Auto-Truck Federal Credit Union

National Labor Relations Board - Board Decisions

Oct 7, 1977

232 N.L.R.B. 1024 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auto-Truck Federal Credit Union and Retail Clerks
Union Local No. 445, Retail Clerks International
Association, AFLCIO. Case 9-CA-10698-1-2
October 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 7, 1977, Administrative Law Judge Henry
L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
a supporting brief, and a request for oral argument.'
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
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the
remedy is modified so that interest is computed in
the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).3
I. The Administrative Law Judge asserted juris-
diction over Respondent on the basis that it satisfies
the Board's jurisdiction standards for both retail and
nonretail enterprises. We agree that assertion of
jurisdiction is appropriate on the basis of our
nonretail standard. We do not agree, however, that
Respondent satisfies our retail standard.
In concluding that Respondent meets our retail
standard, the Administrative Law Judge relied on
our decision in Lansing Automakers Federal Credit
Union, 150 NLRB 1122 (1965). In that case, we
indicated that in computing annual gross income for
credit unions we would look to the income from such
sources as "loans, deposits, and investments." (150
NLRB at 1123.) The Administrative Law Judge in
this case interpreted "deposits" to include deposits
from credit union members into their own individual
accounts. Since Respondent received more than $4
million in such deposits during the relevant time
period, the Administrative Law Judge concluded that
jurisdiction could be properly asserted on the basis of
the Board's retail standard.
Respondent disputes the Administrative Law
Judge's interpretation of Lansing, supra. Respondent
contends that membership deposits do not constitute
I Upon due consideration, Respondent's request for oral argument is
hereby denied. The record and the submitted brief adequately present the
issues for consideration in this proceeding.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
232 NLRB No. 171
income and that since its total net income-exclud-
ing such deposits-was only $459,000, the retail
standard has not been met. We agree.
The reference in Lansing to "deposits" did not
encompass membership deposits. Rather, the refer-
ence was made with respect to income generated
from deposits. Indeed, in calculating the credit
union's gross income in Lansing, no mention was
made of the previous years' deposits by members.
Since Respondent's total income, without member-
ship deposits, does not satisfy the Board's jurisdic-
tional standard for retail enterprises, the assertion of
jurisdiction on that basis is not warranted. Accord-
ingly, our assertion of jurisdiction herein is predicat-
ed entirely upon the Administrative Law Judge's
alternative finding that Respondent satisfies the
standard which we have established for nonretail
enterprises. East Division Federal Credit Union, 193
NLRB 682 (1971).
2. The Administrative Law Judge found that Jane
Lawson was not a supervisor within the meaning of
Section 2(11) of the Act but failed to enumerate the
facts on which he reached this conclusion. Examina-
tion of the record reveals that when Lawson assumed
the position of head teller, a position previously
occupied by Jody Ziegler, she received no increase in
pay. Her responsibilities remained essentially the
same as those she performed as a teller except for
some additional recordkeeping duties. (There is no
contention that as a teller Lawson possessed supervi-
sory authority.) According to Lawson's predecessor,
Ziegler, the head teller is responsible for overseeing
the keypunch operations, and is charged with making
certain that all necessary paperwork is properly
completed. Ziegler testified that in her capacity as
head teller she never hired, fired, reprimanded, or
suspended any employee, nor was she ever informed
that she possessed such authority. At the time
Lawson became head teller, there was only one
additional teller, Frances Pugh, a part-time employ-
ee. There is nothing in the record to indicate that
Lawson possessed or exercised any supervisory
authority over Pugh. In view of the foregoing, we
conclude that when Lawson assumed Ziegler's duties
as head teller she did not become a supervisor within
the meaning of the Act and therefore did not forfeit
her rights as an employee under the Act.
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Slandard Dry Wall Products,
Inc. 91 NLRB 544 (19501, enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
:1 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716(1962).
1024
AUTO-TRUCK FED. CREDIT UNION
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 Administrative Law Judge and
hereby orders that the Respondent, Auto-Truck
Federal Credit Union, Louisville, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
proceeding involves allegations that the Respondent, Auto-
Truck Federal Credit Union, violated Section 8(a)(1) and
(3) of the Act by discharging its employees Jane Lawson
and Jody Ziegler. The proceeding was initiated by a charge
filed by the Union in case 9-CA-10698-1 on October 7,
1976,' and a charge filed by the Union in case 9-CA-
10698-2 on October 15. Pursuant to such charges,
complaint issued on November 30 and hearing thereon was
held in Louisville, Kentucky, on February 16, 1977.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by the
parties, I hereby make the following:
FINDINGS OF FACT
2
I. THE BUSINESS OF RESPONDENT
Respondent is a federally chartered credit union with its
principal office in Louisville, Kentucky, where it is engaged
in providing typical credit union services to employees of
the Ford Motor Company employed in Jefferson County,
Kentucky. As of September 30, Respondent had 4,988
members, approximately 725 of which resided outside the
State of Kentucky. As of September 30, Respondent had
share accounts of $3,664,416.92 and loans outstanding of
$4,406,967.30. The outstanding loans of members residing
outside the State of Kentucky exceeded $50,000 as of
September 30.
During the period from October 1, 1975, to September
30, 1976, Respondent received deposits of $4,616,422. The
deposits are made by payroll deductions which are
processed at the Ford Motor Company's office in Dear-
born, Michigan. From Dearborn, a check for the amount
of the deposits is sent to New York City and from New
York City the money is transferred to Louisville. Ken-
tucky.
For the period from October 1., 1975, to September 30,
1976, Respondent made loans of $4,668,910.88 and realized
gross income of $459,165.27, which included interest on
loans of $444,222.98, income from investments of
$7,594.65, income from fees and charges of $1,366.30, and
other income of $5,981.34. On June 23, Respondent
deposited $90,000 with the National Investment Fund for
I Unless otherwise indicated all dates appearing hereinafter are 1976.
2 For the reasons hereinafter se! forth, Respondent's Motions to Dismiss
made at the hearing are hereby denied.
Credit Unions (NIFCUS) which money was deposited in
the Union Bank of Los Angeles located in Los Angeles,
California. Respondent withdrew said $90,000 from NIF-
CUS by withdrawing $50,000 on October 27, $30,000 on
November 1, and $10,000 on December 7. Respondent
earned interest of $1,058.24 on the money it had deposited
with NIFCUS during the period from June 23, 1976, to
December 7, 1976.
Respondent contends that it does not meet the Board's
standard for the assertion of jurisdiction over credit unions.
Specifically it asserts that it does not meet the annual gross
income standard set forth by the Board in Lansing Auto
Makers Federal Credit Union, 150 NLRB 1122 (1965). In
that case, the Board compared credit unions to retailers
and stated that it would apply the $500,000 monetary
standard and that this amount could "be satisfied in terms
of annual gross income such as from loans, deposits, and
investments." In stating that it does not meet such
standard, Respondent relies upon the assertion that its
income for the period from October 1, 1975, to September
30, 1976, amounted to only $459,165.27; exclusive of the
dollar value of the deposits made by Respondent's
members during that same period. Respondent contends
that deposits by its members do not constitute income.
Whether deposits constitute income might be a subject of
debate in some other context, but in the context of this
case, I conclude from the language of the Board in Lansing
Auto Makers Federal Credit Union quoted above that the
Board views the deposits of individual members as income
in determining whether a credit union meets the $500,000
standard. Accordingly, I find that Respondent meets the
$500,000 standard for the assertion of jurisdiction over
credit unions.
There is an additional basis for the assertion of
jurisdiction. In East Division Federal Credit Union, 193
NLRB 682 (1971), the Board indicated that the impact on
commerce of credit union operations could also be
measured by the nonretail standard, which means $50,000
of inflow or outflow. The Board further indicated in the
same case that in applying the nonretail standard it will
rely on the inflow or outflow of funds across state lines. In
the instant case, the record indicates an outflow of funds
for the period from October 1, 1975, through September 30,
1976, of $4,498,676 from Michigan to New York City and
an inflow of $4,494,766 from New York City to Kentucky.
On these facts, I find that Respondent meets the nonretail
standard for the assertion of jurisdiction.
On the basis of the foregoing, I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Unlawful Discharges
Union Representative Charles Jurlancki testified that on
or about the week of September 5 he received a call from
employee Jody Ziegler inquiring about obtaining union
representation. He mailed her some authorization cards
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and subsequently received cards signed by all the regular
employees. (He did not identify them, but it appears that
there were only three regular employees then employed;
namely, Ziegler, Jane Lawson, and Frances Pugh.) On
September 21, Jurlancki called Roy Sellers, president of
Respondent and a fulltime employee of Ford Motor
Company. Jurlancki testified he told Sellers the Union had
a majority and requested recognition and bargaining.
Sellers could give him no answer without consulting with
the board of directors and so advised Jurlancki. There was
no communication thereafter. Sellers told General Manag-
er Robert Lincoln of the call.
Jane Lawson was employed by Respondent in May 1971
and worked until March 1972, when she resigned. In
October 1972, she was rehired. She was employed as a
teller until September 1976 when she assumed the duties of
head teller. She signed a union card.
On October 5, Lincoln called Lawson to his office.
Lawson testified that Lincoln started the conversation by
asking her what was wrong with her. Lawson replied she
did not know what he was talking about, that she did not
know of anything being wrong. Lincoln insisted something
was wrong with her and repeated the question. She told
him she had the same complaint that she had spoken of on
other occasions, namely, that management and the em-
ployees did not seem to get along and there was constant
tension. Other than that, she said she did not know what he
was talking about. Lincoln then said that Lawson had until
the end of the month to straighten out unless she wanted to
leave that day. She told him no, she did not want to leave
that day, that she would take until the end of the month,
but she needed to know what it was that needed
straightening out. Lincoln told her she knew what he was
talking about and that is all that he would say. Lawson
persisted in asking what she had to straighten out and
Lincoln told her her whole operation at the counter,
everything that she did. Lawson told him that she did many
things and she asked whether he was telling her that
everything she did was wrong. Lincoln then told her that he
had seen her slam the telephone down. Lawson told him
she had never intentionally slammed the telephone down
on anyone and remarked that, as he knew, you could
punch the line button on the telephone and slam the
telephone down without the person at the other end being
aware of it. She asked him again to tell her what it was she
was doing wrong and all he told her was her whole
operation at the counter. Lawson adverted to favorable
comments that had been made to her by the vice president
of Respondent only recently, but Lincoln made no
comment. He told her that she did not have the guts to
come in and tell him what her problems were. She told him
that she had tried that before and it had not done any
good. She asked him if it was the Union that the employees
had applied for that was the problem and he said that he
knew about it and he could not keep the Union out when
all of the members of the credit union were union
members. He insisted that she look for another job and
suggested that she could take the day off to do so. Lawson
told him no, that she would take until the end of the
month, but she still needed time to know what it was that
she needed to straighten out. He told her that it all went
back to the beginning of the year when she had been
dissatisfied with the raise she had received. Lawson
admitted she had been dissatisfied, but stated she had
accepted the fact that that was it and there was nothing she
could do about it. The conversation went back and forth
along this vein until Lawson criticized how the money for
wages had been allocated at the first of the year, alluding,
in particular, to the fact that Lincoln had hired his son to
work for Respondent and she did not feel that he did much
work. Lincoln told her that was none of her business.
Lawson rejoined that she worked there too and, in effect, it
was her business when there was no more money for
salaries that he brought someone in who was not really
working, but was getting paid. Lincoln told her that he
thought it would be best if she picked up her severance pay
and left, if that was what she wanted. She told him no and
told him to tell her what he wanted her to do, that she
would do whatever he wanted her to do. Lincoln told her
he would have Assistant Manager Reinle make up her
check. Lawson left the office.
A few minutes later Lincoln called employee Ziegler into
his office. According to Ziegler, he started the conversation
by saying that from all reports he heard she was doing a
good job and then said now what is your problem. Ziegler
explained that as far as she knew she did not have a
problem, but Lincoln insisted that she had and said she
would be happier working elsewhere. Ziegler told him she
did not want to work anywhere elge, that she was happy
with her job. She testified the conversation went on about
15 or 20 minutes and when she left the office he told her
that she would have until the end of the month, but he
never explained what she had to do by then.
That evening, Ziegler telephoned Sellers and talked to
him about Lawson's dismissal, the fact that the relations
between employees and management were very bad with
no one willing to cooperate in trying to get along, the
treatment the employees were receiving, and her rate of
pay. Ziegler testified that Sellers seemed surprised to hear
these things and told her he would not make any promises
but would check into it and that he would get back. He told
her she should feel free to call him any time she wished.
Nothing further happened with regard to Ziegler until
October I 1. At about quitting time that day, Lincoln called
Ziegler into his office. He remarked that she had gone over
his head, behind his back, to the board of directors. Ziegler
replied that she did not realize it was over his head or
behind his back, but admitted she had spoken with one of
the board members. Lincoln told her that she knew
Respondent had a set of personnel policies prohibiting this
and he handed her her severance check.
B. Analysis and Conclusions
General Counsel contends that Lawson was discharged
because of her union activities and that Ziegler was
discharged for the same reason and/or because of her
protected concerted activities, namely, her protest to
Sellers. As to the last contention, Respondent admits
discharging Ziegler because of her protest to Sellers, but
contends such activity was not protected concerted
activity. This issue will be discussed last.
1026
AUTO-TRUCK FED. CREDIT UNION
Whether or not Lawson and Ziegler were discharged
because of their union activities is a question which has
been very difficult to answer. It is settled law that
employees may be dismissed for any reason, or no reason,
as long as union activity is not the basis for the discharge,
and the burden of proving an improper motive is upon the
General Counsel. Lawson Milk Company v. N.L.R.B., 317
F.2d 756, 760 (C.A. 6, 1963). As has been written,
"Determining the actual motive behind the dismissal of an
employee is of course often an extremely difficult task,
dependent principally upon circumstantial evidence and
informed estimates concerning the springs of human
conduct." N.L.R.B. v. Hotel Conquistador, Inc., d/b/a Hotel
Tropicana, 398 F.2d 430, 435 (C.A. 9, 1968) and "Actual
motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-
serving." Shattuck Denn Mining Corporation, (Iron King
Branch) v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966).
In the cases of Lawson and Ziegler. there is no direct
evidence that their discharge was motivated by their union
activities. As a matter of fact, there is no evidence that
Respondent entertained any animus against the representa-
tion of its employees by a union. 3 But evidence of animus,
apart from the discharges themselves, is not an essential
element of proof. The presence or absence of animus is an
aid in determining the motive for the discharge, but not
dispositive of itself. 4 The ultimate question always remains:
what was the actual motive?
In my judgment, the evidence preponderates in favor of a
finding that the discharges of Lawson and Ziegler were
motivated by their attempt to obtain union representation.
This conclusion is based on a consideration of several
factors. Preliminarily thereto, however, there is the matter
of company knowledge of Lawson's and Ziegler's desires
for union representation. There is no direct evidence of
such knowledge, but an inference of knowledge is warrant-
ed from the fact that the unit of employees consisted of
Lawson, Ziegler, and one Frances Pugh who was only a
part-time employee. Moreover, as noted in Ziegler's
testimony, which is not contradicted by Lincoln, when
Lincoln called her in on October 5, after praising her work
performance, he asked her what her "problem" was and
suggested she would be happier working elsewhere. As she
was doing good work and had not made any complaints to
management during the period preceding this conversa-
tion, I am persuaded that Lincoln deduced from the
Union's demand for recognition that Ziegler had a
"problem" which had caused her to seek union representa-
tion and his question was an oblique inquiry into her
reasons therefor. There is nothing in Lincoln's testimony to
warrant a contrary conclusion. While he sought to explain
his calling her in because of her lack of cooperation, he
never told her in his conversation with her what it was she
was doing or not doing that had caused him to call her in.
It is noteworthy that only 3 days later, in a memo to the
board of directors, he praised Ziegler for a "quite
3 Lincoln and Sellers gave testimony of conversations in which they
allegedly acknowledged the probability that the employees would be
organized at some future time inasmuch as most of the employees of Ford
Motor Company are organized. At the time these conversations took place
there was no hint of union activity and I find it difficult to believe that
remarks such as were testified to were actually made. I do not credit them.
professional job" and wrote "All the staff has been more
than cooperative in this strike circumstance .... "
Lawson's conversation with Lincoln, according to her
testimony which I credit for reasons given below, was
remarkably similar to Ziegler's. Thus, Lincoln started the
conversation by asking her what was wrong with her and
even when she said she did not know what he was talking
about he persisted with the same question. Such a
conversation suggests a purpose for the conversation other
than the discussion of complaints about her rudeness to
members.
In light of the foregoing, I am persuaded and find that
Respondent knew that Lawson and Ziegler were the
employees who desired union representation and who were
responsible for the demand for recognition.
As to the circumstances which support an inference of
unlawful motive, certain are common to both discharges;
namely, the fact that both were senior employees of about
4 years of service and that both were discharged within I
week of one another and only 2 to 3 weeks after the
Union's demand for recognition. Otherwise, the discharges
require separate analysis.
In Lawson's case, Respondent asserts several defenses,
including the assertion that she was not discharged, that
she quit. This contention is based on the testimony of
Lincoln that in his conversation with Lawson he suggested
she take the day off to find a job and when she stated she
had been looking for one anyway, he then suggested giving
her her severance check so she could look for a job without
the interference of her present job and she said that was a
good idea and she would do it. Lincoln impressed me very
unfavorably as a witness. At the hearing, it appeared to me
that he was guilty of gross exaggerations and a review of his
testimony confirmed my impression that he was not a
credible witness. His answers to questions were not only
lengthy, they were sparse in details and rambled so as to
include complaints about Lawson in February 1976 and
implying they were contemporaneous with the discharge.
Apart from that, his version of the October 5 conversation
with Lawson strains credulity. Why would Lawson quit
when she had no job to go to? I am persuaded she did not
quit, but was discharged.
A second issue relative to Lawson's case is the assertion
by Respondent that she was a supervisor within the
meaning of the Act. As noted earlier, in September,
Lawson had assumed the duties of head teller; prior
thereto, she had been a teller. The new position involved
certain new duties, but no raise in salary. It is too clear to
require discussion that whatever new duties or responsibili-
ties Lawson assumed as head teller, she did not have any of
the authority or responsibility required to support a finding
she was a supervisor within the meaning of Section 2(1 1) of
the Act.
As to the motive for Lawson's discharge, although
Respondent denied discharging her, it asserted that there
was ground for discharge, namely, Lawson's attitude as
exemplified by her slamming down telephones on mem-
4 See Terry Industries of Virginia, Inc.. 164 NLRB 872, 874, enfd. 403
F.2d 633 (C.A. 4, 1968): N.L. RB v. Mrak Coal Compan,. Inc., 322 F.2d
311. 313 (CA. 9, 1963).
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers, slamming doors, and rudeness to members. This
defense poses two questions: was Lawson guilty of the
conduct, and, if so, was this the real reason for the
discharge?
I am persuaded that Lawson's attitude was less than
exemplary. She admitted to slamming telephones down
and slamming telephones down is disturbing behavior
whether or not buttons are pushed down. Moreover, she
indirectly admitted to having been charged with rudeness
to members when she stated that at some time in the past
Lincoln had told members of the board he could not
entertain complaints unless he knew who the complaining
member was. However, I am not persuaded that improper
behavior by Lawson was the real reason for her discharge.
I have discussed earlier the October 5 conversation
between Lawson and Lincoln and pointed out that the
conversation as described by Lawson was not addressed to
complaints about her behavior. It seems reasonable to
assume that if an employer calls an employee in to discuss
his dissatisfaction with the employee's behavior he will
undertake to do so. Here, Lincoln had to be pressed by
Lawson to do so. Moreover, when one compares Lawson's
conversation with that which immediately followed be-
tween Lincoln and Ziegler, the conclusion is inescapable
that both employees were called in because of their desires
for union representation. The statements to both indicated
an intent to terminate them at the end of the month, but
Lawson's replies were evidently unsatisfactory to Lincoln
and he terminated her right then and there.
Apart from the content of the October 5 conversation,
there is the fact that Respondent adduced no probative
evidence of improper behavior by Lawson contempora-
neous with her discharge. There was testimony that fellow
employee Frances Pugh reported Lawson's rudeness to
members to Lincoln and Assistant Manager Reinle, but
there is no direct evidence that Lawson was in fact rude.
Pugh did not testify, and testimony of her observations of
Lawson was hearsay as proof of rudeness. As to Reinle, he
testified to receiving complaints from members, yet he
could not recall a single complainant by name, nor did he
specify any dates. I can understand a failure to remember
names of past complainants, but if the problem of
Lawson's behavior was as acute as Reinle intimated, it is
reasonable to expect that notes would be made of
complaints. As it was, not only were no notes made, but
Reinle, who was Lawson's immediate supervisor, never
talked to Lawson about the complaints. As to Lincoln,
while he evidently had spoken to Lawson about her
manner, that had been months earlier. Like Reinle, he
could not identify any complainants and he did not
contradict Lawson's testimony that months earlier when
complaints were received from board members he told
them he would not entertain complaints unless he knew the
names of the complainants.
I "Even if there might be a justifiable reason for the discharge of an
employee, if the real motive for the firing is discrimination against him
because of his union activities or affiliation, there is a violation of the
Act ... The true reason for the discharge is the controlling and ultimate
fact." N.L.R.B. v. Challenge-Cook Bros. of Ohio. Inc. 374 F.2d 147, 152
(C.A 6. ,1967).
Ziegler testified that Supervisor Gavin Cochran spoke to her about
going to the members of the board and told her not to do so; however, she
testified without contradiction that this was counsel, not a directive.
Upon consideration of the foregoing, and in light of
Lincoln's contemporaneous treatment of Ziegler, I find
that Lawson was discharged because of her attempt to
obtain union representation and that her attitude was used
as a pretext to conceal the real reason for her discharge.
As to Ziegler, the asserted reason for her discharge was
her having called Board President Roy Sellers on October 5
as described earlier. According to Respondent, this was
contrary to its personnel policies. Respondent's Exhibit 3 is
a copy of Respondent's personnel policies. Nothing
contained therein prohibited employees from contacting
members of the board relative to personnel problems.
Section 5(f) provides for termination for insubordination or
wilful disobedience of instructions. Ziegler was not shown
to be insubordinate by calling Sellers, nor did she violate
instructions. 6 She testified without contradiction that after
talking to Sellers he told her to feel free to call him at any
time. In the circumstances, when one considers Lincoln's
conduct vis-a-vis Ziegler on October 5, the summary
discharge for violation of a nonexistent policy can only be
viewed as a pretext to discharge Ziegler because she desired
union representation. I so find.7
As noted earlier, General Counsel contends that Ziegler's
conduct in calling Sellers on October 5 was protected
concerted activity and that a finding of unlawful discharge
on that additional ground is also warranted.
In her conversation with Sellers, Ziegler spoke about the
unfairness of Lawson's discharge, tension in the office from
a lack of cooperation and communication, and her
dissatisfaction with her salary. There is no evidence that in
making this call Ziegler acted with the knowledge of the
only two other unit employees (the discharged Lawson
being one of them). Nor is there any evidence that the call
was as a result of discussions among the three unit
employees. Nevertheless, Ziegler's action may be held to be
concerted if the subject matter of her complaints was "of
moment to the group" 8 or related "to a matter of common
concern .... 9 Wages are a matter of moment for all
employees, but Ziegler testified she spoke to Sellers about
her salary. I would not therefore view her complaint in that
regard "concerted."
As to tension in the office, this is a matter which is of its
nature somewhat subjective. There is no showing that
Frances Pugh shared such a concern. Lawson did and it
can be said the matter was of concern to her. But Lawson
had been discharged. If that discharge had been lawful, it
could not be said that Ziegler was acting in concert with
any employee; however, as her discharge was unlawful, it
may reasonably be held that Ziegler's concern over tension
in the office was concerted activity.
But even if Lawson's discharge was lawful, Ziegler's
protest that the discharge was unfair must be held to be
concerted activity. There is nothing of more moment or
common concern to employees than matters of discharge.
7 In reaching this conclusion, I have considered the testimony that
Lincoln conferred with supervisors Cochran and Reinle before deciding to
discharge Ziegler and I deem it insufficient to overcome the objective
circumstances supporting the inference of unlawful motivation.
s Hugh H. Wilson Corporation, 171 NLRB 1040, 1046 (1968).
9 Diagnostic Center Hospital Corp. of Texas, 228 NLRB 1215 (1977).
1028
AUTO-TRUCK FED. CREDIT UNION
For the foregoing reasons, I find that the discharge of
Ziegler was violative of the Act for the additional reason
that it was attributable to her protected concerted activity.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 1,
above, occurring in connection with its operations de-
scribed therein, have a close, intimate, and substantial
relationship to trade, traffic, and commnerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
Iv. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discharged Jane
Lawson and Jody Ziegler because of their union and/or
concerted activities, I shall recommend that it be ordered
to offer them immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and to make them whole for
any loss of earnings they may have suffered by reason of
their unlawful discharge by payment to them of a sum of
money equal to that which they normally would have
earned as wages, from the date of their discharge to the
date of the offer of reinstatement, less net earnings, to
which shall be added interest at the rate of 6 percent per
annum in accordance with the formula set forth in F. W.
Woolworth Company. 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
The unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act and it is appropriate that it be placed under a
broad order to cease and desist from in any manner
infringing upon the rights of employees guaranteed in
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, (1941)).
CONCLUSIONS OF LAW
1. Auto-Truck Federal Credit Union is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail Clerks Union Local No. 445, Retail Clerks
International Association, AFL CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discharging Jane Lawson because of her union
activities, and discharging Jody Ziegler for her union
activities and because of her protected concerted activities,
Respondent has engaged in. and is engaging in, unfair
"' In the event no exceptions are filed as provided be Sec. 102.46 of the
Rules and Regulations of the National liabor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions. and Order. and all objections thereto shall be
deemed waived for all purposes
labor practices within the meaning of Section 8(a)(l) and
(3) and 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 'O
Respondent, Auto-Truck Federal Credit Union, Louis-
ville, Kentucky, its officers, agents, successors, and assigns.
shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Retail Clerks Union Local No. 445, Retail Clerks
International Association, AFL-CIO, or in any other labor
organization of its employees, by discharging or otherwise
discriminating in regard to the hire or tenure of employ-
ment or any terms or conditions of employment of its
employees.
(b) Discharging employees, or otherwise interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, because they have
engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their 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 bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Jane Lawson and Jody Ziegler immediate and
full reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them by
payment to them of a sum of money equal to the amount
they normally would have earned as wages from the date of
their discharge to the date of their reinstatement in the
manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary to a
determination of the amount of backpay due under the
terms of this recommended Order.
(c) Post at its premises in Louisville, Kentucky, copies of
the attached notice marked "Appendix." I" Copies of said
notice on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent represen-
tative, shall be posted by it immediately upon receipt
u In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice:
WE WILL NOT discharge employees because they
have engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
WE WILL NOT discharge employees because of their
activities on behalf of Retail Clerks Union Local No.
445, Retail Clerks International Association, AFL-
CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to engage in, or to refrain from engaging in any or
all of the activities specified in Section 7 of the Act.
WE WILL offer Jane Lawson and Jody Ziegler their
former jobs, or if such jobs no longer exist, WE WILL
offer them substantially equivalent jobs, and WE WILL
make them whole for any loss of pay they may have
suffered because we fired them.
AUTO-TRUCK FEDERAL
CREDIT UNION
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