Jefferson National Bank

National Labor Relations Board - Board Decisions

Feb 28, 1979

240 N.L.R.B. 1057 (N.L.R.B. 1979)

JEFFERSON NATIONAL BANK 1057
Jefferson National Bank and District 65, Distributive
Workers of America. Cases 22-CA-7683 and 22
CA 7727
February 28, 1979
DECISION AND ORDER
By CHAIRMAN FANNING ANI) MLNIBERS J shINS
AND MUIRPIIY
On October 27, 1978, Administrative Law Judge
Jesse Kleiman 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 and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent. Jef-
ferson National Bank, Passaic, New Jersey. its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph 2(a):
"(a) Offer Patricia Huston immediate and full re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privi-
leges previously enjoyed."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondent has excepted to certain credihility findings made hb the
Administra.ie I.as Judge It is the Board's estabhlished polic\ not to oer-
rule an Administratise I a Judge's resolutlons with respect to credilhlt,,
unless the clear preponderance of all of the relevant eildence cont,ince us
that the resolutlOns are ncorrecl. Slndarld l)r 11all Prodii. , 91
NLRB 544 1950), enfd. 188 F.2d 362 (3d ('ir. 1951) we hae carefulls
examined the record and find no hsis for reversing his findings
240 NLRB No. 160
APPENDIX
Nol (1E To EMPIO EFFS
Posr-I BY ORI)DR OF I 1H-
NAI ION&I LABOR RiI.ArioNs BOARD
An Agency of the United States Government
The National Labor Relations Act gives all em-
ploqees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WIll.l Noi do anything that interferes with,
restrains, or coerces employees with respect to
these rights. More specifically,.
WI. WILL. NO solicit employee grievances and
promise that such grievances will be adjusted.
Wt w ,l. l NO coercively interrogate employees
concerning their union membership, activities,
sympathies, or desires.
Wie wIll Not promise or grant wage increases
or other benefits to induce employees to refrain
from becoming or remaining members of Dis-
trict 65, Distributive Workers of America.
Wt WILL 'so discourage membership or activ-
ities on behalf of District 65, Distributive Work-
ers of America, or any other labor organization
by discharging employees or discriminating
against them in their hire or tenure.
WFe wI.. Not in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7
of the National Labor Relations Act.
WL niil. offer to Patricia Huston immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or any other rights or privileges previous-
ly enjoyed.
Wt wlil recognize and, upon request, bargain
collectively with District 65, Distributive Work-
ers of America, as the exclusive collective-bar-
gaining representative of all the employees in
the unit described below with respect to rates of
pay, wages. hours, and other terms and condi-
tions of employment, and, if an understanding is
reached, embody such understanding in a writ-
ten, signed agreement. The bargaining unit is:
All employees employed by the Jefferson Na-
JEFFERSON NATIONAL B NK .. s ] s
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Bank at its main branch in Passaic.
New Jersey. and Paulison Avenue and l.ake-
view Avenue branches in Clifton. New Jersey.
but excluding professional employees, guards.
and supervisors as defined in the Act.
JIii i RS()N NA II ()Ni BANK
DECISION
SIAI MINI 1OF It- CSE
Jr.sst Ki iMAN. Administrative l.aw Judge: Upon charges
filed in Cases 22 CA-7683 and 22 CA 7727 2 on May 23,
1977, and June 10, 1977, respectively, by District 65, Dis-
tributive Workers of America, herein called the Union. the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 22, Newark, New Jer-
sey, duly issued an order consolidating these cases, a com-
plaint, and a notice of hearing on July 26, 1977, against
Jefferson National Bank, herein called the Respondent. al-
leging that the Respondent engaged in certain unfair labor
practices within the meaning of Section 8(a)(I . (3), and (5)
of the National Labor Relations Act, as amended, herein
referred to as the Act. On August 9, 1977. the Respondent,
by counsel, duly filed an answer denying the material alle-
gations in the complaint.3
After several postponements and rescheduling, a hearing
in the consolidated cases was duly held before me in New-
ark, New Jersey, on March 21, 22, and 31, 1978. 4 All par-
ties were afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, to argue
orally on the record, and to file briefs. Thereafter briefs
were filed by counsel for the General Counsel and the Re-
spondent.
At the conclusion of the General Counsel's case, the Re-
spondent moved to dismiss those paragraphs of the com-
plaint which allege violations of Section 8(a)( I) and (3) of
the Act by it. for failure of proof. I denied the motion. In
its brief the Respondent moved to dismiss the entire com-
plaint. For reasons hereinafter set forth, I deny the Re-
spondent's motion to dismiss in entirety.
Upon the entire record and the briefs of the parties. and
upon my observation of the witnesses, I make the follow-
ing:
FINDIN(;S OF FA( I
I ILH BISINEtSS Of ()Ill RSP()NI)ENi
The Respondent, at all times material herein. is and has
been a bank operating under a charter of the United States
Government. maintaining its principal office at 155 Jeffer-
I he charge therein alleges a violatior n ,of Sec. (a)( I) nd (3) tll he \li
t his charge alleged a iolatiion of Sec. 8(a)(5) of the Acl
Fhe consolidated complaint herein was amended on Januar! I. 1978,
and the Respondent n .Janual 23. 1978. dul; filed is .insser Io the
amendment to the complaint. denying the allegatiion set hfrth theril
son Street, Passaic. New Jersey. herein called the main
branch. and various other places of business in the State of
New Jersey. including a branch at 985 Paulison Avenue,
C(lifton. New Jersev. herein called the Paulison Avenue
Branch, and at 309 Lakeview Avenue, Clifton. New Jersey,
herein called the L.akeview Branch, and is now and has
been continuously engaged at said branches in the com-
mercial banking business.5 In the course and conduct of
the Respondent's business operations during the preceding
12 months, these operations being representative of its op-
erations, the Respondent derived gross revenue in excess of
$500,000 and transferred funds in excess of $50,000 to
banks located within the State of New Jersey who are en-
gaged in interstate commerce. The complaint alleges, the
Respondent admits, and I find that the Respondent is now.
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II lt l ..IBOR ORGANZAtll(N INVOL.'VlD
The complaint alleges. the Respondent admits, and I
find that District 65. Distributive Workers of America, is
and has been at all times material herein a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111I Il I NAIR I \B()R PR\(( IIS
The complaint alleges that the Respondent violated Sec-
tion 8(a)( 1), (31, and (5) of the Act by soliciting grievances
from its employees and indicating that such grievances
would be adjusted: by interrogating its employees concern-
ing their membership in. activities on behalf of, and sym-
pathy with the Union: by promising and granting its em-
ployees wage increases and by promising them other
benefits or improvements in their terms and conditions of
employment in order to induce them to refrain from be-
coming or remaining members of the Union or giving any
assistance or support to it; by discharging Patricia Huston
and failing and refusing to reinstate her because she joined
or assisted the Union and sought to bargain collectively
through representatives of her own choosing and engaged
in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection: and by refus-
ing and continuing to refuse to recognize and bargain col-
lectively with the Union as the exclusive collective-bargain-
ing representative of its employees in an appropriate unit.
The Respondent denies these allegations.
) During the hearing coiunsel for the (Gcneral (Counsel moecd foir he iith-
drawal f he allegations In the coimplainl perlaining o inda )e (roal
oie olf Ihe alleged dlscriminatees, pursuant to a stipulaiIon entered iI
hectween the parties providing fo r he plilerlt of the sum i of 4()00 t IDe
(iroeat bh the Respondent After l)e (iroal testified that she fulls under-
stood, concurred in. and ccepled the ernis of the eitlemenlrr stlpulyll I
granted the mnotin.
Ihe Reponident' nlain bhr;ainh. P'lulisuo Avenue Branch, and l.ake
lie Axenlie ranilch e the facilities inl, edr in this pr..eeding
JEFFERSON NATIONAL BANK 1059
A. Background
The Respondent, a bank operating under a charter of the
United States Government, maintains banking facilities in
the State of New Jersey. a main branch at 155 Jefferson
Street, Passaic, New Jersey,. and branch offices at 985 Pau-
lison Avenue and 309 Lakeview Avenue. both in Clifton.
New Jersey. Raymond Sisco is the bank's president, Peter
Perretti. a vice president, John Celentano, a shareholder
and the Respondent's General Counsel, at all times mate-
rial herein.6 and John McGoldrick, a vice president and the
Respondent's chief operating officer since April 1977.7
Vincent Mazzaloni became the acting bank manager of the
Lakeview Avenue Branch on February 14, 1977. and an
assistant vice president of the Respondent in May 1977.
The General Counsel alleges, the Respondent admits,
and I find that the above-named persons are supervisors
within the meaning of Section 2(11) of the Act and have
been and are now agents of the Respondent acting on its
behalf.
As will be more particularly set forth later herein, after
having been contacted by the Respondent's employees in
late December 1976, the Union. in early January 1977, be-
gan an organizing campaign among the Respondent's em-
ployees who were not represented by any labor organiza-
tion. Following an unsuccessful demand by the Union for
recognition, the Union filed a petition for certification of
representative with the Board on February 11, 1977. in
Case 22-RC-7042, seeking an election. The Respondent
and the Union. with the approval of the Regional Director
for Region 22, Newark. New Jersey, on February 24, 1977.
executed a Stipulation for Certification Upon Consent
Election establishing an election date of March 18. 1977.
Thereafter, by letter dated March 15, 1977, the Regional
Director for Region 22. Newark, New Jersey. approved the
Union's request for withdrawal of the petition filed in that
case (Case 22-RC-7042) with prejudice and cancelling the
scheduled election.8
B. The Appropriate Bargaining 'nit
The complaint alleges, the Respondent's answer admits,
and I find that the unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act consists of: All employees employed at the Re-
spondent's main branch in Passaic, New Jersey. and the
Paulison Avenue and Lakeview Avenue branches in Clif-
ton, New Jersey, but excluding professional employees.
guards, and supervisors as defined in the Act. At the hear-
ing the parties stipulated that as of February 10. 1977,
' (elentano died prior to the cilmlleentlenIl of the hearitlg.
Mc(ioldrick held the psollln ,of sice presdent .and ldil.lecl of the
Respondent's Paulison \venlue Branch prior Ihereto.
At the hearing counsel for the Respondent requested that{ the Admllnl,-
trrOtlse I.aw Judge take admlnltratise" notice of cerlailn dcumteri Il
(Case 22 R 742: the petition filed hb the non on Iehruars I 1. 1977. the
Stipulattion pn (Consentl :lesion. dated ehilluar 24. 19I77. and the ictter.
dated March IS. 1977. hb the Regionl I)lreclor [or Reioll 22. Nev.irlk
New Jersc. aipprlving the t nion's ,ithdrlaa. l of its petiltion filed ith the
Board O er the obhJectlln of ctLounI el for the (Itera.l ( oulls.cl ot the
grounds if relesanc. I granted the Respondelnt', request. hac tiken off,-
cill n ltice thereof. .and h.lae conslidered these document, i thlie dcscl-
opiltentl o i Tf ortnclu sioIIs id1
1
ilhe roilutl n if the Isstles presenied hereit
there were a total of 23 employees properly within the ap-
propriate bargaining unit as set forth above.9
C. The Evidence
According to the undisputed testimony of Patricia Hus-
ton concerning this, sometime in late December 1976.
Helen Hartmann, Linda Gianni. and Barbara Schroeder.
employees of the Respondent at its main banking branch.
being aware that Huston's father, John Zellars. was an or-
ganizer for the Union. spoke to her concerning union rep-
resentation of the Respondent's employees. After Huston
apprised her father of this, a meeting was arranged and
held at Huston's home on January 5, 1977. Attending this
meeting were Barbara Schroeder, Linda Gianni. Alicia
Agosto, Gwendolyn Moore, Linda De Groat. and Huston.
all employees of the Respondent, and Huston's father, Zel-
lars. Huston stated that the employees told Zellars that
they were dissatisfied with the working conditions at the
bank and particularly with Frank De Paola, the main
branch manager. and wanted a union to represent them.
She stated that they also wanted to know how they could
be "protected and get better job conditions" at the bank.
She added that Zellars mentioned something to them about
union authorization cards and the National Labor Rela-
tions Board procedures applicable to elections.'
The Aleeling of January 12, 1977: Subsequently. on Janu-
ary 12. 1977, another meeting was held at Huston's home.
at which employees from all the Respondent's branches
were present. having been notified by Huston about the
meeting on January 6. 1977, along with Zellars and Geral-
dine Biggins, a 'secretary organizer" for the Union." Big-
gins testified that 10 employees attended the meeting: Lin-
da Gianni, Linda Dudeck, Patricia Starke, Helen
lartmann, Barbara Schroeder. Gwendolyn Moore, Lor-
raine Gatto, Rita Imperato, Alicia Agosto. and Patricia
Huston. Huston testified that she came late and toward the
end of it. Biggins continued that the employees told her
they), were upset with De Paola, could not work with him,
and therefore sought out the Union. She added that she
discussed the Union and the benefits it offered and the
requirements necessary to undertake an organizational
campaign to obtain union representation. She related that
she gave each employee a booklet setting forth the health
benefit programs offered by the Union. with a union au-
thorization card enclosed therein, and continued:
I then asked them to think seriously about what theN
were doing and if they' wanted the union to represent
them, that thev should take the card out of their book-
let I gave them, read it over, fill it out and sign it and
return it to me.
I hca '\goll ,to. Mr! lisBril. Linds D)e (;Gro.. Yola.nde Dooman.i.
Rose 1.rie Doraindo. linda t)udeck. Iorr;ine (latl l.nda Giann. Ra-
ionlld Ilagen. Ilelei lHartmann. Patriciat tlusion. Rita. Imper.ato. Stanles
Ko/,deh.i Jr. ('lrild.d L.eon. Elba Montesdeoca. Gwven Moore. Jne ()'('on-
iell. P.irli.l. Pl,;ano. Ba rhir;l Schroede;. Doris Snder. Patrtci.l Starke
II an,a; . Julla Marl.l n. iand Vincenl Mazaloni
" lhie N;lin.tll lab or Relations Bo.ard 11l hereinafter he referred to i;s
the Bo.lrd
HBtggI, teslified thllt priltr to this meeting Zellars had contacted her.
.idl scd her hit the Respioden's emrploCees Cre interested n unioln repre-
sCll1.l1tili. .ld l reqcLlIeCl hat she meet irh thell to dscu,, he t'nion
JEFFERSON NATIONAL BANK
_ . . _ . .
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Biggins, all the employees present at the
meeting signed authorization cards and returned them to
her."
Concerning this, Huston testified that after she arrived
at the meeting Biggins had given her an authorization card
to sign and told her that if a majority of the Respondent's
employees signed the cards the Respondent might then rec-
ognize the Union as the bargaining representative of its
employees after being shown the cards. She added that
Biggins also explained that the cards could be presented to
the Board to obtain an election and the procedure therefor.
Huston continued that five employees were selected as
"committeewomen" to represent the other employees and
report back to them as to what transpired at any future
meeting so that all the employees would not constantly be
required to attend such meetings.13
Barbara Schroeder,' 4 an employee and a witness for the
Respondent, testified that when she was given an authori-
zation card at the meeting on January 12, 1977, Biggins
told the employees present that a majority of signed au-
thorization cards by employees were needed so that they
could be presented to the "Labor Board" to secure an elec-
tion or vote. She stated that the cards were not enclosed in
the Union's health plan booklet but handed out separately
by Biggins. Schroeder also testified, on cross-examination,
that Biggins said she would call De Paola and tell him that
the Union "had a majority of the cards" and would present
them to the Board and that she would show him the cards
if he so requested. She added that before she signed the
authorization card she had read it and fully understood its
import to be that she was authorizing the Union to repre-
sent her and that the card would be presented to the Board
with a majority of other similar cards signed by the Re-
spondent's employees in order to secure an election.
The record shows that in addition to the 10 employees
who signed authorization cards at the meeting on January
12, 1977, 4 additional employees signed cards between Jan-
uary 12 and January 19, 1977. Linda De Groat, a witness
for the General Counsel, testified that Huston gave her an
authorization card to fill in and sign on January 13, 1977,
telling her that other employees had been given cards to
sign the previous evening at a meeting at Huston's house
and that the cards were going to be given to Biggins to
present to the Union so that it could represent the Respon-
dent's employees. She continued that she also knew that if
the Respondent did not recognize the Union as its employ-
ees' bargaining representative the cards would be submit-
ted to the Board to obtain an election and that she believed
H2 tuston also testified that all the employees who attended the mleeting
filled out and signed authorization cards. |luston. Rita Imperato, orraine
Gatto and Barbara Schroeder each testified that then had signed such cards
at this meeting.
Huston testified that additional meetings had been scheduled for eb-
ruary 19 and 25 1977. oweVer, there is evidence in the record that a
meeting was held at Huston's house on January 25. not February 25. 1977
See Pisano's testimony and her signed authorization card in evidence dated
January 25, 1977. Pisano testifying that she signed the hack of the card on
that date at a meeting held at Huston's home.
14 Schroeder was one of the employees elected as a comrnlteewolman at
the January 12. 1977. meeting at Huston's house
Biggins had told her this. She added that after reading the
card she held it for a few days, then signed it, and subse-
quently gave it to Biggins.
Elba Montesdeoca, an employee and a witness for the
General Counsel, testified that Barbara Schroeder gave her
an authorization card to sign on January 18, 1977, and
that, while she did not read it, she did fill it out and sign it
on that day. She stated that Schroeder instructed her to fill
in the card and to go with De Groat to the Oasis Diner at
lunchtime and give their signed authorization cards to Big-
gins, who would be present there. Montesceoca continued
that Schroeder told her that "you fill this card and this is to
be a member of the union. .... With this card we will be a
member of the union if we have a majority. .... If it is not
a majority or we don't be in the union they give back this
card to us." She added that when Schroeder gave her the
card to sign she also said that a majority of signed authori-
zation cards from employees was needed to obtain a Board
election or vote. Schroeder testified that she had only told
Montesdeoca that the authorization card was needed for
presentation to the Board to secure an election and to give
it back to Biggins.
Both De Groat and Montesdeoca testified that they met
with Biggins on January 18, 1977, at the Oasis Diner and
gave their signed authorization cards to her.
Patricia Pisano, another of the Respondent's employees
testifying on behalf of the General Counsel, related that
Lorraine Gatto gave her a union authorization card to fill
in and sign on January 19, 1977, and that after reading the
front of it she signed and dated it. She was unable to recall
what Gatto said to her when Gatto gave her the card, if
anything. Pisano testified that she gave the card to Biggins
at a meeting held at Huston's house on January 25, 1977, at
which time she dated and signed the back of the card.
While Pisano could not remember when or by whom she
was told it, she stated that she had been told that the pur-
pose of the card was to have the Union represent the Re-
spondent's employees.
Regarding the signed authorization card of Yolande
Doomany, dated January 18, 1977, who at the date of the
hearing was no longer in the Respondent's employ, counsel
for the General Counsel moved that the Administrative
Law Judge compare the signature on the authorization
card with that on Doomany's signed "Employee's With-
holding Allowance Certificate" (W-4 IRS form), which
was supplied by the Respondent. 5 Although the Respon-
dent disputes the sufficiency of the General Counsel's at-
tempts to locate Doomany in order to have her appear at
the hearing to identify her signature and authenticate her
authorization card, since Doomany ostensibly now resides
somewhere in California, and despite my inability and
therefore reluctance to determine and decide that the sig-
natures are similar, since there are as many differences as
similarities between the two, I find that, as will be subse-
quently set forth herein, such a determination is not crucial
to the resolution of any of the issues in this case.
The Union's Demand for Bargaining Biggins testified
that on February 10, 1977, she telephoned the Respon-
See J P Stcien d (o.. ln.. Gulsian Diion 179 NLRB 254, 278
(1969H: e ItA Inc., 166 NRB 186 fn. I (1967: (onhined Metal Ifg
(orp . 123 Nl RB 895. 896 897 ( 1959).
JEFFERSON NATIONAL BANK 1061
dent's main branch office and spoke to De Paola, advising
him that she was from the Union. that the Union repre-
sented a majority of the Respondent's employees, and that
she would like to arrange a meeting with him to discuss
recognition of the Union and the negotiation of a collec-
tive-bargaining agreement. Biggins stated that De Paola
told her "he would check and get back to me." but De
Paola never contacted Biggins or the Union thereafter.
Huston testified that she was present in the bank and in
close proximity to De Paola when Biggins' call was re-
ceived on February 10, 1977, having been previously alert-
ed by Biggins that such a call was to be made, and that
after De Paola had spoken to Biggins on the telephone she
heard him place a call to "Judge" John Celentano, the Re-
spondent's General Counsel, after which De Paola left the
office and later returned. Huston stated that around lunch-
time Celentano appeared at the Respondent's main office,
as was his daily routine, since one of the employees, Helen
Hartmann, prepared lunch for him each day at the bank.
Huston continued that she observed Celentano speak to
Hartmann, who then went into the ladies' room crying.
When Huston asked her what was wrong, Hartmann re-
plied that Celentano had said to her, "Okay, something is
going on at the bank and the majority are involved. What
is it?" On February 11, 1977, the Union filed a representa-
tion petition with the Board concerning the Respondent's
employees.
The Meeting at the "Lobster Monster" Diner: Rita Imper-
ato testified that approximately I week prior to February
11, 1977, on a Friday evening, she had occasion to have
dinner at a restaurant with Hartmann, Schroeder, Gianni,
Montesdeoca, Rose Marie Dorando. and Gianni's mother,
there being no representatives of the Respondent present.
She related that they spoke about the Union and that dur-
ing this discussion Hartmann, and possibly herself, had
stated, "We made a mistake, contacting the union." Imper-
ato also testified that from the date of the meeting at
Huston's house on January 12, 1977, to the date of this
dinner meeting none of the Respondent's officers or repre-
sentatives had spoken to her about the Union, asked her if
she signed a union card, made any promises concerning
wage increase or pension benefits, or solicited grievances
or promised the resolution thereof.
Schroeder's testimony concerning this dinner meeting
was to the effect that she and the other employees present
at the diner The Lobster Monster in East Patterson, New
Jersey, discussed the Union, its hospitalization plan, and
the benefits offered thereunder, since "we were concerned
about different aspects of that." She continued:
And we were a little bit unsure of ourselves. We want-
ed to get, you know--become clearer about what the
pla be offered us and different things like that.
what would She also testified that prior to this meeting
she had not discussed the Union with any of the Respon-
dent's representatives.
The Meeting of February 11, 1977. Huston testified that
the next day, February I1. 1977, the Respondent called a
meeting of all its employees, which was held in the board
of directors room at the bank's main branch. She stated
that at the meeting, representing the Respondent, were Cel-
entano and Raymond Sisco, the Respondent's president.
She continued:
They informed us that whatever we were doing at the
bank was wrong and that we were hurting the wrong
people and if we had had any problems we should
have come to them first and the way we went about it
was entirely wrong. and he said that it was a family
bank and it should have been taken care of within the
family.
Huston added that some of the employees present voiced
complaints which centered mostly about their unhappiness
with De Paola. Huston continued that after the meeting
Celentano approached her, hit her on the head with his hat,
and said to her, "You see how fast we take care of things."
The testimony of Rita Imperato 16 and Elba Montesdeo-
ca, employees also present at this meeting, was similar to
that given by Huston. Imperato testified that Celentano
talked to the employees gathered at the meeting: "He said
he was very hurt that we did go to the union and he felt we
were a family and he wanted to know exactly why we went
to the union." She added that the employees complained
mostly about their treatment by De Paola as main branch
bank manager. Montesdeoca testified that at the February
11. 1977, meeting in the Respondent's board of directors
room, Celetano told the employees that they had been
called to this meeting to find out what was wrong, "why we
wanted to join the union." She stated that Celentano told
her directly. "[W]hen you need help you come to me and I
help you."
Interestingly enough, because it evidences an obvious
pattern in her testimony concerning this and subsequent
meetings between the Respondent's representatives and the
employees. Schroeder, a witness for the Respondent, could
remember absolutely nothing that Sisco or Celentano had
said at the February 11, 1977, meeting. However, she did
remember that some of the employees had brought up the
question of merit raises, salaries, and mostly complaints
against De Paola. Schroeder testified that such complaints
concerning salaries had been voiced previously by herself
and other employees to De Paola, but she could not re-
member if this was done at staff meetings. She added that
in response to the employees' complaints about wages and
salaries, Sisco and Celentano responded that "they didn't
believe things were this way, that-when we asked for
something, like a merit raise or we thought we deserved a
merit raise, it wasn't granted."
Sisco, the Respondent's president, testified that the rea-
son for calling this meeting with the Respondent's employ-
ees at the main branch on February 11, 1977, was to ques-
tion employees concerning their grievances. He added that
the meeting, however, was not called in response to the
Union's organizational efforts among the Respondent's
employees, because he first learned about the Union when
Biggins came to the bank on February 16, 1977, as will be
more fully discussed hereinafter.
Meetings at the Respondent's Branch Offices in Februarr
1977. Employee Lorraine Gatto, testifying as a witness for
the General Counsel, stated that during the period from
Iimperalo left the Respondenl's empli,\ In ugust 1977
JEFFERSON NATIONAL B NK
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January to April 1977 she was employed as a teller at the
Respondent's Lakeview Avenue Branch and that sometime
in mid-February 1977, on a Friday," Sisco and Celentano
appeared at the branch office and held a meeting in the
kitchen area of the bank with her and Patricia Pisano,. the
other teller employed there. Gatto related that Sisco and
Celentano asked them "if we had known anything about
starting a union at the bank." to which (iatto answered.
"No." Gatto added. "They asked us if we signed any
cards," to which she also responded in the negative."I
Sisco testified that he had visited the Lakeview Avenue
Branch office once or twice weekly to "look over the oper-
ation and just see how things are going, talk to the employ-
ees." He stated that Celentano, as the Respondent's gener-
al counsel. accompanied him on two of these visits during
January and February 1977 and that during one of these
visits he and Celentano spoke to Gatto and Pisano in the
kitchen area of the bank and Celentano asked them if then
had any problems. While Sisco denied that he or Celentano
had questioned these employees about their attendance at
union meetings and as to whether or not they had signed
authorization cards, he admitted that he knew at the time
that the Union was attempting to organize the Respon-
dent's employees and that the reason he and Celentano
visited the branch offices was to find out what was going
on "in terms of the union vis-a-vis the bank employees."
Further, while he continued to deny that either he or Cel-
entano had asked about the Union or made any "promises
or anything like that," he could not recall any other things
discussed except the employees' unhappiness with De Pao-
la and the need at the l.akeview Avenue Branch for addi-
tional employees. Sisco also stated that although he never
heard Celentano question Gatto and Pisano about the
Union or their signing authorization cards, he was not
present during the entire meeting, having left it at one
point, and did not know what transpired between Celenta-
no and the employees during his absence.
Sisco stated that after he and Celentano had visited the
Lakeview Avenue Branch they went to the Paulison Ave-
nue Branch and spoke to the employees there in the cafete-
ria. He admitted that they visited this branch office intend-
ing to find out what was going on and what the complaints
of the employees were. He added that while he was con-
cerned that the Union was attempting to organize the Re-
spondent's employees, if the employees wanted to be repre-
sented by the Union they could be.
The Meeting of Fehruarv 13. 1977. Rita Imperato testi-
fied that on Sunday. February 13, 1977, she received a
telephone call from Helen Hartmann, who invited her over
to Hartmann's home, stating, "Mr. Celentano would like to
talk to some of us girls to straighten things out." Imperato
stated that when she arrived at Hartmann's house Helen
Hartmann, Barbara Schroeder, Linda Gianni, and Celen-
tano were already there and that Linda Dudeck and Lor-
raine Gatto arrived later on. She continued that they then
adjourned to the dining room, where, at the head of the
table around which they were all seated, Celentano led a
I It should he noted hat I chruar 11 1)77 falls on a. I r hiv
While Patricia P'is;ill Icstifield al the hlcariig. n qulestlollS ceTrlll llil
Ihis meeting were asked of her hv an;l of the parties hcrcili
discussion and asked the employees:
. . . how the union came in. He asked us if it was the
colored girls 9 that brought it in and we explained no,
it was all of us who got together to bring the union in
and then we were talking about how we thought our
salaries, the way we got raises, we felt we should be on
a merit type system and Mr. Celentano said that he
had to bring that to the Board.
She added that Celentano told them "he was hurt from
what we were doing. why we went to the union, you
know." Imperato related that Celentano said "he was look-
ing into a pension plan that Clifton Savings and Loan had
but that the money was very tight and he had to work on
that." According to Imperato, Gatto and Dudeck raised
the question of additional staffing of the branch offices,
and Celentano said "he would try to get more employees
but that it was a difficult thing to do." She also testified
that while at Hartmann's house they unsuccessfully at-
tempted to contact Elba Montesdeoca on the telephone
and C'elentano indicated that he had previously. that very
day, gone to Montesdeoca's apartment to bring her to this
meeting and, having found that she was not at home, had
left his calling card in the doorway.
Montesdeoca testified that she had found Celentano's
card on her door and that when she told her fellow employ-
ees lartmann and Imperato the next day that Celentano
had been to her home and she was not in at the time, she
was told that her presence had been sought at the Hart-
mann house meeting. She also testified that either the week
that Celentano had visited her apartment looking for her or
the following week Celentano asked her if she had gone to
a union meeting and she answered, "No."
Barbara Schroeder's version of this meeting was differ-
ent from that given by Imperato in some significant as-
pects. She testified that she and Hartmann had discussed
the Union among themselves in a telephone conversation
on February 13. 1977. and had decided to call "some of the
other girls" to a meeting at Hartmann's house. Schroeder
stated that she reached Hartmann's home at about 2:30
p.m. and that after the other employees arrived she and
Hartmann decided to call Celentano and ask him to attend
this meeting. Schroeder continued that after Celentano ar-
rived there was a general discussion about "family and dif-
ferent things like that" and then the conversation came
around to the employees' complaints against De Paola.
about wages, and about inadequate staffing of the branch
offices. While Schroeder remembered what the employees
said, she could not remember what Celentano's responses
were. She did not recall whether Celentano had said any-
thing about the Union or authorization cards, or about
"colored girls," a pension plan, wage increases, additional
benefits, or additional employees for the branch offices.
She continued that Celentano had pizza brought in for all
the employees and paid for it. Imperato also testified that
Celentano had purchased pizza for the employees at this
meeting.20
i' Bot h Pat lul o illi d Illid* l)e (iroat testified at the hearing and
oe, cdkl I .rc hlblack
_'S bide fil, tllhe rmeting L t HaIrtnlllnn home on Fehruar, 13. 1977 and
1 Iectillg at (elentlanu's housc later Ihat month. as discussed hereinafter.
JEFFERSON NATIONAL BANK 1063
While Gatto testified at the hearing, no testimony was
elicited from her concerning the February 13. 1977. meet-
ing at Hartmann's house.
The Meeting of February 14, 1977. Huston testified that
the Respondent held another meeting in the board of di-
rectors room at the main branch on February 14. 1977,
requiring the attendance of all its main branch employees
and being represented at this meeting by Sisco. Celentano,
and Peter Perretti, another of its vice presidents. She stat-
ed:
At the meeting Mr. Celentano asked the girls to go
over what they had told them previously at the other
meeting with them for the sake of Judge Perretti and
some of the girls said they didn't feel like going
through the whole procedure again, but however they
did begin to tell them that they were very dissatisfied
with Mr. De Paola and that they wanted pension plans
and they wanted better raises and they wanted them
to go, some other women said according to seniority.
Huston related that upon Sisco's suggestion it was agreed
that at the next meeting of the Respondent's board of di-
rectors, scheduled for February 16. 1977. a list of employee
grievances would be prepared and presented by one of the
employees for their consideration. Huston added that at
this meeting she informed Celentano that she had found
out about the meeting held the previous weekend with sev-
eral of the employees and that she thought this was unfair
in that all the employees had not been invited.2 ' She fur-
ther testified:
I told him I didn't like the statement he made during
the weekend that the three colored girls started to talk
about the union and what were they going to do con-
cerning the three colored girls. He told me. well, I
always say colored girls. I said that's not the point. I
said, you are blaming the union on my father and me
and that's not how it started and I will not sit here and
hear that and I walked out.
Imperato testified that at the meeting on February 14.
1977, "Mr. Sisco explained to us that he wanted the em-
ployees to tell Mr. Perrettie our gripes or our complaints
and the reasons why we went to the union." She stated that
the employees discussed their complaints. "mostly about
our mistreatment by Mr. De Paola." She added, "Well, Mr.
Perretti was surprised and he said that he wanted the girls
to get together and to have a meeting with the Board of
Directors to present on paper our complaints." She contin-
ued that Huston had said, "I heard that you had a private
meeting without me and you are bringing my father into
this and I am very hurt that you brought my father into
this." Imperato related that a list of the employees' "com-
plaints" was prepared by Linda Gianni the evening before
according to the testimnon of the itnesses herein, and ith he cxceplnon of
one occasion as testified t I h, Schroeder. a hen a fe elploees "cre akien
to lunch along with bank auditors. the emploees had never hefore been
treated to pizza or dinner hb ann, of the Respondent', repreeenltatlxse,
1 Huston testified that Rta Imperato. ho had attended the Sndais
meeting of Februars 13, 1977, had told her that morning, I chriils 14. 1977
"what was happening and she didn't think it a.is fair thai ve e re being
blamed, the three hlack women"
the Respondent's board of directors scheduled meeting.
held on February 16. i977. to be presented to them by
Gianni at this meeting.
Schroeder's testimony concerning this meeting was to
the effect that the employees present commented about De
Paola. wages. and benefits, but again she could not remem-
ber anything Sisco. Celentano, or Perretti had said. She
further testified that after this meeting concluded and
sometime during that day, February 14, 1977, she told
Huston that "a group of us didn't want to belong, we want-
ed to withdraw our cards," referring to the Union.22
What Transpired Thereafter.: Huston testified that when
she learned that the board of directors meeting was defi-
nitely going to be held she called Biggins on the morning of
February 16, 1977. and told her that the Respondent was
going to hold such a meeting and she "thought the employ-
ees should be represented." Biggins testified that Huston
had called her the evening before the scheduled date of the
meeting (February 16, 1977) and had told her that a list of
grievances had been prepared to be presented by Linda
Gianni at the board of directors meeting the next day for
consideration.
Both Huston and Biggins testified that Biggins appeared
at the bank on February 16, 1977. Huston stated that she
introduced Biggins to Sisco, whereupon Biggins asked if
she could attend the hoard of directors meeting. but Sisco
refused her request, asking Biggins to leave the bank
premises and directing Huston to return to her work. Big-
gins' testimony concerning this is similar to that of
Huston's.
Lorraine Gatto testified that sometime in February 1977,
possibly in the later part of the month, Celentano person-
ally invited her to a gathering of employees at his home,
most of the employees attending being from the main
branch office. She also testified, however, that Huston and
De Groat were not present at the meeting. Gatto stated
that Sisco was also present at the meeting and that they,
discussed "problems in the bank and grievances....
About salary, about understaffing and most about Mr. De
Paola." Gatto added that this was the first time she had
ever been invited to Celentano's home. In connection
therewith, the Respondent's witness Schroeder testified
that on February 15, 16. or 20, 1977, she "was very upset
that day., and I walked out of the bank." She stated she
then telephoned Celentano and told him she would like to
talk to him the following morning at his office. She related
that Celentano told her to see him sooner if possible since
she was "so upset" and Schroeder said she would stop by
his home that evening if she could get Hartmann to drive
her there. 23 Schroeder continued that that evening she and
Schroeder testified that she mentioned the names of the following em-
phee. o Ilulton a 'alanincg toi ithdraw their authorlzation cards from
the L non Ilartmann. (iallto. Linda )Dooman. (this appears to he an error
in the rains ript. ince ilinde D )oonians and I.ind.a C annl signed cardsl.
.and herself
Schroeder testified that she had a "close working relationship" Aith
(elentlano and fell that he should confide in him habout matters relating to
the hank. hich the, often dlscussed together. She denied that she kept
Leen ll)no inlformed about the progress of the nion'S *rganlzatlonal cam-
pa.in. being prls, to such information 1as a committeeornan een though
,he admitted that ( elent.ino had told tier not onl, that he as concerned
Ahboit " the i11llil r.llnln t he hank" hut that he did not want the
( 'ontllued
JEFFERSON NATIONAL BANK
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hartmann went to Celentano's house and that Sisco and
seven or eight other employees besides herself were pres-
ent. Schroeder added that this was the first time she had
ever been to Celentano's home. Schroeder also testified
that at the conclusion of this meeting Celentano took sev-
eral of the employees, Helen Hartmann, Alicia Agosto.
Linda Gianni, and herself, along with Sisco, to Mario's
Restaurant for dinner.
Additionally, Huston, Imperato. and Schroeder all testi-
fied that during their tenure as employees of the Respon-
dent and before the commencement of the Union's organi-
zational campaign among the Respondent's employees
neither Celentano, Sisco, nor Perretti had ever held or at-
tended staff meetings with the employees at the bank. Hus-
ton also testified that prior to the Union's organizing ef-
forts two or three staff meetings had been held between De
Paola and the employees, the usual topics of discussion
being job assignments and how the employees were per-
forming their work, and the primary purpose of these meet-
ings being to advise employees what they were doing
wrong in the operation of their jobs and how to correct
this; but she did recall that although wages or fringe bene-
fits were not discussed, De Paola did ask the employees at
at least one meeting if they had any problems or "gripes"
they would like to discuss. She added that the employees
were afraid to do so. The testimony of Schroeder concern-
ing the staff meetings with De Paola was similar to that
given by Huston. She testified that they were usually held
around De Paola's desk. It would appear from the record
that the use of the board of directors room at the bank to
hold staff meetings with employees began on February II
and 14, 1977, after the commencement of the union organi-
zational campaign. She testified that the matters discussed
usually concerned bank policy and procedure and internal
employee complaints which De Paola would attempt to
resolve.
Frank De Paola Leaves the Respondent's Employ: Huston
testified that De Paola was scheduled to begin his vacation
on February 11, 1977, which he did. She added that he
never returned to the bank as an employee thereafter. Hus-
ton continued that a few weeks after De Paola had presum-
ably gone on vacation some of the employees asked Celen-
tano if De Paola had been dismissed, but Celentano
"wouldn't give them any answer as to whether he was fired
or not. .... He really left it open." She stated that after De
Paola failed to return to work "Vincent [Mazzaloni] was
acting in Mr. De Paola's place. He held a meeting of all the
employees from all the branches and told us that the slate
had been wiped clean and we were starting from now. This
is after the union had withdrawn. He said that new rules
had been made up. We were allowed 10 absentees, three
were personal days and the other six or seven were sick
days." Rita Imperato testified that she believed De Paola
Ulnion as the bargaining representative of the Respondent's employees Ild
was hurt b the employees' signing union authorization cards, and admitted
that she considered him a good friend. Schroeder admitted. however. that
she and Celentano had discussed the Union on ccasion, inall she re-
lated that because of her friendly relationship with Celentano she would not
want to say anything that would reflect adversely upon his reputation, par-
ticularly since he was now deceased.
commenced his vacation on February 13, 1977, for a 2-
week period but never returned to his job after the expira-
tion of the 2 weeks.
John McGoldrick, the Respondent's vice president, chief
operations officer, and cashier, testified that he discussed
with Celentano the employees' unhappiness with De Paola
as their supervisor and also their complaints against him.
McGoldrick continued that he and De Paola had been
very good friends for about 20 years and that although De
Paola discussed his resignation from the bank with him,
McGoldrick could not remember what De Paola had told
him was the reason for his resignation. McGoldrick "imag-
ined" that De Paola had been asked to resign, although no
one told him this. He stated that either Celentano or Sisco
informed him about De Paola's resignation but that no
reason was given to him for such action.
Employee Wage Increases. Rita Imperato testified that
during her period of employment with the Respondent,
commencing in August 1974, she had received a wage in-
crease in January of each successive year but that she re-
ceived not only the usual salary increase in January 1977
but an additional increase in April 1977. Lorraine Gatto,
having started her employment with the Respondent in
January 1975, testified similarly. Huston testified that on
April 20, 1977, upon her return from vacation, she was
advised by McGoldrick that she and all the other "girls"
were being given a $15 per week raise in wages. Sisco's
testimony about this was to the effect that it was the Re-
spondent's practice to grant its employees a "cost of living
type increase" at the beginning of each year and "then we
would review and give raises according to development of
the people, merit and so on periodically." Whether he was
referring to the April 20, 1977, wage increase given to most
of the Respondent's employees as "merit increases" is not
entirely clear from the record. Sisco stated that it was the
Respondent's policy to grant merit increases a "couple of
times a year" and such increases were received by four or
five of the employees yearly, on the average.
A review of the personnel records of the Respondent's
employees relevant thereto shows that the Respondent
granted annual wage increases to its employees in January
of each year until April 20, 1977, when it gave its employ-
ees an additional increase in salary entitled, on the person-
nel record form, "General Salary Adjustment." 24 Concern-
ing merit increases to its employees, the Respondent,
according to these records, granted a merit increase to
Barbara Schroeder on July 25, 1973. and to Stanley Kozde-
ba, Jr., on January 24, 1973, and February 14, 1977. These
records also reflect that any other wage increases granted
its employees by the Respondent, and there were several,
were made on the basis of the employee's promotion to a
different job category.
The Discharge of Patricia Huston: Huston testified that
she commenced her employment with the Respondent on
April 1, 1976, as a teller at the bank's main branch office.
:4 St.llles Kozdeba. Jr.. and Vincent Mazzaloni did not receive wage in-
creases in April 20. 1977 Kozdeba having received a $40 "merit increase"
on Februars 14 1977. and Mazzaloni receiving a "promotion" increase on
April 27. 1977 All other employees received the "general salary adjust-
ment" wage increa.ses on April 20. 1977. ranging from $13 to $25 weekly.
except Ra mond Hlagen. who received a $10t weekly salary increase.
JEFFERSON NATIONAL BANK 1065
Huston stated that on or about January 3, 1977. she was
transferred to the mortgage and loan department as a sec-
retary or loan investigator by De Paola and that while she
received no wage increase at the time of the transfer, De
Paola "called it a promotion" and she considered it such.
She added that when she started working in the mortgage
and loan department there were two other employees
working there, Barbara Schroeder and Linda Gianni.
Huston related that at the time her transfer occurred De
Paola had told her that Gianni would train her in the work
of the mortgage and loan department 26 and that when
Huston's training period had ended Gianni was "to take a
position on the platform and there would just be Barbara
Schroeder and myself in the mortgage." Huston continued
that from the time she had transferred into the mortgage
and loan department on January 3. 1977. until her dis-
charge on April 20. 1977, the position of "platform per-
son," which Gianni was supposedly scheduled to assume,
and which had been previously filled by John Doll, re-
mained vacant, Doll having left the Respondent's employ
prior thereto.
Huston testified that in mid-February 1977 she had suf-
ficiently mastered the job so that she could perform all the
necessary tasks required of her in the mortgage and loan
department and had even been complimented by De Paola
at the end of January 1977 for her progress in learning this
work. She added that she had never received any repri-
mands or warnings concerning her work during the entire
course of her employment with the Respondent. 27 When
Huston went on vacation on or about April 8. 1977, Gianni
was still employed by the Respondent in the mortgage and
loan department, and, according to Huston, the work in-
volving mortgage and installment loans had "slightly"
lessened. 28
-luston ncorrecil, nanled Linda [)e (iroll ;Is the tither enplolec be-
sides Schroeder working in the mortgage mnd loan department
This work insolsed handling loan documents. setiin up the loan. file
properN. preparing halance sheets on loa3s. preparlg lIoan computer c.lird.
Invesigation of loan applicatts. and "follo -up" ork. uch as procsrinc
mortgage insurance or other kinds f Ilsurance connected ith lon.ls
Mc1Goldrlck testfled. "I hase a a.ms had Ihe utmnost recard for Pat
or her abilits. for her intelligence. for eer,,hing he did.
-the Respondent', arous mortgage and loail records (R. I h, 2
through 8) how the flliIng:
Type of Loan Number of Loans
1976
Huston testified that upon her return to work on April
20, 1977. at the conclusion of her vacation period, John
McGoldrick. who on April 15, 1977, had assumed the posi-
tion of chief operations officer for the Respondent at the
main branch office, replacing De Paola. told her that busi-
ness in the mortgage and loan department was "way off or
down considerably," or "something to that effect." She
continued:
He told me Linda De Groat had been dismissed as a
teller, and they were a teller short. All the girls were
given a raise and I would get a fifteen dollar raise and
I would be put back on the teller window. I asked him
why I was being demoted and I wanted to know why
was I picked to go back to the teller window. He said.
"Pat, I have my job to do. I don't really know how
long I am going to have my job." He says. "all I can
do is give you the orders and you are supposed to go
back on your window." 29
She added:
I told Mr. McGoldrick that I did not want to do the
teller work but I would not quit. I said. I wanted to
speak to someone that could further explain to me
how they got around to my name, how I got to be the
one to go back to a teller.... Mr. Goldrick told
Stanley Kozdeba and Ray Hagen to prove my money
because I still had my moneys from when I was a
teller where I worked the window every other weekend
... . Hie said that he would speak to Mr. Sisco on the
phone and for me to stick to my guns. He called Mr.
Sisco, I was not present when he made the call and he
came to me and he told me he was sorry but he had to
let me go. Mr. Sisco said I was fired because they no
longer had any use for me.
In connection therewith the Respondent's witness Mc-
Goldrick testified that soon after he became the Respon-
dent's chief operations officer and main branch office
manager on April 15. 1977. the Respondent terminated the
employment of Linda De Groat, a teller. McGoldrick stat-
ed that, since the volume of business in the mortgage and
loan department was "down." and he had, in addition, al-
ways felt this department only needed two employees to
run efficiently, he telephoned Sisco on April 19. 1977. and
advised Sisco that De Groat had been discharged and that
he proposed "to move Katie Leon back to Paulison Ave-
nue where she was originally transferred from and I want-
ed to bring Pat Huston as a teller." McGoldrick added
: liuston tetified that this consersation was held near the end teller's
i Mc(;oldrck ltestified that his reason for considering Iransferring Pal
Huston hack to her position as teller as because Linda D)e (iroiat had been
terminated "I mo.ed a teller tip to Paulhson Aenue who had mnised pres-
mousl down to the main office. she a, acquainted with Pulih,on Aslenle
she went hack there as a teller. Pat IHuston was teller. she had i csh drawer.
she was working the walk-up window and m Inimediate need as for a
teller, an eperienced teller. and s.oltme went doi n. a I fclr this I h best
place to pull out "
Auto
Mortgage
Personal
Installment
Rejected and
Withdrawn
Mortgage
Personal
Installment
Rejected and
Withdrawn
Sept.
7
5
IS
4
Oct Nos. Dec.
2 6 7
I 3 2
11 8 8
3 3 0
10 7 7
1977
Auto Jan. Feb. Mar. Apr.'
3 4 3 2
0 3 2 3
10 13 18 13
0 4 2 1
5 5 7 4
* Up to Aprinl 20
J E F F E R S O N N A T IO N A L B A N K 1 5~ ~ ~
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Sisco told him "to do what he wanted." '3 He contin-
ued that since Huston was on vacation, he could not ap-
prise her of this decision, made that day, April 19, 1977,
even though it had now been finalized.
McGoldrick testified that Huston returned to work on
April 20. 1977. at which time, at "a little before 9 o'clock in
the morning," he spoke to her "at the far end of the teller's
cage." McGoldrick related that he told Huston "she had
received a 15 dollar a week raise and I told her that Linda
De Groat was no longer with us and I would like her to be
a teller." He continued:
She said she's not taking a demotion. I told her that I
needed an experienced teller. She was an experienced
teller, I said I don't think this is a demotion. . . that
the work in the installment loan and mortgage depart-
ment was down.
McGoldrick stated that Huston "became upset. She
walked . . . back and forth probably several times behind
the cage, she said I am not going to work and at one point
during the conversation she said to me you will have to fire
me." McGoldrick added that when Huston said "she was
not going to quit, she's not going to take this job" he decid-
ed to advise his "boss," Sisco, about this, telling Huston,
"IL]et me clear this .... "
McGoldrick continued that he then telephoned Sisco
and told him that he had spoken to Huston about her
transfer from "the installment loan to the teller position."
"and ... she refuses to accept it and refuses to work." He
stated that Sisco then responded that "she will have to go."
McGoldrick related that both he and Huston were now at
his desk area, where he had called Sisco, and "I said she'd
have to leave." Huston's employment with the Respondent
was "severed" on April 20, 1977. As stated before, Mc-
Goldrick testified that the decision to transfer Huston back
to her former position as teller was not made until De
Groat had been fired and need for a teller replacement
arose on April 19, 1977.
0 Mc(porall tl 2
Nl RB 97 19741
ployment in order to induce them to refrain from becom-
ing or remaining members of the Union or giving any assis-
tance or support to it. The Respondent denies this.
Analysis and Conclusions
On April 20, 1977. the Respondent granted almost all of
its employees wage increases ranging from $10 to $25 in
amount.' The General Counsel contends that these wage
increases were unprecedented and that their "timing and
the system of increases was a departure from Respondent's
past practice" and violative of the Act because made as "a
reward to its employees for rejecting District 65 and an
insurance policy against future organizing efforts." The
Respondent alleges that since it had a "long-standing poli-
cy and practice" of granting wage increases to employees
at various times during the year, the timing of the wage
increase "permits no inference of anti-Union motivation."
It further asserts that since the Union had withdrawn its
petition for certification on March 15. 1977, previously
filed with the Board on February 11, 1977, the wage in-
crease was granted when "no question of representation
existed and before the Union sought to assert bargaining
rights through the instant unfair labor practice charges." -
The evidence herein shows that the Respondent did have
a past policy and practice of granting its employees an
annual wage increase in January of each year. The Re-
spondent granted its employees wage increases in January
1977. The Respondent's own records further indicate that
any other wage increases granted by it were made on the
basis of an employee's promotion to a differentjob catego-
ry and, on a few occasions, as merit increases to employees
(Barbara Schroeder and Stanley Kozdeba, Jr.).
That the April 20, 1977, increases were unusual and a
departure from the Respondent's "long-standing policy
and practice" concerning wage increases is obvious and
undeniable. The Respondent had already given its employ-
ees the usual wage increase in January 1977. The unprece-
dented wage increases granted on April 20. 1977, cannot be
explained by the Respondent's alleged practice of review-
ing and giving raises "according to development of the
people, merit and so on periodically." as testified by Sisco,
since actually such raises were few and far between except
for promotional salary increases. Significantly. the April
1977 wage increases were granted only 2 months after the
Respondent had expressly promised its employees to adjust
their grievance concerning salary levels. Further, they were
made approximately 2 months after several union adher-
ents had indicated withdrawal of their support for the
Union and I month after the Union withdrew its petition
for an election filed with the Board.
From the above I am inescapably drawn to the conclu-
m Siainle IKozdcha. Jr.. and Vlncent Mazzaloni did noi receive wage in-
cr.ie,.. See n 24 herein.
1ilr ]{ee[ (, lll,ni al Din'iison ,t Riprle Intdstrsir. In . 209 NlRB
481 74. r ro S ee'na- ii, Ic and oir Il/lred r ' Bursarl .int
Ja (,wdl.. 'ariier, t Id I* B (; kAfanagcatenm (',lnlpan, 2()1 NRB 555
(U1
9
'7 end 485 I 2d 681 3d ( r . In ths latter case. the wage Increase as
r.lnlcd to olce elpl) ee 5 months ater the l n[ on's denmand for recognltin
a.r after all 1 rganlzatlonal efforlts had ceased, and here as no evidence
thal the wa[e inrea.se hre ome rela tliln ti, I1 deterninatlon to frustrale
JEFFERSON NATIONAL B NK 071
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion that the wage increases granted to its employees on
April 20, 1977, by their timing and the extent and nature
thereof, were made in fulfillment of the Respondent's un-
lawful promise to adjust its employees' grievance concern-
ing salary levels and to reward those employees who had
rejected the Union and induce those who maintained their
desire for union representation to renounce the Union then
and for the future in order to frustrate union activity
among its employees forever.
From all of the foregoing, I find that in granting a gener-
al salary increase to its employees on April 20, 1977, the
Respondent was motivated by a desire to dissuade its em-
ployees from supporting the Union then or in the future
and thereby violated Section 8(a)(1) of the Act.52
Further, the record shows that subsequent to the Union's
demand on February 10, 1977, for recognition and for col-
lective bargaining, the Respondent. through its representa-
tive Celentano, paid for the meals of several of the Respon-
dent's employees on two occasions: one on February 13,
1977, after the grievance meeting held that day at
Hartmann's home, the other on or about February 20.
1977, after the conclusion of the meeting at Celentano's
house."4 The record further shows that on only one occa-
sion prior to February 10, 1977, did the Respondent treat
its employees to lunch, after an audit at the bank by bank
auditors, when the auditors, bank officials, and some em-
ployees who had assisted during the audit were all taken to
lunch.
Payment of a meal for employees who have assisted in
an unusual chore is substantially different from payment
for meals after attendance at meetings soliciting grievances
from employees during the course of a union organiza-
tional drive. The former raises the inference that it was
made because of the employees' participation in the extra
work project or perhaps their dedication and good work
therein, while the latter can only lead to the inference that
it is for the purpose of showing a better side to its employ-
ees while campaigning to keep the employees from assist-
ing or joining a union or to induce the employees to refrain
from such union support.
I therefore find that Respondent's paying for groups of
its employees' meals after the commencement of the
Union's organizing campaign, a clear departure from its
past practices, was in violation of Section 8(a)(1) of the
Act.
.M Rertauruntt. Iniorporated d h a he fanari,. 221 NLRB 264
(1975). In this case it was also noted that the union adherent waas discharged
on the same dab that the employer announced unprecedented wage increa-
es for its employees. In the matter at hand. Patrtcia Iluston. the I tion',
strongest supporter among the Respondent's enlploees. ws, demoted and
discharged on the same day the Respondent granled wage Increases for its
emloyees.
(elentano ordered and paid for pizza hrought in for all the enlplohees
present.
4 Celentano took all the employees present out t dliner. Sisco al,. o ws as
present.
Beasler' Energ, Inc.. d h a PeaAer Run ( al ( rmpar. Oi I) lwston
#1, 228 NI.RB 93 (1977). tW-W' Education ( orporation, 223 NlRB 495
(1976).
E. The Unlatful Discharge of Patricia Huston
Section 8(a)(3) of the Act prohibits an employer from
discriminating against its employees in regard to hire, ten-
ure, and other terms and conditions of employment for the
purpose of encouraging or discouraging membership in a
labor organization.
The complaint herein alleges that the Respondent dis-
charged Patricia Huston and failed and refused to reinstate
her to her former or a substantially equivalent position of
employment because she joined or assisted the Union and
sought to bargain collectively through representatives of
her own choosing and engaged in other concerted activities
for the purpose of collective bargaining or mutual aid or
protection, in violation of Section 8(a)(3) and (I) of the
Act. The Respondent denies these allegations and con-
tends that Huston was discharged for cause.
Analysis and Conclusions
As the Board stated in 0 & H Rest.. Inc., trading as The
Backstage Restaurant, supra at 1083:
. . . the Board's test in an 8(a)(3) discharge case. We
recently stated the correct test in The Youngstown Os-
teopathic Hospital Association.4
Under Board precedent if part of the reason for
terminating an employee is unlawful, the discharge
violates the Act. As the Board and courts have so
often indicated, the issue is not whether there ex-
isted grounds for discharge apart from union or pro-
tected concerted activities. That the employer has
ample reason for discharging an employee is of no
moment. An employer may discharge an employee
for any reason, good or bad, so long as it is not for
union or protected concerted activity. Even if the
discharge is . . . in reprisal for protected concerted
activity, it is unlawful.
'224 NlRB 574. 575 (1
9761. While this case dealt with a dis-
charge for concerted protected acitsvilv under Sec. 8(al)1. the
Board has long applied the same legal standards fr 8(a)(3} and (I )
discharges
Further, as stated by the Board in Borin Packing Co.,
Inc., 208 NLRB 280, 281 (1974):
The General Counsel has the burden of establishing
the elements which go to prove the discriminatory na-
ture of a discharge.' One of these elements is antiunion
motivation.' Mere suspicion will not do....' In the
absence of a showing of antiunion motivation, an em-
ployer may discharge an employee for a good reason,
a bad reason, or for no reason at all. Whether other
persons would consider the reasons assigned for a dis-
charge to be justified or fair is not the test of legality
under Section 8(a)(3)."
!, 1. R 1 s. 4 lilr i. s rt' ( itru Produr i ( operilt. 260 F.2d
913 (( A 5. 1958)
4 IL R B . 0 .4 Illetr SuprlarArets In. 374 F .2d 197 ((.A. 5.
1967)1: Shaoh .tanulaturing (mpan l I.R B. R 297 1 2d 864
('.A. 5, 1962).
Shob 4,1anul tursng ( tompatn s R B. upra
JEFFERSON NATIONAL BANK 1073
6' L. B . . .4 Ac(ahel S ct l., I h a ( h,sihus Iarhl,
1 ,rkA. 233 :.2d 406, 412 413 1(A 5. 1956,.
Direct evidence of a purpose to discriminate is rarely
obtained, especially as employers acquire some sophistica-
tion about the rights of their employees under the Act: but
such purpose may be established by circumstantial evi-
dence.56 Under the law, if an employee's discharge is moti-
vated by antiunion design, such discharge is violative of
the Act even though the employee has performed misdeeds
which would warrant a dismissal.57 Direct evidence of dis-
criminatory motivation is not necessary to support a find-
ing of discrimination, and such intent ma' be inferred
from the record as a whole.?8
An appraisal of the entire record convinces me that Pa-
tricia Huston was discharged at least in part in response to
her union membership or affiliation and activities on the
Union's behalf, and I so find. The evidence shows that
Huston had been employed by the Respondent for a little
over I year prior to her discharge on April 20. 1977, and
that she performed her work well, being promoted from a
teller's position to the mortgage department on or about
January 3, 1977.59 In fact, the Respondent's witness Mc-
Goldrick testified that he had the "utmost regard" for her
ability, intelligence, and work.
That the Respondent knew in early February 1977 that
the Union was attempting to organize its employees cannot
be disputed. It appears that the Union's efforts continued
into March 1977, which the Respondent was also aware of.
That the Respondent had knowledge before her discharge
that Huston was a key figure in the Union's organizational
campaign is obvious from the record: both McGoldrick
and Sisco so testified. In addition, that the Respondent
entertained union animus is also clearly shown by the evi-
dence herein, since upon learning of the Union's involve-
ment with its employees, the Respondent immediately em-
barked upon a course of action to discourage membership
in and activities on behalf of the Union, as found above.
The record also clearly shows that such union animus was
made patently obvious to its employees in the Respon-
dent's vehement opposition to the Union.
The Respondent asserts that Huston's activities could
not have been a cause of her dismissal because it occurred
in April 1977, about 4 months after her union activity com-
56 (0'rris (orporation ,f Charleston v. .I R B. 375 F2d 149. 152 (4th (lr
1967); V I.RB. R B. uhoff Bros. Packers, Inc. 375 :.2d 372. 374 (5th (ir
1967); Shattuck Denn Minin, (Cororatrion Iron KAin Brn h 's I. R B
362 F.2d 466. 470 (9th (ir. 1966): Hartell /ll (tpan ' 1. R B. 11I
F.2d 291. 293 (4th ('ir. 1940).
Frost, Morn Meats. In . 1, R B. 296 F2d 617. 62() 5th (itr 1961
5 Heath International, In<, 196 NlRB 318 (1972)
9 Huston testified uncontradictedl that she had nexer receled ai repri-
mand or warning regarding her work during the course f her eniplhsment
with the Respondent.
60 Of course an employer is free to, dislike unions, and s cmmunlcalln
his 'ite:S to emplosees does notI amount t, a n unfair labor prcltice
N.I...R.B s Threadv, In . 308 F 2d I. 8 14th ('r 1962 Nesert heles. unlon
animus is a factor which mas he evaluated n ascerlainilg the true nolise
prompting the discharge f an emphsee. laihs ( hapiman ( iorlfirIr l o
LI.R B. 368 F 2d 298. 304 (4th (itr 1966) V 1. R B (crtSl Ri lll/.
308 F.2d 89. 91 (5th ( it. 192.
menced and a month after the Union ceased its organizing
activities among the Respondent's employees. However,
based upon the Respondent's unlawful actions during the
period of the Union's organizing campaign, its union ani-
mus. and the Respondent's knowledge of Huston's active
role in the Union's efforts, the inference is unavoidable
that Huston became a target for dismissal in order to dis-
courage any possibility of the union movement's reviving
at the Respondent's bank branches.' The discharge of a
leading union advocate is a most effective method of un-
dermining a union.6 2
The Respondent also states, "In any event.... there
was a justifiable, non-discriminatory reason for Huston's
discharge." Whether justifiable or not, I do not agree that
the reason for Huston's discharge was "non-discrimina-
tory." The Respondent alleges that Huston was discharged
because she refused to accept a transfer from her position
at that time in the Respondent's mortgage and loan depart-
ment back to her former position as a teller. It asserts that
it made a "business judgment to reduce the staff in M&L
from three employees to two," selecting Huston as the em-
ployee to be transferred to the teller's job. The reasons
advanced for Huston's selection for the transfer were, ac-
cording to the Respondent, that the level of business in the
mortgage and loan department "had declined to a level at
which Respondent determined that two employees in that
department were sufficient" and that Huston had prior ex-
perience as a teller and would fill the Respondent's "imme-
diate need for an experienced teller." The Respondent also
asserts that the decision to transfer Huston to a teller's
position was consistent with the Respondent's "historical
policy and practice of transferring employees between vari-
ous jobs." Let us examine the Respondent's contentions in
the light of the evidence herein.
Interestingly enough. the need for a teller arose on April
19, 1977, because of the Respondent's discharge of Linda
De Groat. who, besides Huston, was the other employee
referred to by Sisco at the February 13, 1977, meeting at
Hartmann's house when he asked the employees present
"if it was the colored girls that brought it [the Union ] in
.... " While the allegations in the complaint concerning
De Groat's discharge were withdrawn by the General
Counsel pursuant to a settlement stipulation in connection
with her, the fact remains that she was discharged on that
day.
The Respondent refers to the need for an "experienced
teller" to replace De Groat, yet not only did it fail to show
such a need other than for a replacement teller, but the
evidence clearly indicates that tellers' positions are normal-
ly filled by new, inexperienced employees as a first position
with the bank upon hire. Why then the need for an "experi-
enced teller" at this particular time?
T, fhe Respsndent In its brief cites Kellwood Ca. Spencer Ds.ion,. 202
Nl.RB 1133 ( 1973). to supportl its assertion Howeser. In the KAellra c Lase.
the di'charre iof the emploee came some 6 to 7 months after she intitited
the union carmplpain. which. h the was, she admitted hing undertaken
because he knew her obh was in jeopard5 due to repeated warnings and
reprinmlandl ctsicernlng her unsatisfactor work perforilanre during the pe-
riod lf hr cimplomrncnt een before the I nlon camle on the cene Certinls
the ft, in Ac/il,,,d are dlstineulihable from those In the matter at hand
IR B I.ontiirr rainoter Seri c. In . 346 F 2d
1
X003. 1006 (5th
(Ir 19)i)
JEFFERSON NATIONAL B NK
.. AS & ..... ...... _
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent also refers to its desire, and then deci-
sion, to reduce the number of employees in the mortgage
and loan department from three to two because of a sub-
stantial decline in the number of loans received during the
period from January to April 20, 1977. and because of
management's belief that this department needed only two
employees to operate efficiently, but again, these reasons
seem contrived. Concerning the decline in the mortgage
and loan department's activity, a review of the Respon-
dent's own documentary evidence shows some overall de-
cline in the number of loans handled but not to any extent
that can be characterized as substantial.
Further, when Huston transferred initially from her
teller position to the mortgage and loan department in Jan-
uary 1977, she was advised that after she received training
from Linda Gianni, Gianni and Barbara Schroeder being
the other employees in that department, Gianni was to be
promoted to a "platform position" which was vacant at the
time, leaving Huston and Schroeder as the remaining em-
ployees in the department. However, although the "plat-
form position" remained vacant, Gianni was never trans-
ferred to it, which left three employees in that department
until April 20, 1977. Significantly, shortly after Huston was
discharged, the Respondent transferred a newly hired
teller, Yolande Doomany, to the mortgage and loan de-
partment and transferred Schroeder instead to the vacant
"platform position."
From all of the above, the patently pretextual nature of
the Respondent's reasons for Huston's transfer, which in
effect amounted to a demotion, clearly illustrates the Re-
spondent's unlawful motivation for its related discharge of
Huston.
There is some conflicting testimony as to what was actu-
ally said among Huston, McGoldrick, and Sisco on April
20, 1977, at the time of Huston's discharge. However, the
evidence shows that when Huston returned from her vaca-
tion period that day she was advised by McGoldrick that
all the Respondent's employees had received pay raises
and that Huston was slated for a $15-per-week raise. Mc-
Goldrick also told her that De Groat had been discharged
and Huston selected to be returned to her former position
as a teller. That Huston became extremely upset about this
is evident from the record. According to Huston's testi-
mony,63 which I credit, as indicated before, she told Mc-
Goldrick that she did not want to do teller's work but
would not quit her employment at the bank. She further
requested that McGoldrick explain why she was being de-
moted back to teller, and when he did not, she asked that
she be allowed to speak to "someone that could further
explain to me how . . . I got to be the one to go back to a
teller." Huston continued that McGoldrick "said that he
would speak to Mr. Sisco on the phone and for me to stick
to my guns." After McGoldrick telephoned Sisco, he re-
turned and told Huston that "he was sorry but he had to let
me go. Mr. Sisco said I was fired because they no longer
had any use for me."
Albeit McGoldrick and Sisco's version of what was said
differs from the above. I do not readily accept their ac-
"' The Respondent's ltness, Barhbara Schroeder. confirned this in her
lestimonN
count of what transpired. Further, there is enough in Mc-
Goldrick's testimony of what was said to raise a strong
inference of the accuracy of Huston's account, and both
McGoldrick's and Sisco's refusal during their testimony to
admit that the action taken against Huston that day was an
actual discharge as evidenced by the following statements
enforces this belief as to credibility: McGoldrick stated in
his testimony that Sisco told him that Huston "will have to
go"; Sisco testified, "I said she'd have to leave." However.
in its brief the Respondent unequivocally refers to the sev-
erance of Huston's employment as a discharge. There ap-
pears to me, as stated before, to be a carefully considered
tendency in the testimony of both McGoldrick and Sisco
to avoid making any statements which in any way could be
construed against the Respondent. without proper regard
for the truth of their answers.
It should be pointed out that Huston was an intelligent,
able, and fine employee, as admitted by the Respondent's
witness McGoldrick. When McGoldrick informed Huston
that she was being returned to her former teller's position,
she became upset and sought to ascertain the reasons for
what she considered to be a demotion and for such an
unprecedented transfer.6 4 The evidence indicates that Mc-
Goldrick telephoned Sisco and, without much discussion
or consideration, Huston was ordered dismissed. Such
haste in terminating an admittedly experienced, able, and
competent employee seems suspicious and perhaps unwar-
ranted under the circumstances and implies that there was
another underlying reason for Huston's dismissal--that of
Huston's active participation in the Union's organizational
campaign and her continued affiliation with the Union. to
which the Respondent was openly hostile.6 5
As stated before, I realize that "an employer may dis-
charge an employee for good cause, or bad cause, or no
cause at all...." 66 I am also aware that the Board may
not substitute its judgment for that of the Respondent's
management as to what constitutes proper cause for dis-
charge 67 nor "interfere with the unfettered right of compa-
nies to exercise these personnel judgments." 68 Neverthe-
less. "an employer having a right to discharge employees
for . . . unprotected activity may not discharge them for a
discriminatory reason without violating Section 8(a(3) of
the Act." 69
Since an employer may fire an employee for any' good
cause, Huston's refusal to accept the transfer to teller
'4 1 I'e eildelcc herein sho's, s IIt1t rllIploeeTs w ere promoted io other
p li iii 1 tle b.lnk. sutll is In e Illlrtgage .,ild I1l;n .lnd the "paltforrl"
departiltenls fromit teller'ts postirons and that rarel;. if ever. was tilln emploee
rceurned Io .I teller's positloll once transferred.
, itolhlnr Paoint & 11 ztierrrolotfig ( . In . 2311 N I.R B 429 ( 1977) 1. lta
I , 2130 N R H 492 (1 977): Ih/e Airht ( tw .ran . l)itwon , til. XS(/i a
Iet ( .( ripar, 194 NRB 1211 1205 ( 1972: 1 R B. tidlowln ermc
(o.. . tI l . 425 1.2d 665 (2d ('ir. 1970)
N' 1. KR H /,io P/lurthbinX a Ie t iting ( .. 322 1 .2d 913. 922 (9lh (Ir
1963. Aliso see 0 & II Reit.. Irn, trading at 1Irl Baciksage' Rcsrwarunt.
pirtl, Jo,,rr PlAitrg (e, In . q/lra
" ' (, Berltlad Paint (li,. Ie. 199 Nl.RII 927 (1972). enld 478 .2d
1415 (7th (it. 19731: Eric .Srecr (w,sr.lr! 213 N .RB 344 t( 19741: AKht'
hlth ( oiprnri. 161 NRB 1606 ( 19661.
*' I..R.B . rtited Palr i Srvitl , Ir., 317 .2d 912. 914 1st (ir
1
9
631. P,,rllhih, l/e rr lEi, Ira . , R1.R B 319 1 .2d 423. 426 (7th ('lr
19621
N, . R s ( Oil (ri. ( a* ( irltt. 24 F 2d 579. 83 ( 1th ('it.
1
9
53)
JEFFERSON NATIONAL BANK 1075
might, arguendo, have constituted such cause and formed
some basis for her discharge. However, even where there
exists a justifiable reason for the Respondent's action, if
the real motive for the firing was discrimination against
Huston because of her union activity or affiliation, a viola-
tion of the Act has been committed. Thus. where union
activity is a substantial or motivating cause for a discharge,
such discharge will be found to be tainted with a discrimi-
natory motive even though good cause also exists for the
termination.70 From a review of all of the evidence herein.
it is apparent that a substantial or motivating, but perhaps
not necessarily the sole, reason contributing to Huston's
discharge was her well-known affiliation and activity on
behalf of the Union and the Respondent's continued fear
of future organizing attempts by the Union, despite the
existence of a lawful cause for such discharge.7'
Additionally, I make reference to McGoldrick's testi-
mony that he had consulted with Sisco a day or so before
Huston's return to work on April 20, 1977, about Huston's
transfer and her being advised of such action, giving as the
reason that he had just been appointed vice president in
charge of operations and felt the action concerning Huston
would shake up the entire operation." [Emphasis supplied. I
According to the Respondent's own witnesses, transfers of
personnel at the bank. being mainly of a promotional na-
ture or, I imagine, on employee request if warranted, were
not uncommon. Why then would Huston's transfer create
a shake-up of the Respondent's entire operations, if not
because the Respondent knew and considered Huston's
transfer to be a demotion which she would strongly resent
if she accepted it, resist, as she did, or as a last alternative
resign? The Respondent's action directed against Huston.
the most prominent union adherent, would thus serve as a
strong and vivid reminder to the Respondent's employees
not to assist the Union in the future, in light of the Respon-
dent's active opposition to the unionization of its employ-
ees. This, coupled with the Respondent's granting of an
unprecedented general wage increase to its employees on
the same day, truly shows the Respondent's antiunion mo-
tivation herein.
In view of all of the above, and from the evidence in the
record as a whole, I find that the Respondent, by discharg-
ing Patricia Huston for a discriminatory reason, violated
Section 8(a)(3) and (I) of the Act.
F. The Refusal To Bargain
Section 8(a)(5) of the Act prohibits an employer from
refusing to bargain collectively with the representatives of
its employees.
The complaint alleges that since on or about February
11, 1977, and thereafter, the Respondent has refused and
continues to refuse to recognize and bargain collectively
', L R. B (hallenge (ooA Brihr ,I Oh,, In 374 1 2d 147. IS2
(6th (ir. 1967): . I.R V. Snln, .anU llut,,l iirle ( o, 328- F.2d 835. 837
(7th ('ir. 1964); N L R .H , Wid 4c't I1,T.,I and lInnu S r , . / ., 339
F.2d 958. 962 7th ( r 19641
(v & It Res., Inc. tradling a, Ihe' Ba, A Il,' Re, sltairiti,. qpiro. I lh
olunrgl\vtlo ()%lptlhl /1 Itipral 4o,aiaLn 224 NRB 574 1976,.
I R 3 v PllrA l, IX, Nh'rtl kIcat,, In , 341 F- 2d 725, 728 (2 d (
196s. % 1 R B v II l,,,l ha ! ,, hm in s r, 20()4 1 2d 883. 885 s ('I, r I tl
with the Union as the exclusive collective bargaining repre-
sentative of its employees in a unit appropriate for the pur-
poses of collective bargaining, in violation of Section
8(a)(5) and (1) of the Act. The Respondent denies these
allegations.
I. The Union's majority status
As I previously found herein, the unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act is:
All employees employed at the Respondent's main
branch in Passaic. New Jersey. and the Paulison Ave-
nue and Lakeview Avenue branches in Clifton, New
Jersey, but excluding professional employees, guards
and supervisors as defined in the Act.
Also. it was stipulated by the parties that as of February
10. 1977. the date on which the Union requested recogni-
tion and bargaining, there were a total of 23 employees in
the appropriate bargaining unit. These employees were:
Alicia Agosto. Mary LiBrizzi. Linda De Groat, Yolande
Doomany. Rose Marie Dorando, Linda Dudeck. Lorraine
Gatto, Linda Gianni, Raymond Hagen. Helen Hartmann.
Patricia Huston. Rita Imperato. Stanley Kozdeba. Jr.. Car-
idad Leon, Elba Montesdeoca, Gwendolyn Moore, Jane
O'Connell. Patricia Pisano. Barbara Schroeder, Doris Snv-
der, Patricia Starke (Lanza). Julia Martyn. and Vincent
Mazzaloni. The evidence herein shows that of the above
employees 14 signed union authorization cards between
January 12 and 25. 1977. ' 2
The authorization cards distributed on January 12 13,
18, and 19, 1977, provide for acceptance of membership in
the Union, authorize the Union to represent the signatory
employees, and authorize dues deduction from the employ-
ees wages.
Analysis and Conclusions
The General Counsel and the Union contend that the
Union represented a majority of the Respondent's emplo-
ees, 14 of the 23 employees in the appropriate unit. The
Respondent disputes this, challenging the validity of "a
number of the cards sufficient to affect the Union's majori-
ty." alleging that these authorization cards "may not be
used to evidence majority status since they were signed in
reliance on the misrepresentation that the cards were to be
used for no purpose other than to obtain an election and.
with regard to one card, General Counsel did not prove
that the card was signed b the employee whose signature
the card allegedly bears."
The Board in Cumberland Shoe Corporation, 144 NLRB
1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1965), held that
authorization cards which clearly designated the union as
bargaining representative, even though procured through
- (;;lnn I)Dudeck. Slrkc. tl.artmann. Schroeder. Moore. (;att,. Impera-
to, X\.oto. Hu oil~ . De (rolt. Montsdeoca. Pisano. and )...nl
x
(.('
I -. i ( \) through . 7 .8, , and Il1 B)
, opips of Ihe dlipuled .Alilhaorlzatlon card of \ olande Doonlanit print
cd ICentlca;ll II the other lutlhorlzai, n cards herein I included in ppen-
dix\ A\ thi, )eclsln. I ppendilx o ,m llted from pubhlcation I
JEFFERSON NATIONAL BANK
.. a_ - x
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representations that they were to be used to obtain an elec-
tion, would be counted to establish the majority status of
the union unless it is proved that the employees were told
that the card was to be used solelv for the purpose of ob-
taining an election.
Thereafter the Supreme Court in N.L.R.B. v. Gisel
Packing Co., Inc., 395 U.S. 575, 606-608 (1969), after ap-
proving the Board's Cumberland rule, considered the evi-
dence pertinent to the validity of the disputed authoriza-
tion cards as follows:
In resolving the conflict among the circuits in favor
of approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly canceled by a
union adherent with words calculated to direct the sig-
ner to disregard and forget the language above his sig-
nature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will probably be used first to get an election....
We cannot agree with the employers here that employ-
ees as a rule are too unsophisticated to be bound by
what they sign unless expressly told that their act of
signing represents something else....
We agree, however, with the Board's own warnings
in Levi-Strauss & Co., 172 NLRB No. 57. 68 LRRM
1338, 1341, and n. 7 (1968), that in hearing testimony
concerning a card challenge, trial examiners should
not neglect their obligation to ensure employees free
choice by a too easy mechanical application of the
Cumberland rule.74 We also accept the observation
that employees are more likely than not, many months
after a card drive .. ., to give testimony damaging to
the union, particularly where company officials have
previously threatened reprisals for union activity in vi-
olation of §8(a)( ). We therefore reject any rule that
requires a probe of an employee's subjective motiva-
tions as involving an endless and unreliable inquiry. 7 5
The question to be determined, then, is not what the
employees believed when they signed the cards but what
they were told, orally or in writing. Accordingly, employees
may have believed that the cards were to be used only to
74 In this regard, the Board stated in l,el Strausn & (Co, 172 NlRB 732.
733. fn. 7 (1968), enfd. 441 F.2d 1027 (1)C. ( ir. 1970):
The Board looks to substance rather than to form. It is not the use or
nonuse of certain ke, or "magic" words that is controlling, but ' hethet
or not the totality of circumstances surrounding the card solicitation is
such as to add up to an assurance to the card signer that his card Ailt
be used for no purpose other than to, help get an election
7 As stated bh the Board in Maril Phillip. Inc. 178 NI.RB 3401, 341
(1969). enfd. 443 F.2d 667 (D.C. ('ir. 1970)
[Fjor cards to be invalidated on the basis of such misrepresentations. it
is necessary that the asserted reliance on the misrepresentation be
established by objective evidence corroborating or supporting the sub-
Jective assertion.'
Such objective evidence would. of course, include oral stlateenllts
immediatel) preceding or concurrent with the signing of the card.
obtain an election, but the Board still will count such cards
if the employees were not solicited on this basis.76 A mis-
representation will be disregarded when it is clear that the
employee did not rely upon it in executing the authoriza-
tion card.77 If the card unequivocally and unconditionally
gives the union authority, then misrepresentation, to invali-
date the card, must have indicated that the card would be
used only for a different, more limited purpose than that
stated on the card.78
In light of the above Board and court rulings, it is clear
from the evidence that the 10 authorization cards 79 signed
by the Respondent's employees at the January 12, 1977,
meeting were valid and should be counted toward estab-
lishing whether or not the Union represented a majority of
the employees in the appropriate unit.
Union organizer Biggins testified that at this meeting she
discussed the Union and the benefits it offered and the
requirements necessary to undertake an organizational
campaign to obtain union representation. She stated, "I
then asked them to think seriously about what they were
doing and if they wanted the union to represent them, that
they should take the card . . . read it over, fill it out and
sign it and return it to me." Huston testified that she ar-
rived late at the meeting and that Biggins gave her an au-
thorization card to sign, telling her that if a majority of the
Respondent's employees signed the cards the Respondent
might extend recognition to the Union as the bargaining
representative of its employees after the cards were ex-
hibited to the Respondent's representatives as evidence
thereof. Huston also testified that Biggins said the cards
could be presented to the Board to obtain an election and
explained the process involved.
Schroeder's testimony, upon which the Respondent re-
lies heavily as illustrative of the Union's alleged misrepre-
sentation in the solicitation of the authorization cards by
Biggins, relates, in substance, that Biggins told the employ-
ees gathered at this meeting that a majority of signed au-
thorization cards were needed so that they could be pre-
sented to the Board to obtain an election. Schroeder
additionally stated that Biggins said she would call De
Paola and tell him that the Union represented a majority of
the Respondent's employees and would show him the cards
if he so requested.
That the authorization cards given to the above employ-
ees to sign were unambiguous is evident herein. The card
states on its face that the signer authorizes the Union to
represent the employee for collective bargaining purposes.
that the employee accepts membership in the Union and
authorizes dues deductions.80 As stated before under the
Cumberland Shoe doctrine s such a card will be counted
' H'enr I 'itl ( ol, li . 165 NL RB 493 ( 1967)1: Peterson Brothers. 144
N[.RB 679 (1963) enfd, in part 342 F .2d 221 (5th Cir. 1965).
tingiirr, and Falhrialtor , In . 156 NI.RB 919 (1966). enforcement
denied in part 376 .2d 482 (5th (ir. 1967).
\I R. B (Gi,rel Packinrti (o. ,nc. 395 NLRB 575. "This must be
done n he hasis of what the employees were told. nol on the basis of their
subjectlve state of mind when they signed the cards .ero ( orpratrion. 149
NlRB 1283. 129) ( 1964)
(i ;ann. I)udeck, Starke. iHartmann Schroeder. Moore. Gatto, Impera-
to. Agosto. and uston.
I (4R. . 213 NI.RB 1235 (1973)
C ( mrrlhrlltld .S/i' ( orprnoraii tL. Slprtl
JEFFERSON NATIONAL BANK 1077
unless it is proved that the employee was told that the card
was to be used solely for the purpose of obtaining an elec-
tion. The Supreme Court in Gissel 82 approved the Board's
Cumberland Shoe rule but also agreed with the Board's
warning in the Levi Strauss case,83 concerning a "too easy
mechanical application" of that rule. 4
Further, that at no time in the solicitation of the cards
were the signers told that the cards were to be used solely
for the purpose of obtaining an election is also obvious
from the "totality of circumstances surrounding the card
solicitations." 85 The Board has continuously held that
statements by a solicitor that cards will be used to secure a
representation election are insufficient in and of them-
selves to invalidate the cards as evidence of majority status,
since such representations are not inconsistent with the text
of an unambiguous card unless the signer is specifically
informed that the card will be used solely to secure an
election.8 6 Moreover, "the fact that the solicitor stated to
them (employees) that the cards would be used to get an
election cannot be construed as misrepresenting the pur-
pose of the card as unambiguously stated thereon." 87
It is the Respondent who must show clear and convinc-
ing evidence of material misrepresentations to invalidate
otherwise unambiguous authorization cards, and it has
failed to do so herein. 88
Additionally, Linda De Groat, Elba Montesdeoca, and
Patricia Pisano signed authorization cards on January 13,
18, and 19, 1977, respectively. De Groat testified that Hus-
ton had given her the card to sign on January 13, 1977, at
which time Huston told her that the cards were going to be
given to Biggins to present to the Union so that the Union
could represent the Respondent's employees. She also stat-
ed that she believed Biggins had told her that if the Re-
spondent did not recognize the Union as the employees'
bargaining representative on the basis of the cards, such
cards would be submitted to the Board in order to secure
an election. Montesdeoca testified that Schroeder gave her
an authorization card on January 18, 1977. with instruc-
tions to sign it and at the time told Montesdoeca that she
would become a member of the Union if "we have a ma-
jority..." According to Montesdeoca, Schroeder also
stated that a majority of signed authorization cards were
needed from the employees to obtain a Board election.
While Schroeder testified that she only told Montesdeoca
that the authorization card was needed for presentation to
the Board to secure an election. I credit Montesdeoca's
R , I RB..v Gissel Packing (o., Inr, upra
xlAi Sruarus & ('o.. upra
A4 Ihid.
8 Ibid.
Nh Walgreen Company, 221 NLRB IO96 (1975): Great .4tlantir & Pacifi
lea Companv, Inc., The Birmingham Dniisron, 210 NLRB 593 11974). Area
Diosaul. Inc., 200 NLRB 350 (1972).
Hediroml (Compaunt. a uhbidiari of Bron (Grioup. Inc. 223 N LRB 1409.
1411 (1976): Federal Stainless Sinvk 1lt of I nirco Inductrw'. Ir . 197
NLRB 489 11972).
R The Respondent cites Ser-L'-Siore. . Inc. 234 NLRB 1143 (1978) to
support its contention that the authorization cards signed herein "ere Insal-
id because of misrepresentation What occurred here is clearl distinguisha-
ble from the facts present in the Sers-l -Store case which the signer was
specificall) told that the -o/'e purpose of the card s Has for an election. In the
case at hand. the signers were told that one of the purposes of the card was
to ibtain an election.
account of what was said because of the suspect nature of
Schroeder's testimony as a whole, as previously discussed
herein. Pisano testified that she received an authorization
card from Lorraine Gatto on January 19. 1977, but could
not remember what Gatto had said at the time. Although
Pisano stated that she had been told that the purpose of the
card was union representation, she could not remember by
whom or when she was so advised.
Concerning the signed authorization cards of De Groat,
Montesdeoca, and Pisano. for the reasons advanced be-
fore. I find that these cards are valid and should be count-
ed in determining the Union's majority status.89
Having found no merit to the Respondent's challenges
to the validity of the authorization cards signed by Linda
Gianni, Linda Dudeck. Patricia Starke, Helen Hartmann,
Barbara Schroeder, Gwendolyn Moore, Lorraine Gatto.
Rita Imperato. Alicia Agosto, Patricia Huston, Linda De
Groat, Elba Montesdeoca, and Patricia Pisano. it is con-
cluded that these cards are valid and should be counted in
establishing the Union's majority status.
With regard to the authorization card of Yolande Doo-
many, dated January 18, 1977, Doomany did not testify at
the hearing, since her actual whereabouts were allegedly
unknown, she no longer being in the Respondent's employ
at the time of the hearing. As stated before, counsel for the
General Counsel moved to have the Administrative Law
Judge compare the signature on the authorization card as
against a W4 form (Internal Revenue Service Employee's
Withholding Allowance Certificate) signed by Doomany
when she commenced her employment with the Respon-
dent.9 Since, as of the date of the Union's demand for
recognition on February 10. 1977, there were 23 employees
in the bargaining unit, and at least 13 of these employees
freely authorized the Union to represent them by signing
unequivocal authorization cards, the majority status of the
Union has been adequately established without doubt, and
a consideration of the validity of Doomany's card is not
required.9 1
Accordingly, I find that on the day the Union made its
demand for recognition and bargaining it represented a
majority of the Respondent's employees in the appropriate
unit.
' Fins 74 through 88. lupra Alsco see .Vorheastern Die H Inrks. 2. 03
NL.RB 1222 (1l973). Hercules Pack ing (orpraton 163 NLRB 264 (196t7).
generall) and Iledrom Cotpar, a subsidriar of Bron (;roup Inc , slpur.
With particular regard to Pisano's card.
See fn. 15 herein
1 Howeer. should Doomans's card have been dispositise as to the issue
of the non's maJorit, status. I would consider not counting it. since there
are enough differences present in the three signatures appearing n the
documents supposedl signed b the same person. Dooman. to create a
doubt in m mind as to the card's authenticity.
" In its brief the Respondent alleges that several emplosees had aban-
doned the nion I beliese that the Respondent Is referring in this. to the
meeting held bh several employees at the Lobster Monster prior to Februar,
II. 1977. previousl, described herein, in which those employees present.
}lartmann. Schroeder. Gianni. Montesdeoca, and Dorando, discussed their
-unsureness" about "different aspects" of the Union's health and benefit
plan program (costs and coserage} According to the credited testimon. at
this gathering Hartmann and possihls Imperato had expressed the thought.
"We made a mistake. contacting the union." Be that as it may. the fact is
that nothing was done bh these employees to either renounce the Ulnion or
secure the return of their signed utlhoriatlon crds until after the Respon-
Contin ued
JEFFERSON NATIONAL B NK
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The applicability of a bargaining order
The complaint alleges that because the unfair labor prac-
tices committed by the Respondent are "so serious and
substantive in character and effect" the entry is warranted
of a remedial order requiring the Respondent to recognize
and bargain with the Union as the exclusive bargaining
representative of the employees in the appropriate unit.
The Respondent denies this and asserts that a bargaining
order herein is unjustified, saying, "The alleged unfair la-
bor practices were not extensive; their effects may be
erased by traditional remedies, thus ensuring a fair election
which would, on balance, best express and protect employ-
ee sentiment."
Analysis and Conclusions
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575. the
Supreme Court approved the Board's use of bargaining or-
ders to remedy an employer's independent 8(a)(1) and (3)
violations which undermined a union's majority status and
fatally impeded the holding of a fair election. In doing so.
the Court held that such orders would be appropriate in
two situations. The first involves unfair labor practices
which are so "outrageous" and "pervasive" that traditional
remedies cannot eliminate their coercive effect, with the
result that a fair election is rendered impossible. The sec-
ond, as described by the Court at 614 615, is
. . .in less extraordinary cases marked by less perva-
sive practices which nonetheless still have the tenden-
cy to undermine majority strength and impede the
election processes. The Board's authority to issue such
an order on a lesser showing of employer misconduct
is appropriate, we should reemphasize, where there is
also a showing that at one point the union had a ma-
jority; in such a case, of course, effectuating ascertain-
able employee free choice becomes as important a
goal as deterring employer misbehavior. In fashioning
a remedy in the exercise of its discretion, then, the
Board can properly take into consideration the exten-
siveness of an employer's unfair practices in terms of
their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair re-
dent began to engage in unfair labor practices.
On ebruar I11, 1977, the Respondent commenced its calmpaign Iigllst
union representation. I his continued unceasingly during I ebrlualr 1 and
14. 1977. According to the testilnony of Schroeder. o,n Fehrualrs 14. 1977.
she trold lustn thai several employees desired o withdraw their support of
the niion and wanted their authoriz;tion cards returned. nar;iing herself.
Ilartmann. (ialtto. and D)oonman. sen if I credit Schroeder's testillnuon
concerning this. it is still clear fronil the record that an eployee', w.ho
withdrew their support ofhe Ih nion did so ornl after the Respondent had
engaged in per;asive and excessive unfair labor practices during i cuclal
period in the Union 's organizational calpalign. I he ev idence herei further
supports the inference that the Union. n March 15. 1977. faced v ith
realization that it might have lost the support of sonie of the emplo\ees.
withdrew its petition filed with the Board otn ebruar 1. 1977. the Respon-
dent having been successful through its nmisconduct herein n lissipaltiig the
Union's iajolrits status
run) by the use of traditional remedies. though pres-
ent. is slight and that employee sentiment once ex-
pressed through cards would, on balance. be better
protected by a bargaining order, then such an order
should issue ....
The Court additionally stated elsewhere in Gissel that
"perhaps the only fair way to effectuate employee rights is
to re-establish the conditions as they existed before the
employee's unlawful campaign" 93 by means of a bargain-
ing order.
The Board itself stated in Ship Shape Maintenance Co.,
Inc. 189 NLRB 395 (1971):
It is now settled that serious illegal activity accom-
panying an employer's refusal to grant recognition
and to bargain with the majority representative of its
employees destroys the necessary conditions for the
holding of a free and fair election .
The foregoing unlawful conduct not only precluded
the holding of a fair election in the representation pro-
ceeding the Union had instituted, but, in our judg-
ment, was of a sufficiently pervasive and extensive
character . . . to have likely served its intended pur-
pose of undermining the Union's preexisting majority.
In these circumstances we believe that restoration of
the status quo ante is required in order to vindicate
employee rights and prevent Respondent from profit-
ing from its own unfair labor practices. We are further
of the opinion that the lingering effects of Respon-
dent's past coercive conduct render uncertain the pos-
sibility that traditional remedies can ensure a fair elec-
tion. We therefore conclude, on balance, that the
Union's majority card designations obtained before
the unfair labor practices occurred provide a more re-
liable test of employee representation desires, and bet-
ter protect employee rights, than would a rerun elec-
tion. 4
N I. R B X ( ',1l P irii ( ,', Ira, 395 t S. 575.
The Board's decision to issue a bargaining order is based
upon all the circumstances of the case, including the nature
of the violations and the context in which they occurred. It
is pursuant to such an overall evaluation that the Board
makes its finding. 95
On February 10. 1977, when the Union requested recog-
nition, it represented a majority of the employees in the
appropriate unit. The Respondent refused to honor the
Union's bargaining request, and on February I 1, 1977, the
Union filed a petition for an election. In the instant case,
the Respondent's unfair labor practices began on February
11, 1977, the day following the Union's demand for recog-
nition and bargaining. Commencing on that day and con-
tinuing unabated until on or about February 20. 1977, the
Respondent engaged in a number of flagrant violations of
395 LI S. al 612.
4 See also P'etr,,lore, Ai/kAi (, .Sirli, In,. 2115 NRB 68 1973t J-
wxeph J /.iai nl. r, h It l , iltrda ! , It lott. 21 NL.RB 5 (1973). enfd. 49(0
1 2d 1382 thi ( ir. 1974).
Rc,.,cihw , Po/l, it,,h /Itattlit . 219 NI.RB 712 11975).
JEFFERSON NATIONAL BANK 1079
Section 8(aX)) of the Act to undermine the Union. It held
four scheduled meetings at which either the Respondent's
president, Sisco, or its general counsel, Celentano, or both,
solicited employee grievances and promised. expressly or
impliedly, to remedy the same. On another two occasions.
Celentano seized upon the opportunity to continue such
unlawful conduct, with Sisco's assistance at one of these,
turning what started out initially as private personal meet-
ings into a forum to further the Respondent's campaign to
discourage employees from joining or assisting the Union.
However, not only did the Respondent expressly or im-
pliedly promise to correct the conditions complained about
at these meetings, but it in fact did remedy several of the
employees' major grievances. The employees' major com-
plaint was satisfied with the removal of De Paola through
forced resignation or otherwise, and the Respondent grant-
ed its employees an unprecedented general wage increase
to alleviate another of their complaints.
Additionally, the Respondent, through its representa-
tives Sisco and Celentano, unlawfully interrogated its em-
ployees concerning their union activity and support: the
coercive effect on these employees can be no more clearly
illustrated than by the fact that some employees denied
having any involvement with the Union for fear of reprisal
that acknowledgment might bring. 96
Further, the record clearly shows that the Respondent's
actions, as set forth above, were not mere isolated and hap-
hazard instances of misconduct but were part and parcel of
a systematic, well-planned campaign to discourage and dis-
sipate the Union's majority status. Thus, the Respondent's
unlawful solicitation of grievances, its express and implied
promises to correct or remedy the same, and its actual ad-
justment of some of its employees' complaints, i.e., overall
wage increase, etc., constitute sufficiently egregious con-
duct to warrant a bargaining order. The Respondent also
unlawfully discharged Patricia Huston, the leading sup-
porter of the Union. as the "piece de resistance." so to
speak, a serious and effective reminder to all its employees
of the dangers inherent in continuing then or in the future
to support the Union.97
As the Board stated in Teledvne Dental Products Corp..
210 NLRB 435-436:
In essence, we are presented with a situation wherein
the Respondent has deliberately embarked upon a
course of action designed to convince the employees
that their demands will-be met through direct dealing
with Respondent and that union representation could
in no way be advantageous to them. Obviously such
conduct must, of necessity, have a strong coercive ef-
fect on the employees' freedom of choice, serving as it
does to eliminate, by unlawful means and tactics, the
very reason for a union's existence. We can conceive
of no more pernicious conduct than that which is cal-
culated to undermine the Union and dissipate its ma-
jority while refusing to bargain. Neither is there any
Fr sn. 47 herein
f deral 41lrm 230 NI RB 518 1977)[ tldlrrron ( oni*atf. uhh.lirl
of Bron Grup, Inl, upra:; Ittrnatioinal hilr r ( Piplnl. 179 N I RB
753 (I1969): leraco. Inc (f.nmdlie. Ildlllla Hlti Stirini. 178 N I RBH 434
( 19691)
conduct which could constitute a greater impairment
of employees' basic Section 7 rights under our Act,
especially since such conduct by its very nature has a
long-lasting, if not permanent, effect on the employ-
ees' freedom of choice in selecting or rejecting a bar-
gaining representative.
Also from a consideration of all of the circumstances
herein there arises the strong inference that the Union's
withdrawal of its petition was necessitated by the Respon-
dent's successful dissipation of the Union's majority by
means of the unlawful conduct the Respondent engaged in.
What more vivid illustration could there be of the Board's
statement in the Teledyne case than that? 98
As detailed above, the Respondent here engaged in seri-
ous violations of Section 8(a)( ) and (3) of the Act, which
were calculated to defeat the Union's organizational effort
then and in the future and to decisively and permanently
undermine its status among the employees. I believe these
unfair labor practices were so severe, extensive. and perva-
sive that the application of traditional remedies afford no
guarantee that an election will provide a more accurate
index of employees' sentiment than the authorization cards
executed by a majority of the employees. In these circum-
stances I find that "employee sentiment, once expressed
through cards, would, on balance, be better protected by a
Ihe Respiondent alleges that the nn had Ihst Its maJorit prior to
I ehruarrs I. 1977. since "lcliplophees in a number sufficient to affect the
nn's c.arld majoritll. . week prior t, itl aleged ilifair laihior practlices.
ch.ined their ninds about nioin representatio n n f Respon-
dent did illstle Itself in the emplo ee,' effiorts tl abharndon the nlin calm-
p. il. iH Ch IIllsilemnent calnnot he a basts for a. hargaHlning rder he ef-
forts i, h.landll the ion ca.iip.aign ere started unilaterall h the
emplo!ee, themselves w ho,. ion their tin Initiative. sought the Respondent's
HItlxeienlt ' T' he Respondent cites Renmcelder Plrcihnip In itui. i, Ipri.
im supprrt thereof
A, dliscussed h me presiousl herelil regarding "emplosee change of
mind." and for the same reasons adsanced hefore, the Respondent's allega-
IoIln is itholut lllerit. Additionall.l the circumstances of the Rntelaer case
are larlI dlstinglshable fromt the case at hnd. For example. in Rettltc-
/lr tihe eilplo ee,' effrirrs ha rlhlintrtl rthe mlnil,? al,,tlllen l ere started unilal-
er.ill\ h the eiplo ee, themsel.eCs. uhL on heir on iniltatise. sought the
Respo.lenl n iolement I do not consider "efforts to ahbandon the union
catripaign" the discussions held at the diner amnl.ng sarious f the Respn-
dent' eiploeesas occurred herein tEen l assing. rgucndol,. that It as,
n1 steps ere tIlken suhsequentl t seek the Respondent's inolvement. as
occurred n Rnn claer. nor to actvel w ithdraw their support of the Un ion
until the Respondent's unlawful coinduct precipitated such action. Again in
Renlsictlesr, there was .I commllrtee alreads in existence before the adsent of
the union 11aiplll pign. through hich the emplosees nd management dis-
ItseCd "a1ll kinds of ubjects directll related toi conditions of e mplo ment
thrtlgeh uhich the employees in the affected unit did bargain directl wilth
manageient hp.assing the nion." In the instant matter. the Resprondent
sought toi assuage the co mplaints f Its emplo-ees through a. series of unique
nieelngs. Itllsuted h I. More particularlN. in R nnlclr tilere were efforts
to abh.andon the union hb emploNees ho initiated and sought assistance
from ma;nagement, and although slolations of 8a(3) l ) were found. n hbar-
gaining order as directed. As the Board stated therein at page 713. 'Each
incident. standing ahlne. i relatliel, minor in character, and een hen
added tgether. the', did not constitute egregious conduct as t warrant a
h;argaining rder . . the effects of the unfair labor practices can he re-
mosed h traditlonal remedies and that thereafter a free election can be
held" i this ca;se, no unilateral efforts to ahandon the Union were actuall
undertaken bh the emploees until after the cmmencement of the Respon-
dent l's ufair lbilr practices, nor did the emploees on their own initlatile
eser seek the Respondent's assistance therefor. and the Respondent's Nsiola-
Ie a.cts vere f such a nature ats to preclude the holding of a; fair and free
elec till
JEFFERSON NATIONAL BANK
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining order." 99
As the Supreme Court has held, an employer has a right
to a Board election as long as he does not impede the
election process.' ° ° However, when he so obstructs the pro-
cess, he forfeits his right to an election and must bargain
with the union on the basis of other clear indications of the
employees' desires, and his bargaining obligation com-
mences as of the time that he embarked on a clear course
of unlawful conduct or engaged in sufficient unfair labor
practices to undermine the Union's majority status and
subvert the Board's election process.'101
In the instant case, the Respondent embarked on its
campaign to destroy the Union's support among unit em-
ployees on February 11, 1977, when it commenced its un-
fair labor practices by unlawfully soliciting grievances and
interrogating employees at meetings held that day. There-
fore, in accordance with the principles enunciated in Trad-
ing Port, Inc., supra, I find and conclude that the bargain-
ing order should commence from that date, and that
Respondent should be required to recognize and bargain
with the Union as of February 11, 1977 02
From all of the above, I find and conclude that by refus-
ing to recognize and bargain with the Union upon request,
and by thereafter engaging in the unfair labor practices
found herein, the Respondent violated Section 8(a)(5) and
(I) of the Act, and that a bargaining order is necessary and
appropriate to protect the majority sentiment expressed
through authorization cards and to otherwise remedy the
violations committed.' 3
IV. HE EFFECTS OF IHE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section 111.
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, 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 thereof.
V THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As the unfair labor practices committed by the Respon-
dent were serious and go to the very heart of the Act, I
N. L.R B. v. Gissel Packring Co., upra at 614-615.
1I Linden umber Division. Summer & (Co. v. V L R.B.. 419 L S 3)1
(1974).
(Ii Trading Portr. Inc.. 219 NL.RB 298 (1975); Baker MAachine & (Gear. I,
220 NLRB 194 (1975).
102 Trading Port. Inc.. supra: FranAlin Parish Bradcastirng. Ince. 22'
NLRB 1133 ( 1976): (orl (orporation, a hol/ orned suhsidiar of O'( onnor
Industrier, 222 NLRB 243 (1976).
N L.R.B. v. Gissel Packing Co.. upra: rading Port. .. siipra. Il
these circumstances I find that the violation of Sec. 8(a)(5) occurred on
February II11. 1977. the date the Respondent commenced its unfair lahbo
practices. C & W Super Markets. Inc. 231 NLRB 403 (1977): The Arger
(Companv. 228 NLRB 149 (1977).
shall recommend that it cease and desist therefrom and
from interfering with, restraining, or coercing its employees
in any other manner in the exercise of the rights guaran-
teed them in Section 7 of the Act.104
Having found that the Respondent unlawfully dis-
charged Patricia Huston, I recommend that the Respon-
dent offer her immediate and full reinstatement to her for-
mer position or, if said position no longer exists, to a
substantially equivalent position, without loss of seniority
or other benefits, and make her whole for any loss of pay
resulting from the discrimination against her by payment
of a sum of money equal to the amount she normally
would have earned as wages from the date of her discharge
to the date of a bona fide offer of reinstatement, less net
interim earnings. The backpay due under the terms of the
recommended Order shall include interest, to be computed
in the manner prescribed in F. W. Woolworth Compan, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).'05
In light of the Respondent's extensive and pervasive un-
fair labor practices, which were calculated to and have de-
stroyed the Union's previously enjoyed majority status,
and since I am persuaded that the application of tradi-
tional remedies for the said unfair labor practices cannot
eliminate the lingering and restraining effects thereof, mak-
ing the holding of a fair and free election virtually impossi-
ble, I regard the employees' signed authorization cards as a
more reliable measure of their representation desires. I will
therefore recommend the issuance of an Order requiring
the Respondent to recognize and bargain with the Union
as the exclusive collective bargaining representative of Re-
spondent's employees in the appropriate unit.'"
CONCLUSIONS OF LAW
1. The Respondent, Jefferson National Bank, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District 65, Distributive Workers of America, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. By soliciting employees' grievances and complaints
and indicating that such grievances and complaints would
be adjusted; by expressly and impliedly promising benefits
to employees to remedy or adjust their grievances, such as
the institution of a pension plan, a merit system for wage
increases, and additional staffing at branch offices: by hav-
ing Frank De Paola, the main branch bank manager, re-
sign in order to remove an unpopular condition of employ-
ment brought up by employees; by granting its employees
wage increases for the purpose of influencing their selec-
tion of a labor organization as their bargaining representa-
tive: by paying for the meals of employees attending two
meetings in which grievances were solicited and during
which promises were expressly or impliedly made to rem-
14 : . R B . Entwiitle ,Manulliuring ( pani 120 F.2d 532. 537 (4th
(if 1941)
Sec. generall., Is Plumbin & Heating Co.. 138 NLRB 716 (1962).
V . R B. v. Gi;sel Paking (ao.. upra: rading Port. Inc.. supra, 0 & H
Ret v. Inc, trading a.s The Batk t age Resaurant, upra. W
4
e.ltmnister (Comnu-
nti If ...otal In, 221 NILRB 185 1975).
JEFFERSON NATIONAL BANK t081
edy such grievances; and by interrogating its employees
concerning their union activities and sympathies, the Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act and has engaged in unfair labor practices
in violation of Section 8(a)(1) of the Act.
4. By discharging Patricia Huston because of her union
activities and refusing to reinstate her, the Respondent has
engaged in unfair labor practices in violation of Section
8(a)(3) and () of the Act.
5. All employees employed at the Respondent's main
branch, in Passaic, New Jersey, and the Paulison Avenue
and Lakeview Avenue branches in Clifton, New Jersey. but
excluding professional employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. Since on or about February 10, 1977, District 65, Dis-
tributive Workers of America, has been the exclusive col-
lective-bargaining representative of all employees em-
ployed in the unit found appropriate in Conclusion 5,
above, for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
7. By refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of its
employees in the appropriate unit since February 11, 1977.
on which date it also embarked on a clear course of unlaw-
ful conduct which undermined the Union's majority status
and made the holding of a fair election improbable, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER '07
The Respondent, Jefferson National Bank, Passaic, New
Jersey, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Soliciting employees' grievances and promising that
such grievances will be adjusted for the purpose of influ-
encing their selection of a labor organization as their bar-
gaining representative.
(b) Coercively interrogating its employees concerning
their union activities and sympathies.
(c) Granting wage increases to its employees for the pur-
"W In the event no exceptions are filed as proided hb Sec. 1(0246 of he
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall. as proslided in Sec
102.48 of the Rules and Regulations. be adopted bh the Board ind bec.nme
its findings, conclusions. and Order. and all objections thereto shall he
deemed waived for all purposes
pose of influencing their selection of a labor organization
as their bargaining representative.
(d) Paying for meals of employees for the purpose of
influencing their selection of a labor organization as their
bargaining representative.
(e) Discouraging membership in or support of District
65, Distributive Workers of America, or any other labor
organization, by discharging employees or otherwise dis-
criminating against them in their hire and tenure.
(f) Refusing to recognize and, upon request, to bargain
with District 65, Distributive Workers of America, as the
exclusive bargaining representative of the employees in the
appropriate collective-bargaining unit, as previously set
forth herein.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.' 08
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Patricia Huston full and immediate reinstate-
ment to her former position or, if that position no longer
exists, to substantially equivalent employment, without
prejudice to her seniority or other rights and privileges
which she formerly enjoyed.
(b) Make Patricia Huston whole for any' loss of pay suf-
fered by her by reason of the discrimination found herein,
in the manner described in the section entitled "The Rem-
edy."
(c) Upon request, recognize and bargain with District
65. Distributive Workers of America, as the exclusive col-
lective-bargaining representative of its employees in the
bargaining unit set forth above, with respect to rates of
pay'. wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
such understanding in a written, signed agreement.
(d) Post at its main branch office in Passaic, New Jer-
sey, and at its Paulison Avenue and Lakeview Avenue
branch offices in Clifton, New Jersey, copies of the at-
tached notice marked "Appendix B." "0 Copies of said no-
tice, on forms provided by the Regiona: Director for Re-
gion 22, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced. or covered by any other material.
(e) Notify the Regional Director for Region 22. in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
.\ A hroiad order is warranted herein. as indicated bh the senous unfair
labor practices found & I Rer.. Inc(. trading as The Backstage Reitau-
rtanr. slipril; icl Stride Rite (orporation. rupra; Ann Lee Sportswear. Inc.. 220
NL.RB 982 (1975)
"H In the eent that this Order is enforced h a judgment of a United
State, (Court of Appeals. the Words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgmen nt of the I nted States Court of Appeals Enforcing an Order of the
N.ationall I.blhor Rlalllons Board
JEFFERSON NATIONAL B NK I