Citizens Natl. Bank of Willmar

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 389 (N.L.R.B. 1979)

CITIZENS NATL. BANK OF WILLMAR
Citizens National Bank of Willmar and Willmar Bank
Employees Association. Case 18-CA 5641- I
September 26, 1979
DECISION AND ORDER
On March 23, 1979, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, the Charging Party and the
General Counsel filed exceptions and supporting
briefs, Respondent filed cross-exceptions and a sup-
porting brief, and the Charging Party filed an answer-
ing brief to Respondent's cross-exceptions. Addition-
ally, the Minnesota AFL-CIO filed an amicus curiae
brief.
The National Labor Relations Board has consid-
ered the record' and the attached Decision in light of
the exceptions and briefs and has decided to affirm
the rulings, findings,2 and conclusions3 of the Admin-
istrative Law Judge and to adopt his recommended
Order, as modified herein.4
i The unopposed motions by the General Counsel and Respondent to cor-
rect the transcript are hereby granted.
2 We hereby note the follow ing inadvertent errors of the Administrative
Law Judge, which are insufficient to affect the results of our Decision: In sec.
liA, of his Decision, the Administrative Law Judge states that Respondent
admitted in its answer that certain named persons, including Jeffery Berg-
huis, are supervisors within the meaning of Sec. 2(11) of the Act, and are its
agents, whereas Respondent's answer denied that Berghuis has such status:
in sec. Il,D, of his Decision, the Administrative Law Judge states that the
Union was certified by the Board on June 20, 1977, rather than May 20.
1977; and, in the "Analysis and Conclusions" section of his Decision, the
Administrative Law Judge refers to U.S. Lingerie Corporation, 170 NLRB
750 (1968), as a decision of the Supreme Court rather than of the Board.
The Charging Party and the General Counsel except to the Administra-
tive Law Judge's failure to conclude that Respondent discriminalorily
changed its employees' work schedules in November 1977 in violation of Sec.
8(aX3) and (1) of the Act. We find no merit in these exceptions. In this
regard, the Administrative Law Judge merely found that Respondent's
change in its employees' work schedules "appears" to have resulted from
Respondent's animus against the Union. Such an inference is not supported
by the record. The change in employees' work schedules was uniformly ap-
plied by Respondent to all of its employees who previously had worked on a
rotation basis at the drive-up window of the bank. There is nothing other
than the fact that all those affected were union supporters to indicate the
change was for antiunion reasons. Accordingly, we find insufficient evidence
to establish that Respondent, by changing employees work schedules in No-
vember 1977, violated Sec. 8(aX3) and (I).
We additionally find no ment in the General Counsel's exceptions to the
Administrative Law Judge's failure to conclude that Respondent violated
Sec. 8(aX3) and (1) by giving preferential treatment to employees Mary
Schwenk, Ruth Wintheiser, and Debbie Beam in October and November
1977. This allegation was neither alleged in the complaint nor fully litigated
at the hearing.
In view of our Decision herein, we find it unnecessary to pass upon the
Administrative Law Judge's discussion in the "Anlaysis and Conclusions"
section of his Decision of the applicability of N.L.R.B. v. Great Dane Trail-
ers, Inc.. 388 U.S. 26 (1967), and other related cases cited therein.
' The Administrative Law Judge did not include any injunctive language
in his recommended Order, although he did use the broad cease-and-desist
language, "in any other manner" in his notice. We have considered this case
in light of the standards set forth in Hickmortt Foods. Inc., 242 NRLB 1357
(1979), and have concluded that a broad remedial order is inappropriate
inasmuch as it has not been shown that Respondent has a proclivity to
violate the Act or has engaged in such egregious or widespread misconduct
as to demonstrate a general disregard for the employees' fundamental statu-
1. The Administrative Law Judge found that, al-
though Respondent had unilaterally changed employ-
ees' work schedules in November 1977,. Respondent
did not violate Section 8(a)(5) and (1) of the Act be-
cause the Union had waived its right to bargain over
this matter. We agree with his conclusion, but we do
so only for the following reasons.
Prior to November 22 or 23, Respondent's policy
was that any teller who had been scheduled to work
on a Friday evening at a drive-up teller window did
not have to work the previous Monday evening. On
either November 22 or 23, Supervisor Holst, at the
direction of Respondent's president, announced a
change in this policy at an employee meeting. The
employees present at this meeting included Ericson,
the Union's president, and Andresen, its secretary-
treasurer. The change announced by Hoist was that
tellers would no longer be excused from working
Monday evenings when scheduled to work Friday
evenings. This new policy was to become effective
and in fact became effective the following Monday,
November 28. It is undisputed that, prior to its an-
nouncement or implementation, Respondent did not
bargain with the Union concerning the decision or
the effects of this change.
On either November 23 or 24 John Mack, the
Union's attorney and business agent, was informed
by Andresen of the announced change. Thereafter, on
November 29, at the next contract negotiating session
held between the parties, Mack informed Beihoffer,
Respondent's attorney and negotiator, that he ob-
jected to the recent change made by Respondent. Bei-
hoffer responded that he was unaware of the change
and that he would investigate the matter. Later dur-
ing the session, Beihoffer informed Mack that he had
investigated the matter and that Respondent's posi-
tion was that the change made was consistent with its
past practice of scheduling employees to work up to
40 hours per week, when necessary.
Subsequent to this meeting, the Union filed the in-
stant unfair labor practice charge alleging, inter alia,
that the change in employees' work schedules made
by Respondent violated Section 8(a)(5) and (I) of the
Act. However, it is clear from the record, and partic-
ularly Mack's admissions, that other than the No-
vember 29 conversation referred to above, Mack did
not have any discussion with Respondent concerning
such change, did not request that Respondent rescind
the change, and did not request that Respondent bar-
gain with the Charging Party concerning this matter.
It is well established that it is incumbent upon a
union which has notice of an employer's proposed
tory rights. Accordingly. we shall modify the recommended Order so as to
include the narrow injunctive language, "in any like or related manner."
Unless specifically stated otherwise, all dates herein refer to 1977.
245 NLRB No. 47
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change in terms and conditions of employment to
timely request bargaining in order to preserve its right
to bargain on that subject.6 The union cannot be con-
tent with merely protesting the action or filing an un-
fair labor practice charge over the matter.7 In the in-
stant case, although the Union objected at the
November 29 negotiations session to Respondent's
previously announced change in the employees' work
schedules and thereafter filed an unfair labor practice
charge, it admittedly did not seek bargaining over the
matter. In fact, when Respondent explained its ac-
tions, the Union accepted the explanation without ad-
ditional comment. We therefore conclude that, hav-
ing failed to exercise its right to demand bargaining
over the issue, the Union may not now effectively
claim that Respondent unlawfully refused to bargain.
Accordingly, we adopt the Administrative Law
Judge's dismissal of this portion of the complaint.
2. The Administrative Law Judge concluded that
Respondent violated Section 8(a)(3) and (1) of the
Act by sponsoring a picnic from which it discrimina-
torily excluded those of its employees who were union
members. Respondent excepts to the Administrative
Law Judge's conclusions. We find merit in these ex-
ceptions, as indicated below.
In July 1977 Respondent's vice president, Peterson,
held a picnic at his home, as he customarily had done
in preceding years. Invited to the picnic were certain
officials of Respondent, two of Peterson's neighbors,
and three bargaining unit employees. The three em-
ployees were invited by Peterson because they had
been excluded from a picnic held only for employees
who were union members at employee Doris Bos-
hart's home. None of the employees invited to Bos-
hart's picnic were invited by Peterson to the picnic at
his home. Although, in previous years, picnics spon-
sored by Respondent were held at Boshart's home,
Boshart did not offer her home in 1977 for such a
purpose.
In finding the alleged violation, the Administrative
Law Judge drew an inference that the picnic held at
Peterson's home in July was sponsored by Respon-
dent. Such an inference is not warranted herein.
Thus, the record clearly reveals that, unlike Respon-
dent-sponsored picnics held in the past, Peterson paid
for the July 1977 picnic at his own expense. In this
regard, we note that Peterson's canceled personal
check covering the costs of the picnic was introduced
in evidence. Further, Peterson testified without con-
tradiction that he was not reimbursed by Respondent
6 The City Hospital of East Liverpool, Ohio. 234 NLRB 58 (1978); Clark-
wood Corporation, 233 NLRB 1172 (1977); Globe-Union, Inc., 222 NLRB
1081 (1976); Medicenter, Mid-South Hospital, 221 NLRB 670 (1975). Ameri-
can Buslines. Inc., 164 NLRB 1055 (1967).
'American Buslines, Inc., supra, at 1055-56.
for these costs. Additionally, as noted above, those
who attended the picnic did so solely at Peterson's
invitation and the guests included not only bank per-
sonnel but his neighbors as well. In these circum-
stances, we find, contrary to the Administrative Law
Judge, that the evidence herein is insufficient to estab-
lish that the July picnic held at Peterson's home was
sponsored by Respondent and that Respondent dis-
criminatorily excluded certain employees therefrom
in violation of the Act. Accordingly, we shall dismiss
this portion of the complaint.
3. The General Counsel excepts to the Administra-
tive Law Judge's failure to permit the amendment of
the complaint at the hearing to allege an additional
violation of Section 8(a)(l) of the Act; namely, an
interrogation by Supervisor Hoist of employee Irene
Wallin, and both the Union and the General Counsel
except to the Administrative Law Judge's failure to
find such a violation. We find merit in these excep-
tions.
On the last day of the hearing, following the pre-
sentation of the General Counsel's case in chief. Su-
pervisor Hoist was called to testify by Respondent.
She testified, without contradiction, that on the first
Friday in July, while at work, she noticed that the
tellers had circled dates on their calendars and that
they were whispering and passing notes. She asked
employee Wallin what was happening and why notes
were "laying around." Wallin responded that "the
girls" were having a picnic at employee Boshart's
home and that "the union girls" were invited. Hoist
then continued to question Wallin and asked her
whether Mack, the Union's attorney and business
agent, was going to be there. Wallin answered that he
was, and reiterated that the union girls were going to
tbe at the picnic. Hoist also inquired whether Respon-
dent's president was going to be invited and was told
by Wallin that he would be uncomfortable there.
That same day Hoist reported this conversation to the
Respondent's vice president, Peterson.
Following Hoist's testimony, counsel for the Gen-
eral Counsel immediately moved to amend the com-
plaint to allege Hoist's conversation with Wallin as an
additional violation of Section 8(a)(l ) of the Act, spe-
cifically stating that he had not been aware of this
conversation prior to HoIst's testimony. The Admin-
istrative Law Judge stated on the record that the mo-
tion should be denied not only because of the "late-
ness of the hour," but also because the motion was
unnecessary as counsel for the General Counsel could
urge in his post-hearing brief to the Administrative
Law Judge the finding of such a violation, provided
the matter was fully litigated. Although counsel for
the General Counsel in fact sought the finding of such
an additional violation in his brief to the Administra-
tive Law Judge, and the Administrative Law Judge
390
CITIZENS NATL. BANK OF WILLMAR
alludes in his Decision to an allegation in the com-
plaint of unlawful interrogation, he did not specifi-
cally resolve the issue in his Decision. We find that
the Administrative Law Judge erred in not permitting
the amendment of the complaint. Thus, counsel for
the General Counsel's motion was made immediately
after Holst's testimony and upon his first learning of
the conversation in issue. Further, it is clear that the
issue was fully litigated. Thus, although Section
102.17 of the Board's Rules and Regulations, Series 8,
as amended, makes the granting of motions to amend
discretionary with the Administrative Law Judge,
where, as here, the matter has been fully litigated and
the amendment conforms the complaint to the evi-
dence adduced, the administrative law judge properly
should grant the motion.8
We further find that such a violation has been es-
tablished. While Hoist's initial inquiry of Wallin, by
itself, may not have been improper, her further in-
quiry as to whether Mack would be attending the
picnic, made immediately after being informed of the
union sympathies of those who would be in a attend-
ance, amounted to unlawful interrogation. Such an
inquiry was tantamount to inquiring whether union
business would be conducted at the picnic. Accord-
ingly, we find that Respondent, through Supervisor
Hoist, violated Section 8(a)(1) of the Act.9
4. The Administrative Law Judge, in concluding
that the employee strike commencing on December
16 was not an unfair labor practice strike, found that
the only conduct of Respondent found to have been
an unfair labor practice and over which employees
had expressed concern at the December 7 meeting
preceding the strike was exclusion of union members
from the allegedly Respondent-sponsored July picnic.
He found, however, that incident to be too remote to
be considered a causative factor of the strike. He fur-
ther concluded, based, inter alia, on the facts that the
employees made it clear they would strike if the De-
cember 14 negotiating session ended in impasse, and
that they would strike until a collective-bargaining
agreement was reached, that the "sole or principal"
motivating cause for the strike was economic.
Contrary to the standard used by Administrative
Law Judge, the correct standard in determining
whether a strike is an unfair labor practice strike is
whether it is one which is caused "in whole or in
part" by an unfair labor practice. 0
'See, e.g., The Lion Knitting Mills Company, 160 NLRB 801 (1966).
'Members Penelo and Murphy are of the view that Hoist's inquiry about
Mack attending the picnic is only a technical contravention of the statute so
minor in nature as not to warrant either a formal unfair labor practice find-
ing or issuance of a formal cease-and-desist order. They would therefore
dismiss the complaint in its entirety.
I
0
See, e.g., Tufts Brothers Incorporated 235 NLRB 808 (1978); Lrond
Lersurelies, Inc., 213 NLRB 197 (1974).
Inasmuch as we have found that the only unfair
labor practice which Respondent has committed
herein was the interrogation by Supervisor Hoist of
employee Wallin, a matter over which there was no
expression of concern at the December 7 meeting, we
conclude, applying the appropriate standard herein,
that the strike which commenced on December 16
was not an unfair labor practice strike.
5. The Charging Party and the General Counsel
except to the Administrative Law Judge's failure to
find that Respondent's December 29 letter to striking
employees, in which it informed them of the possibil-
ity that permanent replacements might be hired. did
not constitute a threat of discharge in violation of
Section 8(a)(1) of the Act. As we have found above
that the strike herein was not an unfair labor practice
strike, but rather was an economic strike, we find no
merit to these exceptions.
AMENDED CONCI.USIONS OF LAW"
Substitute the following Conclusions of Law for the
Administrative Law Judge's Conclusions of Law 3, 4.
and 5:
"3. By interrogating employee Wallin concerning
its employees' union activities, Respondent engaged
in an unfair labor practice within the meaning of Sec-
tion 8(a)(1) of the Act.
"4. The above-described unfair labor practice is an
unfair labor practice affecting commerce with the
meaning of Section 2(6) and (7) of the Act.
"5. The strike of Respondent's employees which
commenced on December 16, 1977. was not an unfair
labor practice strike."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Citi-
zens National Bank of Willmar, Minnesota, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in said recommended Order, as so
modified:
1. Substitute the following for paragraphs l(a) and
(b):
" In his Conclusion of Law 3, the Administrative Law Judge inadvertentl)
stated that Respondent violated Sec. 8(aKI) of the Act by telling its employ-
ees that they need not join the Union and that they would earn more money
without the Union. However, the record clearly shows, and the Administra-
tive Law Judge found earlier in his Decision, that the incident referred to
occurred more than 6 months prior to the filing of the instant charge, and,
therefore, under Sec. 10(b) no violation of the Act can be found thereon.
Accordingly, we shall amend the Administrative Law Judge's Conclusions of
Law in this regard so as to reflect the violation found herein.
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(a) Interrogating employees about their union ac-
tivities.
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interrogate our employees about
their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
CITIZENS NATIONAL BANK OF WILLMAR
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge and an amended charge of unfair labor practices
filed on December 15, 1977, and January 17, 1978, respec-
tively, by Willmar Bank Employees Association, herein
called the Union or the Charging Party, against Citizens
National Bank of Willmar, herein called Respondent, a
complaint was issued by the Regional Director for Region
18 on behalf of the General Counsel on February 2, 1978,
and an amended complaint filed on March 8, 1978.
In substance, the complaint alleges that Respondent held
its annual picnic on July 3, 1977, and failed and refused to
invite certain of its employees who were members of and
represented by the Union; that Respondent refused and
continues to refuse to bargain collectively in good faith with
the Union by unilaterally instituting a new work schedule
of its employees, which required said employees to work
additional hours each month; that Respondent's employees
went on a concerted work strike which was caused, moti-
vated, and prolonged by Respondent's unfair labor prac-
tices herein described; that said strike was therefore an un-
fair labor practice strike; that Respondent sent its striking
employees a letter which informed them that unless they
returned to work in the immediate future, they would be
permanently replaced; that Respondent's supervisor ille-
gaily interrogated an employee about employees' union ac-
tivities; and that the above-described conduct on the part of
Respondent violated Section (a)(l) and (5) of the Act.
Respondent filed an answer and an amended answer on
February 8 and March 8, 1978, respectively, denying that it
has engaged in any unfair labor practices as alleged in the
complaint.
The hearing in the above matter was held before me in
Willmar, Minnesota, on May 4 and 5 and June 20, 1978.
Briefs have been received from counsel for the General
Counsel, counsel for the Union, and counsel for Respon-
dent which have been carefully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Minnesota. As such. Re-
spondent maintains its principal office and place of business
at 318 West Second Street, Willmar, Minnesota, where it is
engaged in the general banking business.
In the course and conduct of its business operations dur-
ing the year ending December 31, 1977, which is represent-
ative of its operations during all times material herein, Re-
spondent derived gross revenues in excess of $500,000 from
investments, securities, and notes. During the same period,
Respondent engaged in interstate financial transactions
from its Willmar, Minnesota, facility which exceeded
$50,000.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ()R(iANIZATION INVOLVED
Attorney John E. Mack undisputedly and credibly testi-
fied that, until about a month before this proceeding (May
5, 1978), he was business agent for the Willmar Bank Em-
ployees Association; that as such business agent, he com-
menced negotiations in June 1977 as the chief bargaining
agent for the employees, to bargain with Respondent in an
effort to reach an agreement on a collective-bargaining con-
tract regarding wages, hours of work, holidays, bank recre-
ational and social activities, etc., for employees.
The Charging Party alleged, and Respondent admitted,
that: "All fulltime and regular part-time office clerical em-
ployees employed by Respondent at its Willmar, Minnesota
office, including bookkeepers and tellers; excluding officers,
lending officers trainees, managerial employees, profes-
sional employees, guards and supervisors as defined in the
Act, as amended, and all other employees constitutes a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act."
Respondent further admitted in its answer that on May
13, 1977, an election by secret ballot was conducted under
the direction and supervision of the Regional Director for
Region 18 among the employees of Respondent in the unit
392
CITIZENS NATL. BANK OF WILI.MAR
hereinabove described: and that a majority of employees
designated the Union as their representative for the purpose
of collective bargaining with Respondent. Respondent fur-
ther admitted that on May 20, 1977, the Union was certi-
fied as the exclusive representative for purposes of collective
bargaining of all the employees in the unit hereinabove de-
scribed: and that at all times material herein, continuing to
date, the Union has been the representative for purposes of
collective bargaining of the employees in said unit with re-
spect to pay, wages, hours of employment, and other terms
and conditions of employment.
Based upon the foregoing credited testimony, as well as
other credited testimony of record, including the exhibits, I
conclude and find that the Willmar Bank Employees Asso-
ciation, the Union herein, is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
I1. THE Al.l.G(;ED NFAIR l.ABOR PRA( Tl(tS
A. Background Facts
Citizens National Bank of Willmar, Respondent herein,
is a Minnesota corporation engaged in the general banking
business at 318 West Second Street. Willmar, Minnesota.
In its answer. Respondent admitted that the following
named persons occupied positions set opposite their respec-
tive names, and have been and are now supervisors of the
Respondent, within the meaning of Section 2(11) of the
Act, and are its agents:
C.R. Forstrom
Leo R. Pirsch
Paul G. Peterson
Richard R. Thull
Karen Hoist
Jeffery Berghuis
Chairman of the Board of
Directors
President
Vice President
Assistant Vice President
Assistant Cashier
Assistant Installment Loan
Officer
The record has established that on or about March 14.
1977, Respondent's employees submitted to Respondent a
demand for recognition as follows:
We the undersigned, as employees of the Citizens Na-
tional Bank of Willmar, having formed an employee's
association, herewith request recognition from the Citi-
zens National Bank of Willmar as the Exclusive Bar-
gaining Representative for all full time and regular
part-time clerical and office workers, including all full
time and regular part-time bookkeepers and tellers,
employed by the Citizens National Bank at its Will-
mar, Minnesota office, exclusive of bank officers.
guards, and supervisory employees with the authority
to hire, fire, suspend, lay off, recall, promote, discharge
or discipline other employees or effectively to recom-
mend such action where the exercise of such authority
is not merely routine in nature but requires the use of
independent judgment.
This request is backed by more than two-thirds of the
above-described employees, and constitutes an appro-
priate bargaining unit.
This request is accompanied by a form tor your signa-
ture as president of said Citizens National Bank of
Willmar, Minnesota. If you have not signed this docu-
ment or a suitable recognition document by Friday.
March 18, 1977, we will assume that ou have declined
recognition.
In witness whereof, we. the following employees, have
placed our hands this 14th day of March. 1977
Signed by:
Sylvia Erickson
Shirley Solyntjes
Sandi Treml
Taren NovotneN
Irene Wallin
Doris Boshart
Glennis Andresen
Mary Schwenk
Jane Harguth
Ruth Wintheiser
Sandra Van Lerberghe
Attached to the above request for recognition (Resp.
Exh. 38) is a recognition agreement submitted to the Re-
spondent for its voluntary signature to recognize the Will-
mar Bank Employees Association as the exclusive collective
bargaining representative of all its full-time and regular
part-time clerical and office employees in the unit hereinbe-
fore described.
The record has also established without dispute that a
union election was held by the employees under the aus-
pices of the Board on May 13. 1977. Willmar Bank Em-
ployees Association (WBEA) was certified the collective-
bargaining representative of Respondent's employees on
May 20. 1977. Undisputed evidence shows that John Mack
commenced bargaining sessions with Respondent on June
28, 1977. and participated in approximately nine other such
sessions at various periods during 1977, and on two other
occasions in early 1978. Dale F. Beihoffer, attorney for Re-
spondent since January 1977 was the principal negotiator
for Respondent and participated in all of the bargaining
sessions mentioned by the Union's negotiator. Mack (the
Union's attorney).
Both counsel for the General Counsel and counsel for the
Union argue in their briefs that the allegations in the com-
plaint herein must be viewed against a background of Re-
spondent's animus towards any concerted or union activity
of its employees. In support of their arguments, they cite
various pieces of correspondence in the record, one of
which refers to a charge of sex discrimination previously
filed with the Equal Employment Opportunity Commission
against Respondent. but subsequently withdrawn voluntar-
ily by the employee (Ruth Wintheiser) on April 12. 1977
(G.C. Exh. 8).
Other correspondence in the record (Empl. Exhs. E2 and
E3) recites charges against Respondent involving a change
in employees' working assignments on April 9. 1977, and
charges that Respondent has refused and failed to bargain
in good faith because it has refused to include in the con-
tract a nondiscrimination clause against race, sex. creed.
color. religion, or national origin; and that on May 16,
1977, Respondent told an employee she need not join the
Union because she would get more money than union per-
sonnel. On January 18. 1978. the Regional Director for Re-
gion 18 held that Respondent's failure to agree to a nondis-
crimination clause was not supported by sufficient evidence
of bad-faith bargaining, and that the other charges were not
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supported by sufficient evidence and were not brought
within the 6-month limitation; therefore, they were dis-
missed. The Union's appeal of the Regional Director's rul-
ings was affirmed by the Board's director of office of ap-
peals (Empl. Exh. E3).'
B. The Concerted and Protected Organizing Activities of
Respondent's Employees and Respondent's Reactions
Thereto
Shirley Solynjes, who has been employed by Respondent
since February 1976, testified that in early March or late
February 1977, she called the home of Vice President Peter-
son and asked permission to see him in his office. A few
days later, she went to his office and told him that she had
received a small raise in January 1977, but it was not equiv-
alent to what the other employees had received. Vice Pres-
ident Peterson told her he would speak with her supervisor,
Doris Boshart. Not having heard from Peterson a week lat-
er, Solyntjes said she revisited his office and asked him
whether he had spoken to her supervisor, Doris Boshart,
and Vice President Peterson said, "No." She then asked
him what could he do about it or whether it was possible
for her to get a raise in the near future. Solyntjes continued
to testify as follows:
Q. What, if anything, do you recall him responding
to that?
A. He kind of stuttered around a little bit and then
he said, "Well, "about the union, he said, "Ifyou join the
union," and then he said, "They'll probably be frozen. "
He said, "If you don't join the union," the)' can maybe
work something out for us, a type of raise or something.
[Emphasis supplied.]
Shirley Solyntjes said she left the office and she never
received the raise.
Vice President Peterson testified that he was not aware of
any union activity of the employees at the time Solyntjes
held her February 1977 conversation with him. He said he
first became aware of employees' organizing activity about
March 14, 1977, after three or four people went into Pres-
ident Pirsch's office and presented him with the employees'
request for recognition and request for agreement (Resp.
Exh. 38). He categorically denied that he mentioned union
activities to Shirley Solyntjes during their conversation in
early March.'
Based upon the foregoing credited evidence, I conclude
and find that Respondent (Vice President Paul Peterson)
did not refer to Shirley Solyntjes' union interest or activity
during their conversation about a larger raise in pay. In
fact, while it is possible and probable that Respondent's
I The facts set forth above are undisputed and are not in conflict in the
record.
2 While I credit employee Shirley Solyntjes' testimony that she had a con-
versation with Vice President Paul Peterson, I do not credit her statements
that he told her a larger salary increase would be affected by her joining the
Union. I discredit her testimony in this regard not only because I was per-
suaded by her demeanor that she was not testifying truthfully, but also be-
cause the record does not show that Respondent (Peterson) had any knowl-
edge of employees' organizing activities before March 14, 1977. 1 was
persuaded by Peterson's demeanor that his denial of Solyntjes' account was
truthful.
employees were engaged in union activity in late February
or early March 1977, I do not deem it reasonable to infer
from the single effort of Solyntjes, on her own behalf, to
obtain a larger raise that Respondent's employees were en-
gaged in union activity at that time (prior to March 14,
1977). Moreover, even if the employees were in fact en-
gaged in union activity before March 14, 1977, the record
herein is barren of sufficient evidence upon which to infer
or support a conclusion and finding that Respondent had
knowledge of such activity at the time of Solyntjes' conver-
sation with Peterson.
Jeffkn Berghuis, assistant vice president of Respondent
since January 1, 1978, testified that for several years prior
to January 1978 he was an installment loan officer. In his
current capacity, however, he said, he approves cashier
checks, takes loan applications, assists on loan letters, and
has them approved by Assistant Vice President Richard
Thull. He acknowledged that on a rotation basis with
Assistant Vice President Richard Thull and Assistant Cash-
ier Karen Hoist, he is sometimes the only person in charge
of the bank on Tuesday evenings and on every third Friday
evening. Each of them, he said, is an officer of Respondent,
and none of them voted in the union election.
Assistant Vice President Berghuis admitted that on or
about May 18, 1977, he wrote a note (G.C. Exh. 2) which
read as follows: "Did you know you don't have to join-
union. I found out yesterday through our attorney." He
further acknowledged that he passed this note to Ruth Win-
theiser, who acknowledged that she received the note from
Berghuis and wrote a response thereon as follows: "What
happens if we don't?" She said she passed the note back to
Vice President Berghuis, who admitted that he then wrote
thereon as follows: "You will get more money than union
personnel."
Berghuis also testified that the information which formed
the substance of his advice in the note (that employees did
not have to join the Union) was given to him by his super-
visors, Peterson and President Pirsch, during a bank officers
meeting.
Berghuis said he based his statement-that employees
would receive more money if they did not join the Union-
upon his personal experience, and not upon any statement
made by an official of Respondent.
Berghuis further testified that he had the authority to
sign cashier's checks and to initial the timecards of Respon-
dent's employees when they forgot to do so, and that Thull,
Pirsch and Peterson all had such authority. He said he col-
lected the timecards an computed the payroll for all em-
ployees including managerial personnel. However, he con-
tends that no employees of the bank report to him
personally, that he has no authority to hire, fire, transfer,
suspend, lay off, recall, promote, assign work, or accept or
process grievances, but that he does ask employees to assist
other employees. He said he has never issued a warning,
directed work, disciplined or rewarded any employee, or
recommended any of the above actions with respect to em-
ployees. However, employees have come to him with com-
plaints and grievances. He said he does not grant leave or
time off and has nothing to do with the formulation of bank
policies. He does have the responsibility for locking up the
bank every Tuesday evening, every third Thursday evening,
394
CITIZENS NATL. BANK OF WILLMAR
and every third Friday evening. He admitted on cross-ex-
amination that bank employees come to him with problems
regarding scheduling, or to change their lunch hour.
While Berghuis denied that he had any authority with
respect to the formulation of bank policies. he did admit on
cross-examination that on occasion he has advised Thull
whether a particular applicant was a risk, and that occa-
sionally tellers come to him for his O.K. of checks. The
principal function of his job, he said, is to pay the bank bills
(overhead) every month.'
I therefore conclude and find upon the foregoing credited
testimony that on or about May 16, 1977. Installment Loan
Officer Berghuis had authority, and did in fact receive em-
ployees' complaints and grievances; that he kept and
marked their timecards when employees neglected to do so:
that he changed their lunch hour when they requested a
change; that he directed them to assist other employees in
their work duties: that he attended management policy-
making meetings and occasionally recommended the
change in a bank form or the credit worthiness of an appli-
cant for a loan: and that employees viewed him as a bank
official with supervisory authority: consequently, I find that
he had actual and apparent authority of a supervisor, and
was and is a supervisor and agent of Respondent within the
meaning of the Act. American Door Companvy. Inc., 181
NLRB 37 (1970). and Aircraft Plating Companvy Inc.. 213
NLRB 664 (1974).
I further conclude and find that Berghuis, as such super-
visor and agent of Respondent, told employee Ruth Win-
theiser that she did not have to join the Union and she
would earn more money than union personnel: that other
employees saw Supervisor Berghuis' statements to em-
ployee Wintheiser; that Supervisor Berghuis wrote Win-
theiser his note to dissuade her from joining or to cause her
to abandon or withdraw her membership and support for
the Union: that such conduct demonstrated Respondent's
animus towards unionization of is employees; and that but
for the fact that such conduct by Respondent was com-
mitted more than 6 months prior to the filing of the charges
herein, it would have constituted restraining and coercive
conduct violative of the Act.
Although Beihoffer, negotiator for Respondent, testified
that during the negotiation session on August 9. 1977. he
disavowed the contents of the note and assured the Union
that no such unlawful practice would be implemented by
Respondent, I find such assurance, coming 3 months after
the incident, was too late to constitute a valid and effective
disavowal. Moreover, the record does not show that such
disavowal was ever communicated to the employees. In any
event, such disavowal could not erase the vividly mani-
'While I do not credit Assistant Installment Loan Officer Jeffery Berghuis'
denial of having any supervisory authority over bank (teller) employees. I
nevertheless credit essentially all of his enumerated duties because his testi-
mony in this regard is not only undisputed, but to some extent corroborated
by other bank official witnesses. However, I do not credit Berghuis' explana-
tion that the statement in the subject note (that employees who do not join
the Union earn more money) was based upon his personal experience. I do
not credit the letter explanation because, when he testified in this regard. I
observed that he was selective. cautious, and uneasy while answering ques-
tions on cross-examination. Moreover. I was not satisfied that Berghuis had
truthfully documented or established an personal prior experience upon
which he could have reasonably based such an opinion.
fested union animus of the Respondent. There is nothing in
the record to show that Respondent had a change of heart
towards the organizing efforts of its employees.
Glenis R. Andresen testified that just prior to the union
election in May 1977. but after the employees filed with the
Board for recognition, she was having financial problems.
As a result, she was a little apprehensive about her job
security and the financial transactions of her husband. so
she asked Berghuis if she could speak with him and he
consented. Andresen testified that the substance of their
conversation was as follows:
I was scared for my husband's future opportunity
for getting loans and I asked him [Berghuis] what
might happen if I dropped the EEOC charge against
the bank. And if I dropped an> thinking at all of going
union.
She continued to testify as follows:
JUDGE GADSDEN: Just a moment. may I ask this
question?
Q. (By Mr. Sykes) Would you please tell us now
what he said to you in response to this?
A. He told me that if I had done these things. and
he was talking about dropping the E.E.O.C. ('hbarge
and stopping the union. He aid that I would he treated
better. [Emphasis supplied.
Jeffery Berghuis, in further testifying. admitted that he
had a conversation with Glennis Andresen in 1977 when
she told him she was very upset about the Union. He con-
tinued to testify as follows:
Q. Did she tell you what she meant b she was
really upset?
A. She just said she couldn't take it anymore. She
said that she was afraid that her business dealings with
her husband, her husband's business would be affected
by what she did or what she did not do.
Q. Did she say why she thought her husband's busi-
ness dealings might be affected?
A. Because her husband's business dealings were
with the Citizens State Bank in Clara City of which
Mr. Kelly Forstrom is president.
Q. Does Kelly Forstrom have any relationship to
the Citizens National Bank of Willmar?
A. Yes, he does.
Q. What is that?
A. He is a member of the hoard.
Q. Did she make any further remark or have an 3
further comment about her husband's business deal-
ings?
A. I can't really recall what she said about it.
Q. Did you make any response to her in regard to
these statements she made about her concern?
A. I assured her that I didn't think that her hus-
band's business with that bank would be affected
whatsoever by what she did because I personall 3 knew
Kelly Forstrom as a neighbor all my life and I didn't
think he was that kind of a person that would let some-
thing like this interfere with other business dealings.
Berghuis denied that he said anything to Andresen about
her union involvement.
395
I)ECISIONS OF NATIONAL LABOR RELAlIONS BOARD
Based upon the foregoing credited testimony. I conclude
and find that Respondent (Assistant Installment Loan Offi-
cer and Supervisor Berghuis) did. on or about May 14.
1977. promise employee Glennis Andresen that she and her
husband would be treated better in their loan transactions
with the Respondent bank if she would drop her EEOC
charge against Respondent and abandon her interest in and
support for the Union. I further find that such promise by
Berghuis unequivocally cestahlis/hed evidence o(/ Respondenl's
animus towards its employees' organizing a union, and that
but for the occurrence of this incident more than 6 months
before the filing of the charge herein, and consequently
being barred by the statute of limitations, it would in all
probability constitute coercive and restraining conduct io-
lative of the Act.4
C. Did Respondent Discriminatle Against its Union Memler
Employees in Hosting its A nnual July 4th Picnic
Doris Boshart testified that on June 19, 1977. she had
been employed by Respondent for 10 years: for the first 5.
she had been a teller, and she was thereafter made head
bookkeeper.
Andresen said that Vice President Thull announced that
the bank's annual picnic was to be held at her house on
July 3, 1975, with the bank providing the food and drinks.
She acknowledged that she had volunteered her home as
the site for the picnic. She further stated that she had also
offered her home for the 1975 and 1976 picnics, but not for
the 1977 picnic. In 1977. she said, the annual picnic was
held in August after being postponed several times since
July 3 or 4. She said she was not invited to the 1977 picnic.
Sylvia Erickson testified that she was not invited to the
bank's summer picnic in 1977. She nevertheless confirmed
that Respondent had a picnic on July 3, 1975, about which
she had been told by other bank employees and to which
she was invited by Vice President Richard Thull, who also
asked her if she wanted to bring a guest.
Glennis Andresen said she was not invited to the 1977
summer picnic by any member of management. She ac-
knowledged that Respondent's Exhibits 20(a). 20(b), 20(c).
and 20(d) are her timecards.
Paul Peterson, vice president and cashier for Respondent.
testified that during the first part of July 1977, before July
4, Karen Hoist came to his office and informed him that
Irene Wallin had told her that the girls were planning a
picnic at Doris Boshart's house on July 4. He said Hoist
was referring to the eight girls who had formed the Union.
He asked Hoist who was invited and who was not, and she
told him who was not invited. He said he took no action at
that time. However, he said, since he has a picnic at his
house every year, he decided he would invite the four bank
employees who were not invited to the July 4 picnic at
Boshart's house. He asked President Pirsch about the pic-
nic, describing the discussion as follows:
I4 discredit Assistant Installment Loan Officer Berghuis' denial that he
told Andresen that her husband would be treated better on his loan transac-
tions if she would drop her EEOC charge and stop thinking about support-
ing the Union. I credit Andresen's account in this regard because was
persuaded by her polite but truthful demeanor that she was telling the truth.
and because her version is consistent with the greater and credited evidence
in this case.
A. I asked Mr. Pirsch if it was all right if I had a
picnic. Hie said, "What ae you asking me lir?"
"Well," I said, "I am going to invite some of the people
from the bank but not all of them and I don't want any
repercussions," and he said, "T'his is a free country and
Sou can invite whoever you want but the bank isn't
going to pay for it." I said. "Of course not. I know
that."
Peterson further testified that the bank had a picnic at his
home in July 1977 and that he personally invited the people
in attendance. He further stated that prior picnics, held at
Doris Boshart's house in 1975 and 1976, were held in re-
sponse to her offer to host such picnics, and that he was one
of the bank officials who invited the employees to attend
them. In July 1977. he said, Boshart did not volunteer her
home and he did not ask her to host the picnic: instead, he
hosted the picnic himself and he did not invite Doris Bos-
hart.
He said he invited Dick Powell and his wife, Ruth Wen-
theiser. Sandra Van Lerberghe, Debbie Beam. Karen fJoist
and her husband. Richard Thull. Jeffery Berghuis. and
Kevin Bostrom. President Pirsch was out of the city and did
not attend the picnic. Peterson further stated that he did not
invite Mary Schwenk. Taren Novotney, Glennis Andresen.
Sylvia Erickson. Sandra Treml. Shirley Solyntjes. Irene
Wallin, or Jane Harguth. None of these women attended
the picnic. Peterson also testified that he invited his neigh-
bor. John Miller. who is not an employee of the bank. He
did not invite the bank's janitor, who had not attended the
prior picnics.
The picnic was held July 21 or 22. 1977. Peterson said he
bought the meat and Kevin Bostrom bought the sweet
corn: each individual brought his own drinks, and Peterson
served coffee. At the trial he presented his own personal
check, dated July 22. 1977 (Resp. Exh. 35), paid to a food
store for T-bone steak. He testified that the bank did spon-
sor and pay for employee picnics during 1976 and 1975.
except for the beverages. He also presented and identified
checks of the bank as proof that it paid for the 1976 picnic
(Resp. Exh. 36). and for the picnic in 1975 (Resp. Exh. 37).
Berghuis further testified that he was in charge of the pop
machine in the bank in 1977. and to his knowledge, the
money from that machine has never been used to defray
expenses for bank functions such as a picnic. lie admitted
that the bank had had a picnic in 1974, 1975. and 1976 at
the home of Doris Boshart, and that the bank had supplied
the meat and refreshments. He said he was never asked to
contribute any' money towards such picnics. He acknowl-
edged that the picnic of bank employees was held at Peter-
son's home in July of 1977 and that persons in attendance
were: Vice President Paul Peterson. Assistant C'ashier Ka-
ren Hoist, Bookkeeper and Teller Ruth Wintheiser. Debbie
Beam. Sandy VanLerberghe. Assistant Vice President Rich-
ard Thull. and Kevin Bostrom.
Berghuis further testified that he had personally been in-
vited to the Juls 1977 picnic by Peterson and that he and his
wife attended the picnic. There was also a nonbank em-
ployee present at the picnic. He said Peterson provided
everything except the sweet corn which was provided by
Kevin Bostrom, and everybody brought their own drinks.
396
CITIZENS NATL. BANK OF WILLMAR
The bank did not pay for any part of the sponsorship of the
picnic.
Glennis Renae Andresen was employed by Karen Hoist as
a teller in October 1976. She testified that shortly after the
employees submitted their petition for recognition to Re-
spondent (March 14. 1977) she started experiencing some
apprehension about her involvement with the Union. and
she requested a conference with Assistant Installment oan
Officer Jefferey Berghuis. According to her testimony thier
conversation was as follows:
A. I told Jeffrey Berghuis that I was scared for my
husband's future possibility of getting loans and I
asked him what might happen if I dropped the
E.E.O.C. Charge against the bank. And if I dropped
any thinkings at all of going union ...
Q. (By Mr. Sykes) Would you please tell us now
what he said to you in response to this?
A. He told me that if I had done these things. and
he was talking about dropping the E.E.O.C. Charge
and stopping the union. He said tha I would he treated
better ...
* * *
Q. (By Mr. Sykes) O.K., do you recall anything else
that he said to you or you said to him at that time?
A. Yes.
Q. Would you please tell us what that was?
A. Well, I live in Clara City and I asked him if I
would have a chance of getting into Kelly Forstrom's
bank in Clara City. If I had more of a chance then I
would if I stayed with all of this, and. he said, "Yes. I
am sure you would."
In response to Andresen's testimonial account of their
conversation, Berghuis testified that his reply to Andresen
was simply as follows:
I assured her that I didn't think that her husband's
business with that bank would be affected whatsoever
by what she did because I personally knew Kelly For-
strom as a neighbor all my life and I didn't think he
was that kind of a person that would let something like
this interfere with other business dealings.
Andresen also testified that the Willmar Bank Employees
Association has been the certified collective-bargaining rep-
resentative of Respondent's employees since May 20, 1977.
that the Union commenced bargaining with Respondent in
June 1977. and that she had participated in those bargain-
ing sessions. She corroborates the prior credited testimony
herein that the November change in work hours was never
mentioned in the bargaining sessions.
Andresen testified that she is secretary-treasurer of the
Union, which met prior to November 1977. She said Mary
Schwenk has not attended a union meeting since July of
1977 and she is currently $2.50 in arrears for union dues.
which are $.50 a month. Andresen said that after she was
made teller, Debbie Beam was hired by the Respondent in
June 1977 without any teller experience, but she was not
made a part of the rotating shift schedule. She said when
she (Andresen) and other rotating tellers asked Karen
Hoist. "Was Debbie Beam going to rotate also ?" Hoist
replied. "she is just in the teller line to help you. she is not a
teller", and she (Holst) walked away." In late October 1977.
Andresen said the positions of Marx Schwenk. who was
receptionist-secretary, and Debbie Beam. were switched,
one for the other's.'
Ruth Wintheiser testified that she has been an installment
clerk for 2 years since the strike. She was acting teller inside
the drive-up teller window for 2 months, until June 1977.
At that time Penny Walters left the employ of the bank.
and Wintheiser was moved to inside teller. She stated that
she is not a member of the Union (WBEA) and she ac-
knowledged that she had expressed her desire to be moved
to an inside teller window to Karen Hoist and to other
employees. Wintheiser also acknowledged that she pre-
pared a complaint (G.C. Exh. 8) to the Equal EmploN ment
Opportunity Commission on April 12, 1977. while she was
still an outside teller. She acknowledged that she signed the
request for union recognition dated March 14. 1977.'
Based upon the foregoing credited testimony I conclude
and find that Respondent (Supervisor Berghuis) promised
employee Glennis Andresen better treatment b the bank
with respect to family loans and to her opportunity to se-
cure bank employment in Clara City. Minnesota. i she
were to abandon her EEOC claim against Respondent and
withdraw her membership and support from the Union;
that Respondent implemented a change in employees'
schedules (tellers who were members of the Union) without
consulting, notifying, or discussing the change with the
Union, the certified bargaining representative of the em-
ployees; and that employees Mary Schwenk and Ruth Win-
theiser were given better and more desired jobs and job
hours by Respondent after they withdrew their support
from the Union.
I further find that the above conduct by the Respondent
evidenced animnus towards enmployees' concerted and union ac-
tivi:; and that such conduct would ordinarily have consti-
tuted coercive, restraining, and discriminatory conduct
against the employees for exercising such protected Section
7 rights. in violation of the Act. had it occurred within 6
months prior to the filing of the charges herein. These find-
ings are further substantiated by additional evidence. infra.
D. Respondent Changes W'ork Hours o1 Several Enplvees
Irene Wallin testified that in April 1977. Karen Hoist
called a meeting of the tellers and bookkeeping employees.
I credit the testimonial account of Glennis Andresen with respect to her
conversation with Supervisor Berghuis about her fears of reprisal hb Respon-
dent concerning her husband's loan transactions and her opportuniti to se-
cure employment with the bank in Clara City,. Minnesota I credit her testi-
mony and discredit Berghuis' version, not only because I was persuaded b)
her demeanor and not persuaded by his demeanor. that she was testifying
truthfully. but also, because her version coincides with the logical consis-
tency of all of the evidence of record. I also credit Andresen's testimon to
the effect that Respondent's November change in the teller's work schedule
was not mentioned in the bargaining sessions, and that employee Mary
Schwenk had apparently abandoned the Union and was given Beam's posi-
tion, which is a better job.
I credit Ruth Wintheiser's testimony because it is Indisputed and it is
consistent with the credited testimony, especially with respect to her having
joined the Union in March and thereafter abandoning the Union after she
was assigned to the Installment department and ultimately to a teller posi-
tion.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during which she advised them that Ruth Wintheiser was
being assigned to the loan department. Teller Sylvia Erick-
son objected because the reassignment changed her work-
ing hours and affected her babysitting arrangement. Karen
Hoist told her that was not the bank's problem and that she
would have to fit into the change. Wallin said she then
volunteered to take the drive-up window. The rotation
schedule continued until Wintheiser was assigned to the
loan department in October 1977 and she (Wallin) com-
menced training Ruth Wintheiser to be a vault teller in
April or May 1977. the day after Wintheiser dropped her
lawsuit against the bank. Karen HoIst directed her to train
Wintheiser as a vault teller and she complied with those
instructions but did not lose any money or her title as a
result thereof.
Karen Hoist, assistant cashier for Respondent for 8 or 9
years, testified that she supervises Respondent's tellers; that
Respondent has three teller windows and one loan teller
window; and that in and prior to October 1977. Respon-
dent had a policy that tellers who were scheduled to work
on Friday evenings for I month on the inside did not have
to work the previous Monday evening. HoIst's testimony in
this regard was corroborated by the testimony of tellers Syl-
via Erickson, Glennis Andresen. and Irene Wallin, who ad-
ditionally testified that the policy was changed in Novem-
ber of 1977.
Hoist further testified that in or about the second or third
week of November 1977, she held a meeting of all tellers and
bookkeepers and advised them that from then on, everyone
would work on all Mondays regardless of whether they
worked Friday evenings. She denied she made this change
in policy, but said that during a management meeting, Pres-
ident Leo Pirsch had made the final decision to change the
aforedescribed policy. Hoist testified that tellers may leave
when the work is done, but if they work more than 40 hours
a week, they receive time-and-a-half. If they work on Satur-
day, the get time off during the week. She said when the
bank no longer opens on Saturdays, in April, the employees
go back to their rotating schedule. Employer's Exhibit 14
shows the rotating schedule on which the tellers at windows
A, B, and C worked from April through October and a part
of November 1977.
Karen Hoist continued to testify as follows:
A. I had a meeting with the tellers and explained to
them the new procedures after 3:00.
Q. You previously testified that there were six peo-
ple who would be affected by the change. Can you
name those people?
A. At that time it would have been Sylvia Erickson,
Shirley Solyntjes, Sandy Treml. Jane Harguth-there
weren't six ....
Q. You testified that the effect of this change was to
add an hour-and-a-half. Isn't it true that the effect of
the change was to require certain employees to come
back on a Monday evening after they had been al-
lowed to go home?
A. For one person.
Q. One person, yes. That person was going to have
to come back to the bank?
A. Yes.
Q. You testified that there were six employees af-
fected or who would be eventually affected because of
that rotation and that they were Sylvia Erickson, Shir-
ley Solyntjes, Sandy Treml. Jane Harguth. Irene Wal-
lin, and Glennis Andresen, right?
A. Yes.
Q. Those were the only employees affected, is that
not true?
A. Yes.
Q. Isn't it true that Cilennis Andresen asked ou at
that meeting if Ruth Wintheiser and Mary Schwenk
wouldn't be affected by this change, if thev wouldn't
have to do this?
A. I don't recall it, but I believe I said something in
my testimony about it because the loan people weren't
involved in that area.
Q. You don't recall her asking?
A. No.
Q. Do you recall saying to her that they didn't have
to because they didn't want to?
A. No.
Leo R. Pirsch. president of Respondent, admitted in his
testimony that he instructed Karen Hoist to change the
hours of the tellers during the November meeting and that
he had the ultimate authority to do so. He admitted that he
did not contact or advise any of the employees or the Union
(Willmar Bank Employees Association), the certified bar-
gaining representative of the employees, before ordering the
work hours change. He also admitted that Respondent and
the Union commenced negotiation sessions in midsummer
(late June or early July 1977) in an effort to obtain a collec-
tive-bargaining contract; that they had had several bargain-
ing sessions before November and were in Federal media-
tion with a Harvey Paulson, and had a bargaining session
scheduled for late November. at the time he ordered the
work hour change.
With respect to the November 1977 change in employees'
working hours, teller Irene Wallin testified as follows: "We
asked if all the tellers would be included because this would
mean it would be less a number of times for each one and
she said 'No.' " Wallin further testified that Respondent Ex-
hibit 14 describes the rotating work shifts instituted b the
Respondent in November of 1977. She said the employees
affected by the change were: Sylvia Erickson. Glennis An-
dresen, Sandy Treml. Jane Harguth. Shirley Solyntjes and
herself. She said employees not affected by the working
hour change were: Ruth Wintheiser and Mary Schwenk.
bookkeepers Doris Boshart and Taren Novotney, and the
receptionist. Wallin also said Novotney could not do teller
work but Boshart could. She further stated that she is a
member of the Union and so was Mary Schwenk but not
Ruth Wintheiser. Wallin said she worked with Sylvia Erick-
son, Glennis Andresen, and Ruth Wintheiser until the latter
went to the loan department, and she (Wallin) was required
to work the drive-up window shift. In January 1977, she
said, Ruth Wintheiser was hired for the drive-up window
on a permanent working basis from 10:30 a.m. to 5:30
p.m.; and she trained Wintheiser for 3 or 4 months on the
inside before she was assigned to the drive-up window.'
I credit the above testimony of Irene Wallin. Karen Hoist. and President
Leo R. Pirsch because it is essentially consistent and without conflict.
398
CITIZENS NATI. BANK OF WILl.MAR
Based upon the foregoing credited testimony, I conclude
and find that the Respondent had unqualified authority to
reassign workers (Wintheiser Erickson, Andresen. and
Beam) and to change their hours of work prior to union
certification (June 20, 1977). However, while the Respon-
dent was within its rights to make such changes, it is clear
from the evidence of record that employees (Wintheiser,
Schwenk, and Beam) who terminated their concerted, and
ultimately their union activity, were given preferential
treatment by Respondent, in the assignment of jobs and
working hours, over employees who did not relinquish such
activities or interests. In other words, it is unequivocally
clear that the employees most adversely affected by the job
reassignments and the change in working hours were the
employees who were consistently union members.
Such preferential treatment accorded to nonunion em-
ployees by Respondent amounted to discrimination against
the union employees. Moreover, such discriminatory con-
duct committed by Respondent prior to the Union's certifi-
cation on June 20. 1977. is evidence of Respondent's ani-
mus towards the employees' concerted and union activities
prior to that date. However, Respondent's unilateral
change of the employees' work schedules in November
1977, without consulting or notifying the employees or the
Union, (the certified collective-bargaining representatie of
its employees) constituted bad faith bargaining, in violation
of Section 8(a)(5) of the Act.
E. Factors Relating to Emnplqvees' Vote To Strike
Wallin testified that she is a member of the Union and.
since the summer of 1977, had participated on behalf of the
Union in bargaining with Respondent about salary., hours,
vacations, holidays, insurance benefits, a nondiscrimination
clause, and seniority. The Respondent's change in work
hours in November of 1977 had never been discussed with
the Union in any of the negotiating sessions. She said the
employees attended a union meeting on December 7. 1977.
and since an agreement had not been reached, they voted
that if the next mediation session ended in an impasse, they
would then take a strike vote. The mediation session did
end in an impasse and the employees voted to strike, effec-
tive December 16, 1977. In describing the events of that
meeting. Irene Wallin continued to testify as follows:
Q. Mrs. Wallin, would you please tell us how that
strike came about.
A. We felt that we had been in negotiations and
mediation sessions for quite some time and nothing
had, only a few items had been really settled upon or.
not really settled upon but agreed upon. The changing
of the hours was significant because it was not the first
time this had happened and the women were angry
about it. I think other things discussed were the pay-
roll, of course, and the vacation benefits that we were
trying to get for our employees. Also, one of the things
that was discussed was a note that had been written by
one of the officers to one of the employees. We also
discussed filing unfair labor practices.
Wallin further stated that she has remained on strike to
the present time and has not made an offer to the Respon-
dent to return to work. She identified Respondent i xhibit
15. a summary of agreed items which was presented or
shown to the parties on the negotiating team for the em-
ployees. She admitted that she attended meetings at the
Federal Mediation Service on several occasions and. on one
such occasion, she left work at II a.m. to do so. The strike
vote was taken on the basis that the strike would last until
an agreement with the bank is reached that the union mem-
bers approve. Wallin also stated that when she was made
vault teller she did not recei'e a raise. She said Jane ltar-
guth lives 20 miles fr Willmar and Glennis Andresen lives
in Clara City, Minnesota. On Mondays she would go home
and prepare her dinner and return to the bank to work from
4 to 6:15 p.m.
On November 29. 1977. the Respondent. during the ne-
gotiation session. presented the Union and employees with
a series of proposals towards a collectie-bargai ning con-
tract (Resp. Exh. 17).
Sylvia Erickson also corroborated other testirnon\ that
the Union met in early December 1977. when Irene Wallin.
Doris Boshart, Glennis Andresen, Shirles Sol ntjes. Sands
Treml, Taren Novotney. herself. their attorney. John Mack.
Archie Hanson. Gail Watkins, DarNll Terlisner and another
person named Dan (She could not recall his last name.)
were present.
At that meeting. Erickson testified. she talked about their
hours being changed and the note she found in the trash
basket, as well as the 2-week shift. She said she also talked
about the picnic or parts that had been held b3 the hank in
July 1977 and the reasons for going on strike. She said the3
discussed unfair labor practice charges and theN unalil-
mously decided by a vote to strike if negotiations with Re-
spondent failed. She acknowledged that Respondent Ex-
hibit 21(a) through (d) are her timecards. indicating her
work schedules, and that she has not offered to return o
work since the strike began on December 16. 1977. She
further acknowledged that Respondent's Exhibit 15 is a
tentative agreement reached between Respondent and the
Union during the negotiation session on Novemnber 29.
1977.
Glennis Andresen testified that the UI nion met during the
first week in December 1977, at which time she and t'ellov
employee Sylvia Erickson spoke about Irene Wallin's being
replaced by Wintheiser. She said she (Andresen). Erickson.
and Wallin also talked about the drive-up shifts being
placed on a 2-week alternating basis, and that Wallin and
Doris Boshart compared the past pattern of conipan) pic-
nics with the last picnic in July 1977. about which the. ,ere
not notified. She said their counsel. John Mack. advised
them of their options. They discussed the pros and cons of'
going on strike and unanimously decided by vote to strike.
with the expectation of further bargaining. Howeser nego-
tiations broke down and on December 15 the Union went
to the National Labor Relations Board. On December 16.
the Union went on strike and she and other striking em-
ployees have been on strike since that time.
Doris Boshart stated that Hanson. Olsen. and Terlisner
of the bank were at the early December meeting. At that
meeting, she said, the employees voted to strike and to file
unfair labor practice charges against Respondent. At the
end of the mediation session, the parties had not reached
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement. She said the bank has not asked her to return to
work since she went on strike.
Dale Beihoffer. attorney for Respondent since 1977, testi-
fied that he has been involved in negotiations on behalf of
Respondent with the Union which involved 13 or 14 nego-
tiation sessions. He further testified that the unresolved is-
sues outstanding are as follows:
Yes, wage article, seniority, vacations, discipline and
discharge question, that relates to the probation pe-
riod, sick leave provision that's outstanding, non-dis-
crimination clause, union security clause, an article
with respect to technological change, there is a pro-
posal with respect to maternity leave. I believe the
union has made a proposal with respect to reinstate-
ment of strikers. There may be another one but I don't
recall it at the moment.
Beihoffer further testified that the conditions set forth by
the Union for ending the strike are as follows: reaching a
full contract settlement on item roman numeral 1, presum-
ably Respondent's proposal, and Respondent Exhibit 15
Biehoffer testified that the most difficult issue for resolv-
ing the strike is the employees' demand for reinstatement of
the striking employees. He continued to testify as follows:
A. Yes, I was aware that the employees had been
told that as set forth in the last paragraph, General
Counsel's Exhibit No. I-J. Page 2, that the bank had
now reached the point that they must seriously con-
sider the possibility of hiring permanent replacement
for the positions. That they were reluctant to take such
a step, having serious implications, but that unless the
employees returned to work in the immediate future,
the bank would have no other alternative.
Q. Now, on the letter dated January 13th. was there
anything at all in that letter offering to reemploy em-
ployees who had gone out on strike?
A. No.
Q. Did you at any time, after the strike began and
after the letter of December 29, make an offer to rehire
all of the employees?
A. No.
Leo Pirsch, president of Respondent, corroborated Peter-
son's testimony with respect to Peterson's asking if he could
have a picnic at his home. He confirmed the testimony,
regarding Respondent Exhibit 15, that during a bargaining
session the bank agreed not to sponsor any picnics. He cor-
roborated prior testimony that Ruth Wintheiser was drive-
up teller until after April, when she was moved into main
teller line, because Respondent needed more experienced
help and because she had been taking on the late shift so
long she was tired of it. He acknowledged the new rotation
system which was implemented in November 1977, and he
admitted that he has not signed an agreement with the
Union, but that the parties had agreed to certain items. He
said when he held the meeting in which he changed the
work schedules, he did not invite Erickson or any other
employees. In the spring of 1977, he said. he was ap-
proached by Taren Novotney and Sandy Treml, who asked
him why their pay had not been increased after the expira-
tion of their 90-day probationary period. He said that he
told them he was advised by the attorney that Respondent
could not give them any raise during negotiations with the
Union, but he nevertheless paid them because his attorney
told him Respondent should pay them.
John Mack, attorney for the Union, testified that there
was never any discussion about the change in working
hours during the bargaining sessions except on November
29. 1977, at the mediation session in Minneapolis, when he
advised Beihoffer of the change in hours. Glennis Andresen
had told him about it the day after the change in the work
schedule and she also told about the discriminatory invita-
tion to the bank's picnic involving union and nonunion em-
ployees. He acknowledged that he agreed to items in Re-
spondent Exhibit 18 and that neither side has since
withdrawn agreements to those items. He said that the
bank's change in the working hours schedule occurred on
or about ,November 23, 1977, and that he has not made a
request that the hank reverse its change in working hours.
However, Mack acknowledged that he received and had
knowledge of Respondent's letter (Resp. Exh. 31) dated
January 13, 1978. which contained the following para-
graph:
In any event it is clear that these relatively minor issues
should not be permitted to complicate or prolong the
resolution of the strike against the bank. Any question.
with respect to the participation of employees and par-
ties sponsored by the bank, appears to have been re-
solved already by the tentative agreement reached on
November 29. '77. with respect to the Section I-A (4).
Recreational Activities and Parties. With respect to the
alleged unilateral changes. the bank has today re-
scinded both the rotation of tellers at the drive-up win-
dow and the change in scheduling for Monday and
Friday evenings.
Although the bank continues to believe that these
changes are justified by legitimate business reasons, the
proposed implementation of these changes for the fu-
ture will be deferred to afford the union the opportuni-
ty to bargain over the changes.
Mack further admitted that several bank officials and just
about all union members received copies of the above letter
(Resp. Exh. 31). He said that he did not reply to the letter
or make any demand to bargain with respect to its contents,
but that he made such a general demand in Employer Ex-
hibit 38, "hours of work."
Analysis and Conclusions
Although the testimony in section C. above, is essentially
free of conflict, it nevertheless raises a question as to
whether the July 1977 picnic involving the bank employees
was bank-sponsored, or individually and personally spon-
sored. The evidence of record shows that a determination
on this question cannot be made simply by evaluating the
credibility of the respective witnesses. Rather, such a deter-
mination can be made objectively only upon an examina-
tion of the status of bank employees in 1975 and 1976, as
compared with 1977, the past practice of the Respondent
with regard to picnics, the relationship of each witness to
the party on whose behalf he or she testified, as well as the
conduct of the parties (Respondent and the Union) prior
and subsequent to the 1977 picnic.
400
CITIZENS NATL. BANK 01: WII.LMAR
First, it must he recalled that Respondent's employees
were not organized in 1975 and 1976. but they organized on
March 14 and obtained union certification on May 20.
1977; that for the years 1975 and 1976, an employee. Doris
Boshart, offered her home as the site for the picnic and
Respondent (through its managerial staff) invited all profes-
sional employees of the bank and paid for all food. except
beverages. The uncontroverted evidence of record further
shows that after the employees became organized and the!
observed an antiunion note written by a managerial official
of Respondent in May 1977, relations between the bank
(management) and the employees (primarily the chief orga-
nizers of the Union) became somewhat alienated. This
strained relationship between the Union and the bank is
further manifested by evidence of Doris Boshart's failure to
offer her home for the site of the July 1977 picnic, as she
had in 1975 and 1976. The extent of the alienation is even
further demonstrated by the evidence of the organized em-
ployees having planned and held their own July 4. 1977.
picnic, excluding other bank officials and nonunion em-
ployees.
The evidence clearly shows that Respondent (Vice Pres-
ident Paul Peterson) was informed about the union emplo>-
ees' planned picnic by employee Karen Hlolst, who also told
him which employees were invited and which employees
were not invited. Although Vice President Peterson did not
say anything to the union employees, he did discuss their
picnic plan with bank president, Pirsch. Hte testified that the
substance of their discussion was as follows:
I asked Mr. Pirsch if it was all right if I had a picnic.
He said. "What are you asking me for?" "Well," I said,
"I am going to invite some of the people from the bank
but not all of them and I don't want any repercus-
sions," and he said, "This is a free country and you can
invite whoever you want but the bank isn't going to
pay for it." I said, "Of course not. I know that."
When Vice President Peterson was asked whether he had
asked President Pirsch for reimbursement for the picnic. he
said he did not. However, in view of the background of the
relations between the Respondent and its employees, here-
tofore discussed. I do not credit Vice President Peterson's
limited account of his discussion with President Pirsch for
the following reasons: (1) I cannot conceive of the president
of the bank, being fully aware of the past practice of a July
4 picnic, not asking his vice president why was he hosting
the picnic at his house and why was he inviting only some
of the employees; (2) I find it difficult to conceive that Vice
President Peterson neglected to inform President Pirsch of
what he had learned about the union employees planning a
picnic, and identifying the employees whom the Union ex-
cluded from their plan; (3) if Vice President Peterson had in
fact decided to host a personal picnic at his home, it seems
strange that he would ask permission of President Pirsch:
(4) in view of the past practice of a July 4 bank-sponsored
picnic, I find it strikingly unusual for President Pirsch not to
have offered to pay for the picnic: and (5) President Pirsch's
failure to ask some of the above-enumerated questions as
well as his failure to offer to defray the expenses of the
picnic as the bank had done in the past, coupled with his
comment to Vice President Peterson that "this is a free
country and you can invite whoever you want. but the bank
isn't going to pay for it," clearl N indiciated that he endorsed
Peterson's hosting the picnic kith knowledge that the
unionized employees would be excluded therefrom.
Although Doris Boshart did not offer her home as the site
tor the Jul 1977 picnic, she was not under anb obligation
to do so. However, her failure to offer her home to the bank
for a picnic when she in fact hosted a picnic for the union-
ized emplobees indicates the breach in relations hbet. en
the union employees on one side aind manlagemnt and the
nonunion employees on the other. While I am not attemrpt-
ing to condone or compliment [)oris Boshart or the union
emploees for excluding the nonunion emplo ees and nman-
agemenit from its private picnic. it should be particulairl
noted that the union employees are not herein charged with
discrimination in violation of the Act. On the contrary, the
bank. which had a 2- or 3-year tradition oft sponsoring a
July 4 picnic. or at least paying the expenses for such
picnic, is alleged to have discriminated against its union
emploNees by excluding them from a picnic of hank man-
agement and nonunion employees. held at the home of Vice
President Peterson.
In support of the position that the hank did not sponsor
or pay for the July 1977 picnic, Vice President Peterson
produced his personal cancelled checks made to and cashed
by a food store. as evidence that he, not the hank palid for
the picnic foiod. In this regard, installment loan officer Jef-
fery Berghuis testified that money from the pop machine
was never used to pay the expenses for bank affairs such as
picnics, although he corroborated prior testimon\ that the
bank paid for prior July picnics in 1974. 1975. and 1976. 1o
further support his position that the July 1977 picnic was
not a bank picnic, Vice President Peterson sas he has a
picnic every ear, and he thought he would invite the iour
employees who were not invited to the union emploxees'
picnic to his picnic in his home. However, if Vice President
Peterson was hosting a personal picnic, it is particularl]
noted that the guests he invited were all bank officials, ex-
cept President Pirsch. who was out of towi.L and rliOnunion
employees. He did invite a neighbor a Mr. Miller. who was
the onl) nonbank employee at the picnic.
Although it is possible to have an annual picnic with one
guest (the nonbank employee). I find it difficult to believe
Vice President Peterson's story that he was merelb inviting
the employees who were not invited to the Union-spon-
sored picnic to a personal picnic in his home. An examina-
tion of the guestlist shows only bank personnel (employees
and managerial). While it is also possible that Vice Pres-
ident Peterson paid for the picnic, as evidenced by his can-
celled checks, his cancelled checks alone do not necessaril
establish that he paid for the picnic. It is possible that he
could have advanced the money for the expense of the pic-
nic and have been reimbursed by the bank in cash or hb
check.
In any event, when all the factors heretofore discussed
are considered in conjunction with the fact that Vice Pres-
ident Peterson is a part of management. and ias such. hosted
a picnic in his home to which all bank officials (except the
bank's president who was unavailable) and nonunion em-
ployees were invited, with the exception of one nonhink
employee, I am constrained to concluhide and find that the
Jul: 1977 picnic was a hank picnic and not a personall?
4()1
I)tE(ISIO)NS OF NATIONA I.ABOR RELATIONS BOARI)
sponsored picnic, Since the expense of the picnic w as not
borne or shared hs the employees or other management
pCrMnnel, but rther bh the ice president of the bank. such
an arrangemelnt in view of the aoredescribed circull-
stances. clearls indicates that the picnic was contrived b,
Respondent In order to camoutfage the unlawful discrinli-
nation alalinst its ullnionized employees. Such discriminator;
conduct on the part of' the Respondent constituted a viola-
tion of' Section 8(a)(31 of the Act.
lellcr Svia E(ricksoin testified that she had had her
waes docked hb the Respondent for attending collective-
hargainilg sessions, while her wages were not so docked
shen she lis off I week to see her physician and on an-
other occasion whe\n she was out for personal reasons. Fol-
lo wing Ilrickson's testimnonyl in this regard. the parties en-
tered into a stipulation which was set forth as follows:
MR. B llOlt I: R Your lonor, during an off the rec-
ord discussion. it appears to he possible to solve this
issue by stipulation. he stipulation would be to the
effect that during the bargaining sessions held prior to
the commencement of mediation on or about October
20,). 1977, the negotiating sessions were by mutual
agreement held outside normal working hours in order
to allosa employees to participate wilhout missing any
` ork. But at the lst bargaining session prior to the
con nlencemnent of mediation. Mr. Mack and I had dis-
cussed regarding the arrangement for such mediations
sessions. particuakil where they were to he held in
Minlneapolis. And we did work out an agreement. the
substance of which w;is that employees would be ex-
cused from their scheduled duties at the bank in order
to permit them to participate in the medication sessions.
And would be offered the options of either making up
the time missed in order to attend mediation sessions
or to have their compensation for that month reduced
to reflect the hours spent which were not so made out.
We would further stipulate that pursuant to such
agreement, some employees made up all or a portion
of the time which they missed to attend mediation ses-
sions. while others did not so make up the time lost
and s a result did suffer some reduction in wages pro-
portiona;te to the hours which they missed. We so
stipulate.
MR. SYKIS: For the general counsel also.
Although the record herein contains evidence of Respon-
dent's animus towards its employees' concerted and union
activity the unilateral change in the employees' working
hours in November 1977 made by the Respondent while it
was fulls aware that its employees were represented by the
Union appears to have resulted only from Respondent's
animus against the Union. As counsel for the General
Counsel points out, such a unilateral change is so "inher-
ently destructive of employee interest" that it is proscribed
without need for proof of' an underlying illegal motive.
'. 1. R.B. v. Brown. 380 U.S. 278 (1965): ,4rorican Ship
Bitilding (Comrpan v. '.. R.B. 380 U.S. 300 (1965). As the
Supreme ('ourt noted in Great Dane:
. . some conduct carries with it "unavoidable conse-
quences which the emnploer not only foresaw but
which he must have intended" and thus bears "its own
indicia ot intent." ... If the conduct in question alls
within this "inherently destractive" category, the em-
ploer has the burden of explaining away justifing or
characterizing "his actions as something different than
they appear on their Iace," and if he fails, "an unlair
labor practice charge is made out." I. LN. R. B. v. (Greu
Done ITrladers, Im.. 388 U.S. 26. 33 (1967).1
Ihe Respondent herein contends that in its letter dated
January 13. 1978, which was received by the Union on
January 17, 1978, Respondent informed the Union that its
November unilateral changes in the employees' work hours
were rescinded as of that date January 13, 1978). that the
rescission included both the rotation of tellers at the drive-
up window and the change in scheduling 'or Monday and
Friday evenings: and that such changes, which the bank
characterized as justified by legitimate business reasons.
will remain rescinded and deferred to afford the Union an
opportunity to bargain over the changes.
Respondent also contends that since the change was not
implemented until 2 weeks after its announcement and was
rescinded on Januars 4, its effect in essence was minimal:
that undisputedly the employees' hours of work were not
increased beNond the 40 hours per week they are obligated
to work, but wcre simply changed around in terms of sched-
uling. tHowever, the record clearly establishes that the
change in hours did cause some employees to work at least
2 nights a week and some of them to make a trip home and
return to the bank, disrupting their family schedules, in-
cluding emploees who live as far away as 20 miles.
In this regard, the General Counsel appropriately cites a
Supreme ('Courl decision in V.I. R. B v. Katz, 369 U.S. 736
(1962). wherein the Court stated that:
Unilateral action bh an employer without prior discus-
sion with the union does amount to a refusal to negoti-
ate about the acted conditions of employment under
negotiation, and must of necessity obstruct bargaining.
contrary to the congressional policy. It will often dis-
close an unwillingness to agree with the union. It will
rarely be justified b any reason of substance. [369
US. at 747.)
I find the above-quoted authority particularly applicable
to conduct of the Respondent herein, carried out with ull
knowledge of the certification of the employees' union and
while it was engaged in several bargaining sessions prior to
its decision and implementation of the change in November
1977. This was the last of' two occasions on which Respon-
dent implemented such a change, the first being in June or
July 1977. Aside from the unilateral changes in work sched-
ules implemented by Respondent in November 1977, do
not find that the evidence establishes that Respondent has
further failed and refused to bargain in good faith.
As to whether the employees' strike with commenced on
December 16 1977. is an unfair labor practice strike, the
following factors are substantiated by the record:
The employees held a union meeting on or about Decem-
ber 7. 1977. at which time various members in attendance
expressed their dissatisfaction with the series of event which
were herein found to indicate Respondent's animus against
employees' concerted and/or union activities: Respondent
sponsored a picnic in July of 1977. from which union mem-
1()02
(ITIZlFNS NAIL. BANK OF WIl.I. 1,XR
her emploxees were discriminatoril excluded: Respon-
dent's unilateral change in the working hours otf its employ-
ees in November 1977, which adverselk' affected mostlx the
union member employees: and Respondent's hard but (le-
gal) bargaining on some items which, when considered
along with some items on which the linion has engaged m
hard bargaining, have thus far prevented the complete ne-
gotiation of a collective-bargaining agreement.
However, Respondent argues in its brief that although it
did not notify the Union or the employees about the work
hours change prior to its announcement, nor did it notify
the Union subsequent to its implementation of the change 2
weeks later, the Union nevertheless learned about the
change through one of its members and neglected to protest
or demand that Respondent bargain on the change: and
that by neglecting to protest or demand bargaining on the
work hour change, the Union waived its right to retain the
unilateral change in work hours as an issue for collective
bargaining. In support of its position, Respondent cites
Clarkwood Corporation, 233 NLRB 1172 (1977): Me.ci-
center, Mid-South Hospital, 221 NLRB 670 (1975). and
American Buslimns, Inc.. 164 NLRB 1055 (1967).
It is observed that in the Clrk ood case, supra. the
union, upon being notified about the employer's unilateral
change by a member employee, contacted and protested to
the employer, but without requesting the employer to har-
gain about it. Here, unlike there, the Union did not contact
the employer and protest its decision, nor did it request that
Respondent negotiate the work hours change. The Board
further held in the American Bus Line case. supra, that a
union which receives timely notice of the change in condi-
tions of employment must take advantage of that notice if it
is to preserve its bargaining rights and not be contented
with merely protesting an employer's contemplated action.
Moreover, the Board held in the Clarkwood and Medicenter
cases, supra, and more particularly, the Supreme Court held
in U.S. Lingerie Corporation. 170 NLRB 750 (1968), and the
Board held in Florida Steel Corporation 235 NLRB 941
(1978), that it is not necessary for the union to be given
formal notice of the unilateral change but that actual notice
is sufficient.
In the instant case the Union received actual notice of
Respondent's work hours change through employee union
member Andresen within I or 2 days after Respondent an-
nounced the change. The record further shows that the
change was not implemented for 2 weeks and that during
that period of time the Union did not contact Respondent
or protest the announced change. Instead, the record shows
that the work hours change was announced on or about
November 14, 1977 and the Union commenced a discussion
of the change with its members on or about December 7.
1977, at which time it also discussed the feasibility of filing
unfair labor practice charges against Respondent. The
Union ultimately filed such charges against Respondent on
December 15, 1977: and after discussing the unilateral
changes in a negotiation session with the Union on Decem-
ber 29, 1977, Respondent, in a letter dated January 13, 1978
(received by the Union on January 17, 1978) informed the
Union that its November unilateral change in the employ-
ees' work hours was rescinded as of January 13. 1978.
('onsequenItl. pursuant to the abo c-clted and dic.ulu.cd
autlhorit.lt I conclude and ind that attlioul1h RspondenIl
instituted unilateral changes im tfie emliplo\cc,' \(Ok11 hour.s
in November of 1977. and the L:nion learned ahout said
unilateral changes a da'. or two subsequent to Respondlenlt'
announcement thereof, as late as )ecmber 15. 177 the
date on which the L'nion filed utilair labor prlaCtCCe halrgc
against Respondent for instituting the chance, the lon
dlid not contact Respondent or protest the unilateral action
Under these circumstances. it is clear that the abohc-citcd
authorit\ governs the U nion's failure to protest and request
negotiation and. therefore. the Union wuaived its right to
negotiate the unilateral change in ,ork hours.
I do not find that the evidence establishes that Respon-
dent has further ftailed and refused to bargail in g ood alth.
In fact. Respondent presented undisputed evidence of a
number of items on which the parties ha.e .Igreed oxecr a
period of 13 or 14 collectie-hargamilng sessions. I oulId
doubt that such measure of progress in collcctixe hargain-
ing could have been made with the presence of aln degree
of bad-faith bargaining on the part of RcspondCnl. Respon-
dent has consistently stood fist against the incluslllon of a
nondiscrimination clause in the contract. and the :'mon hais
stood fast in demanding that such a clause be included that
Respondent retain in its emplo\ all striking eimplo\es., and
that a collective-bargaining agreement he reached before
the Union terminates its strike against Respondent. tnrider
these circumstances, the parties (Respondent and the
Union) at most can be considered to have engaged in hard
bargaining, rather than had-faith bargaining.
During the December 7. 1977. union meeting, the em-
ployees articulated (generally) their frustrations about the
recent (November 1977) change in work hours alid the act
that the parties had not been able to reach an aigreement on
a collective-bargaining contract. The eidence is not clear
as to what other dissatisfactions were expressed, and hb
whom. Nevertheless. the eidence is clear froim the testi-
mony of union employee witnesses that the members pre-
sent agreed that if the next negotiations session (scheduled
for December 14) ended in an impasse. the Union would
strike Respondent.
As Dale E. Beihoffer. negotiator and attorney for Re-
spondent points out in his brief, the testimon\ of the union
employees clearly stated that the ballot fol the strike ote
taken by the Union on December 7 contained the language
that the5 would strike "until an agreement approved b, the
membership with the bank is reached." The testimon of
Union President Sylvia Erickson and Secretar -Treasurer
Glennis Andresen established that the ' agreed to go on
strike if negotiations failed. Their testimony in this regard s
consistent with the testimony of the union negotiator John
Mack. who undisputedly advised the bank's negotiating
committee during the session on December 14 that the
Union was going to strike the bank unless the bank agreed
to one of the Union's alternatives on each of the outstanld-
ing issues. I credit the undisputed testimony of hank nego-
tiator Beihoffer in this regard.
Hence, in determining the sole or principal motivating
cause for the employees' striking the Respondent on )e-
cember 16. 1977. it is observed that while the emplo ees
had a general discussion about Respondent's antiunion
403
DE(CISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct in the past, as well as the change of working hours
in November. they clearly based their striking the bank
upon the ultimatum that the bank agree to certain out-
standing issues during the bargaining session of December
14, 1977. A careful examination of the credited evidence of
record does not reveal any definitive decision on the part of
the Union to strike Respondent because of the discrimina-
tion against the union employees in July or its unilateral
change of the employees' work hours in November.
While such acts of Respondent generated a discussion
which reflected some frustration on the part of the emplox-
ees, I am persuaded by the greater weight of the evidence of
the record that the primary, if not the sole, purpose of their
electing to strike Respondent was to compel Respondent to
agree on the items articulated by the Union during the ne-
gotiations session of December 14. When the parties failed
to achieve agreement, the Union filed unfair labor practice
charges on December 15 and went on strike against the
Respondent on December 16, 1977.
Since Respondent's November unilateral change of em-
ployees' work hours did not constitute a violation of Section
8(a)(5) of the Act, the primary unfair labor practice com-
mitted by Respondent was its discriminatory exclusion of
the union employees from its July 1977 picnic. Although
the employees might have discussed said unlawful July dis-
crimination against them during their December 7 meeting.
that unlawful incident was so remote from their December
7 meeting that it cannot reasonably be maintained that the
employees agreed to strike the Respondent as a result of
that 8(a)(3) violation. This conclusion is particularly true,
when it is noted that the employees made it clear that theN
would strike if the December 14 negotiating session ended
in an impasse. Under these circumstances, I am constrained
to conclude that the employees' strike against Respondent
on December 16, 1977, was not caused by unfair labor
practices of Respondent. Therefore the employees' strike
against Respondent is not an unfair labor practice strike.
Consequently, Respondent's alleged threat in its letter
(December 29, 1977, G.C. Exh. Al(i)) to replace the strik-
ing employees, cannot constitute an unfair labor practice
which prolonged the economic strike because the strike was
and is not an unfair labor practice strike.
Counsel for Respondent argues that the burden of estab-
lishing that a strike is an unfair labor practice strike is to be
borne by counsel for the General Counsel in establishing a
causal connection between an unfair labor practice which
has been committed and the strike. In support of his posi-
tion he cites Tufts Brothers Incorporated. 235 NLRB 808,
810 (1978). In that case the Board said:
An unfair labor practice strike is one which is caused
in whole or in part by an unfair labor practice. The
requirement of a causal connection between the unfair
labor practice and the strike is not satisfied merely be-
cause the two coincide in time. It is necessary for the
Board to find that Respondent's unlawful conduct in
fact constituted a contributing cause to the strike that
followed.
In view of the fact that the Union did not protest or
demand bargaining on Respondent's November unilateral
change of the employees' work hours, the union's right to
demand to bargain thereon is therefore deemed waived,
and consequently Respondent's action was not a violation
of Section 8(a)(5) of the Act. Hetce, the only unfair labor
practices committed by Respondent occurred in late May
or early June, and in July 1977. The Union's employees did
not attribute any particular emphasis to those rather remote
unfair labor practices, but instead placed great emphasis
upon their ultimatum that Respondent reach an agreement
with the Union during the bargaining session on December
14, 1977. It is clear that neither the General Counsel nor
counsel for the Union discharged the burden of showing a
causal connection between the remote June and JulN 1977
unfair labor practices and the employees' December 7 deci-
sion to strike.
Moreover, it is strikingly obvious from a reading of the
entire record in this case that if Respondent committed sev-
eral unfair labor practices during the year 1977, the Union
was in great part untimely in taking any remedial action
with the Board to rectilf such unfair labor practices. The
record clearly shows that Board law governs the facts as
they relate to the alleged actions of Respondent and the
inaction of or untimely responses made by the Union.
Assuming. arguendo. that Respondent's November uni-
lateral change in work hours constituted a violation of
8(a)(5). the record clearly shows that when Respondent's
action was brought to the attention of the negotiator for the
Union, Respondent rescinded its action and deferred it for
negotiation in future bargaining sessions. In reading the
cases cited by counsel for the General Counsel and counsel
for Respondent as to whether the employees' strike was an
unfair labor practice strike, I did not find any case in which
the employer took its unilateral action during the time the
parties (Employer and the Union) were in the course of
negotiations. However. assuming further that the latter fact
would make a difference in determining whether the unilat-
eral action was an unfair labor practice, it would appear
that since the parties herein were engaged in negotiation
sessions, it was all the more incumbent upon the Union to
protest and demand that the change be made a subject of
collective bargaining.
As previously found herein. as soon as the Union notified
the negotiator for Respondent that it took issue with Re-
spondent's unilateral action of November 1977, Respon-
dent immediately rescinded the work hour change. In all
probability therein lies the Board's rationale for requiring
the union to contact and make its protest known to the
Employer. Here the Union failed to contact Respondent
and make such protest or request to bargain until the bar-
gaining session held on December 29, 1977: shortly there-
after (January 13, 1978), Respondent rescinded the change
and agreed for such change to become a subject of bargain-
ing. In view of the above-cited case law and the circum-
stances established by the evidence in this case, I cannot in
good conscience find that the employees' strike on Decem-
ber 16. 1977. was an unfair labor practice strike.
iv. FFF('I OF rite UNFAIR ABOR PRA(II( ES UPON
( ()MMER( E
The activities of Respondent set frth in section 1II.
above, occurring in close connection with its operations de-
scribed in section I. above. have a close, intimate, and sub-
stantial relation to trade. traffic, and commerce among the
104
CITIZENS NAIL. BANK OF WII.LM4AR
several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. TIMit R MEI)Y
Having found that Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)( ) of the
Act, I shall order that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of their
Section 7 protected rights, in violation of Section 8(a)( 1 ) of
the Act, by telling its employees they need not join the
Union because they could earn more money withot joining
the Union, and by discriminatorily excluding the union em-
ployees from the bank-sponsored picnic in violation of Sec-
tion 8(a)(3) of the Act, the recommended Order will provide
that Respondent cease and desist from engaging in such
unlawful conduct and, as it has agreed to do, bargain in
good faith with the Union, as the designated collective-bar-
gaining representative of Respondent's unit employees,
with respect to picnics or recreational activities sponsored
by the bank.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that Re-
spondent cease and desist from in any other manner inter-
fering with, restraining, or coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Manufacturing Compar. 120 F.2d
532, 563 (4th Cir. 1941).
CONCLUSIONS OF LAW
1. Citizens National Bank of Willmar, the Respondent. is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Willmar Bank Employees Association is, and has been
at all times material herein, a labor organization within the
meaning of the Act.
3. By restraining and coercing its employees, by telling
them they need not join the Union and that they would
earn more money without the Union, Respondent violated
Section 8(a)(1) of the Act.
4. By discriminatorily excluding union member employ-
ees from its July 1977 bank-sponsored picnic, Respondent
violated Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(t) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of lav.
and upon the entire record. and pursuant to Section 10(c) ot
the Act, I hereby make the following recommended:
ORDER5
Respondent, Citizens National Bank of Willmar. its offi-
cers. agents. successors, and assigns. shall:
1. Cease and desist from:
(a) Restraining and coercing its employees about their
union interest or affiliation.
(b) Discouraging membership in the Union by discrimi-
natorily excluding union employees from hank-sponsored
picnics or social activities because of their interest in and
support for the Union.
2. Take the following affirmative action necessar to
effectuate the policies of the Act:
(a) Post at its business office in Willmar, Minnesota. cop-
ies of the attached notice marked "Appendix."' Copies of
said notice, to be furnished bh the Regional Director tor
Region 18. shall, after being duly signed by Respondent's
representative, be posted by Respondent immediately upon
receipt thereof. and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Rea-
sonable steps shall be taken b Respondent to insure that
said notices are not altered, defaced, or covered b any
other material.
(b) Notify the Regional Director For Region 18. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not herein found.
8 In the event no exceptions are filed as provided b) Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 10248
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.
9 In the event that this Order is enforced b a Judgment of the United
States Court of Appeals the words in the notice reading "Posted bs Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
405