Cubit Systems Corp.

National Labor Relations Board - Board Decisions

Dec 20, 1971

194 N.L.R.B. 622 (N.L.R.B. 1971)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cubit Systems Corporation and Office & Allied
Workers Union Local 67, International Longshore-
men's & Warehousemen's Union. Case
20-CA-6233
December 20, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On July 19, 1971, Trial Examiner George H.
O'Brien issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed
cross-exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order only to the extent consistent
herewith.
1. In the absence of exceptions, we adopt the Trial
Examiner's finding that Respondent bargained in
good faith with the Union and that` the parties did not
reach complete agreement on the terms of a collec-
tive-bargaining contract, together with his recommen-
dation that the 8(a)(5) allegation therefore be dis-
missed. Further, we concur in the Trial Examiner's
finding that Respondent did not induce or encourage
its employees to sign a petition to decertify the Union
and in his recommendation that this allegation also be
dismissed.
2. The Trial Examiner concluded, and we agree,
that Respondent's discharge of Cecilia Geeter, Ester
Ekman, and Leora Van Winkle was not related to
union activities and hence did not violate Section
8(a)(3) of the Act. However, we find, contrary to the
Trial Examiner, that Respondent discharged Geeter
and Ekman because of their concerted protected
protest over selection of a new manager, thereby
violating Section 8(a)(1) of the Act.'
On May 1, 1970, Respondent, owner of a data
processing facility in Burlingame, California, ac-
quired a facility in San Francisco from the Burroughs
Corporation. At the time, Burroughs' keypunch
operation, the department concerned herein, included
i As the Trial Examiner states, Van Winkle did not participate in the
concerted effort of Geeter and Ekman regarding the selection of a new
keypunch manager. In addition, we find, infra, that some discharges were
dictated by the need to reduce the work force. Thus, although it is a close
question as to whether Van Winkle was included for discharge because of
11 employees working two shifts. Sabanovich, Res-
pondent's executive vice president, told the employees
that Respondent was making the jobs of all employees
available under the same terms as they had had with
Burroughs and that Gilhooley, the keypunch manag-
er, would remain on the job only temporarily. On May
30, Gilhooley left, and Sim Watson, Respondent's
director of facilities and management, told Geeter,
then day-shift supervisor, that she would be in charge
until Respondent found a new keypunch manager.
Geeter acted in this capacity from June 1 until June
17, the day Millie Hinchey took over as manager.
On June 5, 1970, at the request of the keypunch
staff, Geeter and Ester Ekman, assistant supervisor,
approached Sim Watson to discuss the appointment
of a new keypunch manager . They related the staff's
concern over the rumor that Hinchey was to be their
new manager, specifically because she would bring
with her the employees who normally accompany her
from job to job at the expense of those who were there,
that she would change the operation of the office, and
that raises might be slower in coming.2 Geeter
emphasized that the staff did not have anything
against Hinchey personally but wanted Respondent
to consider the feelings of the staff in making its
selection. Geeter and Ekman also told Watson that
the other employees had asked them to talk to him
because management never communicated anything
to the keypunch staff and because they believed that
something was going on about which they should be
informed, inasmuch as Gilhooley had left and there
was no immediate manager in the department. On
Monday, June 8, the next workday, Watson told the
keypunch staff that he had been informed that they
would walk out if a certain person was hired as
manager, that the Company would not be intimidated
by a bunch of keypunch operators, and that he would
discharge any employee who questioned this decision
further. On June 17, the day Hinchey took over as
manager, she made it known that she was aware of the
discontent in the office and had learned that Geeter
and Ekman were the ones who had spoken with
Watson. On July 10, Respondent terminated the
employment of Geeter, Ekman, and Van Winkle.
It was not disputed that the amount of work
processed by the San Francisco office decreased after
Respondent acquired the facility and that economic
considerations necessitated a reduction in the work
force. The Trial Examiner concluded that Geeter and
Ekman were discharged because they were the most
expendable. The General Counsel contends, however,
her association and alignment with Geeter and Ekman , the evidence is
insufficient to establish that her discharge was violative of the Act. For this
reason, we shall dismiss that allegation.
2 Many employees on the staff had worked under Hinchey at the same
San Francisco location but in the employ of another company
194 NLRB No. 87
CUBIT SYSTEMS CORP.
that they were unlawfully selected for discharge,
instead of other less experienced and less senior
employees, because of their above-described concert-
ed activity regarding Hinchey's employment as
keypunch manager.
In our opinion, undisputed record testimony not
discredited by the Trial Examiner reveals that
Respondent harbored a resentment toward Geeter
and Ekman. This antipathy arose because Geeter,
during the first week in May, at the suggestion of
Keypunch Manager Gilhooley, asked Sabanovich
and Nishimura, Respondent's president, about the
type of work Respondent had and its starting salaries
and suggested that two employees (Leora Van Winkle
and Karen Chan) should receive a raise as they were
underpaid; and because Geeter and Ekman in June
spoke out against Millie Hinchey. Respondent's
attitude manifested itself during a conversation with
Geeter and Ekman on July 10 when Sabanovich and
Nishimura accused Geeter of being a "ringleader"
and "troublemaker," and stated that the "whole
trouble began in May and June when they [Geeter
and Ekman] questioned everything management told
them." Thus, although management included Geet-
er's conversation with Watson in May as part of her
objectionable conduct, there is no indication that
Geeter and Ekman questioned any of management's
decisions before the June 5 conversation, and hence
Sabonovich's remarks to Geeter and Ekman could
only have had reference to their activities on June 5 on
behalf of the employees. Moreover, Sabanovich
testified that Watson had reported to him several
incidents in which Geeter and Ekman confronted
Watson and had made him very uncomfortable but
the only incident Sabanovich could recall or cite was
the June 5 conversation regarding the appointment of
a new manager. It is especially significant, however,
that Nishimura, who personally approved the selec-
tion of Geeter and Ekman for discharge, admitted on
the record that the June 5 incident influenced him.3
3 In our opinion , there is no question that the keypunch employees had
a legitimate concern in the appointment of a new keypunch manager and
that Geeter and Ekman were engaged in protected concerted activity in
discussing Hinchey's appointment with Watson. We find Respondent's
contention to the contrary without merit. Respondent's assertion that the
employees' interest was only in furthering the interests of Geeter is not
borne out by the record. As stated, supra, there was concern by the
employees that the selection of Miss Hmchey might adversely affect the
working conditions and even the retention of jobs by the incumbent office
employees . Concerted activity to further these legitimate employee
concerns is clearly protected. See NLRB v. Phoenix Mutual Life
Insurance Co., 167 F.2d 983 (C A. 7); N.L R B v. Guernsey-Muskingum
Electric Cooperative, 285 F.2d 8 (C A. 6). The cases cited by Respondent
are clearly distinguishable on their facts.
4 The Trial Examiner's failure to discuss this highly significant
testimony may be explained by his findings that it was Hinchey who
selected Geeter and Ekman for discharge and that Hinchey was not
influenced by this concerted activity, so that it followed that no improper
motive could be attributed to Respondent's discharge of the two
employees . But, the record shows that it was not Hinchey who made the
623
The July 10 conversation and Sabanovich's admission
clearly reveal Respondent's improper motives in
selecting Geeter and Ekman for discharge.4 When, in
addition, consideration is given to the fact that Geeter
and Ekman were the most senior and experienced
operators and that Respondent did not offer them
employment on the second shift, although, as Hin-
chey testified, the Respondent was interested in
building up its force on that shift as work was
increasing,-5 the conclusion is inescapable that the
Respondent was unlawfully motivated in selecting
Geeter and Ekman for discharge by their concerted
activities.
Respondent contends, however, that Geeter's and
Ekman's concerted activities were not protected
because they were supervisors. The Trial Examiner
found, and we agree, that the record is devoid of
evidence that Ekman was a supervisor. Although
acknowledging that Geeter's status was much in
doubt, the Trial Examiner concluded that at least
between June 1 and June 16 Geeter was a supervisor.6
In our opinion, however, the record does not warrant
a finding that Geeter possessed or exercised any
supervisory authority at any time.
As "day-shift supervisor," a title she apparently
carried over from her employment with Burroughs,
Geeter spent about 90 percent of her time preparing
accounts for verification by the keypunch operators.
To do this, she would prepare batch tickets, obtain the
correct procedure card, and place the ticket and card
with the bundles of materials. The bundles were then
set on a table and each keypunch operator picked up
the bundle on the top of the pile when she finished
with the one she had. After the job was completed,
Geeter refiled the procedure cards.
The Trial Examiner noted that all day-shift opera-
tors were experienced and competent, requiring
practically no supervision. In the event a new job was
to be punched with which Geeter had not worked
previously, the keypunch manager or account manag-
decision to discharge Geeter and Ekman, and apparently she did not even
participate in making the decision. In that regard, the Trial Examiner
specifically found that Sabanovich had told Watson that he [Watson] and
Hinchey were to make the selection . But Hinchey testified that when she
spoke to Watson about the reduction in staff it became apparent that
Watson had already decided on Geeter and Ekman , that Watson asked her
whether she needed the assistance of Geeter and Ekman since work was
decreasing, and that, upon her giving Watson assurance that she could
carry on without the two, Watson decided to discharge them
5 It is true that Geeter and Ekman had earlier declined positions on the
second shift, but that was as an alternative simply reduced hours on the
day shift. There is nothing in the record that would warrant a conclusion
that Geeter and Ekman would have declined an offer of employment on
the second shift as an alternative to discharge.
6 We note that the Trial Examiner was not required to reach this issue
in view of his finding that Geeter and Ekman were discharged for
economic reasons. As we have found they were engaged in concerted
activities and discharged for that reason , their supervisory status must be
determined
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er would write the precedure card and explain it to
Geeter who, in turn, explained it to the keypunch
operators. Geeter, at times, answered questions
operators might have on procedure and helped them
correct errors. If Geeter could not answer the
question, she would ask the keypunch manager or
account manager.
About 10 percent of the work in the department
consisted of "drop-in" clients. If the keypunch
manager was not available, Geeter would wait on the
customer, take the order, and prepare the batch ticket.
She would then assign the work to a particular
operator based on that operator's existing workload
and experience, but the assignment was not accompa-
nied with any instruction.
The record shows that Geeter did not have authority
to hire, fire, or make effective recommendations in
that regard or for promotions or pay increases.
Although on one occasion Hinchey asked Geeter
about the quality of one operator's work and Geeter
replied that "she's still slow," Hinchey did not ask
Geeter for her recommendation nor did Geeter offer
one as to the retention of that operator, even though
shortly thereafter Hinchey fired the operator. The
evidence disclosed that Hinchey had worked with the
operator at another company and knew that she was a
poor worker. We cannot consider this incident as
establishing the fact that Geeter possessed the
authority to make effective recommendations.?
We are satisfied, on the record as a whole, that
Geeter, as day-shift supervisor, did not possess
supervisory authority but was more of a leadman for
the office. Although Hinchey would at times leave
Geeter in charge of the department, there is no
evidence that Geeter exercised any supervisory
authority during these periods. With respect to the 2-
1/2 weeks Geeter served as keypunch manager, it is
clear that she performed no functions other than her
normal duties. In fact, the record discloses that she
would check with Watson as to how work was to be
divided between the two shifts, although ordinarily
that would be a decision made by the keypunch
manager. The Trial Examiner also found that during
this period work had diminished on the day shift to
such an extent that operators were sent home by
Watson on full pay, leaving only Geeter or on two
occasions Van Winkle and one or two others as a
skeleton crew, making the presence of a keypunch
supervisor completely unnecessary. Also, it is signifi-
cant that Watson made the decision to send the
employees home, apparently without consulting
Geeter. Thus, it appears that Geeter's designation as
4 The incident early in May, described above, occurred as a result of
Gilhooley's instructing Geeter to raise the matters of work and wages, and
the Respondent 's reaction to her discussing the personnel questions
acting keypunch manager did not carry with it any
genuine delegation of supervisory authority.
We conclude that the evidence is insufficient to
support a finding that Geeter was a supervisor even
during the period from June 1 to June 16. According-
ly, her concerted activities on June 5 were protected.
For all the foregoing reasons, we conclude that
Respondent discharged Geeter and Ekman for
engaging in protected concerted activities and thereby
violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. We have
found that the Respondent has discriminated against
Cecilia Geeter and Ester Ekman by discharging them
in violation of Section 8(a)(1) of the Act. We are
unable from the evidence in the record to determine
the dates for which Geeter and Ekman are entitled to
backpay since apparently' the San Francisco office
was closed on December 31, 1970, for economic
reasons. Nor can we determine at this time whether
Geeter and Ekman are entitled to reinstatement at
Respondent' s Burlingame facility, although we note
that Geeter was employed there at the close of the
hearing in this proceeding. Accordingly, we leave the
details of the remedy as to Geeter and Ekman to the
compliance stage of this proceeding.8 Backpay,
however, shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, with
interest added thereto in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Cubit Systems Corporation, Burlingame, California,
its officers, agents, successors, and assigns, shall take
the action set forth below:
1. Cease and desist from:
(a) Discharging employees or discriminating in
regard to their hire, tenure of employment, or any
term or condition of employment because they have
engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
graphically demonstrates her lack of authority in this realm.
8 Russell Coal & Clay Co, 165 NLRB 978.
CUBIT SYSTEMS CORP.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Make whole Cecilia Geeter and Ester Ekman for
any loss in job status they may have suffered by
reason of their discriminatory discharge and pay them
backpay with 6-percent interest thereon, all in a
manner to be determined hereinafter at the compli-
ance stage of this proceeding.
(b) Notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, if
entitled, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Burlingame, California, office copies
of the attached notice marked "Appendix."9 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS, FURTHER ORDERED that all allegations of the
complaint not specifically found to be violations of
the Act be, and they hereby are, dismissed.
MEMBER KENNEDY, dissenting:
I would affirm the Trial Examiner's Decision in this
matter.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
625
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Order of the National Labor
Relations Board and in order to effectuate the policies
of the National Labor Relations Act, as amended, we
hereby notify our employees that:
WE WILL NOT discharge any of our employees or
discriminate in regard to their hire, tenure of
employment, or any term or condition of employ-
ment because they have engaged in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to engage in, or to refrain from
engaging in, any or all of the activities specified in
Section 7 of the Act.
WE WILL make whole Cecilia Geeter and Ester
Ekman for any loss in job status they may have
suffered by reason of their discriminatory dis-
charge and pay them backpay with 6-percent
interest thereon, all in the manner to be deter-
mined hereinafter at the compliance stage of this
proceeding.
CUBIT SYSTEMS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, if
entitled, upon application after discharge from the
Armed Forces, _ in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, Box 36047, 450
Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: On March 17-24,
1971, a hearing was held in the above-entitled matter in San
Francisco, California.' The complaint, issued November
23, 1970, is based on a charge filed July 22, 1970, by Office
& Allied Workers Union Local 67, International Long-
shoremen's and Warehousemen's Union, herein called the
Union, and alleges violations of Sections 8(a)(1),(3), and (5)
of the National Labor Relations Act by Cubit Systems
Corporation, " herem called Respondent. Upon the entire
record2 in this proceeding, including my observation of the
witnesses and after due consideration of the postheanng
briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation engaged in the
sale of data processing services to various business firms
located in the State of California. Purity Stores Inc., herein
called Purity, is a Nevada corporation engaged at various
locations throughout the State of California in the retail
sale of groceries, fruits, vegetables, meats, and other items.
The annual gross revenue of Purity's California stores
exceeds $500,000 and it annually receives goods valued in
excess of $10,000 shipped directly to said stores from
suppliers located outside the State of California. During the
calendar year 1970, Respondent sold to Purity services
valued in excess of $50,000.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges in material substance that on June
30, 1969, the Union and the Respondent "reached complete
agreement on all the terms of a collective bargaining
contract" and, "Commencing on or about July 1, 1970.. .
Respondent did refuse ... to sign a written collective
bargaining contract embodying the terms of the collective
bargaining contract reached by the Respondent and the
Union [on July 30, 1969]," thereby refusing to bargain in
violation of Section 8(a)(5) of the Act. The complaint
further alleges that Respondent discharged three employees
on July 10, 1970, "because of their activities on behalf of
the Union," thereby discriminating against employees in
violation of Section 8(a)(3) of the Act. At the opening of the
hearing this paragraph of the complaint was amended by
adding as an additional motive for the discharge of these
1 The hearing opened in San Francisco on February 11, 1971 The
General Counsel rested, after 3 days of testimony, on February 13 and the
hearing was adjourned to March 17, 1971. Under date of March 3, 1971, I
was advised by the official reporter that stenomask disks of the hearing on
February II and 13 had been "accidentally destroyed" and he was
"therefore unable to make a record from them". The transcript of February
three individuals, "and/or because of their protected
concerted activities." Finally the complaint alleges that
Respondent, through its keypunch supervisor, Karen
O'Toole, "induced and encouraged [its] employees to sign a
petition to decertify the Union," thereby violating Section
8(a)(1) of the Act. In his brief to me, Counsel for the
General Counsel states that the three employees, Cecilia C.
Geeter, Esther A. Ekman, and Leora Mae Van Winkle were
discharged "because of their support for the Union and
because of their protected concerted protest concerning the
selection of a new manager."
Respondent, through its counsel, answers that it did not
reach a complete agreement with the Union on June 30,
1969, nor at any other time, that Geeter and Ekman were
supervisors, that their concerted activity was unprotected,
that it had no knowledge of their union activity, that the
three employees were terminated for valid economic
reasons, and that O'Toole took no part in any action to
decertify the Union.
B. The Bargaining
1. Creation of Respondent and the Union's
Negotiations with Purity
Purity is a large supermarket chain. On July 1, 1967, it
entered into a 3-year contract with the Union covering all
of its office employees in Burlingame , California, including
junior accountants , secretaries , typists, clerks, computer
operators, and keypunch operators. As of May 19, 1969,
there were 37 employees in the unit . The contract made
union membership a condition of employment and
contained an automatic renewal clause.
On April 16, 1969, the Union's business agent, Peggy
Banks, wrote to Jack Niven, Sr., president of Purity:
... this will advise that we desire to open our
contract for the purpose of revising and amending it.
Enclosed'you will find a set of detailed proposals.
On April 21, 1969, Purity, through its controller, Joseph
Y. Nishimura, replied:
We find that your proposal will amount to a pay
increase in excess of 20% without considering the cost of
living escalation clause.
In order that we may negotiate intelligently, I am
attaching hereto an analysis of your proposal on a cost
basis. Clearly, a wage increase of better than 25%
(which your proposal will be after escalation) is,
unacceptable to us.
This being the case, please call us as soon as possible
so that we may arrange a meeting to negotiate this
impasse.
On May 16, 1969, Respondent was incorporated. On
June 16, 1969, Respondent began operations by taking over
the data processing department of Purity. Nishimura,
Respondent's president,* retained his position as Purity's
controller. Sam Sabanovich resigned his position as
11, 1971, recording the cross-examination of Peggy Banks and a portion of
the direct examination of Esther Ekman was stricken on motion of the
General Counsel and the trial proceded de novo on February 17, 1971.
2 The motion of counsel for Respondent to correct the stenographic
transcript is granted, and the stipulation dated March 25, 1971, with
attached timecards is received in evidence as TX Exh 2 (See tr page 819.)
CUBIT SYSTEMS CORP.
director of management information systems with Purity to
assume the duties of executive vice president of Respon-
dent. The lease of the computers, keypunch machines, and
verifying machines owned by Burroughs Corporation was
transferred by Purity to Respondent. All of Purity's
employees in its data processing department, then compris-
ing one programmer, two computer operators, seven
keypunch operators, and the manager of the department,
Joe Bruno, became employees of Respondent. Bruno's title
was changed to operations manager .3
Under date of June 20, 1969, C. L. Pecchemno, executive
vice president of Purity, wrote to Banks:
As agreed at our meeting this morning, we are now in a
position to respond to your original proposals, This
response constitutes an offer and supersedes any verbal
or written offer made to date.
1. Duration of agreement-We agree that the
duration shall be three years:
July 1, 1969 through June 30, 1972
2. Holidays-We agree that the day following
Thanksgiving shall be a paid holiday, but that the
number of paid holidays under the contract shall
remain as under the present contract.
3. Hours-No change in present contract.
4. Sick Leave-We agree to nine days per year for
employees with less than five years, twelve days for
those employees with more than five years, with a
cumulative maximum of 30 days. No cash payoff upon
termination.
5. We agree that personnel designated to replace
higher rated employees for one week or more shall be
paid the higher rate during the period of the higher
rated employee's absence.
6. Promotions-We agree that when an employee is
raised in classification, he shall receive an increase to
the step in his new classification immediately above his
former rate of pay.
7. Wages-We offer the members of the bargaining
unit pay increases based on their present rates of pay as
follows:
July 1, 1969 5%
July 1, 1970 5%
July 1, 1971 5%
(Without any further escalation)
8. We propose further that the wage schedules
appended to our letter of May 19, 1969 be incorporated
in the contract to be applicable to any new employee
joining the bargaining unit, except that keypunch
3 As of June 16, 1970, and for an indeterminate time thereafter, Purity
was Respondent's only customer.
4 The findings in this section are based on the testimony of Banks and
Nishimura. Valter was dead Pecchenino, though called for limited cross-
examination by the General Counsel, was not questioned about the June 30
meeting Dosch did not testify, nor did Pias nor did Giol I have studied
the conflicts in the testimony of the two witnesses, have given careful
consideration to the arguments of their respective counsel, and have
concluded that on balance, the recollection of Nishimura is the more
627
operators and computer operators should be deleted as
none are presently employed by Purity Stores.
Under date of June 26, 1969 the following bulletin was
distributed:
TO: ALL MEMBERS OF LOCAL #67 EMPLOYED
BY PURITY STORES INC.
FROM: JOE NISHIMURA
SUBJECT: YOUR REJECTION OF OFFER MADE
BY MANAGEMENT
It has, come to my attention that you have rejected
management's latest contract proposal.
I would like to go on record at the present time with an
explanation of our position in these negotiations before
either you or we harden our positions to the extent that
we reach a non-negotiable impasse on June 30.
This is my opinion of the current situation:.
1. The pay scale in this office at the present time is
competitive with any of the offices (union or non-union)
in the entire area.
2. The offer made by management was generous
and gives recognition to rising costs of living.
3. For any of you who may be interested, I have a
file of publications with complete wage scale tables for
the area on which our offer was based. (I will turn this
file over to Louise so that you may obtain it from her
upon request.)
I do not know how far apart we are at present, but I
would hope that you have considered our proposals
seriously. Since your bargaining agents have not
scheduled a new meeting until 1:00 p.m. on June 30,
1969 I would hope that they will have a bona fide
counter offer at that time since there will not be much
time left.
2. The meeting, June 20, 1969
Representatives of Purity and the Union met in Purity's
conference room in Burlingame at 1 p.m. on June 30, 1969.
Purity was represented by C. L. (Len) Pecchenino,
executive vice president, Joe Nishimura, controller, and
Don Dosch , assistant controller. The Union was represent-
ed by Peggy Banks, business agent , Louise Pias, union
steward, employed by Purity as an accounting technician,
Mary Giol, employed by Purity as a secretary, and by
George Valter, an official of Local 6, I.L.W.U.4
Vaster opened the meeting by inquiring whether the
company representatives were there to negotiate for Purity
only, or whether they were also prepared to negotiate for
the "I.B.M. department." When Pecchenino answered,
"Just Purity," Valter replied: "If you are not going to
negotiate for the IBM department, I will just walk out and
reliable The General Counsel has cogently observed , "Both witnesses who
testified concerning what transpired at this meeting had difficulty recalling
precisely what was said and frequently lapsed into conclusionary
summaries ." Under cross-examination , however, Nishimura appeared to be
making a sincere effort to understand and to give honest answers to all
questions . His uncertainty and memory lapses are understandable in view
of the fact that the instant charge was not filed until almost 13 months
after June 30, 1969. Unlike Nishimura, Banks under cross-examination was
defensive, argumentative , and evasive.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there will be no further negotiations." The Purity represent-
atives asked for a brief recess and, after conferring in
Pecchenino's office, returned and announced that they
were speaking for both Purity and Respondent. Valter then
obtained from Banks a copy of the Union's April 16
proposals, and each was discussed in order.
1. Duration of agreement: The parties agreed on 3 years,
July 1, 1969 through June 30, 1972.
2. Holidays: Tentative agreement was reached on
exchanging Veterans day for the day after Thanksgiving
with no increase in the total number of holidays.
3. Hours: The Union proposal was a 7-1/2 hour day and
37-1/2 hour week. The company representatives stood firm
on the 8 hour day and 40 hour week, and Banks said, "We
will drop it."
4. Sick leave: Agreement was reached.
5. Temporary Replacements: The Union's proposal was
rejected by the Company negotiators. There was no
agreement expressed.
6. Promotions: The Union's proposal was rejected by
the company negotiators. There was no agreement
expressed.
7. Wages: The Union's proposal was an increase of $12
per week on each of the following dates: July 1 of 1969,
1970 and 1971. Purity had countered with an offer of 5% of
the employee' s June, 1969 wage on July 1 of 1969, 1970 and
1971, and had also proposed specific starting rates for new
employees, with specific automatic increases after six
months, after one year and after two years, Banks stated
that the specific rates set forth in Purity's proposal were
"ridiculous." Valter told her to "shut up" and she complied.
There followed discussion of increases for present employ-
ees, with Pecchenmo increasing his offer to 5% July 1, 1969,
6% July 1, 1970 and 7% July 1, 1971, and Valter reducing
his demand to 8% on each of these dates. When neither side
would give any further Valter asked for a private
conference with his committee and the company negotia-
tors withdrew to Pecchenino's office.
After about 10 minutes Valter joined the company
negotiators and announced "I think I can sell the girls on 6,
7 and 8." Pecchenino answered, "I think I might be able to
sell that to Jack Niven." Valter then returned to the
conference room, and closed the door. After a long time the
door to the conference room opened, Valter emerged, and
Nishimura walked up to him. Valter said, "Looks OK. The
girls can take it from here" and Valter left the building.
Nishimura told Banks that she could have a union
meeting in the accounting department, and he waited in the
conference room, where he was joined by Sabanovich.
After meeting with the employees Banks and Pias returned
to the conference room. Banks announced, "It looks OK
with us." Sabanovich said, "Fine, we will type something up
and get it back to you." Banks said, "That's great, I don't
have any typing help."
3. Nishimura's contract draft, August 1969
Nishimura made a Xerox copy of the recently expired
printed contract, wrote out changes and additions in
longhand, and had the resulting compilation typed in the
form of a single contract document. In early August he
handed a copy to the union steward, Louise Pias, with the
instruction:
I told her that this was our proposal, that there were
new things in here, and that she should read it very
carefully. I also said that she should send it to Miss
Banks.
On August 15, 1969, Nishimura hand delivered to Banks a
second copy of the document, stating: "there are new
things in here" and that she should read it carefully.
Although Nishimura had underlined some of the new
matter in red, no specifics were mentioned in either
conversation.
Nishimura's draft incorporated his understanding of the
agreements reached at the June 30 meeting, a reiteration of
the companies' offers on matters where there had been no
final agreement, a few minor matters which had not been
the subject of discussion, and a revised recognition clause
which incorporated in a single bargaining unit employees of
Purity and employees of Respondent. The General Counsel
in his brief to me states, "the document in substance
embodies the June 30 agreement on every issue except for
the means of computing the percentage increase in the wage
package." 5 The August 1969 document contains the
following clause:
Section 11. Wages
Wages and classifications are set forth in the Wage
Schedule, (Appendix A) except that persons employed
by the Company on June 30, 1969 will be entitled to the
higher of the Wage Schedule or the amount computed
as follows:
Wages
Wage
Plus
Earned Per Prior Contract
Schedule at June 30, 1969
July 1, 1969 through June 30, 1970 6%
July 1, 1970 through June 30, 1971 13%
July 1, 1971 through June 30, 1972 21%
5 Banks had testified that after their private conference, Nishimura,
Pecchenmo, and Valter all returned to the conference room and that
Nishimura stated to all present that the companies' wage offer was
cumulative and that he approved the following illustrative computation
which she worked out at the conference table 100 plus 6% equals
106-1969; 106 plus 7% equals 113.42-1970; 113 42 plus 8% equals
1224936-1971, and that she agreed to take this offer back to her
membership with the recommendation that it be approved I have credited
Nishimura's testimony that neither he nor Pecchenmo was present when
Valter reported to the committee the result of his private conference in part
for reasons heretofore stated and in part because of the confusion and self-
contradiction in the testimony of Banks in this area . I conclude this was
Banks' personal interpretation of the Companies ' offer as communicated to
her by Valter
CUBIT SYSTEMS CORP. 629
Between September 1969 and May 1970 Nishimura
addressed several inquiries to Banks concerning the August
document. Banks testified that the inquiry was "Did you
sign the agreement?" Nishimura testified that the inquiry
was "How are you coming with our proposal?" Banks
testified that her uniform reply was, "No. There are too
many typographical errors and I can't get anyone in my
office to sit down and proof it with me." Nishimura testified
that her uniform response was, "that it was filled with
typographical errors and that she had other problems with
it." Both witnesses agree that Banks did not, prior to June
1970, voice any specific objection to the August document.
Under date of May 26, 1970, Nishimura notified Banks in
two separate letters that he had severed his connection with
Purity that William Rankine, controller, would handle "all
labor relations for persons in the Purity bargaining unit"
and that "all dealings concerning labor relations affecting
the employees of Cubit Systems will be handled exclusively
by Cubit personnel." The letter on Respondent's letterhead
concluded:
In this connection, Sam Sabanovich and I will represent
Cubit Systems. Please feel free to call on us regarding
any union matters of mutual concern.
A few days thereafter Banks voiced to Nishimura her first
specific objection to the August document. Nishimura
testified:
Q. (By Mr. Tichy) What did she say?
A. She said that the wages that were in the contract
weren't what had been negotiated.
Q. What did you say to her?
A. I told her that's what we had proposed to them;
that was, as far as I was concerned, our last proposal.
And that at that time there was no contract between
Cubit Systems and Local 67
Banks testified that on June 29, 1970:
I went to Mr. Nishimura's office and told him that I
had just spoken to Mr. Rankine, the Controller of
Purity Stores, and we had gotten all the typographical
errors, and et cetera, ironed out, and asked him if he
was ready to sign the contract.
He, at that time, Mr. Nishimura, because Mr.
Sabanovich had not entered the office as of yet, Mr.
Nishimura stated that there was no contract with Cubit
Systems, that whatever Purity wished to do, whatever
they did was Purity's business. But there was no
contract with Cubit Systems.
I stated to Mr. Nishimura, "You were in on the
negotiations of June, 1969, and you stated you were
negotiating for Cubit Systems, as well as Purity Stores.
There has never been any question as to whether or not
there was an agreement between Purity or between
Cubit Systems and Local 67. We have been living under
this agreement and abiding by it, and following it for a
year."
Nishimura, describing the June 29 conversation testified:
Peggy Banks came into my office and she said, "Will
you sign the contract?"
And I said, "What contract? We have no contract
with you."
And she said, "Come on, now, you remember that we
negotiated a contract."
And I said, "No, I had submitted to you a proposal
and you didn't act on it. And as far as I'm concerned,
there was never any contract between Cubit Systems and
Local 67 ... .
And I told her that I had no objection whatsoever to
signing a contract with Local 67, but we had to conclude
negotiations before we would sign such a contract
And she kept insisting that I sign a contract which
she didn't present me with. And so I didn't know
specifically what she was talking about, but I presumed
it was the contract that she had just concluded or -
*
I specifically stated to Peggy Banks that we would be
perfectly willing to sign a contract, but that we wanted a
contract which would be more suitable to our present
state of operation, that we were not in the grocery
business. We were in data processing service business,
and we needed a contract that would more adequately
reflect the nature of our business . . . what we needed
was more flexibility in the area of personnel administra-
tion because we were selling the services of our
employees; that we had to have more authority and
discretion in the area of personnel, and their retention
.. I stated that we wanted a six-month probationary
period, either that, or an abolition of any kind of
seniority provision. And we discussed those matters
And this conversation went around many times and
came back to the same subjects. It was Peggy's basic
position that there was a contract in existence and I
should sign. And it was our position that there was no
contract in existence but we were perfectly willing to
negotiate for one.
On July 15 Banks called on Nishimura accompanied by
the three women who had been discharged by Respondent
the previous week. The employees waited in an anteroom
while Nishimura and Banks had a long discussion, with
nothing resolved.
On July 29 Nishimura and Banks met for the last time.
Banks announced that she had obtained a contract from
Purity stores and asked Nishimura to sign its When
Nishimura again denied the existence of a contract, they
got into a discussion of seniority and efficient operations,
wages, and composition of bargaining unit, and Nishimura
6 She did not then, nor at any other time, present any document to
Nishimura for his signature.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to draft a clause on "efficient operations" and to
send it to Banks. Under date of August 4, 1970, Nishimura
wrote to Banks:
I called you this morning but you were out of the
office. To keep negotiations moving, I am enclosing my
draft proposal of the efficient operations clause.
Agreement on this clause will be a major step forward
toward reaching final agreement on a contract.
After you have had a chance to review this draft, we
should meet again to continue our negotiations on other
open issues, namely the seniority clause, probationary
period and the location of the bargaining unit.
I will be available Thursday if this is convenient.
When Banks received the above letter she telephoned
Nishimura and they agreed to meet on August 12. Shortly
thereafter Nishimura found on his desk a sheet of paper
with the following typewritten heading:
We the undersigned , employees of Cubit Systems
Corporation no longer wish to participate in the Union
Local ILWU #67.
bearing the signatures of nine of Respondent 's nonsuper-
visory employees , a clear majority.
On the morning of August 12, Nishimura telephoned
Banks' office and cancelled the meeting , and Respondent's
counsel , George Tichy, filed in the Board's regional office a
petition for an election, duly docketed as Case
20-RM-1302.
C. The Discharges
On May 1, 1970, Respondent took over from Burroughs
Corporation a data processing center at 447 Battery Street
in San Francisco . A few days before the change in
management, Sabanovich, Nishimura, and Sim Watson,
Respondent 's director of facilities and management, met
with the Burroughs management and staff. Those present
were Jim Lowe, Burroughs ' manager, Dorothy Gilhooley,
Burroughs ' keypunch manager, programmers, computer
operators , account managers, and keypunch people.
Sabanovich announced that Lowe would no longer be
manager, that Gilhooley would remain temporarily as
keypunch manager, and that Respondent was making the
jobs of all employees available under the same terms as
they were then working for Burroughs . Respondent would
honor vacation rights, accrued sick leave, wage reviews,
and any promised pay increases . As of May 1, 1970, there
were about 11 people in the keypunch department which
was then working two shifts.
During the first week in May, at the suggestion of
Gilhooley, Cecilia Geeter, day-shift supervisor of the
keypunch department, conferred with Sabanovich and
Nishimura. Geeter inquired about what type of work
Respondent had. Sabanovich read off a list of clients, stated
that they were adding one client every month and growing.
Geeter asked about starting salaries and Sabanovich replied
that they did not have a pay scale. Geeter said that two
women, Leora Van Winkle and Karen Chan, were
underpaid and should receive a raise. Sabanovich replied
that he would think about it.
On May 30 Gilhooley left. Watson told Geeter that until
they found a new keypunch manager she would be in
charge. Sabanovich told Geeter that he was sure that she
could handle everything. In answer to Geeter's inquiry as to
whether there was to be a new keypunch manager,
Sabanovich replied that she should speak to Mr. Watson,
since that would be his decision.
On Friday, June 5 , Geeter and her assistant supervisor,
Esther Ekman , met with Sim Watson. Geeter asked if Millie
Hmchey was to be the new manager . Watson replied that
this was a management decision and no concern of hers.
Watson asked who they got the information from. Ekman
stated that the girls were uneasy and upset because Hinchey
had her own supervisor and four or five girls who went with
her from job to job , at the expense of other employees who
were already-employed. Geeter asked if the feelings of the
present employees would be considered . Watson replied
that their feelings would not be considered and that she
should not ask such questions . Ekman stated that some of
the present employees had grievances against some of
Hinchey's girls, and would not work with them , and if it
became uncomfortable for the present employees they
would quit . Watson thanked them for the information and
said that it would be kept in the strictest confidence.
On Monday , June 8 , Watson entered the keypunch room
and announced that he had been told "that you girls are
going to get up and walk out if a certain person is hired as
manager . Cubit is not going to be threatened by a bunch of
keypunch operators ." Watson added that any question on
the subject of manager could result in immediate termina-
tion.
On Wednesday , June -17, when the day shift reported for
work, Millie Hinchey was in the keypunch manager's
office. Wednesday was payday and it was part of the
manager's duty to distribute paychecks . Just before noon,
Hinchey called the operators to the back of the room,
handed to each a paycheck and a termination letter in
blank and announced:
I have been told that all you girls were going to get up
and walk out when I took over as manager. If anyone is
dissatisfied with the arrangement she can fill out this
termination letter and put it on my desk by four o'clock
and it will mean immediate termination without notice
for that person.
Ekman answered:
Millie , that's a g.d . baldfaced lie .... Sim Watson
lied to you about saying that the keypunch staff was
going to get up and walk out . Cecilia and I had a talk
with him, and in that conversation nothing had been
insinuated or said or directed to him on that subject,
and we had never said we were going to get up and walk
out . . . the conversation was two weeks before you
came in and we knew you had been hired a week before
you came in to the office. If anyone had any intention
of walking out they would have done so then . You have
been here all morning and nobody got up and walked
out. Obviously , it's untrue.
When Hinchey stated that she had received this informa-
tion from five or six people , Geeter added a few words in
support of Ekman, and
... Van Winkle said that she felt that they had lied
about more than just our conversation with Mr.
Watson . That they kept lying since they had started.
CUBIT SYSTEMS CORP. 631
And that Hinchey would find out sooner or later what
kind of people they were.
On either June 22 or 23 Hinchey met with the day-shift
operators, reminded them that there was not enough work
to keep all busy, and inquired whether they would prefer to
have two of them permanently laid off or all go on short
hours. All voted for short hours. Hinchey then said that
they should decide who would go home without pay. Geeter
said that during the preceding weeks when there was not
enough work, girls were permitted to go home but were
paid just as if they were working, and asked why that
practice could not be continued. Hinchey said that work
was building up on the night shift, and anyone who wished
to transfer to nights could have steady work. There were no
volunteers. Geeter asked whether any girls had been laid off
in Burlingame. Hinchey said she did not know. Geeter
asked why she did not know, "since she was supposed to be
manager." Geeter added that they could not do this in
Burlingame, since the Union would not let them, and it was
unfair to San Francisco, when the employees had been told
that the offices would be run as one.
On Monday, June 29, Watson reported to Nishimura that
he had conferred with Hinchey and it was their joint
recommendation that the day shift be reduced to two
keypunch operators. Sabanovich approved the reduction
and said that Hinchey and Watson should make the
selection. On either June 30 or July 1 Watson reported to
Nishimura and Sabanovich that Geeter and Ekman should
be terminated because they were the highest paid
employees, and Hinchey was capable of carrying out their
supervisory duties. Adele Shimota and Karen Chan should
be retained because they were the most capable of the
nonsupervisory operators and Van Winkle should be
released because she was the lowest employee. Nishimura
approved the selection but directed that execution be
postponed until after the computers were moved from San
Francisco to Burlingame over the July 4 weekend, in the
event that records should be damaged or misplaced in the
course of the move.
On Wednesday, July 8, Geeter, Ekman, and Van Winkle
visited the union office and signed authorization cards. On
Thursday, July 9, after work they drove to Burlingame.
(The day shift in San Francisco ended at 4 p.m. Burlingame
employees worked until 5 p.m.) Geeter entered Respon-
dent's office, assisted O'Toole in moving some records, and
went with O'Toole to the ladies' room. There they were
joined by Ekman, and a brief conversation ensued. Van
Winkle remained in their automobile in the parking lot.
On Friday, July 10, Sabanovich and Nishimura went to
San Francisco to settle accounts with Burroughs' manager,
Jim Lowe. Sabanovich told Hinchey that she could go
ahead with the terminations.
Shortly before 4 p.m. on Friday, July 10, Hinchey called
Geeter, Ekman, and Van Winkle to her office, told them
that they were "being terminated for lack of work," and
that they should see Sabanovich in Lowe's office down-
stairs for the answers to any questions.
Nishimura and Sabanovich left Lowe's office and invited
the three women to join them in a vacant office. Geeter
7 Nishimura testified that as keypunch supervisor in Burlingame,
O'Toole was directly responsible to director of facilities and management,
opened the conversation by asking whether they were
terminated. Upon receiving Sabanovich's affirmative
answer, Geeter asked for the reason and was told,
"economic reasons and lack of work." Geeter then asked,
"are we being terminated or laid off? There is a difference
you know." Sabanovich, irritated by the tone of the
question, let his irritation show in replying that they were
being terminated because they were the most expendable
people in the department. Ekman accused Sabanovich and
Nishimura of dishonesty, stating "practically everything
you have told us has been a lie from the day you took over."
Nishimura, in an angry tone, defended himself, saying that
he had been fair and honest, that their troubles had been
inherited and not created by Respondent. The discussion
became very heated, with four people talking at once, and
at one point Sabanovich charged Geeter with being a
troublemaker. Van Winkle, who retained her calm
throughout, finally said, "let's get up and go" and the
women left.
Banks first learned of the discharges on July 15 and she
took the that she was in bad company and later, when they
were discussing contract terms, told her that the injection of
the San Francisco problem would make it more three
women with her to Burlingame to call Nishimura.
Nishimura told Banks difficult to reach agreement.
Burroughs, when it was operating the center, had 20 to 25
regular accounts. When Respondent took over, the number
of regular accounts dropped to 10 or 15, "if that." As of
May 1, 1970, Respondent took over from Burroughs seven
keypunch operators on the day shift and four on the night
shift. Between June 1 and 17 there was so little work on the
day shift that operators were authorized by Watson to go
home, on full pay, leaving only Geeter or on two occasions
Van Winkle and one or two others, as a skeleton crew. As of
June 17 there were two operators on the night shift, and
seven on days. Between June 17 and 26, night-shift operator
Margaret McFall was discharged and day-shift operators
Donna Lane and Diane Lasine resigned. Between June 17
and 26, Hinchey offered to Geeter a transfer to the night
shift. She said she would have to consult with her husband.
She did not give Hinchey an answer and the offer was not
repeated. When Judy Evans, night-shift supervisor an-
ndunced that she was resigning, the position was offered by
Hinchey to Ekman, who declined. Van Winkle also refused
Hinchey's offer of night work. From July 10, 1970, through
November 3, 1970, when Hinchey resigned, all day-shift
work was performed by two operators under the supervi-
sion of Hinchey. During the same period Hinchey
succeeded in obtaining work which was received in the
afternoon and had to be completed by midnight. During
the period from July through October 1970 there were on
occasion seven or eight keypunch operators on the night
shift. When Respondent's lease expired, December 31,
1970, the San Francisco operation was closed.
D. The Decertification Petition
Karen O'Toole 7 was first employed as a keypunch
Sim Watson, that she had the power to discipline employees and that
Watson followed her recommendations as to hire and termination without
(Continued)
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operator by Purity about May 1, 1969. On February 9,
1970, Nishimura notified Banks on a Purity letterhead:
This is to inform you that Karen O'Toole has been
promoted to the position of Keypunch Supervisor, an
exempt position effective February 3, 1970. The
vacancy was the result of the resignation of Harriet
Fracchia.
Shortly prior thereto the Union had sent O'Toole a notice
of delinquency and she had paid up 6 months back dues
with one check.
Between June I and 17, 1970, O'Toole had two private
conversations with Geeter in the keypunch manager's office
in San Francisco . In the first of these conversations Geeter ,
told O'Toole "that she was responsible for the operations,
as far as the keypunch department was concerned , in that
office . . . that she was more or less taking over the
responsibilities of the manager." In the second conversa-
tion, just before Hinchey assumed her duties,
[Geeter ] said that she was very unhappy with Millie
coming and she thought that she should get the position,
and that she was going to get a petition up, or have the
girls sign a letter and present it to someone ; that they
didn't want Millie-they would leave if Millie came in
as manager . . . that she felt all the girls would agree
with this.
On Thursday, July 9, 1970, Hinchey told Geeter that
three girls had been laid off in Burlingame . That evening,
after work, Geeter, Ekman, and Van Winkle drove to
Burlingame and parked in the Purity lot about 4:45 p.m.
Geeter entered the building alone, encountered Bruno, and
according to the testimony of Geeter, whom I credit in full:
He said , I think, "Karen is still here; come on in. I
will take you back where she is."
When they entered the keypunch room,
First she said, "Help me carry this back to the
tab"-I think it was the tab room. This is Karen
speaking . . . . I helped her carry the work back to the
tab room.
*
Q. (By Mr. Barton) What did you do after that?
After going to the tab room.
A. I believe then I must have told her I had to go to
the ladies ' room, so we went into the ladies' room.
Karen and myself.
Q. All right, And did you have any conversation
with her in the rest room?
A. Well, when we walked in, she asked me, you
know, "What are you doing down here?"
I told her that we had heard that they had laid off
three people, or were going to lay them off.
About that time Esther walked into the ladies' room.
She says, "Well, they told me to lay off three people,
and then they changed their minds, because it was
summertime."
And she said , "People were taking vacations, and
they had a lot of work, so they were going to wait until
after vacations were through."
Well, she mentioned that they told her what people to
lay off, and then they changed their minds, and they
told her she could decide, and back and forth.
And then I guess she mentioned about her helping
the girls get a petition up to get out of the Union. I
believe it was then , anyway.
Q. What do you recall her saying?
A. Well, she says-she either said that she had
typed, or she was helping him write a petition , to get out
of the union.
And she said, "Well, I probably shouldn't tell you
this . . . because you weren't supposed to know about
the union."
And I said , "Well, we knew already. We knew ever
since the get-together dinner they had. Some of the girls
went and told us about the union."
And then I believe Esther stated at that time that we
had contacted someone about the union already, so it
was no secret to us.
And something else could have been said, I really
don't remember .. .
Someone else came into the ladies ' room and we
stopped talking.
And then when we were leaving, Karen said, "Well
you know , they are going to call me in and ask me
everything you asked me, and everything I told you,"
and et cetera.
*
Q. (By Mr. Tichy) Did Karen O'Toole ever tell you
what was on a petition?
A. She merely stated that she was helping-she
either said she was helping them write, or type a petition
for the girls to get out of the union.
In the course of their discussions on July 15, 1970, Banks
told Nishimura that she had heard that a decertification
petition had been drafted and was being circulated by
Karen O'Toole. Nishimura replied that he knew nothing
about it . Nishimura, immediately thereafter, "told Karen
O'Toole that if she , in fact, participated in the preparation
of any petition to de-certify the union, or anything to that
effect, that it would be grounds for termination."
In mid-July 1970 Joseph McLaughlin, a computer
operator, typed the following words at the head of a blank
sheet of paper:
We the undersigned, employees of Cubit Systems
Corporation no longer wish to participate in the Union
Local ILWU #67.
McLaughlin, between July 20 and 22, 1970, obtained `the
signatures of nine of Respondent's keypunch and comput-
er operators, a clear majority. McLaughlin did not confer
with O'Toole, and she did not sign, nor did she participate
in any way. Toward the end of the first week in August,
McLaughlin placed the petition in a folder and left it on
Mr. Nishimura's desk. Meanwhile, about a week after her
July 15 meeting with Nishimura, Banks in a telephone
conversation accused O'Toole of sponsoring the petition.
O'Toole told Banks that she had overheard comments
about a petition, but denied any connection therewith.
independent investigation O'Toole was clearly a supervisor within the
meaning of the Act
CUBIT SYSTEMS CORP. 633
E. Supervisory Status of Geeter and Ekman
Cecilia Geeter was hired as a keypunch operator by
Millie Hinchey in 1964, when Hinchey was keypunch
manager for R & S at the Battery Street location in San
Francisco. Esther Ekman was hired by Hinchey about 1
year later. Hinchey resigned in April 1968 after the
operation had been taken over by Univac . Before resigning,
Hinchey recommended to the operations manager of
Univac that Geeter be promoted to supervisor.
Ninety percent of the work of the center was repetitive
routine for regular accounts. Geeter would divide the work
into batches, attach a procedure card to each batch, and
place it on a desk beside her machine. The keypunch
operator, when she finished a batch, would return it to
Geeter. The punched cards were then run through a
verifying machine, when the machine detected an error, the
verifier would destroy the defective card, and punch a
correct card on a keypunch machine. The verified cards
were then delivered to the account manager, downstairs,
and Geeter would return the procedure card to its proper
place in the file . During Respondent's administration, all
day-shift operators were experienced and competent and
required practically no supervision. Over 90 percent of the
time of Geeter and Van Winkle was spent in verifying. All
the other operators were capable of running the verifying
machine and did so upon occasion. About 10 percent of the
work of the center consisted of "drop in jobs" usually left
by architects, and usually emergency work. Geeter testified,
Q. (By Mr. Tichy) Isn't it correct that some of these
jobs were more difficult than others?
A. Yes.
Q. And when you received what you considered to
be a difficult job, you would give it to the better
operators , is that right?
A. Yes.
Q. In determining which ones were the better
operators, what sort of factors did you consider?
A. The ones that made the least errors, the most
accurate operator.
Q. Did you consider the experience which these
people had?
A. Well, sometimes, with keypunch operators,
experienced operators aren't always as good as maybe
ones with one year's experience.
Q. Did you consider speed?
A. Yes.
Q. What other factors would you consider in
determining the quality of a keypunch operator?
A. Just the accuracy and the time it would take her
to do the job, I would say.
Q. You did exercise yourjudgment in making these
decisions, didn't you?
A. Yes.
Q. And having exercised your judgment, then, you
would distribute the work to the better operator, instead
of to one of the other operators, is that light?
A. Yes.
Q. One of your responsibilities as keypunch
supervisor was to transfer employees from one machine
to the next, isn't that right?
A. Yes, more or less.
Q. Did you find that there was ever an occasion
where a keypunch operator did what you considered to
be a poor job?
A. Sometimes.
Q. What did you do when you discovered that an
operator had done what you considered to be a poor
job?
A. Well, we would show her her errors, so that this
wouldn 't happen again , hopefully.
Q. Would you actually sit down with the girl and
explain to her why you thought she was making the
error, and she would correct her problem?
A. I would. Either myself or whoever verified the
job would give her the errors and maybe the document,
if it was something we didn 't feel was really her fault,
you know. Maybe it was something on the document,
the reason why-or the procedure she didn 't under-
stand possibly.
Q. I would like to ask what you would do when you
found that somebody had done a poor job. How would
you handle that?
A. I would take her the errors and say, "You made
all these errors out of so many cards that you punched."
You know, maybe she punched 150 cards and she had
50 errors. Well, that's very bad. So she would know this;
you know, out of 150 cards you have 50 errors, so-
Q. And would you explain to her what you think
could have been done to correct the problem? Perhaps
you might advise her to slow down, look at the keys,
or-
A. Yes. If I figured she evidently had done it
because she was punching too fast, I would tell her to
slow down . But usually she would know what the
problem was.
In mid-May, O'Toole invited Geeter and Ekman to lunch
with her in Burlingame, and they spent the entire afternoon
meeting with the Burlingame employees observing Respon-
dent's operation in the Purity building.
During the period from June 1 to 16, 1970, Geeter in
addition to her regular duties used the manager 's office, a
glass enclosure in the keypunch room. She estimated and
reported to Watson the amount of work anticipated for
each day and received instructions from Watson to either,
let some of the operators go home, or to hold them in the
keypunch room in the hope that additional work would
come in. Geeter , using the timecards , and Watson's specific
authorization to pay operators for time when they were
absent from the office , made out the cards from which the
operators were paid. Geeter distributed pay checks on 2
Wednesdays.
It was seldom necessary for Geeter to consult any
keypunch manager concerning any detail of the work
because, "Any questions that I couldn 't answer, I would go
to the account manager , because usually the keypunch
manager could not answer it either."
From and after June 17 Hinchey spent 60 percent of her
time catching up with the paperwork which had accumulat-
ed since the 1st of June , and 40 percent of her time away
from the office attempting to develop new business. Each
time she left, she told Geeter to answer the phone. Hinchey
had complete confidence in Geeter 's ability to get the work
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out on time and gave no direct instruction to any operator.
Hinchey's office was open to the keypunch room and she
could personally observe the work and conduct of the day-
shift operators. On one occasion she asked Geeter about a
night-shift operator, Margaret McFall. Geeter testified:
She just asked me about Margaret's work . . . she
said "I want to know if Margaret is the same way as she
was before." And I assumed that that meant when
Millie worked there before. If she was still the same type
of keypunch operator. I said, "Yes, she is. She's still
slow".... I think she asked me about her coming to
work also, because she was out quite frequently. And I
think Millie asked me . . . if she had been out a lot like
she did before.
Q. What did you say to that?
A. I said, "yes."
Hinchey did not ask for, nor did Geeter tender, any
recommendation as to the retention of McFall.
Geeter's salary was $640 per month. O'Toole's salary was
$600 per month.
While the issue is close, I find, on the testimony above
and particularly in view of the fact that the keypunch
operators between June 1 and 16 had no direct supervision
other than that exercised by Geeter that Geeter was, at least
between June 1, 1970, and June 16, 1970, a "supervisor"
within the meaning of the Act and was not an "employee"
within the meaning of Section 2(3) of the Act.
There is no credible evidence on this record from which I
can infer that Ekman was a supervisor. There were at most
two occasions between June 1 and 16, 1970, when Ekman
acted as supervisor in Geeter's absence. This alone is not
enough to deprive Ekman of the rights guaranteed to
employees.
F. Concluding Findings
1. Respondent and the Union did not, on June 30, 1969,
nor on any other date, reach complete agreement on the
terms of a collective-bargaining agreement.
In order to get to the heart of the dispute, i.e., the amount
of raises for current employees, Valter had forbidden Banks
to talk about the subject of starting rates and had rushed
over the subjects of temporary replacements and promo-
tions. While a single unit of office employees of Purity and
all employees of Respondent was implied by Pecchenino's
statement that he was speaking for both companies, there
was no discussion, much less agreement as to whether there
should be one or two units, or one or two contracts.
While Banks, due to her inexperience, may have believed
that she had a complete agreement, Nishimura, faced with
the task of drawing contract language was under no such
illusion. Nishimura, in drawing the recognition clause,
included Purity's and Respondent's employees in a single
unit and, since he anticipated having a stockroom and
inaugurating a delivery service, omitted from the exclusion-
ary clause, the classifications of truckdriver and warehouse-
man. In addition to his caution to Banks to read the August
proposal carefully, he enclosed in red brackets, and
underlined portions of the wage agreement that he and
Pecchenino had reached with Valter. The August 1969
document was a fair, honest, and complete proposal to the
Union.
2. Respondent did not, on July 1, 1970, nor at any time
prior to August 12, 1970, refuse to bargain in good faith
with the Union.
Banks' failure to take any action on the Companies'
proposal of August 1969, and her repeated evasive answers
to Nishimura's repeated inquiries were tantamount to a
rejection of the Companies' offer. After Nishimura had
severed his connection with Purity, Banks made this
rejection explicit by falsely charging that Nishimura and
Sabanovich had specifically agreed on June 30, 1969, to
cumulative increases, and that the August 1969 document,
placing each annual increase on the 1969 base, was not in
accord with the agreement.
Nishimura bargained in good faith with the Union, from
the time of Banks' specific rejection of the August 1969
proposal until after he found on his desk a paper signed by
a majority of his employees, stating that they no longer
desired union representation. This paper, combined with
the fact that the data processing department of Purity had
not, as a separate unit, ever selected the Union, not only
permitted, but required Respondent to suspend bargaining
until the question concerning recognition could be resolved.
Respondent's good faith is further evidenced by its prompt
filing with the Board of a petition for an election.
3. Respondent did not, through Karen O'Toole or in
any other manner, induce or encourage its employees to
sign a petition to decertify the Union. The paper bearing a
list of signatures which Nishimura found on his desk was
entirely the work of a bargaining unit employee, Joseph
McLaughlin. I credit in full McLaughlin's testimony that he
did not confer with either O'Toole or any other member of
management. McLaughlin testified that he had never been
a member of and had never paid dues to the Union. This
testimony appeared highly improbable in view of the fact
that the Purity contract required membership as a
condition of employment, that the Union had been notified
by a communication dated May 19, 1969, that McLaughlin
occupied a unit position, and that the Union had, on March
11, 1970, demanded the discharge of an employee for
nonpayment of dues. The failure, of the General Counsel to
tender union records in refutation of this improbable
testimony- compels the conclusion that it is true and
supports the veracity of the material portions of McLaugh-
lin's testimony.
I have found that O'Toole did state to Geeter on July 9,
1970, that "she had typed or she was helping him write a
petition to get out of the Union." This statement does not,
however, support the complaint. Some person, who was not
McLaughlin, had conferred with O'Toole concerning the
wording of a petition, which she may have typed, but the
matter went no further. Geeter's testimony "I guess she
mentioned about her helping the girls get a petition up to
get out of the Union," clearly is Geeter's personal
interpretation of words vaguely remembered. I specifically
discredit Banks' testimony that O'Toole, almost 2 weeks
thereafter, admitted on the telephone, "Yes, I typed a
petition." It is most unlikely that O'Toole would make such
an admission after she had been warned by Nishimura that
any participation in such an activity would result in her
discharge. This threat also explains, if it does not excuse,
her denial on the witness stand of the statements attributed
CUBIT SYSTEMS CORP. 635
to her by Geeter. I also reject the embellishment of
O'Toole's remarks contained in the testimony of Ekman, as
representing her state of mind, rather than her actual
recollection of any words spoken by O'Toole.
4. Day work in May and June 1970 diminished in San
Francisco, necessitating a drastic reduction in the key-
punch staff.
5. Geeter, Ekman, and Van Winkle were all offered
night work and each refused the offer of night work.
6. The selection of Geeter, Ekman, and Van Winkle to
be discharged was made by Hinchey prior to July 3, 1970,
before any had signed an authorization card or evinced
interest in the Union.
7. Hinchey was not influenced in whole nor in part by
the concerted activity of Geeter and Ekman to prevent her
appointment as manager. After becoming manager, and
being assured by Ekman that threats of strike were
unfounded, Hinchey reposed her entire confidence in
Geeter, left the running of the keypunch department
entirely with Geeter, and left Geeter in complete charge
during her extended absences from the office.
8. Van Winkle did not participate in any way in the
concerted effort of Geeter and Ekman to prevent the
appointment of Hinchey as manager.
9. There is no credible evidence on this record that
Respondent entertained any animus toward the Union.
10. Keypunch operators Adele Shimota and Karen
Chan were retained as employees on the day shift, because
they were competent to handle all the work of the shift
without supervision other than that of Hinchey. Van
Winkle was released because, in the view of Hinchey, she
was less competent than either of the other two. Geeter and
Ekman were released because all the work of the day shift
could be completely performed by employees receiving a
much lower rate of pay, and because Hinchey was fully
competent to supply the expert knowledge and advice
required by any unusual problems which might arise.
11. Neither Geeter nor Ekman nor Van Winkle was
discharged because of her activities on behalf of the Union.
12. Neither Geeter nor Ekman nor Van Winkle was
discharged because of her concerted protest concerning the
selection of a new manager.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act and the volume of its business
exceeds the indirect outflow standard of the Board for the
assertion of jurisdiction.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not , on this record, engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1), (3), or (5) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.