Robins Federal Credit UnionDownload PDFNational Labor Relations Board - Board DecisionsJan 9, 1985273 N.L.R.B. 1352 (N.L.R.B. 1985) Copy Citation 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robins Federal Credit Union and Retail Clerks Union Local No. 1063. Case 10-CA-19842 9 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 20 July 1984 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The General Counsel filed exceptions and a sup- porting brief and the Respondent filed an answer- ing brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts as its Order the recommended Order of the adminis- trative law judge and orders that the Respondent, Robins Federal Credit Union, Warner Robins, Georgia, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. 1 The General Counsel has excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an administra- tive law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Ca 1951) We have carefully examined the record and find no basis for re- versing the findings DECISION LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on February 14 and 15, 1984, in Warner Robins, Georgia, pursuant to a com- plaint filed by the Acting Regional Director for Region 10 of the National Labor Relations Board (the Board) on January 13, 1984 The complaint, as amended at the hearing, alleges a violation of Section 8(a)(1) of the Na- tional Labor Relations Act (the Act) by the unlawful in- terrogation of an employee by Respondent Robins Fed- eral Credit Union (Respondent) and a violation of Sec- tion 8(a)(3) and (1) of the Act by the unlawful discharge of an employee because of her engagement in protected concerted activities. The original charge was filed on December 5, 1983, by the Retail Clerks Union Local No. 1063 (the Union). Respondent by its answer filed on Jan- uary 20, 1984, as amended at the hearing, has denied that it has committed any violations of the Act. After due consideration of the evidence presented at the hearing and the briefs filed by the General Counsel and counsel for the Respondent, I hereby make the fol- lowing recommended:1 ' The following includes a composite of the testimony of the witnesses at the heanng I. JURISDICTION The Business of Respondent The complaint alleges, Respondent admits, and I find that Respondent is and has been at all times material a private nonprofit corporation chartered by the National Credit Union Administration, with an office and place of business located in Warner Robins, Georgia, where it is engaged in the extension of consumer credit to member civilian and military personnel of the United States Gov- ernment; that during the past calendar year (prior to the filing of the complaint), a representative period, Re- spondent purchased and received at its office in Warner Robins goods and services valued in excess of $50,000 di- rectly from suppliers located outside the State of Geor- gia; and that Respondent is, and has been at all times ma- terial, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES2 A. Background This case involves the discharge of Debra Montford, a loan officer of Respondent, who had been employed by Respondent for 10-1/2 years prior to her discharge on October 19. The General Counsel contends that Mont- ford was discharged because of her engagement in pro- tected concerted activities in organizing on behalf of the Union and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. The Respondent while admit- ting knowledge of Montford's union activities contends that the General Counsel has failed to prove a prima facie case as it has failed to prove union animus on the part of the Respondent or that the reason given for the discharge was pretextual. Specifically, Respondent con- tends that Montford was discharged for cause because of her violation of a written policy of Respondent prohibit- ing the issuance of loans to relatives by loan officers and engaging in "self dealing." Also alleged as a violation of Section 8(a)(1) of the Act is the interrogation of an em- ployee concerning the union campaign by a supervisor of Respondent on November 19 following the discharge of Montford. B. The Discharge of Debra Montford Montford initially became a loan officer with Re- spondent in 1981, having previously filled several other positions in her employment with Respondent including that of loan clerk. A loan officer has the responsibility of interviewing applicants for loans of various types (i e., signature loans, automobile loans), taking the loan back- ground and information required to determine if a loan 2 All dates are in 1983 unless otherwise stated 273 NLRB No. 165 ROBINS FEDERAL CREDIT UNION 1353 should be made, and either making a decision to issue the loan or referring the loan decision to the credit commit- tee of Respondent which then passes on the loan deci- sion. Respondent's written loan policy provided to loan officers and to credit committee members states in part that Credit Committee and Loan Officers will not [em- phasis in original] process or act on applications submitted by their relatives or members of their families, and Credit union officials and employees have an obliga- tion to the members to avoid all self-dealing and self-serving After a loan has been approved by a loan officer, the file is put on a stack to be processed by the loan clerks who prepare the documentation, check the application, and issue the check to the borrower and/or to the seller of the item being financed (i.e., an automobile). The loan clerk also has the responsibility for calling the sellers of the motor vehicles and verbally informing them of Re- spondent's lien and arranging for the title to be processed through the State reflecting the purchase and the lien of Respondent. On April 19 Michael Driggers, who is married to a cousin of Montford, applied for a loan of $6000 with Re- spondent to buy a 1983 truck for $7500 from Dixie Truck & Parts Co. The truck had been damaged shortly after it had been sold as a new vehicle by Youman Chev- rolet to a Jim W. Renters. The truck had been "totaled" for insurance purposes and repurchased by Youman Chevrolet as a trade-in from Renters who ordered an- other new truck from Youman to replace the damaged vehicle. The amount of the damage to the truck paid by the insurer was $2900. The original suggested retail pur- chase price of the truck at the time of its purchase from Youman Chevrolet by Renters was $10,500. Youman Used-Car Manager William Durban testified that he called several wholesale used car dealers and agreed to sell the damaged vehicle to Dixie Truck & Parts Co. (a/k/a Dixie Motors), the highest bidder. Dixie Motors contacted Jimmy Sims of H & S Wholesale Motors, who purchases damaged vehicles for repair and resale. Sims is an uncle of Debra Montford and the father-in-law of Driggers. Sims and Driggers testified that Sims told Driggers of the truck, and Driggers agreed to purchase it for his own use. When Dnggers applied for the auto- mobile loan, he was interviewed by Debra Montford and the loan was issued that date by Montford. Montford also called Dixie Motors to secure Respondent's lien, al- though this is normally done by the loan clerk rather than by the loan officer. The truck was (according to the testimony of Sims and Driggers) repurchased by Sims from Driggers as Driggers decided he could not make the payments and the truck was resold by Sims to C. E. Edwards in May 1983. However, Respondent was not informed of this transaction, nor was the loan repaid until July when it was paid off by Sims rather than Drig- gers During this period, Respondent did not have a se- cured lien as title had never been applied for by Dixie Motors or conveyed to Driggers by Dixie Motors. Nor had notice been sent to the Georgia State Department of Revenue Motor Vehicle Division to register the title in Driggers' name with a lien on behalf of Respondent. It was not until September 20, 1983, when Barbara Marcu, a title clerk employed by Respondent, began a routine telephone followup on titles which had not been received by Respondent with Dixie Motors to ascertain the reason for the delay in receiving the title that Re- spondent was apprised that the vehicle had been sold. Marcu and Edward Levins, Respondent's assistant man- ager in charge of administration, testified that following the issuance of a loan by the loan officer (such as Debra Montford), the loan clerk has the responsibility for call- ing the seller (in this case Dixie Motors) and obtaining the title number of the vehicle and informing the seller of Respondent's lien. In this case, Montford (the loan of- ficer) made the call although normally (but not in every case) the loan clerk makes the call which is her respon- siblity. The seller is then responsible for sending the title to the State of Georgia Motor Vehicle Unit to have the title changed to show the new ownership by the pur- chaser and Respondent's lien thereon. As a result of de- layed processing by the State of Georgia Motor Vehicle Unit and, as the result of the failure of certain sellers to send the application for title changes and information to the state office, titles are often delayed and Respondent may not receive them for a period of 3 to 6 months. Re- spondent maintains a list of sellers with whom it has had trouble in the past in this regard. Neither Youman Chev- rolet, Dixie Motors, nor H & S Sales was on this list of sellers. Marcu maintains a late title file and routinely fol- lows up with sellers and the State on titles which have not been received for 90 days or more after the issuance of the loan. She follows up on these late titles by the is- suance of form letters and by telephone inquiries to the seller. On September 20 she contacted the title clerk of Dixie Motors concerning the title of the vehicle on which the loan had been made to Driggers. The title clerk told her she would have to call her back concerning the title. Marcu then received a telephone call from Debra Mont- ford, who told her that the truck had been wrecked and repaired and resold and that the loan had been repaid and that Respondent would not receive a title. When Marcu inquired as to the need of Driggers for a title, she was told not to worry about the title as Dnggers was a part owner of H & S Motors according to the testimony of Marcu Marcu testified that when she put down the phone, she exclaimed aloud, "That's not right," where- upon Pat Parkerson, who is employed as an in-house auditor, and who reports directly to Respondent's board of governors, was walking by and asked Marcu what was not right, whereupon Marcu advised her of the con- versation. Parkerson advised Marcu to inform the man- agement. Marcu then reported it to Assistant Manager Edward Levins. Levins told Marcu to do nothing but to reduce what had occurred to writing. At Levins' request Marcu called Dixie Motors the following day. Marcu did so and spoke to Phillip Sullivan who told her he thought the truck had been "wrecked" and told her to speak with an employee of H & S Wholesalers who was with him at 1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time. Sullivan then put J. S. Sims on the telephone and Sims told Marcu that the credit union (Respondent) knew that the truck had been wrecked and that Mont- ford was to have called her concerning the title and Re- spondent should not worry about it. He also told her that the truck had been sold to C. E. Edwards. Levins launched an investigation into the matter, asked Marcu to write the State concerning the transfer of the title to the vehicle, and Levins contacted the used-car sales man- ager of Youman Chevrolet, the original purchaser of the vehicle, Renters, and the then-current owner of the auto- mobile, Edwards, who had ultimately purchased the ve- hicle from Sims in May. During the course of this inves- tigation, Parkerson checked the loans made by Montford and also those in which Dixie Motors and H & S Sales had been the seller. She discovered that on at least one other occasion Montford had made a loan to Driggers who was a frequent borrower. Sims was not a member of the credit union and was thus ineligible to make a loan from Respondent. In response to a letter request for a vehicle title search of September 21 by Marcu to the Georgia State Motor Vehicle Unit, Respondent received a response approximately October 6 or 7 that showed an application for a title on the vehicle had been made and then canceled on behalf of Renters and that an applica- tion for title had been made on behalf of Edwards re- flecting no lien or security holders During the period of his investigation, Levins in- formed Respondent's manager C. S. Moore of its ongo- ing status. On October 12 Levins advised Moore that he was ready to meet and discuss the matter. Levins, Moore, and Henry Johnson, the assistant manager who is in charge of the loan department, met on that date in the afternoon and reviewed the above and at that time Levins recommended that Montford be terminated for having made a loan to a relative in violation of Respond- ent's loan policy and that it had been made on a wrecked vehicle and that the loan had never been secured. Ac- cording to the testimony of Levins, he and Moore and Johnson agreed but delayed the termination of Montford as she was gone for the day at the time of the meeting. Johnson also testified that as Montford was a long-term employee, Manager Moore wanted to discuss the matter with Respondent's attorney. Moore, Johnson, and Levins had been scheduled to attend a state credit union meet- ing at Jekyll Island, Georgia, the next day, October 13, and ending on Sunday, October 16.According to the tes- timony of Levins, on the morning of October 13 prior to his leaving for work, he was informed by Manager Moore of the advent of union activities by some of the employees of Respondent. Moore instructed Levins to meet with the management employees and inform them to do nothing concerning the union activities but to con- tinue their work and insure that the operations of the credit union were carried on. Levins went to the office, met individually with the management employees in small groups, conveyed this information to them, and left for Jekyll Island that afternoon. No discussion of the Montford matter took place during the weekend. Levins testified that he and Manager Moore discussed the matter with Respondent's attorney who recommended that a labor law practitioner in Atlanta be consulted. This was done by Moore and Levins. On the afternoon of October 19, Montford was called to a meeting by Johnson. In attendance were Moore, Johnson, and Levins. Manager Moore told Montford he had some- thing unpleasant to discuss with her to which Montford replied, "It usually is." He then reviewed the Dnggers' loan situation with her. According to her testimony, she denied knowledge that the prohibition against making loans to relatives applied to other than members of the immediate family and contended she was unaware of the other transactions concerning the vehicle. At that time Manager Moore signed her termination notice, which had already been filled out, and directed Johnson to go with her to clean out her desk and leave. Prior to her departure, she turned to Levins and Johnson and asked, "After ten and a half years, do you think this is fair?" Montford testified she was unaware that the prohibi- tion against loans to relatives applied to relatives as dis- tant as the husband of her cousin, denied knowledge of the damaged status of the automobile or any of the other transactions involving it until she received a telephone call from Sims on September 20 who informed her that the vehicle had been damaged, the loan repaid, the vehi- cle resold, and that Respondent would not get a title She testified she verified that the loan had been repaid in July and then called Marcu and informed her of the above and that Marcu acted curious. She denied having told Marcu that Driggers was part owner of H & S Sales. Montford testified further that she had initially contacted the Union in 1981, but had done nothing fur- ther in this regard until August 1983 when, at the request of another employee, she again contacted the Union, met with union officials, signed a union card, and solicited several union authorization cards of other employees and set up a meeting between the employees and the Union which was scheduled for October 20. Employee Susan Curtis testified she was initially informed of the union campaign by Montford in October 1983. Analysis I find that the General Counsel has failed to prove a prima facie case of a violation of Section 8(a)(3) and (1) of the Act by Respondent's discharge of Montford In making this determination, I have considered all of the facts and circumstances leading up to the termination in this case including the timing of the discharge of Mont- ford after the advent of the union campaign and on the eve of the scheduled union meeting with Respondent's employees. I find that the testimony of Respondent's wit- nesses Levins, Marcu, Johnson, and Parkerson should be credited concerning the events that led up to the termi- nation of Montford as set out above. I find their version of the sequence of events that led up to the termination of Montford to be credible, logical, and supported in part by documentary evidence of their research into the matter. I find the transactions engaged in by Sims and Driggers in the absence of Respondent's knowledge appear to have been highly irregular. The sale of the ve- hicle by Dnggers to Sims and then by Sims to Edwards at a time when the vehicle was to be titled in the name of Dnggers with a security interest to be filed on behalf ROBINS FEDERAL CREDIT UNION 1355 of Respondent placed Respondent in a vulnerable posi- tion with an unprotected security interest. The careful in- vestigation by Levins of this matter after it was called to his attention by Marcu, which included writing to the State for the required information and contacting the original and ultimate owners of the vehicle, as well as the used-car manager, but not contacting Dixie Motors, H & S Sales, and Driggers, does not appear an unreason- able course to pursue. I cannot accept the arguments of the General Counsel that the length of time to investi- gate this case by Respondent was unreasonable or indi- cated Respondent's lack of concern with the matter. This is a far different case than one in which a seller has been delinquent in conveying the title information to the State or in which the State has not processed the title and sent it to a respondent. Under these circumstances I find that Respondent was legitimately concerned about Mont- ford's part in this transaction and the violation of its stated policy prohibiting its loan officers from making loans to relatives and engaging in self-dealing. Mont- ford's telephone call to Marcu informing her that no title would be forthcoming would understandably have given rise to a suspicion by Respondent as to her involvement in the matter. I further find, as contended by Respondent, that the General Counsel has failed to prove animus on the part of Respondent against the Union in this case. Rather, I credit the testimony of Levins that Montford's union ac- tivities were not known by Respondent prior to his rec- ommendation of her termination on October 12 and that he was only initially informed of union activities of the employees on the morning of October 13 and was told to and did instruct the supervisors to carry out the business of Respondent and not to become involved with these activities. I do not fmd the interrogation of employee Curtis by Supervisor Brand 3 following the discharge of Montford sufficient to prove animus toward the Union by Respondent as this was an isolated act of interroga- tion by a single supervisor which was unaccompanied by threats. I find that the General Counsel has failed to prove that Respondent's discharge of Montford was mo- tivated by her union activities rather than by its concern for her alleged violation of its policy against making loans to relatives, and self-dealing and the irregularities of the transactions following the issuance of the loan to Driggers. Meyers Industries, 268 NLRB 493 fn. 23 (1984). Although the sequence of events in this case, particu- larly the timing of the discharge of Montford and the method by which she was summarily dismissed when she was called into the termination meeting and presented with a typed termination notice, give rise to a suspicion as to whether Respondent terminated her because of her union activities, mere suspicion is not sufficent to support a violation of the Act. See Spearin, Preston & Burrows Inc., 248 NLRB 1384 (1980), and Royal Coach Sprinklers, 268 NLRB 1019 (1984). I have also considered Respondent's termination of a long term supervisor which occurred after the discharge of Montford for a violation of its loan policy to relatives 3 Brand's supervisory status was admitted by Respondent at the hear- ing. and Respondent's actions in permitting her to resign at her request rather than be discharged as was Montford. When the General Counsel sought to introduce this evi- dence, Respondent initially objected and then withdrew its objection and the testimony in this regard was re- ceived. I find the evidence to be of questionable rel- evance as it occurred substantially after the discharge of Montford. However, assuming its relevance hereto, I would find it supportive of Respondent's position that it regarded the violation of this policy as a dischargeable offense rather than evidence of disparate treatment, as I regard the distinction between Respondent's discharge of Montford and its allowance of its supervisor to resign upon her request rather than be discharged to be of little moment insofar as Respondent was concerned although I recognize that the difference can be substantial to the employee involved. I credit the testimony of Levins that the supervisor requested permission to resign and was permitted to do so whereas Montford made no such re- quest. Accordingly, I find that the General Counsel has failed to prove a prima facie case of a violation by Re- spondent of the Act by its termination of Montford. As- suming that a prima facie case was established, I find that Respondent has rebutted that case by the preponder- ance of the evidence. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989; NLRB v. Transportation' Management Corp., 462 U.S. 393 (1983). In making the determinations set out above, I have not found that Montford was engaged in any wrongful activity nor that Respondent's interpreta- tion of the loan to Driggers by Montford as a violation of its policy against loans to relatives and self-dealing was necessarily correct or the only interpretation as to whether "relative" included the husband of a cousin. Rather, I have found that Respondent's concern about the perceived violation of its policy by Montford and the irregularities of the transactions involved following the loan to Driggers were the motivating factors in its dis- charge of Montford. It is a sad matter to see an employ- ee of over 10 years' experience, who has progressed to a substantial position, be terminated under these circum- stances, but I do not find a violation of the Act was committed by the Employer by reason of her termina- tion. Nor have I found that Montford did in fact violate Respondent's policy or that she was engaged in any ir- regular or fraudulent transactions as contended by Re- spondent in its brief. C. The Interrogation of Employee Susan Curtis by Supervisor Brand Susan Curtis, a loan clerk employed by Respondent, testified that the union campaign began in October, that she signed an authorization card and solicited other cards from Respondent's employees on behalf of the Union, that she had initially been informed of the union cam- paign by Montford and was informed of the union meet- ing scheduled for October 20 "a couple of days" before Montford's discharge. Curtis testified that "a few Satur- days after Debra (Montford) was fired," Supervisor Ronnie Brand asked her "how we were coming along on 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that." She inquired, "What? Do you mean the Union?" and Brand "kind of laughed" and she told him, "Well, if you mean the Union, we're coming along, but these things take time." She testified further that he asked how many cards had been signed, and she replied she did not know as the cards were given to the Union and that the Union kept track. Brand then asked her how many cards were required, and she told him it "depended on who would vote in the election." Analysis I credit the testimony of Curtis which is unrebutted as Brand did not testify. I find the interrogation of Curtis by Brand was violative of Section 8(a)(1) of the Act and went beyond a casual question but was a pointed effort to discover the Union's progress in its campaign. I find this type of questioning to have been inherently coercive. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE The unfair labor practice of Respondent as found in section III, in connection with Respondent's operations as found in section I, has a close, intimate, and substan- tial relationship to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing. the flow of commerce. CONCLUSIONS OF LAW 1. Respondent Robins Federal Credit Union is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(3) and (1) of the Act by its discharge of Debra Montford. 4. Respondent violated Section 8(a)(1) of the Act by the interrogation of its employee Susan Curtis by its su- pervisor Ronnie Brand 5. The aforesaid unfair labor practice has a close, inti- mate, and substantial effect on the free flow of com- merce within the meaning of Section 2(2), (6), and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and post the appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed:4 ORDER The Respondent, Robins Federal Credit Union, Warner Robins, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from unlawfully interrogating its employees concerning their union activities in violation of Section 8(a)(1) of the Act. 2. Take te following affirmative action necessary to ef- fectuate the policies of the Act. (a) Post at its facilities in Warner Robins, Georgia, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed with respect to the allegations of a violation of Section 8(a)(3) and (1) of the Act by Respondent's dis- charge of Debra Montford 5 If this Order is er forced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties participated, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act. We have been ordered to post this notice and abide by its terms. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT unlawfully interrogate our employees concerning their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur- poses ROBINS FEDERAL CREDIT UNION Copy with citationCopy as parenthetical citation