Ross Valley Savings & Loan Association

National Labor Relations Board - Board Decisions

Nov 22, 1971

194 N.L.R.B. 270 (N.L.R.B. 1971)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ross Valley Savings & Loan Association and Sharon
Louise Pincus . Case 20-CA-6451
November 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 10, 1971, Trial Examiner Herman Marx
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
answer to the Respondent's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Ross Valley Savings & Loan Associ-
ation, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3) We have carefully examined the record and
find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARx, Trial Examiner: The complaint alleges
that Ross Valley Savings & Loan Association (herein the
Company or Respondent) has violated Section 8(a)(1) of
the National Labor Relations Act i (herein the Act) by
discharging an employee, Sharon Louise Pincus, because
she had engaged in "concerted activities" protected by
Section 7 of the Act.2
The Respondent has filed an answer which, in material
substance, denies the commission of the unfair labor
practices imputed to it.
1 29 U.S.C Sec. 158(a)(1).
2 The complaint was issued on March 3, 1971, and is based on a charge
filed by Sharon Louise Pincus on November 27, 1970. Copies of the charge
and complaint have been duly served on the Respondent
Pursuant to notice duly served by the General Counsel of
the National Labor Relations Board (herein the Board)
upon all other parties, a hearing on the issues was held
before me, as duly designated Trial Examiner, on May 25,
1971, at San, Francisco, California. The General Counsel
and the Respondent appeared through respective counsel,
and all parties were afforded a full opportunity to adduce
evidence, examine and cross-examine witnesses, and
submit oral argument and briefs.
Upon the entire record, and my observation of the
demeanor of the witnesses, and having read and considered
the briefs filed with me since close of the hearing, I make
the following findings of fact:
FINDINGS OF FACT
I. NATURE OF THE RESPONDENT'S BUSINESS;
JURISDICTION OF THE BOARD
Ross Valley Savings & Loan Association is a California
corporation ; maintains its principal office and place of
business in San Anselmo , California , where it is engaged in
business "as a savings and loan association"; and is, and
has been at all material times , an employer within the
meaning of Section 2(2) of the Act.
During the year immediately preceding the issuance of
the complaint , the Company derived gross revenue in
excess of $3 million from loans and investments ; purchased
United States Government bonds in an amount in excess of
$50,000 ; received at its said place of business deposits in
excess of $5,000 from persons located outside the State of
California; and paid interest on deposits to persons located
outside the said State in an amount in excess of $5,000. By
reason of its said bond purchases , deposits , and interest
payments, the Company is, and has been at all material
times, engaged in interstate commerce , and operations
affecting such commerce , within the meaning of Section
2(6) and (7) of the Act. Accordingly, the Board has
jurisdiction of the subject matter of this proceeding.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company has a work force of some 19 employees,
including several tellers , all of them subject to supervision
by its vice president , Claudia Goldthwaite, who is subject,
in turn, to direction by its president , E. Michael Young, Jr.
Sharon Louise Pincus has been employed by the
Company as a teller in two periods, first entering its employ
in March 1969. That employment ended about 4 weeks
later when she had to leave suddenly to look after her
mother who resided in San Diego and had met with an
accident . Failing in an effort to reach Mrs . Goldthwaite,
Mrs. Pincus left a note for her, informing her of the
impending departure .3 Shortly thereafter , Mrs. Goldth-
waite telephoned Mrs. Pincus , and asked her when she
would return . Mrs. Pincus expressed uncertainty, and Mrs.
3 The contents of the note are not spelled out in the record, but it is
evident from a subsequent telephone conversation between the two women,
that the note gave notice of Mrs. Pincus' impending departure.
194 NLRB No. 40
ROSS VALLEY SAVINGS & LOAN ASSN.
Goldthwaite said that she could not hold Mrs. Pincus' job
for her, but invited her to call upon her return.
Mrs. Pincus did so following her return about a month
later ; Mrs. Goldthwaite offered her reemployment as a
teller ; and Mrs. Pincus accepted and resumed her position
in April 1969, working in that capacity until November 13,
1970, when she was discharged under circumstances to be
described later.
About 2 months after her return , she was given an
increase of $25 in her monthly pay in accordance with the
management 's policy of giving new employees an
"automatic" increase after 3 months of employment.
Informing Mrs. Pincus of the increase, Mrs. Goldthwaite
told her not to mention it to the other employees . As Mrs.
Goldthwaite testified , she "usually told them (employees)
when they received an increase to keep it to themselves."
Thereafter, Mrs. Pincus asked Mrs . Goldthwaite for a
wage increase on two occasions , the first in April 1970, and
the other in the first or second week in September.4 In
support of the latter request , Mrs. Pincus told Mrs.
Goldthwaite that a recently hired teller was receiving as
much as she , although she was the "best" of the Company's
tellers . Mrs. Goldthwaite concurred in that appraisal, and
said that there "shouldn't be any problem about a raise,"
but that she would have to submit the request to the
Company's executive committee (which consists of herself,
Young, and a third management official).
The next day , Mrs. Goldthwaite informed Mrs. Pincus
that the committee had rejected the request , because Mrs.
Pincus had received an increase in April , and would have to
wait a couple of months for another. Mrs. Pincus reiterated
that she was the "best" of the tellers, and Mrs. Goldthwaite
agreed, stating that she would discuss the request again
with the other officers . On the same day (but whether on
the occasion when Mrs. Pincus was informed of the
rejection does not appear ), Mrs. Pincus complained to Mrs.
Goldthwaite that the latter did not "realize how hard it is
for all of us girls to have to come in and sii here and beg you
for a raise, because you won't pay any of us what we should
get and it 's not fair that you should do this to us."5
According to Mrs. Pincus, she discussed the subject of
wages that day with some of the other employees,
suggesting to them that they seek increases, but they
indicated fear of dismissal , whereupon she told them, "If
you're too afraid and if I do it for myself I will do it for you,
too."
Approaching this self-serving testimony by an interested
witness with appropriate caution , I am nevertheless
persuaded of its credibility . It is not inherently implausible;
Mrs. Pincus appeared to me to be credible on the other
material aspects of her testimony; and it is of some moment
that although she named the employees to whom she
spoke-five in all, four of them still in the Company's
employ, so far as appears-the Respondent neither called'
4 Unless otherwise indicated , all dates mentioned herein occurred in
1970
5 Findings as to the conversations between Mrs Pincus and Mrs.
Goldthwaite relating to wages, as described above , are based on Mrs
Pincus' testimony. Mrs. Goldthwaite's testimony , it may be noted, contains
no denial that Mrs. Pincus complained to her that the Company "won't
pay any of us what we should get ," or that she concurred in Mrs. Pincus'
self-appraisal as the best of its tellers . The plausibility of such a
271
any of them, nor explained its omission to do so. This is not
to say that the Respondent had a duty to call these
employees , but only that their identification afforded an
opportunity to call them in refutation of Mrs. Pmcus' claim,
and that the fact that it did not do so may properly be taken
into account in evaluating her credibility . Moreover,
Young, the Company's chief executive, testified that prior
to Mrs . Pincus' dismissal he had heard "rumors" that she
had been discussing the denial of her request for an increase
with other employees , "letting everybody know" that she
was "dissatisfied" with the rejection . This lends support at
least to her claim that she discussed the subject of wage
increases with other employees . Taking all factors into
account, I credit her testimony regarding her discussion of
wages with other employees.6
Within a period of a few days following rejection of her
request, Mrs. Pincus gave some thought to quitting because
of denial of the increase and informed one or more of the
other employees of the possibility, and that her departure
might occur "the first of the year" because savings and loan
organizations are busy then and have greater requirements
for help ; but she said nothing to the management about
resigning until October 20.
On that date , having learned the day before that she was
pregnant, Mrs. Pincus informed Mrs. Goldthwaite of the
anticipated event by composing and handing her a poem of
the "Roses are red , violets are blue" genre, closing with the
lines that "I must leave this job for another , because I'm
going to be a mother."
The evidence of what followed is disputed . Mrs. Pincus
claims that after reading the poem , Mrs. Goldthwaite asked
her when she was leaving; that she gave December 31 as the
date; and that Mrs. Goldthwaite then expressed apprecia-
tion for "all of the notice," since "the first of the year" is a
busy period and the notice would give the management
time to train a replacement . Mrs. Goldthwaite, in contrast,
simply quotes herself as expressing pleasure at the news of
the pregnancy , and claims that Mrs. Pincus "did not say
when she intended to leave." The material credibility issue
will be resolved at a later point.
Two or three weeks after Mrs. Pincus' announcement, she
heard that the Company 's switchboard operator , Gloria del
Santo, then temporarily substituting for a regular operator
who was on an extended indefinite leave of absence,
intended to leave "the first of the year." Believing that the
operator's work, which was performed in a seated position,
was within her physical capacity during her pregnancy,
Mrs. Pincus talked to Miss del Santo about the matter one
morning early in November , before the start of the
workday, and both agreed that it would be a good idea for
Mrs. Pincus to seek the job.
She did so on or about November 8, applying to Mrs.
Goldthwaite , pointing out that she knew how to operate the
board, and was acquainted with every member of the
concurrence is enhanced by the fact that Mrs. Pincus had never been
reprimanded by the management , and had received a merit increase several
months earlier.
6 It does not appear ' whether Mrs. Pincus ' complaint to Mrs
Goldthwaite that the employees were not paid "fair" wages came before or
after Mrs . Pincus' discussion with the other employees , and it is thus not
established that the complaint was a product of that discussion.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's staff. Mrs. Goldthwaite replied that the
proposed assignment "sounded like a good idea," and that
she would discuss the matter with the other officers
(members of the executive committee, apparently) and
inform Mrs. Pincus of the outcome.? Mrs. Goldthwaite did
not mention the matter again to Mrs. Pincus until
November 13, doing so in circumstances that will presently
appear.
B. The Discharge; Concluding Findings
Toward the end of the workday on November 13, Mrs.
Goldthwaite summoned Mrs. Pincus, and discharged her.
Mrs. Pincus asked for an explanation, and Mrs. Goldth-
waite gave her two reasons: (1) that the management had
heard a rumor that Mrs. Pincus intended to leave the day
she received her Christmas bonus (such bonuses are given
by the Company to employees annually between December
I 1 and 15); and (2) that Mrs. Pincus had been "heckling"
Miss del Santo "for her job. " 8
Mrs. Pincus suffered a miscarriage toward the end of
November, and by letter dated December 21, 1970,
received by Young a day or two thereafter, she informed
the Company of her miscarriage, and that she was
"available for work with no time limitation." The Company
has not replied.
The General Counsel maintains, in substance, that the
reasons given Mrs. Pincus were pretexts, and that she was
discharged because she had engaged in "concerted
activities" protected by Section 7 of the Act, or because the
Respondent "believed" that she had engaged in them. The
Respondent replies, in effect, that it discharged Mrs. Pincus
for lawful cause, relying on testimony by Mrs. Goldthwaite
and Young to spell out its justification for the discharge.
There is much in the record to support a conclusion that
the Company has resorted to pretexts to justify the
dismissal . According to Mrs. Goldthwaite, Mrs. Pincus was
discharged by decision of the executive committee because
the management had heard that Mrs. Pincus intended to
leave , without prior notice, about the end of the year (1970),
thus leaving the Company "in a very precarious position."
Expanding on this, Mrs. Goldthwaite offered the explana-
tion that Mrs. Pincus had previously "left us in a spot" (by
her prior departure), and that the early part of January is a
busy period, and it "takes quite a long time to train a teller."
The committee, so Mrs. Goldthwaite testified, learning of
Mrs. Pincus' intention late in September or the early part of
October, decided in the latter month to replace her, but did
not carry out the decision before Mrs. Goldthwaite heard of
Mrs. Pincus' pregnancy, and then decided against the
7 Mrs. Pincus' account of the conversation is not in material dispute.
Mrs Goldthwaite in effect concedes that Mrs. Pincus applied for the
operator's job about November 8, but says that she does not remember
saying that she thought the proposal "a good idea "
8 Findings as to the reasons given Mrs. Pincus are based on her account
of the conversation Mrs. Goldthwaite quotes herself as telling Mrs. Pincus
that the reason for the discharge was that she had heard that Mrs Pincus
"was going to leave the first of the year without notice, because she hadn't
given notice before and it had left us in a bad spot and it was a very, very
busy time of the year." This is not greatly removed from the first of the
reasons quoted by Mrs. Pincus, but, in any case, I find Mrs. Pincus' version
of the explanation given her to be the more reliable of the two accounts.
Mrs. Goldthwaite herself pictures the executive committee as deciding
early in October to discharge Mrs Pincus because information had come
latter's dismissal because of her condition. However,
according to Mrs. Goldthwaite, the decision was revived
following a conversation with Mrs. Pincus on or about
November 12 or 13 regarding the switchboard job .9 Mrs.
Goldthwaite testified that on the occasion in question Mrs.
Pincus told her that she, her husband (Loren Pincus), and
an employee named Mary Wilkinson "had decided that she
[Mrs. Pincus] should take the switchboard job because her
legs were beginning to bother her," and that she replied that
Mrs. Pincus was not to "tell us what to do." This, according
to Mrs. Goldthwaite, led the executive committee to discuss
again the question of discharging Mrs. Pincus, with the
result that the committee "decided we had better let her go
because she wasn't very happy," her "attitude" having
"changed" after rejection of her request for a wage increase.
It seems implausible that in seeking the switchboard
position, in effect asking for a managerial indulgence, Mrs.
Pincus would take so demanding a stance as to say that she,
her husband, and Mary Wilkinson "had decided" on the
disposition of the opening, but the shortcomings in Mrs.
Goldthwaite's testimony, as well as in that of Young, run
far deeper, reflecting evasiveness, ambiguity, and shifts of
position.
Vagueness and shift appear in Mrs. Goldthwaite's claim
that, following denial of the wage increase, Mrs. Pincus
"wasn't very happy," and that this change in attitude was a
factor in the discharge decision. This is a departure from
the reasons given Mrs. Pincus and the claim that the latter
"wasn't very happy" is so ambiguous as to leave one in
doubt as to its meaning . There is no demonstration that the
alleged attitudinal change had any impact on Mrs. Pincus'
work, nor any evidence of dissatisfaction with her by any of
the Company's customers whom she served or otherwise
met. She had never been reprimanded for any deficiency in
her work performance, and, on the occasion of her last
request for an increase, Mrs. Goldthwaite had agreed that
she was the Company's "best teller." In other words, if Mrs.
Goldthwaite's meaning is that some shortcoming in Mrs.
Pincus' performance entered into the discharge decision,
the claim has the earmarks of an afterthought and I place
no credence in it. On the other hand, there is evidence, to be
discussed later, that the management believed that, after
denial of an increase, Mrs. Pincus expressed criticism of the
adequacy of their salaries to other employees, and
endeavored to induce them to seek increases, and it may
well be that Mrs. Goldthwaite's characterization of Mrs.
Pincus as not "very happy" is a euphemistic allusion to
such activity by Mrs. Pincus. In any case, I am unable to
to the management that she had expressed an intention "to leave as soon as
she got her Christmas bonus"; and this lends support to Mrs. Pincus'
version of the first of the two reasons she says were given to her. As for the
second, Mrs. Goldthwaite conceded that she "could have" given
"heckling" of the switchboard operator as a reason, and Young testified
that such "heckling" by Mrs. Pincus was a factor in her discharge
9 The transcript quotes Mrs. Goldthwaite as testifying that the
conversation took place on "October the 13th or the 12th or something like
that." Whether the transcript is, inaccurate or Mrs. Goldthwaite nusspoke
herself, it is evident from other parts of the record that she intended to
refer to "November" rather than "October" as the month in which Mrs.
Pincus sought the switchboard position . In any case, as stated earlier, Mrs.
Pincus applied for the job on or about November 8.
ROSS VALLEY SAVINGS & LOAN ASSN. 273
accept the characterization as a reliable basis for determin-
ing the motivation for the discharge.
Moreover, although Mrs. Pincus was told that a reason
for her dismissal was that she had "heckled" the
switchboard operator, Mrs. Goldthwaite's testimony on the
subject is elusive, reflecting a disposition to fence with
interrogation about the matter, as the following exerpts
from the record attest:
Q. (By Mr. Wright) Did you [Mrs. Goldthwaite]
talk about or tell her that she was being discharged for
another reason?
A. I think I did mention to her, I'm not sure, about
trying to get the position of telephone operator.
Trial examiner: Well, what did you say about that as
nearly as you recall?
The witness: On November the 13th?
Trial examiner: Yes.
The witness: I don't recall that I mentioned that,
because I did mention to her that day that she said she
wanted that position.
Trial examiner: And what day was that? Was that on
her last day or before?
The witness: On, no, this was before. A couple of
days before, I believe. I don't recall.
Trial examiner: Well, at the time she was discharged,
did you say anything at all about the telephone position
that you remember?
The witness: I may have but I don't recall.
Trial examiner: You don't recall?
The witness: No.
Q. (By Mr. Schmier) Mrs. Goldthwaite, wasn't one
of the reasons that Sharon was discharged was that she
was heckling the switchboard operator? Wasn't that one
of the reasons given?
A. No, that wasn't the main reason.
Q. Well, wasn't that one of the reasons?
A. It could have been.
Q. And, so, it could have been one of the reasons, is
that correct?
A. (The witness moved her head in the affirmative.)
Trial examiner: You said, yes.
The witness: Yes.
Young's testimony regarding the alleged "heckling" also
has an evasive cast, shifting about from one position to
another. Testifying at one point that at the time of the
discharge he "thought" that the "heckling" was "one of the
material factors" in the dismissal, he also stated that he
"subsequently found out" that the "heckling" was "not as
much of a factor as I had thought at first," and that "it
[meaning, presumably, Mrs. Pincus' discussion of the
prospective job opening with the operator] was not a
heckling." And it may be noted, too, that a few days after
the dismissal, in response to an inquiry by Loren Pincus as
10 Pincus' account of this aspect of his conversation with Young is
uncontradicted
11 The finding that Mrs. Pincus told Mrs. Goldthwaite on October 20
that she would leave on December 31 is not inconsistent with the fact that
Mrs Pincus applied for the switchboard operator's job several weeks after
the notification. That position, which would impose less of a physical
to the justification for it, he told Pincus that he had looked
into the reasons for the discharge and that Mrs. Pincus had
not "heckled" the switchboard operator.10
The "heckling" allegation is a bare generalization, and in
view of the shortcomings in the testimony of both Mrs.
Goldthwaite and Young on the subject, I am convinced
that the "heckling" reason given Mrs. Pincus for her
discharge had no basis in fact and was a mere pretext for
the dismissal.
There is also good reason to deny credence to Mrs.
Goldthwaite's testimony to the effect that Mrs. Pincus was
discharged because the management had heard that she
intended to leave about the end of the year without prior
notice. Mrs. Pincus admittedly told others about September
10, following rejection of her request for a wage increase,
that she might leave with the arrival of the new year, and it
is credible that the expression of this possibility was relayed
to Mrs. Goldthwaite (or was interpreted by her) as the
existence of an actual intention by Mrs. Pincus to leave at
or about the start of the coming year (or, to quote Mrs.
Goldthwaite at one point, "as soon as she got her Christmas
bonus"), but according to Mrs. Goldthwaite herself, the
information reached her late in September or early in
October, some 5 or 6 weeks before the discharge, and it is
an objective fact that Mrs. Pincus informed Mrs. Goldth-
waite during the third week in October that she "must leave
this job for another, because I'm going to be a mother" or,
in short, gave notice of her intention to resign because of
her pregnancy. To be sure, Mrs. Goldthwaite denies that
Mrs. Pincus specified any resignation date, but especially in
view of the approaching busy season, then little more than 2
months off, and of the "long time" needed to train a
replacement-a necessity emphasized by Mrs. Goldthwaite
in her testimony-it seems only natural that Mrs.
Goldthwaite, upon receiving the news from Mrs. Pincus
that she intended to resign because of her pregnancy, would
ask Mrs. Pincus, as the latter testified, "When are you
leaving?" And it is correlatively plausible that Mrs. Pincus
would make a responsive reply such as "December 31. "
Taking all factors into account, including the substantial
infirmities in Mrs. Goldthwaite's testimony on other
material matters, I credit Mrs. Pincus' version of the
conversation, finding that on October 20, she informed
Mrs. Goldthwaite, in substance, that because of her
pregnancy she planned to quit as of December 31.11
The fact of this notification is plainly at odds with Mrs.
Goldthwaite's explanation that the Company discharged
Mrs. Pincus because it had heard that she intended to quit
about the end of the year without prior notice, thus leaving
the Company short of trained teller personnel, and I find
that the explanation, as well as the similar one given Mrs.
Pincus at the time of her dismissal, was, like the "heckling"
allegation, a pretext.
The Respondent's resort to pretexts bolsters, but does not
of itself establish, the General Counsel's case. The evidence
of Mrs. Pincus' "concerted activities" has a skeletal cast,
burden on Mrs. Pincus in her pregnant condition, was due to become open
about the start of the new year, and one may fairly view Mrs Pincus'
application for it as an effort to modify a prior understanding with the
management as to the date of her resignation, in order to enable her to
continue her employment beyond that date in work within her physical
capacity.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consisting substantially of her testimony that on the day in
September when her request for an increase was rejected
she suggested to other employees that they seek increases,
and offered to do it for them in the event she sought an
increase for herself. It does not appear, with clarity at least,
whether she made the .suggestion and, offer to one or more
employees on separate occasions , or on a single occasion to
a group (although at one point she singles out Mary
Wilkinson as one with whom she discussed the subject of
wages "at great length"), -nor is there any indication of any
response by the employees to the offer , nor is it established
that her offer was relayed to the management . But that does
not mean that the Company did not learn at some point
prior to the discharge decision that she had talked to other
employees about their salary levels, and on that score, the
record warrants a conclusion that the management received
information from some source to the effect that she had
sought to induce the others to seek wage increases; and that
she was discharged for that reason.
Evidence of that motivation surfaced in the second of two
conversations between Loren Pincus and Young after the
discharge . A summary of the first , which is not in material
dispute , is appropriate background for the second.
Mrs. Pincus had come home following her discharge in
a state of emotional upset, and had informed her husband
of her dismissal , relating the two reasons given her, and on
November 17, he telephoned Young, with whom he was
acquainted, and told Young that he was surprised that
Young would permit Mrs. Goldthwaite to terminate Mrs.
Pincus on such grounds . Young replied that "his supervi-
sors acted with his blessings ," and Pincus termed the
dismissal "unfair" and the purported reasons "childish";
stated that his wife had never previously been discharged
and had been doing "a good job," that they had been
counting on her employment to the end of the year and on
her Christmas bonus, and that the dismissal would prevent
her from getting other employment; and requested that
Young "reconsider" and give Mrs. Pincus the bonus and a
letter of recommendation that she could use in seeking
other employment. Young said he would have to discuss the
request with other management officials.
On the following day, Pincus, calling from his place of
business, telephoned Young again. At Pincus' direction, his
secretary listened, without Young's knowledge, on an
extension telephone in another office. There is no dispute
that Young told Pincus that the Company would not give
Mrs. Pincus the bonus and a letter of recommendation, but
there is conflict as to what was said on the subject of
reasons for the discharge.
Pincus testified that he expressed disbelief of the two
dismissal reasons given his wife, and that Young replied
that, since talking to Pincus the previous day, he had looked
into the claim that the switchboard operator had been
"heckled" and had found that that was not the case.
According to Pincus, he termed the other reason
"ridiculous" pointing out that his wife had given notice of
her intention to quit as of December 31 on the day she
informed Mrs. Goldthwaite of her pregnancy; and Young
replied that Mrs. Goldthwaite had told him that "this notice
was never given." Then, Pincus testified, in substance, he
reiterated disbelief that Mrs. Pincus could be discharged for
such "a ridiculous reason" as a "rumor" that she intended
to leave without notice , "especially since it's not true," and
at that , Young conceded that that "was not the reason,"
and after some added inquiry by Pincus, said that the
reason was that "her attitude had changed considerably"
since rejection of her request for a wage increase in
September . According to Pincus, he then asked Young to
explain what he meant, and the latter replied that "ever
since" the rejection, Mrs. Pincus "had been discussing with
the other girls the fact that they were all making inadequate
salaries and this was causing a lot of dissension with most
of the girls and this dissension and trouble had gotten back
to management , and they decided about that time to
replace her."
Pincus' secretary , stating that she did not listen to the
entire conversation because she had to take an incoming
call on another line , testified that she heard Young say that
one of the reasons for the discharge was that Mrs. Pincus
had discussed "wages and conditions " with other employ-
ees of the Company.
Denying that he gave such discussion as a reason for the
discharge , Young's version on direct examination is that
Pincus threatened to file a charge with the Board unless the
Company met the request for the bonus and letter of
recommendation ; that Young said that the Company
would adhere to its position , believing that its "reasons
were justified"; that Pincus then "wanted further informa-
tion as to why he had discharged her"; and that he replied
that the management had received "grapevine " information
that Mrs. Pincus intended to leave without notice at the end
of the year , and that an additional reason for the dismissal
was that following rejection of her request for a wage
increase "her attitude had changed and we felt she was a
disturbing influence on the other employees , because of her
attitude and . . . not being happy, cheerful, . . . and we felt
this would evolve with the public when she was there
meeting the public . And when we have somebody that's not
happy and saying things about the employer in an
unfavorable manner, this is not the person that you can
afford to be your public relationsperson."
The material question regarding the second conversation
is whether Young told Pincus that Mrs. Pincus was
discharged because she had been discussing the subject of
wage inadequacies with other employees, thereby causing
"a lot of dissension" among them . There is good reason to
question Pincus' credibility in that regard . His interest is
obvious; on the surface, at least , it does not seem quite
plausible that Young would make such a turnabout as to
make the admission imputed to him, and Pincus ' conduct in
having his secretary eavesdrop on the conversation is, in my
view, of such questionable propriety as to reflect on his
quality as a witness. The secretary 's testimony contributes
little to a resolution of the material issue . Her account has a
fragmentary cast, explained, perhaps, by her testimony that
she heard only a portion of the conversation; and in view of
her employment by Pincus, I am unable to regard her as a
disinterested witness.
On the other hand, Young's testimony reflects shifting
positions as to the motivation for the discharge, and this
characteristic appears markedly in his version of the second
conversation with Pincus . He makes no reference there to
ROSS VALLEY SAVINGS & LOAN ASSN.
the claim that Mrs. Pincus "heckled" the switchboard
operator, although that allegation was one of the two
reasons given her for the discharge, and he advances an
additional reason, not given to her, to the effect that
following denial of her request for an increase "her attitude
had changed," making her "a disturbing influence on the
other employees," and unsuitable for "meeting the public."
Nevertheless, Young's testimony, some of it not previous-
ly mentioned, provides important clues to the discharge
motivation, giving support, in fact, to some features of
Pincus' version of the second conversation. For one thing,
Young not only does not contradict Pincus' claim that
Young told him that he had looked into the "heckling"
allegation and found it to be untrue, but gives it some
corroborative support under cross-examination. There he
all but withdraws the allegation as a reason for the
discharge, testifying that he had made "a little investiga-
tion" into the matter; that although he cannot "recall
exactly" whether this occurred between the two conversa-
tions, his "investigation" was "somewhere in that interval";
and that he had "found out it [the heckling allegation] was
not as much of a factor [in the discharge] as I had thought
at first," and that Mrs. Pincus had not "heckled" the
switchboard operator.
For another matter-and more to the point-there are
indications in Young's testimony that, contrary to his
denial, he did, in effect, tell Pincus that Mrs. Pincus was
discharged because of her discussion of wages with other
employees. Young implied as much when he testified that
he told Pincus that an added reason for the discharge was
"the fact that after she had not received the raise her
attitude had changed and we felt she was a disturbing
influence on the other employees"; and that she had been
"saying things about the employer in an unfavorable manner"
(emphasis supplied). In the context of Young's reference to
rejection of Mrs. Pincus' request for an increase , and the
alleged resulting change in attitude, his allusion to
"disturbing influence" and "unfavorable" statements by
Mrs. Pincus regarding the Company, reasonably convey the
meaning that she had expressed criticism of the Company
on the subject of wages to other employees, thereby
"disturbing" them. With this interpretation, there is basic
accord between Pincus' version and that of Young at least
to the extent that both in effect depict Young as admitting
that Mrs. Pincus' discussion of wages with other employees
was a causative factor in her discharge.
It becomes a question, then, of the terms in which the
admission was couched, and on that score it is worth noting
that under cross-examination Young conceded that he
"might have" told Pincus that Mrs. Pincus had caused
"dissension" (a term attributed to Young by Pincus) among
the other employees, but put his own gloss on the admission
by adding, unresponsively, that what he had meant was "an
irritating or bugging of employees because of her attitude,
but not because of wages of other people." Subsequent
interrogation of Young whether he had told Pincus that the
latter's wife "had caused dissension among the employees
regarding wages" yielded an admission that he had used the
term "dissension" in his conversation with Pincus, but the
12 According to Young, he formed his conclusion that Mrs. Pincus was
a "disturbing influence" on the other employees about the end of
275
concession took the form of an unresponsive explanation
that "[i It's a word perhaps which wasn't the best word,
because it had been used at a time because it more or less
related to their [employees'] reaction. It was having
someone in your midst who was not happy with her own
situation and let everyone know about it." As is evident
from its context, the thrust of Young's admission is that he
told Pincus that Mrs. Pincus had caused "dissension"
among the employees on the subject of wages. This adds
weight to Pincus' version of the conversation.
Pincus' credibility survives the reasons to question it. His
account of the first conversation is not in dispute, and much
of his version of the second is either uncontradicted or
supported by Young. This is the case with his testimony
that Young admitted that Mrs. Pincus had not "heckled"
the switchboard operator. And, as previously indicated, his
claim that Young told him that Mrs. Pincus was discharged
because she caused "dissension" among the employees by
discussing the "inadequate salaries" paid them is support-
ed, in part by Young's testimony.
On that score, I accord no weight to the interpretative
gloss Young now gives his admission that he told Pincus
that Mrs. Pincus had caused "dissension" among the
employees on the subject of wages. Nor is there any hard
evidence to support Young's generalizations that Mrs.
Pincus had been "irritating" or "bugging" other employees,
and this is also true of his characterizations of Mrs. Pincus'
conduct as "unfavorable manner," "not being happy,
cheerful and this type of thing," and "disturbing influence."
Lacking such evidence, one may fairly view these terms, in
the light of the total record, as uncandid, pejorative
generalities, which, in combination, have the underlying
meaning that Mrs. Pincus had expressed criticism to other
employees of the wages paid them ("saying things about the
employer in an unfavorable manner"), and instigating them
to seek wage increases (acting as "a disturbing influence on
the other employees" and causing "dissension" among
them). In that connection, I find unconvincing a claim by
Young to the effect that "rumors" of discussion of wages by
Mrs. Pincus that reached him were that she had talked to
other employees about her own wage situation, and not that
of others. In short, Young's version of his second
conversation with Pincus is not a dependable basis for
findings.
Crediting Pincus' version, I find that Young told him, in
substance, that following rejection of her request for an
increase, Mrs. Pincus had discussed with other employees
"the fact that they were all making inadequate salaries,"
that this had caused "dissension" among them, and that the
management discharged her for that reason. Although the
record does not disclose the source of the Respondent's
information regarding Mrs. Pincus' activity, it is evident
from what Young said about it to Pincus that the
management had learned prior to the discharge that Mrs.
Pincus had sought to induce other employees to seek
increased wages.12
There is no evidence that Mrs. Pincus in fact caused
"dissension," as that term is commonly understood, and
there is good reason to conclude that Young used it in
September or early in October, basing it on information given him at that
time by Mrs. Goldthwaite.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another sense. The Respondent is sensitive to discussion of
wage increases among its employees, as evidenced by Mrs.
Goldthwaite's practice of admonishing recipients of
increases not to disclose them to other employees, and it is
evident that the purpose of this practice is to discourage
requests for increases. In the light of this policy, and of
Young's repeated use of pejorative ambiguities to describe
Mrs. Pincus' discussion of wages with other employees, it
appears to me to be wholly plausible that he would regard a
proposal to employees that they seek increases as causing
"dissension" among them. The sum of the matter is that I
interpret what Young said to Pincus on the subject of Mrs.
Pincus' discussion of wages, and her discharge for causing
"dissension," as an admission that the reason for the
discharge was that it had come to the attention of the
management that she had expressed the view to other
employees that their salaries were "inadequate," and had
sought to induce such employees to seek wage increases. I
find that that was the reason.13
The lack of clarity in the record whether Mrs. Pincus
spoke to the employees individually or in a group, and the
absence of any evidence that they authorized her to act for
them, do not control the, issue of the legality of the
discharge. A conversation involving "only a speaker and a
listener," among employees is "concerted activity," protect-
ed by Section 7 of the Act, if it appears that the speaker's
object is to induce "group action" by employees for their
mutual benefit.14 Fairly interpreted, Mrs. Pincus' proposal
to other employees that they seek wage increases was a
threshold activity aimed at securing the strength of
numbers for the "mutual aid" and benefit of those in the
group. Thus, irrespective of the attitude of her listeners, her
effort to secure their "mutual aid" was protected by Section
7 from reprisal at the hands of her employer.15
I find, for the reasons stated, that, by discharging Mrs.
Pincus, the Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaranteed them
by Section 7 of the Act, and thereby violated Section 8(a)(1)
of the Act.
Finally, it is reasonable to conclude, and I find, that Mrs.
Pincus, in view of her miscarriage, would have abandoned
her intention to quit on December 31, and, but for her
discharge, would have continued to work beyond that date.
Therefore, I shall make provision in the Recommended
Order, below, for a suitable offer of reinstatement and a
backpay period extending to such an offer.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
13 In reaching that conclusion, I have given consideration to the fact
that a period of some 6 weeks elapsed between the time, about the end of
September or the beginning of October, when Young, according to his
account, learned from Mrs. Goldthwaite that Mrs. Pincus was a
"disturbing influence" on other employees and the date of the discharge.
The Respondent knows best why it discharged Mrs. Pincus, and can best
explain the timing of its action Yet its witnesses, Mrs. Goldthwaite and
Young, have given much uncandid testimony regarding the discharge
motivation, resorting to vague and evasive euphemisms , shifting positions,
and pretexts to justify the discharge In that setting, although Mrs
Goldthwarte testified that the discharge decision was made in mid-October
and offered an explanation of the delay in its execution, it would be but an
idle venture to try to pin down the reason for the timing of the dismissal.
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law:
1. Ross Valley Savings & Loan Association is, and has
been at all material times, an employer within the meaning
of Section 2(2) of the Act.
2. Sharon Louise Pincus is, and has been at all material
times, an employee within the meaning of Section 2(3) of
the Act.
3. By discharging Sharon Louise Pincus, and thereby
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed by Section 7 of the Act, as
found above, the said Respondent is engaging, and has
engaged, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I shall
recommend below that it cease and desist from such
conduct and take certain affirmative actions designed to
effectuate the policies of the Act.
, Having found that the Company discharged Sharon
Louise Pincus in violation of Section 8(a)(1) of the Act, I
shall recommend below that the Company offer her
immediate and full reinstatement to her former job or, if
that job no longer exists , to a substantially equivalent job,
without prejudice to her seniority and other rights and
privileges, and make her whole for any loss of pay she may
have suffered by reason of the said discharge from the date
of the dismissal to the date on which she is offered
reinstatement as aforesaid, together with interest thereon as
provided below; and that the said loss of pay be computed
in accordance with the formula and method prescribed by
the Board in F. W Woolworth Company, 90 NLRB 289, and
include interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716.
Suffice it to say that a total view of the record warrants a conclusion that
the discharge, as Young in effect admitted to Pincus, was rooted in the
Company's disapproval of Mrs. Pincus' effort to induce other employees to
seek wage increases.
14 Mushroom Transportation Co v. N L RB., 330 F.2d 683, 685 (CA. 3);
Owens-Corning Fiberglas Corporation v. NL.R.B, 407 F.2d 1357, 1365
(C.A. 4).
15 The aim of group action is particularly evident in Mrs. Pincus' offer
to serve as a conduit for transmission to the management of the others'
requests for increases , together with her own , but I hold that in the context
of circumstances , her proposal to the others that they seek increases was
protected concerted activity, without regard to the offer , and whether or
not word of the offer reached the management.
ROSS VALLEY SAVINGS & LOAN ASSN. 277
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue the
following Recommended Order: 16
Ross Valley Savings & Loan Association, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from discharging any employee, or
otherwise discriminating or taking any reprisal against any
employee, because such employee has exercised any right
guaranteed by Section 7 of the Act.
2. Take the following affirmative actions which, I find,
will effectuate the policies of the Act:
(a) Offer Sharon Louise Pincus immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to her seniority and other rights and privileges, as provided
in the section 5 entitled "The Remedy," and make her
whole according to the formula and method provided in
said section.
(b) Preserve until compliance with any order for
reinstatement or backpay made by the National Labor
Relations Board in this proceeding is effectuated, and make
available to the said Board and its agents, for examination
and copying, all payroll records, social security records,
timecards, and any other personnel records which may be
relevant to a determination of the amount of backpay due
and the reinstatement and related rights provided by such
order.
(c) Notify the said Sharon Louise Pincus, in the event that
she is now serving in the Armed Forces of the United
States, of her right to full reinstatement, upon application,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after her discharge from the Armed Forces.
(d) Post in conspicuous places at the Company's place of
business in San Anselmo, California, including all places
there where notices to employees are customarily posted,
copies of the notice attached hereto as an appendix. Copies
of the said notice, to be furnished by the Regional Director
for Region 20, shall, after being duly signed by an
authorized representative of the Company, be posted by it
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places.
Reasonable steps shall be taken by the said Company to
insure that said notice is not covered, altered, or defaced by
any other material.17
(e) Notify the said Regional Director, in writing, within
20 days from the date of receipt of a copy of this Decision,
what steps the Respondent has taken to comply
therewith.18
16 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations be
adopted by the Board and become its findings, conclusions, and order and
all objections thereto shall be deemed waived for all purposes.
11' In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
18 In the event that this Recommended Order is adopted by the
National Labor Relations Board after exceptions have been filed,
Paragraph 2(e) thereof should be modified to read: "Notify the said
Regional Director, in writing, within 20 days from the date of this order
what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TEE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we have violated the
National Labor Relations Act, and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT by means of discharge of any
employee, or by any other discrimination or reprisal
against any employee, interfere with, restrain, or coerce
employees in the exercise of any of the rights set forth
above.
The National Labor Relations Board has found that
we discharged" Sharon Louise Pincus because she had
exercised a right guaranteed her by the National Labor
Relations Act, and that the said discharge violated the
Act; and has ordered us to offer the said Sharon Louise
Pincus full reinstatement to her former job or, if such
job no longer exists, to a substantially equivalent job,
and to reimburse her for any loss of pay she may have
suffered as a result of her discharge.
WE WILL offer Sharon Louise Pincus such reinstate-
ment, and reimburse her for her loss of pay, together
with interest thereon, in accordance with the Board's
Order.
Ross VALLEY SAVINGS &
LOAN ASSOCIATION
(Employer)
Dated By
(Representative) (Title)
WE WILL immediately notify the said Sharon Louise Pincus,
in the event she is now serving in the Armed Forces of the
United States, of her right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of posting and must not be altered , defaced, its provisions, may be directed to the Board's Office, 13050
or covered by any other matenal. Federal Building, 450 Golden Gate Avenue, Box 36047,
Any questions concerning this notice or compliance with San Francisco , California 94102, Telephone 556-0335.