The American National Bank of St. PaulDownload PDFNational Labor Relations Board - Board DecisionsSep 29, 194352 N.L.R.B. 905 (N.L.R.B. 1943) Copy Citation In the Matter of THE AMERICAN NATIONAL BANK OF ST. PAUL 1 and UNITED OFFICE & PROFESSIONAL WORKERS OF AMERICA, C. I. O. Case No. C-2681.-Decided September 09, 1943 DECISION AND ORDER On July 22, 1943, the Trial Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had 'engaged in and was engaging in certain unfair labor practices, and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report annexed hereto. The respondent thereafter filed exceptions to the Intermediate Report and a brief in support of its exceptions. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. Upon request of the respondent, and pursuant to notice, a hearing was held before the Board in Washington, D. C., on September 9, 1943, for the purpose of oral argument. Only the respondent was represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner. In its brief and oral argument, the respondent pointed out the failure of the Trial Examiner to take into consideration the discharge, on March 31, 1943, of two employees in addition to those named in the complaint, and the absence of any charge or allegation that these addi- tional discharges were discriminatory. The respondent apparently contends that, especially because one of these persons, Eunice Graham, was a member of the Union, the failure of the Union to include these additional discharges in its charge of unfair labor practices precludes a'finding that the employees named in the complaint were discrimina- torily discharged. The respondent also contends that the retention in 1 The caption was corrected at the hearing pursuant to a motion to conform. 52 N. L. R. B., No. 161. 905 906 DECISIONS OF NA!PIONAL LABOR RELATIONS BOARD its employ of other union members negatives - any inference that the employees involved in the present, case were discharged because of their union membership and activity . These contentions are clearly without merit . We have frequently held, and we do not believe any extensive argument is required to show, that neither an employer's failure to discharge all of his union employees nor a union 's failure to file charges as to all of the union employees who have been discharged necessarily disproves discrimination in the discharges which have been made and as to which charges have been filed . In any event , the re- spondent has -itself given the explanation for the discharge of the two additional employees on March 31 , 1943, viz, the economic inadvisa- bility of continuing the operation of the respondent 's Time Contract Department . Furthermore , the record shows that the respondent ar- ranged for the employment elsewhere of these two employees even before they had been discharged. We are convinced and we find , as did the Trial Examiner , that the five employees named in the complaint were discharged because of their union membership and activity , and not because of inefficiency. The evidence offered by the respondent as to their alleged inefficiency, particularly in the cases of Wahlers , Muggenburg and McCracken, who had been employed by the respondent for many years , is com- pletely unconvincing . None of these employees was warned of the contemplated discharges , nor was any suggestion made by the respond- ent's officers that any of them be given different work , although it was the respondent 's practice to transfer employees frequently. These five active union members were discharged at the same time, shortly after the respondent had become aware of the existence of union activity in the bank , and at a time when they had to be replaced by persons with no business experience at all . Under the circumstances, we cannot credit the respondent 's defense that it chose these employees for discharge during a period of reorganization and upon the basis of their value as employees. ORDER Upon the basis of the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Ameri- can National Bank of St. Paul, St. Paul, Minnesota, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Office & Professional Workers of America, C. I. 0., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its em- THE AMERICAN NATIONAL BANK OF ST. PAUL 907 ployees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Ed Muggenburg, Fred Wahlers, Joyce Whyte, William L. McCracken, and Pauline Askerooth immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Ed Muggenburg, Fred Wahlers, Joyce Whyte, William L. McCracken, and Pauline Askerooth for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he or she would normally have earned as wages during the period from the date of his or her discriminatory discharge to the date of the respondent's offer of reinstatement, less his or her net earnings during such period; (c) Immediately post in conspicuous places throughout its place of business at St. Paul, Minnesota, and' maintain for a period of at least sixty (60) days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs (1) (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become and remain members of United Office & Professional Workers of America, C. I. 0., and that the respondent will not discriminate against any employee be- cause of membership in or activity on behalf of that organization; (d) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the amended complaint, insofar as it alleges that American National Bank Club is a labor organization, within the meaning of Section 2 (5) of the Act, and that the respond- ent sponsored, dominated, and interfered with its formation and administration, and contributed financial or other support to it, be, and it hereby is, dismissed. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Francis X. Helgesen, for the Board. Lipschultz and Lipschultz, by Mr. Samuel Lipschultz of St. Paul, Minn. for the respondent. Mr. Douglass Hall, of Minneapolis, Minn., and Mr. Morris Yanoff, of Chicago, Ill. for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on May 20, 1943 by the United Office & Professional, Workers of America, affiliated with the Congress of Industrial Organizations, herein called the 'Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated May 20, 1943, against The American National Bank of St. Paul, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint as amended at the hearing alleged in substance that the respondent: (1) discharged Ed Muggen- burg, Fred Wahlers, Joyce Whyte, William L McCracken and Pauline Askerooth on or about March 31, 1943, and since that time has refused to reinstate them, because they joined and assisted the Union; (2) from March 15, 1943 until the date of the issuance of the complaint, warned and discouraged its employees against affiliation with or activity on behalf of the Union. questioned employees about their union activities, disparaged the Union, and advised its employees that they would not receive benefits through collective bargaining with the Union ; and (3) on or about January 1, 1943, instigated, dominated, and interfered with the formation of The American National Bank Club, a labor organization of its employees, and since that time has dominated, interfered with the admin- istration , and contributed support to that organization;' and (4) by the foregoing acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The respondent's answer, as amended at the hearing, admitted the allegations of the complaint concerning the business of the respondent, but denied that'the respondent had engaged in unfair labor practices as alleged in the amended complaint. Pursuant to proper notice a hearing was held June 3, 4, 5, 10, and 11, 1943, at Minneapolis, Minnesota, before Frank A. Mouritsen, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Union and the respondent were represented by counsel. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the end of the Board's case, and again, at the close of the hearing, counsel for the Board moved to conform the complaint to the proof with respect to names, dates and similar matters. Counsel for the respondent made a similar motion with respect to the respondent's answer. These motions were granted without objection. At the conclusion of the hearing consel for the respondent and counsel 1 This allegation was the amendment made at the hearing pursuant to motion by counsel for the Board. THE AMERICAN NATIONAL BANK OF ST . PAUL 909 for the Board presented oral argument which is included in the record. Counsel were advised that they might file briefs with the Trial Examiner. No briefs have been received by the undersigned. Upon the entire record in this case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE' RESPONDENT The respondent is a national bank organized under the laws of the United States. ' Its place of business is located at St. Paul, Minnesota, where it engages in the operation of a general commercial banking business. The capitalization of the respondent is $2,500,000, part of which is owned by the Reconstruction Finance Corporation, and its resources are $60,000,000. The respondent has on deposit with banks located in states other than the State of Minnesota approxi- mately $10,000,000 and banks located in States other than the State of Minnesota have on deposit with the respondent approximately $10,000,000. In the conduct of its business the respondent transmits substantial amounts of currency to banks located in States other than the State of Minnesota and discounts bills of lading with sight draft attached and domestic letters of credit, such drafts and letters emanating from States throughout the United States. Loans are made by the respondent to persons living outside the State of Minnesota. The respondent is a' member of the Federal Reserve System. It concedes the jurisdiction of the Board with respect to its operations. II. THE ORGANIZATION INVOLVED United Office & Professional Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In the latter part of February or the beginning of March 1943, a number of the respondent's employees asked Fred Wahlers, another employee, if he knew anyone who would assist them in organizing a union. He agreed to aid them, and thereafter discussed the matter with one of the officers of a local of the Union Following these discussions Wahlers arranged a meeting of the respond- ent's employees at the YMCA in St. Paul on March 17, 1943. Wahlers and several of the other employees notified the employees of the meeting by word of mouth. At the meeting, which was attended by approximately 25 of the respondent's employees, the purpose and aims of union organization were ex- plained, and 19 of those present signed membership application cards? The second meeting of the Union was held on March 26. Between the first and second meeting, the organization of the Union was discussed generally by the respondent's employees in the bank during working hours. Wahlers and other employees solicited the employees to join the Union and through such solici- tation additional employees signed membership application cards. These activi- ties were noted by Clarence A. Maley, one of the vice presidents of the respond- ent. He testified that he perceived a feeling of "unrest" or "agitation" among the employees ; that there were group discussions among the employees, and that he knew that this unrest was caused by organizational activity. Approximately 2 These facts were established by the credible and undisputed testimony of Wahlers. 1 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 40 of the respondent's 90 employees attended the second meeting which was also held at the YMCA. At that meeting'there was further discussion and explanation of the aims of the Union, and more employees signed membership application cards. Wahlers, who served as temporary chairman of the meeting, was elected president of the group (no local union having yet been formed) ; Elaine Stanhke was elected secretary, Ted Simon, treasurer, and the following were elected departmental representatives ; Pauline Askerooth, Joyce Whyte, Ed Muggen- burg, Stanley Cowan, Willard Vogelgesang and Eunice Graham. Between the meeting of March 26 and March 31 the respondent's employees again discussed the Union and further efforts were made to obtain members. Wahlers, Whyte and Askerooth took the lead in these activities. According to the undisputed and credible testimony of employees Marguerite Brawley and Rosemary Meier, within a day or two after the March 26 meeting, Aimee Bougie, supervisor of the respondent's stenographers, upon learning that some of the stenographers had attended the Union meeting, asked them what the Union would be able to do for them. She told them that she did not believe that unions were proper in a bank, and stated that if the Union came in "it would be hard for Mr. Bremer [Chairman of the respondent's board of directors] to take it."' According to the undisputed and credible testimony of employee Pauline Askerooth on the afternoon of March 31 Jennie Stillwell Adams, whose position. at the bank is discussed more fully hereinafter, and Adeline England, secre- tary to one of the respondent's vice-presidents, spoke against affiliation with the Union to about 11 girls in the girls' restroom at the bank. The talks occurred during working hours. Adams said that the girls would lose certain benefits if the Union came into the bank, and stated that she was giving the girls such warning so that they would not later unbraid her for having failed to warn them. England made a similar statement to the effect that a union "didn't belong" in the bank.` Conclusions regarding interference, restraint and coersion Counsel for the Board contended that by the statements of Adams, England and Bougie the respondent interfered with, restrained, and coerced its employees in the exercise of their rights under the Act. Since there was no showing that the respondent had knowledge of or should have had knowledge of the gathering in the girls' restroom, whether the respondent is chargeable with Adams' and England's remarks depends upon the positions which they occupy in the bank. England was private secretary to one of the vice presidents of the bank, and it was the Board's contention that Adams was secretary to another vice president. Even if Adams be con- sidered as secretary to the vice president, in the absence of authorization or ratification of such remarks by their superiors the respondent is not chargeable with such remarks. Although, because of their higher rates of pay and their longer tenure of employment as compared with other female employees who were present in the group during the restroom conversation, both Adams and England might have been considered by them as somewhat apart from the regular employees, the undersigned is convinced that they lacked the necessary Indicia of identity with management so as to render the respondent liable for their statements and conduct. With regard to Bougie the situation is different. s Bougie, whose supervisory status is not disputed , did not testify although she was still in the respondent 's employ and was not shown to be unavailable as a witness. Accordingly the undersigned accepts the testimony of Brawley and Meier and finds that - Bougie made the above statements attributed to her by them. 4 Adams admitted the substance of these facts. England did not testify. ' THE AMERICAN NATIONAL BANK OF ST. PAUL 911 She admittedly was a supervisor , and to the employees under her she repre- sented the management . Her remarks undoubtedly had a deterrent effect upon such employees ' exercise of ' their rights under the Act ; thus they constitute interference, restraint , and coercion within the meaning of the Act and the undersigned so finds. ' B. The discharges In order to view the discharges in their true perspective it is to be noted that for over a year prior to the discharges the bank had been working short- handed. As replacements for the employees who had gone into the armed services (17 in number) and those who had taken employment elsewhere (also considerable in number), the respondent was able to obtain only inexperienced help I. e., girls with no previous banking or business experience. The assistant cashier of the respondent testified that in the last 6 months prior to the hearing he was obliged to employ between 20 to 25 new employees, out of a total of approximately 40 under his supervision. It is therefore clear that it was extremely difficult to secure employees with even slight experience' in the respondent's business. 1. Fred Wahlers Wahlers was first employed by the respondent as a messenger In 1927 at a salary of $40 a month. After serving as a messenger for less than a year he worked successively in the proof or transit department, the bookkeeping depart- ment, auditing department, the contract time-payment department, the auditing department again, the savings department, and for about 6 months prior to his discharge he worked as a utility man relieving employees in the proof, book- keeping, outgoing clearings and safe-deposit departments. At the time of his discharge on March 31, 1943 he was receiving $135 a month 6 , The leading part taken by Wahlers in the formation of the Union has been described. He was the most active employee in soliciting members for the Union and enrolled between 15 and' 20 members. On March 31, 1943, Wahlers was informed by Frederick J. Gode, cashier and personnel manager, that he was discharged because his work was unsatisfactory. Wahlers asked Gode if he didn't think the excuse was weak ; Gode replied that was all he could tell him. In its answer the respondent averred that Wahlers was discharged because of incompetency and inefficiency. Gode and Merlin Ahlberg, comptroller, were the officers of the respondent who testified about the nature of Wahler's work. Neither had been closely associated with his work for the past 1i/2 years. They both testified in very general terms that Wahlers' work was unsatisfactory. Gode, after exhibiting some doubt that Wahlers had ever worked under his supervision, testified that his work was bad. Wahlers had in fact worked under Gode when the latter was head of the auditing department in 1940. From all of their indefinite testimony there appeared but two specific incidents involving Wahlers' alleged inefficiency. About 1940 the respondent instituted a new department-the time payment contract department. Wahlers was transferred to the new department from the auditing department. His work in the time payment contract depart- ment principally involved collecting installments due on installment purchase contracts. Wahlers admitted that he was not happy in such work and was 6 Wahler's employment history represents the normal practice with respect to personnel advancement in the respondent's bank. 912 DECISIONS , OF NA!I`IONIAL LABOR RELATIONS BOARD unable to do it satisfactorily e After' working there for about a year he was transferred back to the auditing department, of which Ahlberg was then the head. Near the end of 1941 , it became necessary to place some one in the savings department. - Gode asked Ahlberg about taking some one from his department. Ahlberg first testified that lie insisted that Gode take either Wahlers or Muggen- burg, the two newest employees in his department. Later, however, he testified that he and Gode put Wahlers in the job because they "figured" he was the only one who had enough experience to handle the savings job. He admitted that the transfer was in the nature of a promotion. Wahlers took the savings job with reluctance, he testified, because Miss DuBord, an elderly spinster who headed that department was difficult to get along with, and had had numerous disagreements with several employees who had worked in her department. Humason, president of the respondent, admitted that Miss DuBord had her "peculiarities" and Maley, a vice-president, testified that she was not well. Wahlers worked in the savings department less than a year. He testified without contradiction that he requested a transfer from the department several times. 'He was transferred from the department in November 1942. He de- scribed a conversation hl' had with Miss DuBord just prior to his transfer in which she called him a liar and otherwise acted in an arbitrary and unreasonable manner. Miss DuBord was not called to testify. The undersigned credits Wahlers' undisputed testimony in this regard. Humason testified that Miss DuBord told him that she did not want Wahlers in her department because he was too "slow." Wahlers testified that about the time when he was transferred from the savings department he went to Humason, told him of his difficulty with Miss DuBord, and asked Humason if his work was satisfactory, stating that it was then a good time for him to try to obtain another job if his serv- ices were unsatisfactory. Humason replied, according to Wahlers, that he had no complaint regarding his work except in the savings department and that Wahlers should not be too perturbed about Miss DuBord as everyone had diffi- culty with her. Humason, although denying that he made the latter state- ment about Miss DuBord, did not deny that he told Wahlers that he had no complaint regarding his work other than in the savings department, and testi- fied that he told Wahlers to go where he was transferred. The undersigned finds Wahlers' version more in accord with the facts, and credits it. From the foregoing it is clear that the evidence regarding the unsatisfactory nature of Wahlers' work is based almost entirely upon the testimony of Ahl- berg, inasmuch as Gode was uncertain regarding the period when he was di- rectly connected with Wahlers' work, and in fact had not been directly connected with Wahlers' work for several years prior to the discharge. The only time during which Ahlberg had direct supervision of Wahlers' work was for a period of several months which ended about 11/2 years before Wahlers' discharge. In the year and a half which preceded Wahlers' discharge he worked first under the supervision of Miss DuBord, and then for about the last 6 months he worked principally under the supervision of Assistant Cashier Loney. DuBord was not called to testify regarding the nature of Wahlers' work.7 When Wahlers last worked for Ahlberg he was transferred to another position which Ahlberg and Gode "figured" he was the only one who had enough experience to handle, and which was in the nature of a promotion. Ahlberg did not point out any reasonably specific incident which had occurred in the interim to warrant his marked change in opinion regarding Wahlers' work, and indeed his opinion is e Wahlers testified that he was unable to use the necessary "force" to collect money from debtors of the bank. 7 Loney testified only in general terms as to Wahlers' alleged Inefeciency. THE 'AMERICAN NATIONAL BANK OF ST. PAUL 913 entitled to little weight because of lack of opportunity to observe Wahlers' work during the 11/2 year interim.* Wahlers' testimony that he was transferred out of the savings department because of his and Miss DuBord's mutual incompata- bility is undenied. That this relationship rather than unsatisfactory work was the reason for the transfer is shown by the fact that he was transferred and not, discharged or disciplined in any way at that time. Athough Wahlers had worked for the respondent for 17 years he was never warned that he would be discharged if his work did not improve. No one recom- mended his discharge to Humason who ordered it. The totality of the evidence convinces the undersigned that Wahlers was not discharged because of incom- petency and inefficiency and the respondent's contention in this regard is rejected. 2. Ed Muggenburg Muggenburg also started to work for the respondent as a messenger at $40 a month in 1927. He likewise worked in the proof, the bookkeeping and auditing departments. He was working in the latter department at a salary of $140 a month at the time of his discharge which also occurred on March 31, 1943. Mug- genburg was ill and in a hospital from November 22, 1942 to February 17, 1943. He returned to work on March 8, 1943, worked only half days until March 22, and thereafter until the time of his discharge he worked full time. During March 1943 Muggenburg discussed joining the Union with other em- ployees of the respondent. He attended the Union meeting on March 17 and signed an application for membership at that time. Thereafter he talked with other employees about joining the Union until the time of his discharge. At the meeting of March 26 he was elected Union representative for the auditing depart- ment. On March 31 Muggenburg was informed by Gode that he was discharged because his work was unsatisfactory ; the respondent's answer avers that Mug- genburg was inefficient and incompetent. Testimony regarding the alleged unsatisfactory nature of Muggenburg's work was given by Gode and Ahlberg. As in the case of Wahlers, Gode was not cer- tain that Muggenburg had ever worked under his supervision, and his testimony is therefore entitled to little weight. Ahlberg, however, had direct supervision of Muggenburg's work for over 2 years. There were only three specific mistakes of Muggenburg's that Ahlberg could recall during that period. He testified that while Muggenburg was absent from the bank between November 1942 and March 1943 he found that Muggenburg had stopped payment on a check when there had been no request to do so, and had failed to notify one of the depositors who had erdered payment stopped on a check that the check had already been paid. With regard to the first incident, Ahlberg, after first characterizing it as a serious mis- take, then testified that he didn't pay much attention to it, that it was merely his habit to note such mistakes, and to caution the clerks about them which he had found was an effective way of minimizing them. The second mistake was less embarrassing to the respondent since the check had already been paid by the bank and the respondent could do nothing about it.8 Ahlberg also testified that while Muggenburg was in the hospital he discovered that Muggenburg had failed for about a month to check some receipts for cur- rency shipments. He did not claim that he ever called this error to Muggen- burg's attention. Muggenburg testified that one of his duties was to check such wit-receipts each week and that he had done so. Muggenburg was a forthright The respondent does not contend that Muggenburg disregarded the stop-payment order by payment of the check . It is clear , however, that Muggenburg omitted to notify the customer that the check had already been paid prior to the receipt of the stop order. 914 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD ness who candidly admitted facts unfavorable to his case , and impressed the un- dersigned with his honesty . Ahlberg was not a coifvincing witness. He volun- teered general testimony unfavorable to Muggenburg and the other complainants, and testified with obvious reluctance to anything favorable to them, hasten- ing in some cases to qualify such testimony . For example , in response to another question , he volunteered the information that Muggenburg was the lowest paid auditor. Further examination revealed that the other auditors had been in the department and the bank longer than Muggenburg . Ahlberg ' s evident partial- ity toward the respondent persuades the undersigned that his testimony is not credible , and Muggenburg's testimony is, in this regard , therefore credited. The rest of Ahlberg 's testimony regarding Muggenburg 's work was so indefinite and general that lacking corroboration it is entitled to no weight . Despite his serv- ice of 17 years no warning was ever given Muggenburg that his work was so unsatisfactory that he would be discharged unless it improved . The record re- veals only a single instance wherein Ahlberg called any mistake to his attention. Ahlberg did not recommend that he be discharged . The undersigned is convinced that Muggenburg was not discharged because of incompetency and inefficiency. 3. Pauline Askerooth and Joyce Whyte The cases of Whyte and Askerooth are considered together since their work, union activity and the reasons assigned by the respondent for their discharge are similar. Joyce Whyte commenced work as a messenger for the respondent on September 21, 1942 Her initial salary of $55 a month was raised to $65 about 3 weeks after she began to work . On December 31, 1942 it was increased to $70. Shortly after she began to work she was transferred to the proof department, and in November 1942 , she, together with Askerooth , was assigned to work in the after- noons in,the out-clearing department . She was transferred from that work on February 6, 1943, and was informed by Gode on March 31, 1943, that she was .lischarged because her work was unsatisfactory. Pauline Askerooth started to work for the respondent as a clerk in the proof department in July 1942 at a monthly salary of $55. At the time of her discharge Askerooth 's pay had been increased to $75 a month ; her last raise was granted on January 15 , 1943. She was assigned to work in the out-clearing department and was transferred from that work at the same time as Whyte. On March 31, 1943 she was discharged by Gode ; unsatisfactory work was the reason assigned. Whyte and Askerooth joined the Union at the first meeting on March 17, 1943. Thereafter they attempted to interest other female employees in the Union, and solicited their membership . They were the only girls from the proof department who attended the first meeting . Between the meeting of March 26 and March 31 they were successful in recruiting as members 10 or 12 girls out of approximately 25 whom they approached . At the union meeting of - March 26 they were elected department representatives of the proof department . Whyte and Askerooth were the only girls in the proof department who solicited other employees to join the Union. The issue presented is whether Whyte and Askerooth were discharged because cf_ their membership in and activities in behalf of the Union , or because they were incompetent and inefficient. Assistant Cashier Loney supervised the work of Whyte and Askerooth during their tenure of employment . His testimony regarding the unsatisfactory na- ture of their work was very unconvincing . It was confused , contradictory and - at variance with the respondent 's records. From a study of all of his testimony THE AMERICAN NATIONAL BANK OF ST. PAUL 915 it appears that his chief complaint regarding the work of Whyte and Askerooth concerned their work in the out-clearing department. Both girls performed that type of work for a 12-week period commencing in November 1942 and ending February 6, 1943. 'After admitting that placing the girls in this work ordinarily would be considered a promotion , Loney first testified that he did so because he did not have anyone else to place in the jobs at that tune; later he changed his testimony , admitted that there were others but testified that he' didn't have i nyone with sufficient experience to place in the jobs except Whyte and Askerooth. Loney further testified that the work of the two girls was unsatisfactory because they were unable to balance their accounts, which made it necessary for the tellers who customarily came tip to assist in such work to stay longer than they lad before Whyte and Askerooth were assigned to the out-clearing department. He testified that because of errors made by the girls they and the tellers had to stay until 5 o'clock or later at least 3 nights a week. This was demonstrably incorrect. The time cards of Askerooth show that only du'rilig 2 of the 12 weeks that she worked in the out-clearing department did she work as late as 5 o'clock 3 clays during the week These were the first week she started and the week after Christmas, which admittedly was a period of heavy work. In the remaining 10 weeks of her employment she worked as late or later than 5 o'clock on only six occasions. Whyte's time cards show that on only four occasions during the entire time that she was in the out-clearing department did she work until 5 o'clock or later, and two of those were during the first week she was assigned to the work. Loney admitted that inability to balance the work in the out-clearing department was also due to errors made by other employees, and that he had not the "slightest" idea how often the failure to balance accounts was due to the errors of Whyte and Askerooth or to other employees. In view of testimony of this calibre, the undersigned does not give weight to Loney's complaints. His gratuitous and exaggerated generalities detract from his credi- bility No warning was ever given the girls that they would be discharged if their work did not improve. The undersigned finds that Whyte and Askerooth were not discharged for inefficiency and inconmpeterncy. While it is clear that the girls made mistakes the undersigned does not believe that their work was as poor as Loney attempted to picture it, but on the contrary, was as competent and efficient as could reasonably be expected in the circumstances disclosed in this case 4. William L McCracken McCracken started as a messenger at a salary of $40 a month in 1931. He worked as a messenger for approximately 6 years, then spent about 3 years in the transit department, and finally about 1939 he became a remittance clerk, the position he held at the time of his discharge on March 31, 1943. At the time of his discharge he was receiving a salary of $105 per month. The respondent contends, as in the other cases that the reason for his discharge was his inefficiency and incompetency. - According to his undisputed testimony which the undersigned accepts, McCracken did not attend either of the union meetings which were held prior to his discharge. He joined the Union on March 29, giving his application for membership to Wahlers. Prior to his discharge he discussed the Union with 10 or 12 other employees of the respondent, speaking in favor of organization He asked one other employee to become a member of the Union. Loney was also McCracken's immediate supervisor and testified regarding the nature and quality of McCracken's work. The same infirmities apparent in his testimony with respect to Whyte and Askerooth are present in his 539875-44-vol. 52-59 916 DECISIONS OF NA(P'IONiAL LABOR RELATIONS BOARD I testimony regarding McCracken. He commenced his testimony with a broad general statement that McCracken "continually had 'trouble with balancing" an account he kept. Loney then testified that McCracken had differences in the account "at least once a week " The undersigned discounts such generalities in view of the proved inaccuracy of his similar statement that Whyte and Askerooth had to work as late or later than 5 p. in. "at least three times a week." Loney testified further that it was necessary for him on occasion to come to the bank on Sundays to find differences in McCracken's accounts. McCracken denied, and Loney never claimed that he called this matter to McCracken's attention. It is reasonable to assume that such incidents would cause Loney definite personal inconvenience and would be sharply called to McCracken's attention if in fact they had assumed a serious aspect. The undersigned does not credit Loney's testimony in this regard. McCracken testified that he worked with a number of new girls, and that because of their inexperience they' sometimes made mistakes which threw his work out of balance. Loney at first flatly denied that the girls mentioned by McCracken had anything to do with McCracken's work, or the balancing of the account. His description of the work they performed, however, showed conclusively that 'it had considerable bearing on McCracken's work ; later Loney admitted that if the girls did make an error it might throw McCracken out, and that the girls were new girls who made more errors than experienced employees. There were other contradictions in Loney's testimony regarding McCracken. He testified that he went to a meeting of the bank officers, including Gode and Humason on March 31 with the definite intention of recommending McCracken's discharge. Later he changed his testimony, and said that he did not decide to 'ask Gode and Humason to discharge McCracken until after they had informed him at the meeting that they were going to discharge Muggenburg and Wahlers. Such testimony is unreliable and the undersigned rejects it. - It is clear from Loney's testimony and from the record as a whole that Ahlberg exercised no supervision over McCracken's work. Loney testified,that "every once in a while" Ahlberg's department would be requested by McCracken to send out letters of inquiry regarding items that were not paid promptly. Yet on such a basis Ahlberg testified regarding McCracken that he, "continually had trouble up there." He testified that McCracken gave him misinformation on the items he was tracing. Ahlberg was urged by counsel for the respondent and requested by the Trial Examiner to be more specific. Thereafter, Ahlberg was able to give but a single specific instance wherein McCracken gave him incorrect information regarding such a tracer letter'; that was a case where the respondent requested payment from a bank after an item had been paid ° Finally Ahlberg accused McCracken of deliberately lying to him on two'occasions but he could recall no specific time nor the- details of the events. McCracken supplied the missing details On one occasion when McCracken was a messenger, some 6 years prior to his discharge. Ahlberg accused McCracken of lying to him about the delivery of a draft McCracken told Dorin, then assistant cashier, of Ahlberg's accusation and Ahlberg later apologized to McCracken. The other 'Incident involved the same instance wherein Ahlberg claimed that McCracken gave him misinformation with respect to the item which had already been paid McCracken pointed out to Ahlberg when the incident of the tracer letter was called to his attention, that he was absent when the information came in, and that the failure to "pull" the letter was that of the employee who replaced him on that occasion. Ahlberg again accused him of lying. McCracken's testimony, ° Ahlberg testified that McCracken 's action in regard to this incident subjected the respondent to criticism by the other bank for having asked twice for the same payment. THE AMERICAN NATIONAL BANK OF ST. PAUL 917 which stands unrefuted except by the most inconclusive and insubstantial gen- eralities which constitute Ahlberg's testimony , is credited . These statements are characteristic of Loney's and Ahlberg 's testimony throughout. It appeared to the undersigned that they magnified single instances of mistakes-some of them 6 or 7 years old-into broad generalized indictments , and when finally they mentioned specific instances which formed the basis of their generalities, they gave an incomplete and colored version of the incident. ' The undersigned finds their testimony that McCracken was incompetent and inefficient particularly unconvincing , and rejects the respondent 's contentions in that regard. 5. The respondent 's defense of lack of knowledge of Union activity The witnesses called by the respondent with unanimity testified that the Union activities of the dischargees did not motivate their discharges . They further tes- tified that they had no knowledge of the activities of the discharged employees in behalf of the Union prior to their discharges. It is clear not only from the testimony of interested witnesses such as Wahlers, Whyte, and Askerooth but from that of disinterested witnesses like employees Brawley and Meier that the Union was the subject of spirited and general dis- cussions at the bank in the latter part of March. Despite this fact , Humason, Gode, Ahlberg, and Loney testified that they were unaware of the attempts to organize the respondent 's employees . Their testimony is contradicted by that of Maley. Maley testified that in the latter part of March it was "quite apparent" that there was a feeling of unrest among the employees , that he noticed that they gathered in groups to discuss something , and that he knew that the unrest was due to union activity . He further testified that he was advised by an official of the American Federation of Labor that the C I.O. was attempting to organize the employees . Maley testified that he reported this information to Gode and Humason. Koch, head of the contract time payment department , advised Ahl- berg, according to the latter's testimony , that the bank was being organized. Ahlberg testified that he gave this information to Gode. Gode admitted that he asked Loney if there was any union activity in his department . Maley further testified that he asked Adams and employee Drake about the union activity and was advised by both of them that the bank was being organized . Maley also testified that the attempt to organize the bank employees was discussed at officers' meetings, and that the other officers were aware of such activity . Maley's de- scription of these conferences corroborates the testimony of Wahlers, Whyte, and Askerooth to the effect that in the latter part of March there were many whispered conferences between the respondent 's officers . His testimony also gives credence to their testimony that they were closely watched by Gode, who or- dinarily seldom came into their department and the undersigned finds that he did so in order to ascertain the extent of their organizational activities . Mention has already been made of the fact that Bougie was aware of and opposed the union activities in her department. It is clear and the undersigned finds that the respondent 's officials were fully aware of the union activities of the em- ployees before the discharges occurred on March 31, 1943. 6. Conclusions regarding the discharges The undersigned has stated his lack of conviction regarding the contention that the employees involved were discharged for inefficiency and incompetency. In general that evidence was vague , and indefinite , and the few specific errors which were pointed out were not of a nature or frequency which customarily i 918 DECISIONS OF NATIONAL LABOR RELATIONS BOiARD lead to the severe penalty of discharge . All of the errors upon which the re- spondent relied occurred some time before the employees engaged in union ad- tivity, some of them as much as several years before that time. Gode participated in the discussions leading to the discharges ,10 yet from his testimony it appears that the last complaints which he had received regarding the work of the em- ployees were made from a month to 6 months,"before the discharges and were almost without exception trivial in nature. Allusion has been made to the fact that the respondent had a shortage of help, and that experienced employees were almost impossible to obtain. Lack of warning of discharge is inexplicable in view of the long tenure of employment of three of the emloyees. The discharge of these employees for alleged inefficiency represents an abrupt change from the respondent's admitted policy of not discharging employees except for dishonesty. On the other hand the discharges followed swiftly upon the organization of the Union. Hthmason admitted that he did not think that the bank was the place for a union. In one group the respondent discharged the president, three department representatives, and a union member, who while not-an officer, engaged in the type of union aetivity, i. e., solicitation and discussion, which is most easily discovered. The one common denominator of the dischargees was their union activity ; and the undersigned has found that such activity was known to the respondent. The reasons advanced by the respondent for the discharges are clearly unsupported by the credible evidence and are pretexts to cloak the real motive of the respondent. The undersigned finds that Wahlers,' Muggenburg, McCracken, Whyte, and Askerooth were discharged because of their membership in and activity in behalf of the Union, and that the respondent thereby discriminated against them in regard to their hire and tenure of employment, thus interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The Club The American National Bank Club is an organization of the bank employees which has been in existence for 9 or 10 years The evidence shows that it has functioned exclusively as a social organization, arranging parties and outings for the employees Some of the bank officials are members of the Club. The respondent has contributed part of the money expended by the Club in maintain- ing its social and recreational program. Ordinarily the Club holds no mem- bership meetings, and is administered by a group of officers and representatives elected by the employees. ii The record discloses considerable disagreement among the respondent's officers with respect to their discussions concerning the discharges and the time when a decision to make the discharges occurred. For example, Maley testified that the subject was discussed at an officers' meeting in the bank on the morning of the discharges, that at the meeting a recommendation was made with respect to the possible discharge of a number of employees and that all the officers present agreed with the recommendation Loney and Humason testified that the subject was first discussed late on the morning of March 31 and that the decision to discharge the five employees herein involved was made at that time Gode testified that Humason first told him Ito discharge the five employees during the afternoon of March 31. Ilumason, Gode, Ahlherg, and Loney all testified with respect to a conference they had on the morning of March 31 at which the work of the five employees was discussed. Aside from the testimonial discrepancies noted above, the under- signed has seldom observed intelligent witnesses who had such difficulty in testifying about simple events of recent occurrence . Although they were repeatedly asked to state what occurred at the conference of the morning of March 31 , they appeared unable to do so A careful examination of their testimony leaves the undersigned unable to determine whether their testimony represents fact or speculation. Such testimony is particularly .unconvincing. THE AMERICAN NATIONAL BANK OF ST. PAUL 919 On April 2, 1943, Jennie Stillwell Adams, president of the Club, caused• to be posted in the bank a notice announcing a meeting of the employees in the bank lobby that afternoon at 3: 30. At the meeting Adams spoke against organization of the bank employees in the Union, and invited employees to express their sentiments with regard to the Union. There was no attempt to restrict the opportunity of expression to those who opposed the Union. During the course of her remarks Adams indicated that a union was unnecessary, stating that the Club was capable of acting as a grievance committee, and offering herself as president of the Club as an intermediary to take up with the respondent's officials any complaints or grievances which the employees might desire to present. There was no evidence, however, that the Club or Adams ever took up any grief ances or complaints with the respondent. Counsel for the Board contended that the mere holding out of herself as an intermediary by Adams in her capacity as president of the Club constituted the Club a labor organization. With this contention the undersigned disagrees. The evidence does not show that the Club "exists for the purpose . . . of deal- ing with the respondent regarding wages, hours and conditions of labor." On the contrary the evidence shows that the Club exists, and has functioned for a number of years as a' social organization. Because of the long history of service to the employees in a recreational and social capacity, and because the Club has not functioned as suggested by Adams on the occasion under consideration, the undersigned will not recommend that it be disestablished. If, however, in the future the Club should attempt to function as a labor rather than a social organization, its disestablishment would then be appropriate in view of the favored position it enjoys because of the financial and other support rendered it by the respondent. The undersigned also finds that the respondent is not chargeable with the opposition to the Union expressed by Adams at the meeting of the Club on April 2: While the meeting was held on the bank premises, there was no showing that the respondent hard any knowledge of the matters to be taken up at that time, or that they inspired or ratified the opposition of Adams to the Union In the Club's capacity as a social organization the respondent was under no duty of denying it permission to meet on its premises, and in the absence of a showing that the respondent knowingly permitted, authorized, or ratified Adams' actions, it cannot be charged with such acts Accordingly, the undersigned finds that The Ameri- can National Bank Club is not a labor organization within the meaning of Section 2 (5) of the Act and that the respondent has not sponsored, dominated, interfered with the formation and administration of, or contributed financial and other support to the Club within the meaning of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent 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. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discriminatorily discharged Ed Mug- genburg, Fred Wahlers, Joyce Whyte, William L. McCracken, and Pauline 920 IYECISION'S OF NATIONAL LABOR REILATIONS BOARD Askerooth. The undersigned will therefore recommend that the respondent offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of said employees whole for any loss in earnings suffered by them as a result of the respondent's discrimination, by payment to each of a sum of money equal to the amount each would normally have earned as wages from the date of the discharge of each to the date of offers of reinstatement to each, less the net earnings of each during that period." The undersigned will further recommend that the amended complaint insofar as it alleges that The American National Bank Club is a labor organization within the meaning of Section 2 (5) of the Act, and that the respondent sponsored, dominated, interfered with the formation and administration of, and contributed financial or other support to it, be dismissed. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1'. United Office & Professional Workers of America, C. I. O. is a labor organization, within the meaning of Section 2 (5) of the Act. The American National Bank Club is not a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Ed Muggenburg, Fred Wahlers, Joyce Whyte, William L. McCracken, and Pauline Askerooth, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not sponsored, dominated, or interfered with the forma- tion or the administration of The American National Bank Club or contributed financial or other support to it, within the meaning of Section 8 (2) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, The American National Bank of St. Paul, Minnesota, its officers, agents, successors, and assigns, shall: 1 Cease and desist from : (a) Discouraging membership in United Office & Professional Workers of America, C. I. 0, or any other labor organization of its employees, by discriminat- ing in regard to the hire and tenure of its employees or any terms or conditions of their employment; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bar- "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, etc., 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. THE AMERICAN NATIONAL BANK OF ST. PAUL 921 gaining or other material aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will ef- fectuate the policies of the Act : (a) Offer to Ed Muggenburg, Fred Wahlers, Joyce Whyte, William L. Mc- Cracken, and Pauline Askerooth immediate and full reinstatement to their former. or substantially equivalent positions without prejudice to their seniority or other rights and privileges ; ' (b) Make whole Ed Muggenburg, Fred Wahlers, Joyce Whyte, William L. McCracken, and Pauline Askerooth for any losses of earnings which they may have suffered by reason of the respondent's' discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to the amount which each would normally have earned as wages during the period from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings 12 during such period : (c) Immediately post and maintain for a period of at least sixty (60) con- secutive days in conspicuous places throughout its place of business at St. Paul, Minnesota, notices stating: (1) that it.will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a) and (b) of these recommendations; (2) that it will take the affirmative action set forth in para- graphs 2 (a) and (b) of these recommendations; and (3) that the respondent's employees are free to remain or become members of United Office & Professional Workers of America, C. I. 0., or any other labor organization ; (d) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the re- spondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the amended complaint insofar as it alleges that the American National Bank Club is a labor organization within the meaning of Section 2 (5) of the Act, and that the respondent sponsored, dominated, and interfered with its formation and administration, a4d contributed 'financial or other support to it, be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the rational Labor Relations Board-Series 2-as amended, effective October 28, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring -the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, filed with the Board, Rochambeau Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As fur- ther provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. FRANK A. MoURrrsiN Trial Examiner Dated July 22, 1943. "See footnote 12, supra. Copy with citationCopy as parenthetical citation