Braniff Airways Federal Credit Union

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 282 (N.L.R.B. 1971)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Braniff Airways Federal Credit Union and Airline,
Aerospace and Allied Employees Local Union No.
19,' affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Help-
ers of America . Case 16-CA-3913
March 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 25, 1970, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Therafter, the Respondent filed exception to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Braniff Airways Federal
Credit Union, Dallas, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.'
In footnote 24 of the Trial Examiner 's Decision, substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner - The issues in this case,
which was tried before me on June 16 and 17 and July 21,
1970, at Dallas , Texas, with all parties appearing by
counsel , are whether Respondent , Braniff Airways Federal
Credit Union, interrogated and threatened reprisals against
employees, and discharged one, because of their activities
on behalf of Airline, Aerospace and Allied Employees
Local Union No. 19, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended 29 U.S.C.
Sec. 151, et seq (herein called the Act). The issues arise on a
complaint issued April 30, 1970, by General Counsel of the
Board through the Board's Regional Director for Region
16,1 and answer of Respondent admitting jurisdiction but
denying the commission of any unfair labor practices. At
close of the testimony all parties waived oral arguments but
written briefs filed by all parties have been carefully
considered in preparation of this Decision.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor on the
stand, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER 'S BUSINESS AND STATUS OF THE
UNION
Respondent is a District of Columbia corporation and a
federally chartered credit union, with its principal office in
Dallas, Texas, where it is engaged in the business of
handling savings of and making loans to its members, all
employees of Braniff Airways. In the 12 months before
issuance of the complaint, Respondent derived income in
the course of its business aforesaid in excess of 50,000 from
investments made in States other than Texas. Respondent
admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Late in 1969, employees of Respondent learned that
employees of Braniff Airways would be receiving wage
raises as a result of negotiations of a contract between that
Employer and the Union, and in discussions of their own
benefits and working conditions, some employees of
Respondent, particularly Juanita C. Kemp, a senior
employee in the office, felt that it would help the employees
get raises and also retirement benefits (which they did not
then have) if they were covered under the Braniff Airways
contract or one like it; Kemp expressed these views to at
least four other employees.2 After sounding out these and
other employees about affiliation with the Union, Kemp
early in January 1970, secured authorization cards from the
Union. She signed one January 5 and mailed others to 8 of
the 12 employees of Respondent on January 15, together
with Board literature explaining the rights of employees to
organize under the Act. Several employees returned signed
cards which she sent to the Union with her own card. On
The complaint issued after Board investigation of a charge filed
March 18, 1970, by the Union
2 Elizabeth Tanner, Charlene Whitehead, Patricia Goodrich and Kim
Mason
189 NLRB No. 50
BRANIFF AIRWAYS FEDERAL CREDIT UNION 283
February 13, 1970, the Union formally demanded that
Respondent recognize it as the majority representative of
the employees, offering to prove majority status through a
show of cards. On March 4, 1970, the Union filed with the
Board a petition for certification as such representative
after an election. The election was held on April 22, 1970.
B. Alleged Coercion of Employees
As General Counsel claims that Respondent coerced
employees in February and April 1970, through remarks of
its assistant manager, Bob G. Newby, whose supervisory
status is contested, that issue is considered first.
Newby was hired by the Board of Directors of
Respondent in February 1969 with the title of assistant
manager. His starting salary was $775 a month, substantially
below Manager Burton C. Eubanks', almost $200 a month
above the pay of the most senior workers in the office.
When he quit in April 1970, Newby was getting $925 a
month, compared to $1,200 a month paid to Eubanks, and
about $ 600 a month paid to Kemp, one of the highest-paid
employees in the office. He was hired mainly to take some
of the more time consuming functions of the office off
Eubank's shoulders, with the idea that if he proved
qualified he would develop into "an important person in
the office," as Eubanks put it. From the outset he took over
from Eubanks all collection work, which involved exit
interviews with terminated Braniff employees to work out
methods of payment of outstanding loans from Respon-
dent, and also the initiation and supervision of repossession
of automobiles, with repair and resale thereof, on
delinquent accounts. He handled all banking chores,
delivery of records of transactions to the service computer
company which handled Respondent's records, and
procurement of printing supplies. In the office operations,
he in the early months merely passed on to other employees
decisions of Eubanks on their transfer to other duties and
other changes in their work and working conditions, and
played only a routine part in the hiring process, by giving
employment applications to applicants and checking them
for completeness, before the applicant was fully inter-
viewed and hired or rejected by Eubanks. However, in the
year before he left, Newby had handled the entire interview
and hiring of several employees in the temporary absence
of Eubanks, and in all other cases Eubanks made the hiring
decision only after consultation with Newby and acting on
their joint opinions of the applicant. Eubanks also
consulted with Newby constantly about office operations.
When Kemp was discharged as noted hereafter, Eubanks
discussed the circumstances and his decision on it with
Newby beforehand. After several new employees were
hired in late 1969 and early 1970, they brought their
problems to Newby, not Eubanks, for solution, and in the
same period Newby several times changed the lunch and
"break" schedules of the whole office staff by means of
memos initialled by him. While Eubanks always handled all
of the vital operations entailing disbursal or expenditure of
funds, on occasion Newby examined and approved loan
applications at the request of loan counselors in the absence
of Eubanks. While the employees were never formally
notified of Newby's exact duties, Eubanks had introduced
him to all as the assistant manager, and in view of credible
testimony of Eubanks and Kemp that after Eubanks
became general manager he concentrated his efforts on
promotional work to build up the membership and assets of
Respondent, and preferred not to get involved in the details
of daily operation of the office and left that to others, I am
satisfied that he allowed Newby to transmit to employees
his decisions on transfers and changes of their duties and
other working conditions in such manner that they had
reason to believe he was giving these orders as a member of
management. In addition, while Newby was never formally
and openly designated as being in charge of the office when
Eubanks was absent, on such occasions persons visiting the
office to confer with Eubanks about the credit union would
confer with Newby.3 All of these facts also indicate that
Newby was being trained to act for Eubanks in his absence
and to take over his general functions if anything happened
to Eubanks, and in the course of such training was
exercising some of the apparent supervisory functions
which he might have to exercise if he took Eubank's place.
Hence, I find that Newby exercised authority to hire some
employees, had power to make effective recommendations
on hire of others, and apparent authority to transfer
employees and change their duties and other working
conditions, which are indicia of supervisory status within
the meaning of the Act. I find that Newby was a supervisor
within the meaning of Section 2(11) of the Act, for whose
conduct Respondent is responsible.4
On an occasion in the latter part of January 1970,
employee Klementine Mason had a private conversation
with Newby over coffee in the Braniff cafeteria, in which
Newby asked her "what was all the mess going on in there."
She said she did not know what he meant, and he replied "it
is the union mess." She said she knew nothing about
unions, and had not talked to anyone about them. Newby
said that if the workers "went union," they would "lose
your democratic voice" and would not have their present
privileges such as time off. About a week later in a similar
talk in the same place, Newby asked her some questions
about her pay and whether another worker had told her
that her pay was less than the starting pay of new
employees. Mason, who had worked there 4 years, said that
she had been told that. He replied he had been trying to get
Mason's pay scale changed, but that if the workers joined
the Union, management could not help the workers with
their office problems, and their privileges would stop, and
that a union would not be good in the credit union, would
not work there.5
On or about April 10, 1970, Newby took Karen Brown, a
recently hired employee, into the cafeteria for coffee during
worktime, and asked her if she had heard much talk about
unions in the office. She said it was the main topic of
conversation in the office lately. He said he did not think
they had to worry whether the Union got in or not, as he felt
3 I find the above facts from credited testimony of various witnesses of 811, Augusta Chemical Co, 124 NLRB 1021, 1023
General Counsel, and admissions of Eubanks Testimony of the latter in 5 1 find the above facts from uncontradicted testimony of Mason
conflict therewith is not credited Newby did not testify
4 Lawson Milk Co, 142 NLRB 916, Elliott-Williams Co, 143 NLRB
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the vote would be strongly against it . She disagreed, saying
that from what she had heard it would be a close vote. He
said he did not see where she got the idea, saying "the way I
see it , it will be 7 against and 3 for it," and he named the
workers, including Brown, whom he thought would be
against the Union, and named those he thought favored it
He said he was unsure of one person who might be
nonunion, was worried that the girl might change and vote
for the Union, and he said he did not want Brown to go to
lunch or coffee with Whitehead, who was one of the main
union adherents, as he feared the latter might influence
Brown's vote. He also said it made no difference to him
whether the credit union went union or not, as he would not
be there .r,
On an unidentified date early in February, after Oleta F.
Kimble received a union card in the mail from Kemp, she
told Newby about the card. He asked if the letter in which it
came had an address on it, and she said it was from Kemp
He said he was not sure why other employees wanted a
union, and asked if she knew who favored it. She replied
she was not sure, but that she did not want it.7
As Newby made his remarks to Mason after invitations
to drink coffee during working hours, not at lunch or
during regular coffee "breaks" it is clear his remarks were
more than casual conversation but were well calculated to
impress Mason, hence his clear threats of loss of present
benefits and privileges if the workers chose the Union were
coercive and violated Section 8(a)(1) of the Act. His later
remarks to Brown under similar circumstances were
likewise far from casual but clearly coercive in his
interrogation of her about union talk. The same is true of
his interrogation of Kimble about Kemp's union activity
and the union sentiments of other employees. His remarks
also clearly reveal Respondent's union animus, and his
statements to Brown show that Respondent was watching
closely the attitude of the employees about the Union.
The Discharge of Kemp
Juanita C. Kemp had been employed by Respondent for
over 15 years before her discharge on January 12, 1970. In
that period she worked in everyjob in the credit union, and
at discharge was the senior employee with the greatest
overall knowledge and experience in all phases of its
operation. When R. D. Rice was manager of the credit
union prior to Eubanks, Kemp was office manager under
him for about 2 years, and when he died at the end of 1964,
the directors of Respondent made Kemp acting manager
with an increase in salary for 2 months, until Eubanks was
hired in March 1965; after he came in, the board continued
to pay Kemp 50 a month above her regular salary as office
manager for about 6 weeks as additional compensation for
assisting Eubanks in becoming familiar with the operation.
Under Eubanks, she continued as office manager and
assistant treasurer and also did loan counseling and kept all
of Respondent's books.
Eubanks testified, and Respondent argues, that Kemp
was discharged because of a "personality conflict" between
her and Eubanks, consisting of long-continued lack of
cooperation, criticism of his operation of the office, efforts
to cause his removal by Respondent's directors, and a
specific disobedience of orders early in 1970, which was the
culminating event causing the discharge.
These contentions require a review of Kemp's conduct
during the Eubanks regime. In the first 3 months of his
tenure, their relations were friendly, and Kemp cooperated
with him by assisting him to become familiar with all
aspects of the operation, answering questions and offering
suggestions. The first rift appeared when the directors
decided about July 1, 1965, to modernize the operation by
installing a computer system. Kemp disapproved of it from
the start, arguing to Eubanks, the directors, and other
workers that it would not improve their present accounting
system. However, in the 6 weeks allotted for changeover of
the office records, she cooperated fully like other workers in
making a fast changeover, so that the new system became
operative in the time required. She still remained critical of
its need and usefulness, arguing to all who would listen that
it was not needed and would work better if the changeover
had been less hasty.
Kemp also continually criticized the promotional efforts
of Eubanks, complaining to him, other workers, and
Respondent's directors and officers that he spent too much
time out of the office in talking to Braniff personnel
directors and other officials, and rather ridiculing his
distribution of "Dear Friend" letters to Braniff employees
in efforts to increase the membership of the credit union.
She had strong views on this subject, because she had
always been most interested in the internal, detailed
workings of the office and its numerous records involved in
the handling of members' savings, and she became
disappointed with Eubanks when he early made it clear that
he was not interested in the detail work but more in making
the operation grow. They had numerous discussions about
this, but could never agree, and Kemp soon became the
most vocal and antagonistic of a group of employees who
disapproved of Eubanks' outside promotional efforts, while
recognizing that he was very successful in building up the
membership and assets of Respondent. Kemp was a blunt
and outspoken person, and in arguments with Eubanks
about this and other phases of the operation, she expressed
her views in plain and forceful terms, clearly indicating her
displeasure with many of Eubanks' methods. She told
Tanner several times, once in 1969, about her "sessions"
with Eubanks, saying that if she had been in his position,
she would have fired Kemp out of hand for the way she
talked to Eubanks, but she felt that Eubanks did not have
the intestinal fortitude to do it.
In the latter part of 1965, Kemp's attitude toward
Eubanks changed gradually to one of indifference and
coldness. When he mentioned his problems, she would no
longer offer help but only answered questions when asked.
When he outlined to her unusual problems he faced in
sending out promotional desk calendars to all Braniff
employees at the end of 1965, she did not offer any help or
suggestions about their distribution, although she well knew
the whole Braniff Airways system and the best locations
and personnel to contact for efficient distribution. She told
6 I find the above facts from uncontradicted testimony of Brown
7 1 find this conversation from uncontradicted testimony of Kimble
BRANIFF AIRWAYS FEDERAL CREDIT UNION 285
him "that is your problem, not mine," which he interpreted
as a refusal to help him, so he got another experienced
worker to help him. On one or more occasions Eubanks had
to handle personally the entire distribution of quarterly
reports to about 4,000 members of Respondent, because the
office staff was already overloaded with routine work.
Kemp did not offer to help him with this added chore,
despite her superior knowledge of the Braniff system. She
also raised constant complaints about changes in methods
of handling and processing loans which Eubanks had
instituted
In late 1965 Kemp voiced these complaints about
Eubanks to one Orville Gunnoe, then president of
Respondent, and at his request she solicited employees to
write personal letters to the directors asking for changes in
operation of the credit union along the line of her
complaints about Eubanks' operations; Kemp suggested to
the workers that if they could convince the directors that
Eubanks was running the operation less efficiently than his
predecessor, the directors might become unhappy with him
and remove him. As a result several employees wrote the
directors suggesting changes and alleged improvements in
office operation. Although Kemp worked up these
complaints over some period of time apparently without
Eubanks' knowledge, they were aired at a directors'
meeting in November 1966, when a director and official of
Respondent detailed them to Eubanks, as well as some
alleged loose handling of a valuable stock certificate. The
nature and details of the complaints clearly indicated to
Eubanks that Kemp must have been their source, since she
kept all the books, knew about the stock certificate
situation and had talked to him about it, and was also in a
position to keep a detailed account of his movements in and
out of the office. The complaints so impressed the salary
review committee of Respondent that it reported them to
the directors, with both Kemp and Eubanks present, and
recommended the directors give Kemp a raise but to
withhold any from Eubanks until he did a betterjob. After
a serious discussion with Eubanks, the directors rejected the
report and voted to give both Eubanks and Kemp raises,
and then called Kemp before them, advising her clearly
that Eubanks was the manager and his orders must be
followed. Although Kemp had attended most directors'
meetings at Eubanks' request before that, he did not bring
her to meetings thereafter. At this directors' meeting,
Gunnoe rather apologized to Eubanks for the committee
report, saying he "had a job to do" in reporting Kemp's
complaints, although Gunnoe had been the one official of
Respondent who had strongly recommended Kemp's
discharge to Eubanks in 1965.
During 1966, Kemp continually complained to Eubanks
that she was overloaded with the job of loan counseling and
maintaining all the office books and records. Eubanks
finally recognized this and in July 1967, finally relieved her
of the bookkeeping, turning it over to another experienced
employee.
While other employees did not agree wholly with some
changes Eubanks instituted in the office, and expressed
their views on it, it is clear from the above facts, as well as
credible testimony of Tanner, that Kemp soon became the
most outspoken and notorious malcontent in the office, and
that her hostility toward Eubanks quickly became known to
the entire office staff . In the last year before her discharge,
her attitude toward him and his problems continued to be
indifferent, although she continued to do her own work in
satisfactory fashion, and to cooperate with other employees
in their work and help them with their problems, as she had
in the past.
The incident which, according to Eubanks, precipitated
her discharge was her apparent unauthorized release of a
bank draft on a loan to one Robert Wiseman on purchase
of an automobile from Friendly Chevrolet, a local car
dealer who yearly sold a large number of cars to Braniff
employees. Wiseman bought the car on November 25,
1969, and came to Respondent for the loan about the same
time . Kemp processed his application in the usual course, it
was approved in routine fashion by Respondent's credit
committee, but was marked, along with about 400 other
applications, with a notation "A.S.," indicating that it was
not to be paid until after settlement of contract negotiations
in progress between Braniff Airways and the Union,
because Respondent had adopted the policy of not paying
out on any loans to Braniff employees while contract
negotiations were pending with rumors of a possible strike.
Hence these loan applications including Wiseman's were
kept in a suspense file in the office, and the loan counselors
were ordered to tell salesmen or dealers who called about
them that the loans were approved but payment of bank
drafts to the dealers would not be authorized until the
Braniff dispute was settled and a contract signed. About
this time Eubanks received reports that the Braniff
negotiations were progressing and a settlement appeared
imminent, however, Respondent's directors voted to
continue to hold up all pending loans until actual
settlement removed any risk of a strike . In anticipation of
settlement, checks had been written on most of these loans
but were appended to the loan applications in the office
files. Kemp asked Eubanks about December 1, 1969,
specifically about approval of the Wiseman loan and
whether the check could be released so that the buyer could
get his car, but he said it could not be, and would have to
await the actual contract settlement , as he noted that it was
marked "A.S." like all the others. When James R. Lyles, the
Friendly salesman in the Wiseman deal, called Kemp
shortly about the Wiseman loan, she told him it was
approved, but she could not authorize issuance of a bank
draft because Respondent was holding up all checks on
loans until settlement of the Braniff dispute. Lyles replied
that Wiseman wanted immediate delivery of his car, so
Friendly would make delivery without the draft if he had
proper insurance . Shortly after, when Newby collected paid
drafts from Respondent's bank in the usual course, he
noticed a draft for the Wiseman loan had been put through
by the dealer, so he asked Eubanks if it was permissible to
write a check to pay the draft. Eubanks examined it and
noticed it was the loan on which he had given Kemp
specific orders against release of the draft. Eubanks the
next morning visited the Friendly office and asked its sales
manager who had authorized release of the Wiseman draft.
The manager called in Lyles, who told both that he had
been given permission by Kemp to draw the draft and put it
through. Eubanks became upset, and asked the Friendly
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men if they knew Kemp or he could get discharged by
Respondent over this. The Friendly manager told Lyles to
get the automobile back from Wiseman and arrange to
finance it through General Motors Acceptance Corpora-
tion (GMAC).8
While Eubanks was at Friendly, Kemp learned at the
office that he had gone there about the Wiseman loan, and
before he returned to Respondent's office, Lyles telephoned
Kemp to warn her that Eubanks had talked with them.
When Eubanks came back, Kemp walked into his office
with the Wiseman loan papers in hand, apparently
disturbed, and said "I understand you had a little difficulty
down at Friendly." He replied that he "sure had," that he
discovered Kemp had authorized issuance of a draft; he
commented that she did this although she knew all loans
were being held up. She retorted that this was the loan
about which she had talked to him. He replied "that was the
one I told you positively not to release ." Kemp explained
that she did not authorize the draft but only told the
salesman the application was approved pending release of
the check. Kemp then angrily asked Eubanks if he wanted
to "nail me to the cross today." He said, no. She left the
office still angry.9
Shortly after this conversation, Eubanks made up his
mind to discharge Kemp for flat disobedience of orders and
told Tanner sometime before Christmas that he had come
to the point where he felt something had to be done about
Kemp. He decided to put off the actual discharge until after
the Christmas season , as Kemp had made friends in the
office during her long service, and he did not want to upset
the staff or affect the office operation by a discharge during
that season, since it was the period of large loan activity,
and Respondent was about to lose another loan interviewer
who was quitting. He discussed this with Newby, and they
decided that after her discharge her loan interview work
could be spread among three others doing that work, other
employees trained in it and Newby. Just before quitting
time on January 12, 1970, Eubanks called Kemp into the
Braniff conference room, some distance from the CU
offices. As they went in together, she asked "what have I
done now?" In the room he said there was "no easy way to
do this, I want you to resign." She suggested he was
"kidding." He said, no, he wanted her to resign. She asked
why, and if her work was not efficient. He said he could not
say it was not, and agreed with her she had kept the CU
books properly, but that she knew as well as he what had
gone on in the past 4 or 5 years, and the differences between
them, and he wanted her to resign because she had "tried to
destroy me," and "the credit union cannot be successful
with you here." She admitted she had differed and argued
with him on various things, but in the last 3 years she had
not tried to do anything against him or criticized him. He
still said he wanted her to resign, and if she did, her record
would show only a resignation , and he would give her a
good recommendation to anyone who inquired. She asked,
if she did not, what would happen, and he said he would
discharge her. She said, "you do dust that," but asked what
8 The Wiseman sales order had no draft instructions noted on it,
contrary to the usual case, and had been placed in a special "hold" file in
the Friendly office pending draft instructions
9 Friendly did not in fact refinance the car through GMAC, as
Respondent's credit committee released all the checks held back on
compensation she would get for 15-1/2 years of service with
Respondent. He replied, "4 weeks' vacation pay and 2
weeks' notice with pay" She asked if she should work out
the 2 weeks, and he said no. She asked if it was effective at
once, and he said it was. They also had some discussion
about Braniff and rumors of a merger. Kemp questioned
whether the severance pay conformed to Braniff policies
under the contract covering its workers. Eubanks said he
would check on it, and she said she would, too. On January
14, Kemp returned to Eubanks' office to talk about her
severance pay. Eubanks said he had spoken to a Braniff
personnel man about it. Kemp showed him an old Braniff
labor contract providing for 10 weeks' severance pay after
10 years of service. Eubanks said he would check on that, as
it would be for the directors of Respondent to decide. She
suggested he call the Braniff payroll department, which
could tell him their policy from the latest contract. She
asked for, and he agreed to give her, a written memoran-
dum on this. On January 15, Kemp wrote Eubanks asking
for specific reasons for her discharge. He did not answer
this letter, but on January 17, he wrote her that she would
receive 10 weeks' severance pay and 4 weeks' vacation pay
as of her discharge. On Respondent's records, the reason
for Kemp's discharge is noted as "personality conflict" The
record also shows that, prior to the Wiseman incident,
Kemp had never been disciplined in any way by Eubanks
or his predecessor during her 15 years of service, and the
Wiseman incident is apparently the first time she had been
charged with disobedience of orders of management.10
Arguments of parties, and final conclusions of fact
and law as to Kemp
The discharge of an experienced and valuable employee
of long service without prior warning for her first
disobedience of orders in 15 years of service, at a time when
Respondent had union animus and was engaging in other
unfair labor practices, presents a prima facie case of
discriminatory discharge which requires Respondent to
adduce cogent proof of discharge for cause in rebuttal and
also requires careful scrutiny of all circumstances of the
discharge. Superex Drugs, Inc., 143 NLRB 110, 114.
Respondent's defense has two facets: (1) lack of cogent
proof that Eubanks, Newby, or any other officer or official
of Respondent knew about Kemp's union activities before
her discharge, and (2) assuming such knowledge, the record
shows that Eubanks, and thus Respondent, had no union
animus and in fact discharged Kemp, who had been a
"problem child" in the office for years, for a direct violation
of an order of Eubanks about the loan in the Friendly
Chevrolet case. General Counsel argues that Respondent's
union animus is apparent from Newby's coercive remarks
found above, its knowledge of union activity is inferable
from the free flow of information and discussion about
unions among the small force of employees in the compact
office, in which Kemp took part, and Respondent's alleged
pending loans on December 3, including the Wiseman check, and Friendly
got draft instructions on that loan at that time
10 The above facts are found from credited and mutually corroborative
testimony of Kemp, Eubanks, Lyles, and documentary proof Testimony of
any of these witnesses in conflict therewith is not credited
BRANIFF AIRWAYS FEDERAL CREDIT UNION 287
reason for her discharge is a pretext stated to conceal the
true motive, her union activity.
I must find from Newby's coercive remarks found above,
which are chargeable to Respondent, that it had no desire
for a union in the office after Kemp's discharge, and it is a
fair inference that Newby at least felt the same way before
that event. Eubanks denied any talk with employees about
unions before Kemp's discharge. The only proof about his
views after that event and her mailing of union cards show
that: He told Tanner, on her inquiry, that herjob would not
be affected "either way," whether she joined the Union or
not. He explained to Kimble, on her inquiry about the
meaning of the card, that it was only an invitation, and that
it was "strictly up to you, your decision" whether she
wanted to join the Union or not; in this talk, Kimble also
told Eubanks she did not want to work under a union, was
not sure she could, and he said he felt the same way, and
also added he did not see why the employees wanted a
union, unless it was because of the lack of a retirement plan
for them, which he had been working to get for them for
some time. When Brown asked Newby what the card
meant, he told her not to worry about it, but throw it away,
and it was "Kemp's doing," and there would never be a
union in the office. He asked her to show it to Eubanks,
who also told her not to worry about it, but throw it away.
While Eubanks' remarks to Tanner and first remarks to
Kimble were noncoercive and indicative of a neutral
attitude toward the Union, his final remarks to Kimble as
well as his and Newby's remarks to Brown clearly indicate
their lack of desire for a union in the office, from which I
can infer that this attitude predated Kemp's discharge. I
find that Respondent therefore had some union animus
before Kemp's discharge. There is no proof, however, that
prior to Kemp's discharge Respondent had given any
indication by word or conduct of a desire or inclination to
display that animus by action against its employees.
On the issue of Kemp's union activity and Respondent's
knowledge thereof, I find from credible testimony of Kemp,
Kimble, Mason, Margaret Darling, Patricia Ann Goodrich,
Onalene Dill Farris, and Tanner and admissions of
Eubanks, that: During the final stages of the Braniff
contract negotiations late in 1969, all employees in the
office were aware of and constantly talked about the course
of the negotiations because of the effect that a strike might
have on Respondent's operations, and, after hearing
suggestions from Braniff employees visiting Respondent's
office that its employees should be getting benefits similar
to those in prospect under the Braniff contract, the office
staff talked among themselves, from about Christmas
through January 8, 1970, both at lunch and during "breaks"
in and out of the office, about the advantages of coverage
under a similar contract in order to get pay raises,
retirement plan coverage, and other benefits. Kemp was
involved in many of these discussions, and when some
workers expressed a desire for a union in the office to get
benefits and correct some office working conditions, Kemp
as well as Whitehead would ask if they would favor the
Union, and emphasized the advantages of union member-
ship. When the staff received notices at the end of
December of wage raises effective January 1, 1970, with a
deduction of "1-1/4% union dues not paid," some at once
questioned the deduction, arguing they should have a union
if they were going to be charged for it. Before this notice, a
few workers had investigated the possibilities of a union for
the office, and learned they would have to have a separate
organization, and could not be covered by the Union's
contract covering Braniff employees. Kemp secured
authorization cards from the Union about January 2,
signed one on January 5, and mailed out cards to eight
other employees on January 15, and thereafter forwarded
all signed cards to the Union. While there is no proof that
her union activity of January 2 and 5 was known to
Respondent, I must infer and find that Eubanks was well
aware of the employees' talk about unions and her part in it
from his admissions and credible testimony of Tanner,
Mason, Goodrich, and Brown which show that in the small,
compact credit union office where about 12-15 employees
worked in daily close contact and association with each
other and management, activities and remarks of the staff
were quickly known to all, and Eubanks attitudes, remarks,
and conduct of employees in and out of the office, both
from gossip of the employees, reports from Newby who
mingled and talked constantly with the staff, and continual
confidential reports from Tanner over the years about work
performance and other conduct of employees; the latter's
observance of empi )yees and reports to management about
them were so constant and open that she became known as
the "office tattletale," to such an extent that even Newby
told employees that Tanner was a cause of turmoil in the
office due to her constant tattling to Eubanks. Tanner
admitted that she knew from talks with Kemp that the
latter favored the Union.ii
The question of the true motive for the discharge presents
more difficulty. Although Respondent agrues that Kemp's
lack of cooperation with and notorious hostility toward
Eubank and his methods continued throughout her
employment, and amounted to an attempt to "destroy"
Eubanks, and that the violation of his orders on the
Wiseman loan precipitated her discharge, the record fails to
demonstrate that her negative attitude toward Eubanks
over the years increased in gravity and effect until it goaded
him beyond endurance and prompted him to discharge her
over the Wiseman incident as the "straw that broke the
camel's back" as Respondent's brief puts it. It is true that
her attitude toward Eubank's changed drastically after only
about 3 months of his regime, and reached a peak of active
hostility at the end of 1965 and during 1966 in her attempts
through solicitation of employee complaints to persuade
the directors to oust him, and, except for the seeming
flagrant violation of orders in the Wiseman case, this
activity appears to be the only serious instance of
insubordination or disloyalty on her part. While this
subversive campaign would have been ample ground for
her discharge in 1965, as then President Gunnoe of
Respondent strongly and repeatedly suggested,12 or in
1966, Eubanks did not see fit to terminate or even
11 In view of this testimony, I do not credit Tanner's denials of talks to because of Newby's remarks to Brown showing that he knew which
Eubanks about union activity of Kemp and others, nor Eubanks' denial of employees favored the Union, and which did not
any knowledge of employees' union sentiments, the last particularly 12 Gunnoe was concerned about Kemp 's attitude because he had had
(Continued)
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprimand her then, giving the testimonial excuse that he
was new to Respondent's operation, and since Kemp knew
more about it than any other employee, he needed the
benefit of her knowledge and experience. When Kemp's
attempts to turn the directors against Eubanks through
employee complaints surfaced late in 1966, and Eubanks
had to vindicate his stewardship of the operation before the
directors, who finally accepted his report and even
censured Kemp for apparent opposition to Eubanks, he still
did nothing to discipline her. After that, while she still
remained hostile toward him, she continued to be a
valuable employee, doing satisfactory work and aiding the
whole staff, particularly new members, when requested, up
to her termination, and her general attitude toward the
whole operation improved, in that she became less critical
of the operation, for some periods expressing no criticism or
opposition at all. When Eubanks relieved her of the
bookkeeping chore at her request in July 1967, she told him
she would do her best to serve Respondent's members and
to "stay out of your management procedures." Eubanks
admitted that her general attitude improved in 1968, and
that in 1969 she did her own work without objection to or
criticism of his methods or work of others. In all this period,
her negative attitude and even active resistance to his
management did not affect the smooth operation of the
office or hinder Eubanks in his successful efforts to build
up the operation both in membership and assets.13 By 1969,
his own knowledge and grasp of the operation had reached
the point where he no longer found it necessary to rely on
Kemp's knowledge and experience Hence, I must conclude
that by the end of 1969 both the operation and Eubanks'
handling of it had outgrown any effects of Kemp's past
deficiencies, and by keeping her on the payroll Respondent
had in effect condoned her shortcomings. According to
Eubanks, the only thing that rankled in his mind was her
failure to offer him more cooperation than passive
obedience and strict adherence to her own work, but this
was largely his own fault, for he admits he never in all the
years sat down with her for a heart-to-heart talk about her
attitude and to find ways of improving their personal
working relationship. As early as 1966, he apparently
reconciled himself to acceptance of her negative attitude
toward him, for he says he saw no hope of changing it.
Their relationship to each other became fixed at a polite
acceptance of each other's presence, position, and work in
the office, without more. He (and the directors through
him) continued to recognize her value to the organization
and her satisfactory performance, for the directors have
given her annual pay raises each year since 1966, the last
an upsetting argument with her about transmittal of records to the
computer, while Eubanks was absent due to illness during a week in July,
so Gunnoe continually asked Eubanks about Kemp's attitude and often
suggested her discharge during the remainder of 1965 Other directors
knew about Kemp's attitude and at least one, Moffatt, who was also
chairman of Respondent's supervisory committee, supported Gunnoe's
recommendation for discharge
13 Since he became manager, Eubanks has built up the membership of
Respondent from 4,200 to over 8,000 members, and its assets from
$1,800,000 to about $6,400,000
14 It is well settled that union membership or even prominent union
activity does not make an employee immune from normal discipline for
violations of orders, work rules, or other delinquencies in his work
N L R B v McGahey, 233 F 2d 406, 413 (C A 5), Boltz Brothers Packing
one effective January 2, 1970, after the Wiseman incident,
and all without objection from Eubanks.
Despite Respondent's union animus and Eubanks'
knowledge that Kemp had been active in arguing for a
union in the office, it is clear that he had a right to discharge
her for disobedience of specific orders if he honestly
believed that she had violated the withholding order placed
on the Wiseman loan by the credit committee.14 He had
good reason to believe she played some part in the issuance
of the Wiseman draft both from what Lyles told him,15 and
because, when she was clearly disturbed by the telephone
call from Lyles reporting the discussion with Eubanks, she
took the unusual step of seeking out Eubanks (contrary to
her current practice of shunning him) and mentioning his
conference about the Wiseman loan, and when he in effect'
accused her of causing the draft release contrary to orders,
she asked in effect if he was going to impose some
immediate drastic penalty on her for it, while arguing that
she had explained the status of the loan to the automobile
dealer without authorizing the draft. If Kemp had
discharged her on the spot for this incident, and so marked
her personnel record later, Respondent would have a strong
case of discharge for cause. However, doubt is thrown on
his true motive by several other facts. First, he did not warn
her at the time that any discipline, much less discharge,
would be imposed later. 16 His explanation for waiting until
January 12 to terminate her seems weak because his
discussion with Newby gives some indication that they
could have spread her share of the loan interview work
among others on December 3,just as easily as after January
12, 1970, with Newby helping out.17 His explanation that he
did not want to alarm the office staff by a discharge in
December because of Kemp's relations with other employ-
ees shows that he realized her influence on other employees,
both in normal office relations and in her union adherence,
of which he must have been aware. More important, when
he finally discharged her, he based it only on her total
hostile and negative attitude of the past, which he told her
was designed to "destroy" him and hindered the successful
operation of the credit union. As I have found that
Respondent had condoned her past shortcomings, but
without warning that future delinquencies would result in
discipline, this circumstance alone outlines a classic
example of discriminatory discharge of a union adherent
under the pretext of alleged past shortcomings which
suddenly become intolerable only after his union adherence
and activity is discovered; and Respondent's notation only
Co, 153 NLRB 1114, 1122
15 1 do not credit Lyles' story that Kemp told him the draft could not be
issued , and that his manager decided to release the car to the buyer without
release of the draft , for Lyles' whole story about his long-continued
dealings and friendship with Kemp , and his attempts to exonerate her in
this incident by volunteered statements , indicate clearly that he was
strongly partisan in his testimony and not above twisting the facts for her
benefit
16 Howe!! Automatic Machine Co, 183 NLRB No 134
17 In this connection , Eubanks admitted he could easily have discharged
Kemp as early as 1967 without suffering any real shortage of help, and that
the same was true in 1969 , because Newby had been there almost a year
and had learned the whole operation , and "things were running much
better "
BRANIFF AIRWAYS FEDERAL CREDIT UNION 289
of "personality conflict" on her personnel record bears this
out.18 Further, his failure to discuss or even mention the
Wiseman loan incident in the discharge interview is some
indication that he was either not sure or too concerned
whether she was the cause of it,19 or that he did not
consider it real cause for discharge. Finally, Respondent
gives various conflicting and weak reasons for his action.
Eubanks argues that the Wiseman incident was only the
last in "4 years of similar things," but then admits that the
alleged disobedience of his orders was different from her
earlier shortcomings. His stated reason that her continu-
ance in the office would prevent successful operation of the
credit union was also a pretext, in view of the marked
expansion of its operation under his guidance, which even
Kemp admitted, and his admission that her office work had
always been satisfactory. Finally Eubanks admits that his
only real grievance against her over the years was her
failure to offer to help him out at times, although she had
always given advice when asked and obeyed orders when
given, but this is clearly a personal trait which, though it
irked him, he had learned to accept and endure over the
years, because it did not hinder the successful operation of
the office. It is well settled that the proffer of varying but
weak or unconvincing reasons for discharge affords strong
support for the inference that they were offered only to
conceal the true and discriminatory motive for the action.20
All the pertinent facts and the opposing arguments
indicate that the issue of motive is a close one, but I am
constrained to find and conclude from all the pertinent
facts found above that Respondent has failed to adduce
cogent proof of a discharge for cause which is adequate to
rebut the case for discriminatory discharge made by the
General Counsel, and that General Counsel has sustained
the ultimate burden of proof on all the pertinent facts in the
record as a whole that Respondent discharged Kemp on
January 12, 1970, in part because of her recent union
activity,21 thereby discriminating against her in regard to
her hire and tenure of employment, in violation of Section
8(a)(3) of the Act. I also find that by such discharge and the
coercive remarks of Newby to employees found above,
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.22
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations set forth
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.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom and taken certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Juanita C. Kemp, I recommend that Respondent offer her
immediate and full reinstatement to her former or
substantially equivalent position without prejudice to
seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered as a result of
the discrimination against her, by payment to her of a sum
of money equal to the amount she would have earned from
the date of discriminatory discharge to the date of a proper
offer of reinstatement, less net earnings during said period,
the backpay to be computed in the manner established in F.
W. Woolworth Company, 90 NLRB 289, and to include
interest at the rate of 6 percent per annum, as required by
Isis Plumbing & Heating Co., 138 NLRB 716. The illegal
discharge also warrants a broad cease-and-desist order and
notice.
CONCLUSIONS OF LAW
1. The Union is a labor organization, and Respondent
is engaged in commerce, within the meaning of the Act.
2. By unlawfully discharging Juanita C. Kemp as found
above, the Respondent engaged in unfair labor practices
affecting commerce within the meaning of Sections 2(6) and
(7) and 8(a)(3) of the Act.
3 By interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed them by
Section 7 of the Act, by said discharge, and interrogation of
and threats to employees, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Sections 2(6) and (7) and 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
recommended that Respondent, Braniff Airway Federal
Credit Union, its officers, agents, successors, and assign,
shall:
1. Cease and desist from:
(a) Discouraging membership in Airline, Aerospace and
Allied Employees Local Union No. 19, International
18 Howell Automatic Machine Company, supra, Crane and Breed Casket
Company, 176 NLRB No 45, Lynacoach and Truck Company, Inc, 183
NLRB No 133 (Discharge of Max Shaw)
19 Aside from his short discussion with the Friendly Chevrolet manager
and salesman about the incident, there is no proof that Eubanks made any
investigation in his own office about the handling of the Wiseman loan
papers, although he admitted at one point that other employees in the
credit union could have paid out the draft through carelessness This is
credibly a strong possibility, for he also admitted that the overall
suspension of draft approvals during the Braniff negotiations was not total,
because the credit committee approved release of some loan payments in
special cases, as in emergencies and where the buyer put up separate
collateral for his loan
20 Jim Causley Pontiac, Inc , 175 N LRB No 40, Phelps Dodge Aluminum
Products Corp, 176 NLRB No 25
21 Even if the "personality conflict" played a part in the discharge, a
discriminatory discharge is established if it is shown that union activity is a
motivating or substantial reason for such termination N LR B v Whittin
Machine Works, 204 F 2d 883, 885 (C A 1) I conclude that it was here
22 1 have carefully considered other facts outlined, and arguments
thereon, by the parties, but deem it unnecessary to make detailed findings
or conclusions thereon, which would only lengthen this Decision without
altering my ultimate findings and conclusions above
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or in any other labor organization
of its employees, by discharging any of its employees or
discriminating in any other manner in respect to their hire
or tenure of employment, or any term or condition of
employment.
(b) Interrogating employees about their union adherence
and activities in a coercive manner, or threatening them
with loss of privileges or other reprisals because of such
adherence and activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
(a) Offer Juanita C. Kemp immediate and full reinstate-
ment to her former or substantially equivalent position,
without prejudice to seniority or other rights and privileges,
and make her whole for any loss of pay suffered by reason
of Respondent's discrimination against her, in the manner
set forth in the section hereof 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 relevant and
necessary to the determination of the backpay due and the
right of reinstatement provided under the terms of this
Recommended Order.
(c) Post at its office in Dallas, Texas, copies of the
attached notice marked "Appendix."23 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof and 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 insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of receipt of this
Recommended Order, what steps Respondent has taken to
comply herewith.24
23 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and Order,
and all objections thereto shall be deemed waived for all purposes 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'
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
24 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps Respondent
had taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Airline,
Aerospace and Allied Employees Local Union No. 19,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization of our employees, by
discharging any of our employees or discriminating in
any other manner in respect to their hire or tenure of
employment or any term or condition of employment.
WE WILL offer to Juanita C. Kemp immediate and
full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority
or other rights and privileges, and make her whole for
any loss of earnings suffered as a result of our
discrimination against her.
WE WILL NOT interrogate our employees about their
union adherence or activities in a coercive manner, or
threaten them with loss of privileges or other reprisals
because of such adherence and activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
BRANIFF AIRWAYS FEDERAL
CREDIT UNION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 8A24
Federal Office Building , 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 817-334-2921.