request to have her
union steward present in Knox's office at the occasion of
her demotion on May 24. The record reflects that a few days
prior to this occasion employee Ruth Perrenod was appoint-
ed union steward. The Union did not notify Respondent
directly about this appointment, but rather so apprised
Respondent's attorney in a letter which the attorney re-
ceived on May 25. It is undisputed that Norton had Perre-
nod accompany her to the office on the occasion of her
demotion on May 24 and that Knox refused to let her enter
at that time. Norton testified that when they first appeared,
Knox told Perrenod that she was not needed, whereupon
Perrenod told him, "Sir, I'm the shop steward and I am
under the impression that I should attend." Knox re-
sponded to this, Norton said, by stating, "Ruth, this is an
order for you to get out of my office." However, although
Perrenod testified that Knox ordered her out of the office
at this time, she did not corroborate Norton's testimony to
the effect that she thereupon told Knox that she was a union
steward. Knox testified that he did not learn of Perrenod's
appointment as union steward until his attorney called him
on the following day to advise him of the letter which he had
received from the Union apprising about the appointment.
While the matter is not free from doubt, in the absence of
Perrenod's corroborating Norton in the important respect
noted above, I find that the General Counsel has not sus-
tained the burden of proof as to this allegation. According-
ly, I recommend that it be dismissed.
Paragraph 5(c) of the complaint alleges that on or about
February 10 Respondent retaliated against employees for
engaging in union activities by imposing a new rule to the
effect that they could not leave when they completed their
regularly assigned work, but were required to stay until at
least 3:30 p.m. regardless of the hour at which the employ-
27 Although Respondent did not make any outright threat of reprisal to the
employees, clearly Respondent's instruction to them that "they were not to
attend the hearing" was by itself inherently threatening Cf Newland Knitting
Mills, 165 NLRB 788, Bauer Aluminum Company, 152 NLRB 1360.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees actually completed their assigned duties. The uncon-
tradicted testimony of Norton and Hohenstein reflects that
at about this time they in fact were substantially so apprised
by Swift. Further corroborative of the fact that Respondent
sought to tighten its rules in this regard is evidenced by the
fact that on February 11 Swift sought to have Norton sign
a paper which stated as follows:28
It has been agreed between myself and Mrs. Norton
that as head teller, she will remain at the bank until
such time as all tellers have balanced out for the day
or until such time as the problem with balancing has
been resolved.
It is also undisputed that on February 11 Swift asked
Hohenstein to sign a letter of similar content . Respondent
offered no explanation whatsoever for deciding to impose
the foregoing requirements upon Norton and Hohenstein at
this particular time. In the context of the concurrent meet-
ings which Respondent had with its employees to combat
the Union, its unlawful interrogations of Norton which were
taking place at this time, all of which have been heretofore
described, and upon the entire record in this case, I am
convinced and find that Respondent by this conduct viola-
ted Section 8(a)(1) of the Act, as alleged in paragraph 5(c)
of the complaint 29
Finally, I have earlier in this Decision related the numer-
ous conversations which Respondent's officials had with
Burtie Norton wherein they interrogated her concerning her
union activities, sympathies and membership, as well as the
Union activities, sympathies and membership of other em-
ployees. I find that by this conduct, all of which is particu-
larly alleged in the complaint, Respondent violated Section
8(a)(1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship 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
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Patricia Jones, I shall recommend that Respon-
dent be ordered to offer her full and immediate reinstate-
ment to her former job or if this job no longer exist, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
2s G C. Exh 5
29 Assuming arguendo that Hohenstem was a supervisor (a question which
I do not deem it necessary to decide) Respondent 's above-described conduct
as to Norton alone is sufficient to establish the violation in question
for any loss of earnings she may have suffered from the time
of her discharge to the date of Respondent's offer of rein-
statement. Backpay shall be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289, with interest thereon computed in a manner and
an amount prescribed in Isis Plumbing & Heating Co., 138
NLRB 716. It having been found that Respondent discrimi-
natorily demoted Burtie Norton, it is recommended that in
like manner she be made whole for any loss of earnings she
may have suffered by reason of such discrimination. It is
also recommended that Respondent restore her to her for-
mer job or if this job no longer exist, to a substantially
equivalent position. However, nothing in this recommended
Order is intended to require Respondent, unless it is willing,
to place Norton in a bona fide supervisory position.
Since a discriminatory discharge of an employee goes to
the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, 1941) ), it will be recommended that
Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed employees in
Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure and
terms and conditions of employment of Patricia Jones and
Burtie Norton, thereby discouraging membership in the
Union, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
3. By terminating Patricia Jones on June 2, 1972, because
she sought to give testimony under the Act, Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(4) of the Act.
4. By the foregoing, and by other independent acts and
conducts interfering with, restraining, and coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(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.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
ORDER 30
Respondent First National Bank of New Smyrna Beach,
its officers , agents , successors, and assigns , shall:
30 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 purposes
FIRST NATIONAL BANK OF NEW SMYRNA BEACH
1. Cease and desist from:
(a) Discharging, demoting, or otherwise discriminating
against any employee because of activity on behalf of, or
membership in, Office & Professional Employees Interna-
tional Union, AFL-CIO, Local No. 73, or any other labor
organization.
(b) Discriminating against employees because they filed
unfair labor practice charges or gave testimony under the
Act.
(c) Interrogating its employees concerning their union
activities, sympathies, or membership; or interrogating its
employees concerning the union activities, sympathies, or
membership of any other employees.
(d) Instituting new rules or changes in working condi-
tions for the purposes of discouraging union membership or
activity.
(e) Announcing or promulgating any rule or regulation
prohibiting employees during nonworking time from distri-
buting union literature in nonworking areas of the bank's
premises; or prohibiting employees from wearing union
buttons or insignia.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Patricia Jones and Burtie Norton immediate
and full reinstatement to their former or substantially equiv-
alent positions, and make them whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and make available to the Board, or its
agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel re-
cords and reports, and all other records necessary or appro-
priate to analysis the amount of backpay due and the right
of reinstatement under the terms of this recommended Or-
der.
(c) Post at its bank in New Smyrna Beach, Florida, co-
pies of the attached notice marked "Appendix A."31 Copies
of said notice, on forms provided by the Regional Director
for Region 12, after being duly signed by Respondent's
authorized representative shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of the receipt of this Decision
what steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found herein.
137
31 In the event the Board's Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX B
Duties-HEAD TELLER
a. Authority to effectively recommend promotions, merit
increases upgrading, disciplinary actions and grievance set-
tlements among tellers.
b. Assigning tellers' work according to their capabilities
and needs of the department.
c. Enforce company rules and regulations with respect to
the day-to-day operations in the teller department.
d. Direct tellers in their various duties without the need
to refer to management for each individual decision.
e. Responsible for supplies in the department, keeping
inventory at acceptable levels and referring requests to the
appropriate officer.
f. Determining work hours for tellers commensurate with
total bank operations.
g. Taking the place of the officer in charge, in cases of
absence , concerning teller functions.
h. Attend supervisory meetings with other department
heads.
I. Determine when and how work schedules are to be
changed, if the need arises.
j. To instruct new tellers in their job duties.
k. Inspect the work of all tellers and to reject work, if
necessary, and to follow through to insure acceptable per-
formance.
In addition, the head teller is required to be present each
day until all tellers are balanced out and to determine to
reasonable satisfaction the cause for possible overages and
shortages and is required to perform duties such as receiving
deposits, cashing checks, payrolls, daily proof of own trans-
actions, handling drafts, cashier's checks, certificates, mon-
ey orders, sales and redemption of savings bonds, sales of
travelers checks, controlling cash and cash items; vault cash
responsibility and ordering and shipping coins and curren-
cy.
I hereby agree that the position of Head Teller as outlined
above is a management-supervisory position.
Head Teller James C. Swift