Exchange Bank, The

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 822 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Exchange Bank and Exchange Bank Collective
Bargaining Group and International Association
of Machinists and Aerospace Workers, AFL-
CIO. Cases 9-CA-13566 and 9-CA-14187
September 30, 1982
DECISION AND ORDER
On March 13, 1981, Administrative Law Judge
Robert C. Baison issued the attached Decision in
this proceeding.' Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions. 2
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
' On April 6, 1981, the Administrative Law Judge issued an Erratum
correcting par. 2(b) of his recommended Order and the corresponding
paragraph in the notice to reflect that the employees' unconditional offer
to return to work was made on March 19, and not April 19, 1979, and
that any backpay due and owing said employees should be computed
from 5 days after the March 19 date. While we agree that the employees'
unconditional offer to return to work was made on March 19, we do not
agree that any backpay due and owing should be computed from 5 days
hence. Rather, the record clearly establishes that on March 19 Respond-
ent unlawfully rejected the strikers' unconditional offer to return to
work. Under these circumstances, the 5-day period, which is usually
granted to respondents in situations where no unconditional offer has
been made, is inapplicable. See N.Vewport News Shipbuilding and Drydock
Company, 236 NLRB 1637, 1638 (1978); Drug Package Company, Inc., 228
NLRB 108, 114 (1977), Accordingly, the Administrative Law Judge's
recommended Order shall be modified to require that any backpay due
and owing said employees shall be computed from March 19, the date on
which the unconditional offer to return to work was made.
a Respondent has also submitted to the Board a letter dated April 21,
1981, purportedly showing that Respondent has had a change in manage-
ment atid that some of the alleged discriminatees have been reinstated or
offered reinstatement. Additionally, on September 30, 1981, and on Sep-
tember 8, 1982, Respondent filed motions to reopen the record so that it
could introduce into the record essentially the same evidence which was
set forth in its April 21 letter and evidence relating to its possible merger
with another bank. In his brief to the Board, the General Counsel moves
to have the Board reject the letter as being untimely submitted and as
containing evidentiary matter which cannot properly be submitted to the
Board in this manner. Having considered the matter, we agree with the
General Counsel that the April 21 letter is untimely and cannot constitute
part ot the record herein. Accordingly, we grant the General Counsel's
motion by striking the untimely submitted evidence and disregarding it in
our deliberations John Grissom, Mikos Doka-Suna, David Springer, and
Richard Baker a General Partnership d/b/a Narural Ifeating Systrems, 252
NLRB 1082 at fn I (1980). Further, Respondent's motions to reopen the
record are also denied since the evidence sought to be introduced, even if
considered, would not alter our decision since the issues of reinstatement
raised therein or its possible nierger with another bank have no bearing
on its commission of the unfair labor practices, but pertain to matters of
compliance. Our denial of the motions and rejection of the letter, howev-
er, do not preclude Respondent from submitting the evidence concerning
the reinstatement of the discriminatees at the compliance stage of the pro-
ceedinp, when the raising of such matters will, as noted, be appropriate
I Rc:.,,ondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge found that, upon discharging employ-
ees Pat Nance and Nedra Nolan, Respondent's chairman of the board,
James McKelvey, in response to the employees' comment that their
264 NLRB No. 111
ings,3 and conclusions4 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
1. The Administrative Law Judge found, inter
alia, that on April 10, 1979,5 the Exchange Bank
Collective Bargaining Group (hereinafter the
Group), a labor organization formed by Respond-
ent's employees, had affiliated with Local Lodge
2507, International Association of Machinists and
Aerospace Workers, AFL-CIO (hereinafter the
IAM); and that, consequently, a bargaining order,
which he deemed necessary and appropriate in
light of Respondent's numerous and serious unfair
labor practices, should issue on behalf of the IAM
and should be made effective as of February 26,
the date on which the Group made its demand for
recognition on Respondent, rather than April 25,
when the IAM made its demand for recognition.
While we agree with the Administrative Law
Judge that the IAM has become the collective-bar-
gaining representative of Respondent's employees
in an appropriate unit,6 we do so for reasons other
than those stated by him inasmuch as we find that
no affiliation occurred between the Group and the
IAM.
The relevant facts reveal that, during the latter
part of February, Respondent's employees, first in-
dividually and then as a group, began expressing to
Respondent their dissatisfaction with their wages
and other working conditions. Because of Respond-
ent's failure to meet their demands for improved
wages and working conditions, the employees
began an organizational drive which, on February
25, led to the formation of the Group. On that day,
9 of Respondent's 12 unit employees signed author-
ization cards authorizing the Group to represent
them for collective-bargaining purposes with Re-
spondent. 7 The following day, February 26, the
Group requested that Respondent recognize and
rights were being violated, stated that "they did not have any rights."
According to the employees' credited testimony, McKelvey's actual re-
sponse was that "he knew" that their rights were being violated. The Ad-
ministrative Law Judge's mischaracterization of their testimony, howev-
er, does not affect the results herein.
4 We agree with the Administrative Law Judge that Respondent, inter
alia, violated Sec 8(a)(1) of the Act by insisting that employees meet
with it individually, rather than collectively, as they had previously done,
since such conduct was designed to prevent employees front acting col-
lectively for their mutual aid and protection
5 All dates hereinafter are in 1979 unless otherwise indicated
6 The Administrative Law Judge found, and we agree, that the appro-
priate unit consists of all clerical employees, including teller and book-
keeping employees, employed by Respondent at its Mayfield, Kentucky,
bank, but excluding all officers, professional employees, guards, and su-
pervisors as defined in the Act.
7 Another employee, Andrea Wertz, was hired by Respondent on Feb-
ruary 26 bringing the total number of employees in the unit to 13 Addi-
tionally, the record reveals that employee Joyce Kelton, who was unable
to attend the meeting during which the authorization cards were signed,
authorized employee Nance to sign a card on her behalf by a telephone
conversation that same day.
822
THE EXCHANGE BANK
bargain with it but Respondent, by letter dated
March 7, declined to do so, choosing instead to
continue on a course of unlawful conduct which
began on February 22 and continued into late June.
Because of the Group's inability to obtain recog-
nition and to adequately represent their interests,
Respondent's employees found it necessary to fur-
ther pursue their organizational drive in an effort
to obtain more effective representation. In this
regard, they contacted the IAM and, after discus-
sions with IAM officials, became convinced that
the IAM would be more successful in representing
them than the Group had been.
At a meeting held on April 10, which all mem-
bers were invited to attend, eight of the Group
members passed a resolution effectively dissolving
the Group as a labor organization and which pur-
portedly caused the Group to affiliate with the
IAM.8 Immediately thereafter, these 8 employees
signed authorization cards on behalf of the IAM
which consequently gave the IAM the clear and
uncoerced support of the majority of the 13 em-
ployees in the unit. Having obtained the support of
a majority of Respondent's employees, the IAM,
on April 25, requested that Respondent recognize
and bargain with it but Respondent, on April 30,
refused to do so, persisting instead on its previously
charted course of unlawful conduct.
On the basis of the above facts we find, contrary
to the Administrative Law Judge, that no affili-
ation occurred here. Rather, the evidence estab-
lishes that, when the Group failed to obtain recog-
nition from Respondent, the employees who had
supported it sought more effective representation,
and thereafter disbanded and dissolved the Group
upon determining that the IAM could better serve
their representational needs. In this regard, these
employees approached the IAM and, after conclud-
ing that it could provide representation that the
Group could not provide, held a meeting during
which they passed a resolution explicitly dissolving
the Group. As of that moment, the Group effec-
tively ceased to exist as a labor organization. That
the resolution also went on to state a desire to "af-
filiate" with the IAM is of no consequence in light
of the Group's dissolution and the employees' ex-
ecuting authorization cards on behalf of the IAM.
By virtue of these two acts, it is apparent that what
actually occurred here, regardless of the expression
of affiliation contained in the resolution, was not an
affiliation of one union with another but rather the
repudiation by the unit employees of the labor or-
ganization they had created for a more established
8 Nance and Nolan, who had served as the Group's president and vice
president, respectively, became committee-persons within the IAM. Ad-
ditionally, all of the membership fees and dues in the Group's treasury
were transferred to the IAM.
and experienced one; i.e., the IAM. Under these
circumstances, we find that the IAM became the
collective-bargaining representative of Respond-
ent's employees in the appropriate unit when, on
April 10, 8 of the 13 unit employees, 9 a clear ma-
jority, designated it as such by signing valid au-
thorization cards for it, and not, as found by the
Administrative Law Judge, by virtue of an affili-
ation which we have found did not occur.'0
2. In agreement with the Administrative Law
Judge, we find that Respondent's unfair labor prac-
tices were so egregious and pervasive that their co-
ercive effects cannot easily be eliminated by use of
the Board's traditional remedies nor can a fair elec-
tion be held among Respondent's employees. Thus,
the evidence clearly establishes that, in a deter-
mined effort to restrain employees in the exercise
of their Section 7 rights and in an attempt to quash
any union activity in its inception, Respondent, on
February 22, embarked on a course of unlawful
conduct which extended throughout the employ-
ees' organizational campaign into late June. During
that period, Respondent, in violation of Section
8(a)(1) of the Act, threatened its employees with
discharge, made unlawful promises of benefits, un-
lawfully interrogated employees concerning their
9 The record reveals that subsequent thereto employees Linda Foy,
Patti Hopwood, and Julie Sassen signed authorization cards for the IAM
on May 4, May 6, and July 16, respectively.
'o The Board has defined an affiliation as "the alignment or association
of a new organization, nor does it result in the dissolution of an already
existing organization." (Emphasis supplied.) See Amoco Production Compa-
ny, 239 NLRB 1195, 1197 (1979). As noted, the Group had been effec-
tively dissolved prior to the IAM's having received the support of a ma-
jority of the unit employees and, consequently, no affiliation could have
occurred. Further, the fact that Nance and Nolan became committe-per-
sons with the IAM or'that the unit employees purportedly maintained a
limited semblance of autonomy does not, in our view, warrant a contrary
finding.
Further, the instant case is unlike cases involving affiliation. In those
cases, the union seeking affiliation had previously been recognized by the
employer or certified by the Board and, after the affiliation, the employer
had refused to recognize and bargain with the newly affiliated union on
the ground that the affiliation created a change in the employee's bar-
gaining representative or a new labor organization which, inter alia, was
disruptive of an established bargaining relationship. Here, the Group,
prior to becoming defunct, had never been recognized by Respondent or
certified by the Board and Respondent's refusal to recognize the Group
was based solely on its unsupported claim that the Group lacked majority
support. Further, Respondent's subsequent refusal to also recognize and
bargain with the IAM was based on the same unfounded claim and was
not based on any purported disruption of a previously established bar-
gaining relationship through an alleged affiliation. To the contrary, be-
cause of its unlawful conduct, no bargaining relationship had ever been
established either with the Group or thereafter with the IAM. Indeed, it
is clear that Respondent had no intention of granting recognition to or
bargaining with any labor organization selected by its employees as their
collective-bargaining representative.
In finding that the "affiliation" vote of the Group members complied
with Board standards, the Administrative Law Judge relied on Amoco
Production Company, supra. We note, however, that the holding in that
case recently was reconsidered and reversed by the Board in Amoco Pro-
duction Company, 262 NLRB 1240 (1982) However, given our conclu-
sion that the circumstances here, in fact, do not present an affiliation, no
further discussion of the holding of the most recent Amoco decision is
necessary for the resolution of the instant case
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union or protected activities, created the impres-
sion that it employees' activities were being kept
under surveillance, tried to force employees into
quitting and stated to them that it would be diffi-
cult to obtain employment elsewhere because of
their activities, refused to meet with them in a
group, and warned them against discussing among
themselves the substance of meetings held with in-
dividual employees.
In addition, Respondent, in violation of Section
8(a)(3) and (1) of the Act, discharged the chief
leading union adherents, Nance and Nolan, imme-
diately upon learning of the Group's formation and
upon discovering that they had been chosen as
president and vice president of the Group. Such
conduct was clearly designed to convey to its em-
ployees the message that a similar fate awaited
'those who engaged in union activities or lent their
support to such activities. That this was Respond-
ent's intent and purpose is clear from the fact that
it refused to reinstate six employees who walked
off their jobs in protest over the discharge of
Nance and Nolan, despite their unconditional offers
to return to work, in further violation of Section
8(a)(3) and (1) of the Act.
Finally, in furtherance of its design to defeat the
employees' organizational efforts, Respondent, in
violation of Section 8(a)(5) and (1) of the Act, re-
fused to recognize and bargain with the Group at a
time when it knew that the Group had the support
of a majority of its employees." Respondent's
effort in this regard proved to be successful as evi-
denced by the fact that, as a direct result of the
Respondent's actions, the employees abandoned
their support for the Group and consequently gave
their support to the IAM in hopes of obtaining
more effective representation. Having been success-
ful in undermining support for the Group, Re-
spondent then sought to undermine and dissipate
employee support for the IAM by refusing, in vio-
lation of Section 8(a)(5) and (1) of the Act, to rec-
ognize and bargain with the IAM at a time when it
knew or should have known that that labor organi-
zation had the support of a majority of its employ-
ees. Instead, Respondent chose to continue engag-
ing in unfair labor practices, which conduct, as
noted, above, continued into late June.
II Having found that Respondent violated Sec. 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the Group, the Adminis-
trative Law Judge also recommended that Respondent be required to
bargain with the Group and its successors as of February 26, when the
Group made its demand for recognition. While we agree that Respond-
ent's refusal to recognize and bargain with the Group violated Sec.
8(a)(5) and (1) of the Act, we nevertheless find that a bargaining order
would be inappropriate inasmuch as the Group has ceased to exist as a
labor organization and, therefore, no longer represents Respondent's em-
ployees.
In light of Respondent's numerous and serious
unfair labor practices, as described above, we are
convinced that the inhibiting effects of such unlaw-
ful conduct will continue to linger on and will pre-
vent the holding of a fair election in this case.
Rather, under the circumstances herein, we find
that a bargaining order, requiring Respondent to
recognize and bargain with the IAM, would better
serve to protect employee sentiment expressed
through authorization cards. In so doing, we are
not unmindful of the fact that, as pointed out by
Respondent in its motions to reopen the record,
almost 3 years have passed since it first engaged in
the conduct found unlawful herein. However,
when we consider the serious nature of Respond-
ent's unlawful conduct which, as noted above, con-
sisted, inter alia, of threats of discharge and the dis-
charge of the two leading union adherents,12 and
which resulted in the dissolution of one labor orga-
nization and the attempted destruction of majority
support for another, we are convinced that the last-
ing effects of such conduct cannot easily be eradi-
cated by the mere passage of time.' 3 As stated by
the Supreme Court in N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575, 612 (1969), "a bargaining
order is designed as much to remedy past election
damage as it is to deter future misconduct. If an
employer has succeeded in undermining a union's
strength and destroying the laboratory conditions
necessary for a fair election, he may see no need to
violate the cease-and-desist order by further unlaw-
ful activity. The damage will have been done, and
perhaps the only fair way to effectuate employee
rights is to re-establish the conditions as they exist-
ed before the employer's unlawful campaign." In
view of the above, we find that the best method
for remedying Respondent's unfair labor practices
and for deterring any future misconduct would be
through the issuance of a bargaining order. 4
l2 Threats of discharge and the discharge of union adherents have long
been considered by the Board and the courts as "hallmark" violations jus-
tifying the issuance of bargaining orders. See Ighland Plastics Inc., 256
NLRB 146 (1981); NLR.B. v. Jamaica Towing, Inc., 602 F.2d 1100 (2d
Cir. 1979), which recognized the above-type conduct as "hallmark viola-
tions" justifying the need for a bargaining order which, for other reasons,
denied enforcement of the Board's bargaining order.
iJ The mere passage of time alone has been found not to constitute a
sufficient basis for denying a bargaining order. See Jamaica lowing, Inc.,
247 NLRB 353, 355 (1980); N.L.R.B. v. Pacific Southwest Airlines, 550
F.2d 1148 (9th Cir. 1977).
" Although we have rejected Respondent's offer of evidence concern-
ing the alleged subsequent reinstatement of some of the discriminatees,
even were we to accept and consider such evidence, we would find that
a bargaining order is warranted. It is reasonable to assume that these em-
ployees, once having been discharged for their union activities, would be
painfully aware that future support of a union could lead to the same end.
In such circumstances, as the Supreme Court has so aptly phrased it, Re-
spondent "may see no need to [engage in] further unlawful activity. The
damage will have been done ... ."
824
THE EXCHANGE BANK
Accordingly, Respondent shall be ordered to
recognize and bargain with the IAM as the em-
ployees' exclusive collective-bargaining representa-
tive. However, having found that no affiliation oc-
curred between the Group and the IAM, we shall,
contrary to the Administrative Law Judge's find-
ing, require Respondent to bargain with the IAM
as of April 25, the date on which the IAM made its
demand for recognition. The Administrative Law
Judge's recommended remedy is hereby modified
to conform to our findings herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
The Exchange Bank, Mayfield, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Delete the last full sentence of paragraph 2(b)
and, in place thereof, insert the following sentence:
"The above-described backpay due the six unfair
labor practice strikers shall be computed as of
March 19, 1979, the date on which they made an
unconditional offer to return to work."
2. Insert the following as paragraphs 2(c) and (d)
and reletter the subsequent paragraphs accordingly:
"(c) Expunge from its files any references to the
unlawful discharges of and/or failure and refusal to
reinstate the above-named employees, and notify
them in writing that this has been done and that
evidence of this unlawful conduct will not be used
as a basis for future personnel actions against them.
"(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
3. 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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coercively interrogate our
employees concerning their protected concert-
ed or union activity or such activity by other
employees.
WE WILL NOT threaten our employees with
discharge or other reprisals for engaging in
protected concerted or union activity.
WE WILL NOT warn or instruct our employ-
ees not to discuss conversations concerning
wages and other terms and conditions of em-
ployment with each other.
WE WILL NOT insist that our employees
meet with management on an individual basis
for the purposes of discussing wages and other
working conditions.
WE WILL NOT promise our employees better
economic benefits or jobs to induce them to
abandon engaging in protected concerted or
union activity.
WE WILL NOT create the impression that we
have our employees' protected concerted or
union activity under surveillance.
WE WILL NOT attempt to force our employ-
ees to quit because they engage in protected
concerted or union activity.
WE WILL NOT tell our employees it would
be more difficult to obtain a job elsewhere be-
cause they have engaged in protected concert-
ed or union activity.
WE WILL NOT discharge our employees be-
cause they engaged in protected concerted or
union activity in order to discourage other em-
ployees from engaging in such activity.
WE WILL NOT refuse to bargain collectively
with respect to wages, hours, and other terms
and conditions of employment with Locdal
Lodge 2507, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO,
as the exclusive bargaining representative of
our employees in the appropriate unit.
WE WILL NOT fail and refuse to immediately
reinstate our unfair labor practice strikers upon
their unconditional offers to return to work.
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL immediately recognize and bar-
gain collectively with the above-named Union
as the exclusive representative of all the em-
ployees in the appropriate unit with respect to
wages, hours, and other terms and conditions
of employment and, if an agreement is
reached, embody such agreement in a signed
contract.
WE WILL offer Pat Nance, Nedra Nolan,
Martha Beasley, Susan Janes, Joyce Kelton,
Peggy Morgan, Linda Reid, and Janis Strong
immediate and full reinstatement to their
former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
any other rights and privileges previously en-
joyed; and make them whole for any loss of
earnings they may have suffered due to the
discrimination practiced against them by
paying them the sums they would have
earned, less net interim earnings, with interest
thereon. The above-described backpay due the
six unfair labor practice strikers shall be com-
puted as of March 19, 1979, the date on which
their unconditional offer to return to work was
made.
WE WiI.L expunge from our files any refer-
ences to the unlawful discharges of and/or
failure or refusal to reinstate the above-named
employees, and WE WILL notify them in writ-
ing that this has been done and that evidence
of this unlawful conduct will not be used as a
basis for future personnel actions against them.
THE EXCHANGE BANK
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
tions Act, as amended, 29 U.S.C. 151, et seq. (herein the
Act), was heard before me on various dates in October
and November 1979,1 in Mayfield, Kentucky, based
upon an amended consolidated complaint, as further
amended at the hearing, issued by the Regional Director
for Region 9 (Cincinnati, Ohio) on September 25 (the
only operative complaint in this proceeding) arising out
of a charge filed on February 27 in Case 9-CA-13566 by
Exchange Bank Collective Bargaining Group (hereafter
usually referred to as the Bargaining Group), and a
I All relevant events in this case occurred during the calendar year
1979 and unless otherwise indicated all months and dates referred to
hereinafter are 1979.
charge filed on August 8 in Case 9-CA-14187 by Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO (herein called the Union or IAM), alleg-
ing that The Exchange Bank (herein called the Respond-
ent or the Employer), had violated Section 8(a)(1), (3),
and (5) of the Act.
In substance, the amended complaint alleges that the
Respondent by its manager and vice president, Cecil
Day, violated Section 8(a)(1) of the Act in eight separate
particulars, occurring mostly on February 23, and that
Respondent's chairman of the board, James McKelvey,
violated Section 8(a)(1) of the Act in three separate par-
ticulars on June 28. It is also alleged that on February
26, the Respondent discharged its employees Nedra
Nolan and Pat Nance and thereafter failed and refused to
reinstate them, in violation of Section 8(a)(3) and (1) of
the Act, and the work stoppage and strike on February
26 was caused and prolonged by these unfair labor prac-
tices and, thus, was an unfair labor practice strike. It is
alleged that, on March 19, the striking employees uncon-
ditionally offered to return to work and on the same date
the Respondent refused to reinstate them, also in viola-
tion of Section 8(a)(3) and (I) of the Act.
Other issues raised by the complaint are whether, on
February 25, a majority of the employees in an appropri-
ate unit, hereinafter set forth, designated the Exchange
Bank Collective Bargaining Group as their exclusive col-
lective-bargaining representative and whether that group
was the exclusive representative of the employees at all
times, until April 10, when the members of the Exchange
Bank Collective Bargaining Group merged with Local
Lodge 2507 of the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, which then
became, and has remained, the exclusive bargaining rep-
resentative of all the employees in the unit. The com-
plaint alleges that, on February 26, the Bargaining
Group requested the Respondent to recognize and bar-
gain with it, and that, on April 25, and continuing there-
after, the Union requested the Respondent to recognize
and bargain with it as the exclusive representative of the
employees in the unit, and that at all times since those
dates the Respondent has failed and refused to recognize
and bargain with either the Bargaining Group or the
Union. The refusal to grant recognition and bargain with
the Bargaining Group and/or the Union is alleged to
violate Section 8(a)(5) and (1) of the Act, and the Gener-
al Counsel contends that an order requiring the Respond-
ent to recognize and bargain with the Union should issue
since the Respondent's unfair labor practices have made
uncertain the possibility of conducting a free and fair
election.
The Respondent's duly filed answer admits the filing
and service of the charges; the commerce data; that it is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act; that the Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act; that James McKelvey, Cecil
Day, Judy Mohler, and Malcolm Boaz are supervisors or
managerial officials of the bank as alleged in the com-
plaint. It further admits that it discharged Nedra Nolan
826
THE EXCHANGE BANK
and Pat Nance on February 26, but contends that the
discharges were for cause and not in violation of any
section of the Act. It denies that the strike which com-
menced on February 26 was an unfair labor practice
strike, and further denies the commission of any unfair
labor practices and that the Exchange Bank Collective
Bargaining Group is a labor organization within the
meaning of Section 2(5) of the Act.
Preliminary issues raised, which must be dealt with
here, include a description of the appropriate unit 2 and
whether or not two individuals should be included in the
unit. Contrary to the General Counsel and the Charging
Party, the Respondent would include Anna Lee Hamlet,
its officer and assistant cashier, in the unit based upon
the contention that her titles are merely honorary and
she exercises no managerial or supervisory functions.
Also contrary to the General Counsel and the Charging
Party, the Respondent would exclude Janis Strong, its
head bookkeeper, as a supervisor. This is based upon the
contention that she has been granted and exercises at
least some of the indicia of supervisory authority set
forth in Section 2(11) of the Act.
Upon the entire record in this case, including consider-
ation of able briefs and oral arguments by the parties,
and my observations of the testimonial demeanor of the
numerous witnesses testifying under oath, and upon sub-
stantial reliable evidence, I make the following:
FINDING OF FACTS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Kentucky corporation engaged in
the commercial and general banking business in the city
of Mayfield, Kentucky. During the 12 months preceding
the issuance of the amended complaint herein, in the
course and conduct of its business operations, it received
gross income in excess of $500,000 from investments
valued in excess of $1-1/2 million. During the same
period of time the Respondent transferred funds in excess
of $50,000 directly to banks located outside the Com-
monwealth of Kentucky.
The complaint alleges, the answer admits, and I find
that the Respondent was, and is, an employer as defined
in Section 2(2) of the Act, and engaged in commerce and
in operations affecting commerce as defined in Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find
that International Association of Machinists and Aero-
space Workers, AFL-CIO, is, and has been at all times
I The complaint alleges the appropriate unit to be: "All nonexempt
employees employed by Respondent at its Mayfield, Kentucky, bank, ex-
cluding all other employees and all professional employees, guards and
supervisors as defined in the Act." This unit description does not com-
port with the language generally used by the Board in defining an appro-
priate unit and was apparently taken from the unit described by the Bar-
gaining Group in its demand for recognition on February 26. At the
hearing the General Counsel contended that "all nonexempt employees"
simply meant that all officers of the bank would be excluded. The Re-
spondent professed not to understand the unit sought by the demand. In
his brief, counsel for the General Counsel proposed several different units
which would apparently include the same employees.
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
The Respondent's denial of the labor organization
status of the Bargaining Group is apparently based upon
its contention that Janis Strong, whom the Respondent
contends to be a Section 2(11) supervisor, was active in
the formation of the group and that activity fatally taint-
ed the status of the group as a labor organization. In
view of my findings hereinafter that Strong was at no
relevant time a Section 2(11) supervisor, assuming that
supervisory participation in the organization of the group
would have been fatal, the Respondent's defense must
fall. The undisputed testimony of Patsy Nance, Nedra
Nolan, and others establishes that the sole purpose of the
employees meeting on February 25 was to form a bar-
gaining group for the exclusive purpose of dealing with
the employer (The Exchange Bank) concerning labor
disputes, wages, rates of pay, hours of work, and other
conditions of employment.3
Accordingly, it is clear that the Bargaining Group
formed by the employees of The Exchange Bank on
February 25 was at all times material herein a labor or-
ganization within the meaning of Section 2(5) of the Act.
Ill. FINDING 01 FACTS
A. Preliminary Statement
Prior to addressing the facts out of which the unfair
labor practices here arose, it may be helpful to set forth,
by way of background, certain pertinent events preced-
ing the alleged unfair labor practices, and a cast of char-
acters involved in this case. In this section I shall also
make a finding as to the appropriate unit and the compo-
sition of that unit at all relevant times. Although the tes-
timony and documentary evidence in this case is rather
voluminous, there is no significant testimonial or eviden-
tiary dispute as to the facts here, with the exception of
some of the independently alleged 8(a)(l) violations.
At times relevant herein, mid-February to late June
1979, the bank's board of directors were: J. S. McKel-
vey, chairman; R. E. Andrus, president; Malcolm Boaz,
corporate attorney; and W. B. Driver. The bank's offi-
cers, in addition to its president Andrus, were Cecil Day,
vice president and bank manager; Jimmy Lee Prince,
vice president and cashier; Judy Mohler, assistant vice
president; and Anna Lee Hamlet, assistant cashier. 4
Prior to early February, Eugene L. Hamby had also
been a member of the board of directors and the bank's
chief executive officer. On or about that date Hamby
was relieved of all his duties at the bank on the recom-
mendation of the Kentucky Banking Commission who
3 Sec 2(5) of the Act reads as follows:
The term "labor organization" means any organization of any
kind, or any agency or employee representation committee or plan,
in which employees participate and which exists for the purpose. in
whole or in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or condi-
tions of work.
4 As noted, the Respondent takes the position that Anna Lee Hamlet,
although listed on its comparative statement of condition as an officer
and assistant cashier, is de facto not an officer of the bank and should be
included in the unit
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted that it had discovered a number of banking irre-
gularities attributable to Hamby. Cecil Day, who was
then a vice president, and apparently the bank's assistant
manager, was promoted to bank manager and was re-
sponsible for the day-to-day operations of the bank.
However, according to the Respondent, Day was never
granted all the authority Hamby had enjoyed including
the authority to hire and fire employees, or apparently to
grant wage increases without the consent of the board of
directors. Thus, according to the Respondent, the trium-
virate of McKelvey, Boaz, and Driver formed a commit-
tee to operate the bank.
B. The Appropriate Unit
As heretofore noted, the unit alleged as appropriate in
paragraph 10 of the complaint is somewhat ambiguous
and does not comport with language used by the Board
in unit determinations. However, there does not appear
to be any ambiguity in the classifications of employees
sought to be represented by the Bargaining Group and
the Union. It is clear that all parties viewed the unit as
including all tellers and bookkeeping department employ-
ees, some of whom performed other duties such as tele-
phone operator and proof operator. Accordingly, I find
that:
All clerical employees, including tellers and book-
keeping employees employed by the employer at its
Mayfield, Kentucky bank, excluding all officers,
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
C. Disputed Unit Employees
The parties agree that on February 25, the date rele-
vant to the majority status of the Bargaining Group,
there were 12 employees in the unit. As heretofore
noted, they differ as to the inclusion of two such em-
ployees. Contrary to the General Counsel, the Bargain-
ing Group, and the Union, the Respondent would in-
clude in the unit its officer and assistant cashier, Anna
Lee Hamlet. The Respondent contends that Hamlet was
given these titles some years ago at her own request be-
cause she was a long-term and valued employee, and it
wanted to honor her in that manner. It insists her duties
are essentially those of the other tellers and that she does
not exercise any supervisory authority over any other
employee. There is nothing in the record to suggest that
Hamlet has any authority to hire or fire employees or to
effectively recommend such, but the same is true of Day.
It is admitted that Hamlet has cashier check and money
order signing authority, which is possessed only by other
officers; that she handles the night depository which
other clerical employees do not; that she can open the
Respondent's safety deposit boxes in the presence of one
clerical employee (two clerical employees cannot). Her
name appears as an officer and assistant cashier on all of
the comparative statement of condition reports issued
quarterly by the bank, at least some of which are pub-
lished in local newspapers and others made available to
the bank's customers.
In my view, even though there is no evidence that
Hamlet exercises, or has been granted, any supervisory
authority per se over any employee, it is clear that her
interest lies more with that of her fellow officers than
with the unit employees.5 Accordingly, I find that Anna
Lee Hamlet is excluded from the appropriate unit.
Contrary to the General Counsel, the Bargaining
Group, and the Union, the Respondent would exclude its
head bookkeeper, Janis Strong, as a supervisor. At times
relevant here, the Respondent's bookkeeping department
was located on the second floor of the bank building and
employed four to five employees, including Strong.
Strong testified that at the time Hamby promoted her to
head bookkeeper he advised her that it was her responsi-
bility to see that the work got out of her department and
sent to the computer processing center located at Padu-
cah, Kentucky, and to review the work done by other
employees and correct any mistakes that she discovered.
There is no contention that Strong had the authority to
hire or fire employees and she testified that she spent in
excess of 80 percent of her time performing the routine
bookkeeping duties the other bookkeeping employees
performed. She testified that on one occasion, when a
question of her authority to discipline an employee arose,
Hamby told her that she did not have such authority but
to bring any matter of that nature to his attention and he
would take care of it.
The Respondent contends that on one occasion
Hamby fired a bookkeeping department employee after
Strong had complained to him that the employee was in-
efficient. However, the record does not disclose whether
or not Hamby made an independent investigation prior
to taking this action or even whether or not Strong made
any recommendation in that regard to Hamby. The Re-
spondent also argues that if Strong is not a supervisor
then there is no supervisor in its bookkeeping department
which is located on the second floor away from the rest
of its operations. However, the record discloses that the
work performed in the bookkeeping department is rou-
tine in nature and that each bookkeeping department em-
ployee is familiar with the routine work she performs
each day. Consequently, there is little, if any, need for
the exercise of independent judgment on the part of
Strong or anyone else in making assignments to the em-
ployees there.
In my opinion, I have concluded that the position oc-
cupied by Strong is similar to that of a "leadperson," and
that she has never been granted or exercised any indicia
of supervisory authority as set forth in Section 2(11) of
the Act. Accordingly, Strong is included in the appropri-
ate unit. Hydro. Conduit Corporation, 254 NLRB 433
(1981); Upshur-Rural Electric Cooperative Corporation, 254
NLRB 709 (1981).
6 Contrary to the other officers, who are salaried and paid biweekly,
Hamlet is paid hourly, punches a timeclock, and receives her pay on a
weekly basis as do the unit employees. However, in my view this does
not alter the conclusion that her interest lies more with management than
that of unit employees.
828
THE EXCHANGE BANK
D. The Employees' Concerted Activities and the
Formation of the Exchange Bank Collective
Bargaining Group
The first part of February, shortly after Cecil Day was
placed in charge of the day-to-day operations of the
bank, Patsy Nance and apparently a number of other em-
ployees approached Day on an individual basis and re-
quested a wage increase. It appears that the employees of
the bank were paid minimum wage or slightly (not more
than 40 cents an hour) above. Day's response to the em-
ployees was negative, indicating that raises did not
appear feasible in the foreseeable future and apparently
alluded to the "turmoil" in the bank which had been
caused by the dismissal of Hamby and the banking irre-
gularities that had been discovered.
The bank's business hours on Fridays are 9 a.m. to 2
p.m., and 4 to 6 p.m. Thus, between 2 and 4 p.m. the
bank is closed for business. The record establishes that,
during that period of time after employees have complet-
ed any work accumulated from the morning business,
they are free to do whatever they wish so long as they
are back at the bank by its 4 p.m. opening time.
On Friday, February 16, during the time the bank was
closed for business, between 2 and 4 p.m., eight or nine
or the unit employees congregated in the bookkeeping
department where a discussion arose concerning their
dissatisfaction with their wages and other working condi-
tions. After some discussion the group selected Susan
Janes, a loan teller, to go to Day's office and, as their
representative, express to him their dissatisfaction with
their wages and working conditions. According to Janes,
she also told Day when she went to his office that it ap-
peared that some of the employees were about ready to
walk out. Day's response to Janes' expression of the em-
ployees' dissatisfaction with their wages and working
conditions, as reported back to the employees by Janes,
was clearly not satisfactory to them. Day was called by
them on the intercom and requested to come to the
bookkeeping department. In response to the request Day
went to the bookkeeping department and, according to
Patsy Nance, Assistant Vice President Judy Mohler and
Assistant Cashier Anna Lee Hamlet were also present in
the bookkeeping department from time to time during
their discussion with Day.
It is undenied by Day or anyone else that the employ-
ees expressed their dissatisfaction with their wages and
working conditions and they requested that Day arrange
for them to meet with the board of directors so that they
could present their problems directly to them. According
to Day, and some other employees, Day agreed that
their wages were too low but persuaded the employees
that it would be better if he spoke with the board of di-
rectors on their behalf with respect to obtaining more
money for them. He advised them that there would be a
board of directors' meeting on February 20, and he
would present their complaints at that time and see what
could be accomplished.
The employees agreed to this and there was apparent-
ly very little discussion among them concerning their
dissatisfaction until after Day reported back to most of
them individually on February 22 the amount of wage
increase he had been able to obtain for them.
During the interim, i.e., between February 16 and 22,
Day approached Patsy Nance, who appeared to be one
of the leaders of the group of employees complaining of
their wages and working conditions, and asked her to
"hang loose" and "sit tight" and he assured her that she
would be pleased with her forthcoming wage increase. It
appears that Day may have approached other employees
in the same vein.
According to the undisputed testimony of Day,
McKelvey, and Boaz, at the February 20 board of direc-
tors' meeting, Day advised the board of the employees'
dissatisfaction with their wages and perhaps some other
conditions of employment, and the board decided to dis-
tribute merit wage increases to the unit employees, with
the exception of one who did not receive a raise in view
of her work performance. The raises ranged from 10
cents per hour to 30 cents per hour.
Finally, on February 22, a Thursday, Day called most,
if not all, of the unit employees into his office individual-
ly and advised them of their respective wage increases.
It appears that he commiserated with them by telling
them that he knew it was not sufficient but it was as
-much as he could obtain at that time. It appears, from
the testimony of the employees, that most of them ex-
pressed dissatisfaction with the wage increase at this
time.
During the separate conversations that Day had with
Nedra Nolan and Patsy Nance that day, he told them
they were good employees and would be difficult to re-
place and that their raises would be 20 cents per hour. 6
He also advised them that a new employee, Andra
Wertz, would be reporting for work on Monday, Febru-
ary 26, to relieve Nolan, Nance, and Assistant Vice
President Judy Mohler of some of their respective duties.
Nolan expressed the view that she would rather be given
a better raise than a cut in her job duties. She contends
that this is the first that she had heard of the new em-
ployee coming to work on February 26. Nance, when in-
formed of the new employee and that she would be re-
lieved of part of her duties, raised no objections to being
relieved of some duties. According to both Nance and
Nolan this is the first they had heard of the new employ-
ee coming to work on Monday.
According to the credited testimony of Nance, during
the course of her conversation with Day he told her that
he knew the individuals who were behind all the wage
demands and that he should "go out there and fire
them." 7
Accordingly, as alleged in the amended complaint, I
find that Day's telling Nance that he knew who was
behind the demand for more wages and he should go out
and fire them constitutes a threat to discharge employees
for engaging in protected concerted activity and present-
ing grievances, as alleged in paragraph 5(a)(vii).
6 Nance received a 30-cent-per-hour pay increase
7 Day was not an impressive witness. His testimony was at times eva-
sive and at odds with otherwise uncontroverted facts established by the
record. On the other hand, Nance's testimony was direct and forceful,
and totally uncontrovenrted or disputed except with respect to the inde-
pendent 8(aXI) allegations against Cecil Day. Accordingly, I credit
Nance's version of this conversation
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Friday, February 23, was almost a repeat performance
of the activities of the employees and of Day, as had oc-
curred on Friday, February 16. Testimony was elicited
from eight or nine employee witnesses, as well as from
Cecil Day concerning the events occurring between 2
and 4 p.m. that day and there is no significant material
conflict in the testimony of any of the employees or
Day. That is not to say, of course, that each employee
and Day used the same words in describing the events.
The record establishes that, again during the 2 to 4 p.m.
break, eight or nine of the unit employees met again in
the bookkeeping department and discussed their dissatis-
faction with the wage increase which they had received
as well as other working conditions. Although Nance
had been told on Thursday, February 22, that her pay in-
crease would be 20 cents per hour, when she received
her paycheck on February 23 it reflected a 30-cent-per-
hour wage increase. After some further discussion the
entire group of employees went to Day's office and,
through Patsy Nance apparently designated as their
spokesperson, advised Day that the raises they had re-
ceived were insufficient. Day inquired as to how long
they would give him to get them an answer as to wheth-
er or not the Respondent would commit itself to provide
future wage increases for them. Nance informed Day
that they wanted his answer by 6 p.m. that day.
There was evidently some further discussion, during
which Nance and Nolan testified that Day looked direct-
ly at them and stated that he thought there were a
couple of employees who would not be satisfied with
anything. According to employee Peggy Morgan, Day
made a similar remark to her during a private conversa-
tion that same day, stating that two of the employees
would not be pleased no matter what management did.
According to both Day and McKelvey, shortly after
this encounter with the employees on February 23 Day
telephoned McKelvey and advised him of the substance
of the meeting and of the employees' continued dissatis-
faction with their wages and working conditions. He also
advised McKelvey that he had heard some employees
were considering walking out or not reporting to work
on Monday, February 26.8 In any event, Day informed
McKelvey that he was meeting with the employees at 6
p.m. and McKelvey instructed him to ascertain from
each employee if they would be at work on Monday and
any employee who would not agree to report to work
on Monday should be relieved of her keys to the bank.
It appears that, after the first meeting with Day on
February 23, the employees again had a conference and
agreed that, regardless of the outcome of the discussion
with Day at 6 p.m. that day, they would have a meeting
on Saturday at 10 a.m. at Pappa G's restaurant located in
Mayfield, Kentucky.
As soon after the 6 p.m. closing hour as the individual
employee could complete her work for the day, each re-
ported to Day's office. Apparently four to six employees
8 It is unclear whether Day's "rumor" or information concerning the
possibility that some employees may not report for work on February 26
was based upon the statement of Susan Janes to him at the February 16
meeting that some employees were ready to walk out, or whether or not
anything had been said to Day on that day concerning the possibility of
employees not reporting to work.
arrived there at or about the same time, shortly after 6
p.m., and attempted to enter Day's office as a group.
Day informed them that he would not talk with them as
a group but only with them one at a time on an individu-
al basis. Nedra Nolan specifically requested Day to speak
with them as a group but he refused to do so." The em-
ployees acquiesced in Day's demand and met with him
individually. Janis Strong went first and was followed by
the other seven employees present for that meeting.
The General Counsel alleges that Day's refusal to
meet with the employees as a group and his insistence
upon talking with them on an individual basis only, if
they wished to learn anything about their wage demands,
violates Section 8(a)(1) of the Act. Stephens Produce Co.,
Inc., 214 NLRB 131, 138 (1974). Under the circum-
stances here, the employees were clearly engaged in Sec-
tion 9(a) activity which is protected by Section 7 of the
Act, and Day's refusal to meet with them as a group vio-
lates Section 8(a)(1) of the Act as alleged in paragraph
5(a)(iii).
In addition to the unfair labor practice committed by
Day by refusing, without acceptable reason, to meet
with the employees as a group, the General Counsel con-
tends that during the individual interviews with the em-
ployees on February 23 Day committeed a number of
other 8(a)(1) violations. First, the General Counsel al-
leges that Day's interrogation of each of the employees
as to whether they would report to work on Monday,
February 26, in the absence of the safeguards for interro-
gating employees promulated by the Board in Johnnies
Poultry Co., 146 NLRB 770, 774 (1964), enforcement
denied 344 F.2d 617 (8th Cir. 1965), and Struknes Con-
struction Co., Inc., 165 NLRB 1062, 1063 (1967), consti-
tutes coercive interrogation, and, in conjunction with his
requirement that they commit themselves to work for 2
weeks or turn in their keys, which he explained to at
least one employee meant being fired, further violated
Section 8(a)(1) of the Act, as a threat to discharge for
engaging in protected concerted activity.
The Respondent contends that Day's inquiry of the
employees as to whether they would work on Monday
was privileged because of Janes' report to Day on Feb-
ruary 16, that there was talk of a walkout, in view of the
Kentucky statutes KRS 287.195 and 287.197 which re-
quired the bank to remain open on all regular business
days, as was February 26, and it had to know that it had
the employee complement to comply with the statute.
The cases cited by the Respondent l ° are inapposite on
the facts here.
' Day testified to the effect that the employees arrived at his office and
elected to come in one at a time and talk with him, and never requested
that they meet with him as a group. As noted earlier, Day was not an
impressive witness and I am persuaded, by the cumulative testimony of
the eight employees who met with him that evening, that they requested
to meet as a group and not on an individual basis. It should be noted in
this regard that most of their previous meetings with Day had been on a
group basis and not on an individual basis. Thus, I find it far more prob-
able that the employees elected to continue that avenue of approach
rather than to attempt to discuss their dissatisfactions with Day on an in-
dividual basis.
i' Marco Polo Resort Motel, 242 NLRB 1288 (1979), and Coopco, Incor-
porated. d/b/a Dove Restaurant, Inc., 232 NLRB 1172 (1977).
830
THE EXCHANGE BANK
Even assuming, which I do not, that the Respondent
had reasonable cause to believe some of its employees
may not report for work on February 26, so that it might
conduct its business as required by Kentucky banking
statutes, it probably had a right to uncoercively attempt
to determine staff availability for Monday, February 26,
but it may not do so in an atmosphere of other unfair
labor practices. Cf. Preterm, Inc., 240 NLRB 654 (1979).
However, where as here such inquiry is conditioned
upon the employees' immediate agreement to work for 2
weeks and the threat that failure to so agree would result
in discharge, such interrogation is coercive and tends to
interfere with employees' Section 7 rights in violation of
Section 8(a)(l). Thus, both the interrogation of the em-
ployees concerning their availability for work on Febru-
ary 26 and the threat to discharge if they did not imme-
diately agree to work for 2 weeks violate the Act as al-
leged in paragraph 5(a)(i) of the complaint. Commercial
Management, Inc. d/b/a Continental Manor Nursing
Home, 233 NLRB 665 (1977).
It appears that at the conclusion of the meeting with
each employee Day instructed, or admonished, each of
them not to discuss with the other employees anything
that had been said in the meeting or any agreement that
had been reached concerning their wages and terms of
employment, including whether they had agreed to work
for 2 weeks. In paragraph 5(a)(iv) the General Counsel
alleges this to violate Section 8(a)(1).
It is well settled that an employer interferes with its
employees' Section 7 rights by invoking rules or instruc-
tions not to discuss their wages. T. V and Radio Parts
Company, Inc., 236 NLRB 689 (1978). Similarly, rules or
instructions forbidding discussion among the employees
of work rules, which are terms and conditions of em-
ployment, have been found to curtail or infringe upon
employees' protected concerted activity and the exercise
of Section 7 rights, Poly Ultra Plastics. Inc., 231 NLRB
787 (1977).
At the meeting a number of employees, Reed, Jones,
and Morgan, asked Day what other employees had de-
cided with respect to working on February 26, and for 2
weeks. Day refused to tell them, saying that he wanted
their own decision without being influenced by the
others. In conjunction with Day's refusal to meet with
the employees as a group, his admonition to them not to
discuss their meeting with other employees, and his in-
sistence upon an immediate decision from them, without
benefit of group consultation, such conduct is coercive
because of the atmosphere of reprisals it created, and fur-
ther violates Section 8(a)(1) of the Act. See Mosher Steel
Company, 220 NLRB 336 (1975).
During Day's meeting with Martha Beasley he told
her that he knew she was with the group of employees
making an issue of more money and alluded to the fact
that the bank (he) had other plans for her. Similarly,
during Day's meeting with Nance, whom he knew to be
one of the leaders of the group, he told her that she
could be the head teller in 4 to 6 weeks, which job
would pay $4 an hour.
In paragraph 5(a)(ii) of the complaint, the General
Counsel alleges each of these statements to constitute a
promise of economic benefits to these employees to
induce them to forgo engaging in protected concerted
activity. Under the circumstances here, including the
other unfair labor practices committed at these meetings,
I agree that Day's statements to Beasley and to Nance
were made to induce them to forgo engaging in protect-
ed concerted or union activity in violation of Section
8(a)(1) of the Act. See N.L.R.B. v. Exchange Parts Co.,
375 U.S. 405 (1964), reversing 304 F.2d 368 (5th Cir.
1962), enfg. 131 NLRB 806 (1961).
As a result of their previous agreement, five of the
unit employees, Nance, Nolan, Reed, Beasley, and Janes,
met at Pappa G's restaurant on Saturday at 10 a.m. They
discussed the activities of the past few days and their
failure to make any progress toward getting more wages
or better working conditions. Although Nolan had pre-
pared a letter to several banking-related governmental
agencies, it was decided not to be sent at that time, but
instead to obtain information on how their group could
be formalized and perhaps, by law, require the employer
to deal with them on a collective basis.
As a result of this discussion concerning their right to
organize a union on Saturday, Nedra Nolan went to the
library of Murray State College located nearby. There,
with or without assistance, she located a volume of the
second edition of CCH (Commerce Clearing House),
dealing with the NLRA and employee rights thereunder,
including the right to "form, join and assist" labor orga-
nizations, and the right to bargain collectively with an
employer. She copied, by Xerox, some 34 pages which
she felt would be of help to the employees in their effort
to bargain collectively with the employer.
Armed with this information Nolan returned to May-
field where she discussed the materials with Patsy
Nance. Saturday evening and Sunday morning, February
25, Nance, Nolan, and other employees telephoned, or
attempted to telephone, all the employees in the unit
where they discussed the information Nolan had ob-
tained, and scheduled a meeting with all the employees
who could attend for 3:30 p.m. at DeVanti's restaurant.
The purpose of the meeting was to consider a more
formal organization of their group.
In the meanwhile, on Saturday, according to McKel-
vey and Day, they again discussed the employees' com-
plaints and the impact of Nance and Nolan's statement
that they "would not" or "would rather not" train the
new employee during the 2-week period Day had re-
quested. McKelvey reiterated his decision to wait until
Monday to decide what to do if Nance and Nolan were
asked to train the employee and refused at that time.
Of the 12 employees in the unit, 9 employees attended
the Sunday meeting at DeVanti's. Except as noted, there
is no dispute as to the events transpiring there. Patsy
Nance presided over the meeting and the materials ob-
tained by Nolan concerning employee rights to organize
a labor organization and collectively bargain with the
employer were discussed and at least some of the materi-
al was shown to the other employees. As a result of
these discussions it was concluded by the employees that
they could more effectively deal with the employer on
matters concerning their wages and other conditions of
employment if their group were more formally struc-
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tured. All witnesses present, except Pat Pritchard as
hereafter addressed, testified that a formal vote by show
of hands was taken on the question of whether the em-
ployees desired to form a collective-bargaining group."
The vote was unanimous that such a group be formed.
Patsy Nance and Nedra Nolan were then duly elected
president and vice president, respectively.
Each employee was then given a blank piece of paper,
about 3 by 5 inches, and was asked to write her name,
job classification, length of time employed, and the
amount per hour she felt she should be making. This was
done by each employee and the completed papers were
returned to Nance and Nolan. Nance advised the group
that she would prepare a letter to the bank advising the
bank that they had formed a collective-bargaining group
and demand that the bank recognize it and bargain col-
lectively with the group as a labor organization. They
were also to advise the bank of the salary desired by
each of the employees. In conclusion, it was decided to
give the employer the 2 weeks, which Day had request-
ed at his Friday meeting, and that during that time they
would endeavor to be the best employees possible.
Upon adjournment of the meeting, Nance telephoned
employee Joyce Kelton, who had told her she could not
be at the meeting, and advised her of what had tran-
spired there and asked if she wanted to join. Kelton told
Nance that she wanted to join and authorized Nance to
fill in the same information for her that had been ob-
tained from the other employees. 12
Employee Pat Pritchard who was in attendance at the
Sunday meeting made three telephone calls that day con-
cerning the meeting to Chairman of the Board McKel-
vey. She first called McKelvey when she was invited to
the meeting by Nance, and advised him the employees
were having a meeting and asked if she should attend. A
short time later she called McKelvey and told him she
had decided to go. Although both she and McKelvey
denied that McKelvey made any request on that occa-
sion, or that there was any agreement that she would
report back to McKelvey on the events of the meeting,
she telephoned McKelvey a third time and reported
what had happened there. She told McKelvey, inter alia,
that the employees had formed a collective-bargaining
group;'3 elected Nance as president and Nolan as vice
president; solicited the employees to sign the papers and
indicate the salary they desired; intended to demand that
the bank bargain with them as a group, but had agreed
to give the bank 2 weeks before it took any further
I" It is not clear whether the name the "Exchange Bank Collective
Bargaining Group" was used on that occasion.
12 These 10 sheets of paper as prepared by the employees were re-
ceived into evidence at the hearing. The General Counsel contends that
they are tantamount to the more formal union authorization cards and
under the circumstances here serve that purpose. As hereafter found, I
agree.
'3 Although she testified at the hearing that there was never a vote
taken at the meeting on the question of whether the employees wanted to
organize, it was stipulated that, if the General Counsel recalled the other
eight employees who were at the meeting, each would testify that such a
vote was taken. Given that stipulation, in conjunction with the other
formal conduct at the meeting, e.g., the election of officers and the solici-
tation of the names of the employees and their desired wages, I am con-
strained to find that such a vote was taken with due solemnity sufficient
to form a labor organization as found in sec. II of this Decision.
action and agreed to try to be good employees during
that time. According to both Pritchard and McKelvey
she also told him that Nance and Nolan had said they
were not going to train the new employee and had urged
all the other employees to refuse to train new employ-
ees. 14
Nance and Nolan admit that during the course of the
meeting they stated something to the effect that they had
told Cecil Day that they "would not" or "would rather
not" train the new employee during this 2-week period,
but denied that they urged or suggested to other employ-
ees that they likewise refuse to train the employee. By
rebuttal testimony the General Counsel, through several
witnesses, corroborated the substance of Nance's and
Nolan's version. Accordingly, I find that Nance and
Nolan did not urge other employees to refuse to train
new employees.
Thus conclude the pertinent facts and findings with re-
spect to the employees' initial protected concerted activi-
ty and the formation of the Exchange Bank Collective
Bargaining Group as a labor organization.
E. The Discharge of Patsy Nance and Nedra Nolan-
The Strike and the Nature Thereof-The Demand To
Bargain
Again, there is little, if any, significant testimonial or
evidentiary conflict as to the following facts. On Sunday
evening Nance and Nolan prepared a letter to be deliv-
ered to Cecil Day the following day. The substance of
the letter was to advise the bank of the formation of
their collective-bargaining group and demand that the
bank recognize them under the law and bargain with
them in good faith on matters pertaining to wages and
other terms and conditions of employment. Also at-
tached to the letter was a list of the names of the 10 em-
ployees who had joined the group and the salary desired
by each.
However, neither Nance nor Nolan had the opportuni-
ty to hand deliver the letter to Day on February 26, as
they had planned.
On February 26, Nance was driven to work by her
husband and arrived about the same time as Nedra
Nolan, who had driven herself, shortly after 8 a.m. As
the two women approached the entrance to the bank
they were met by Chairman of the Board McKelvey,
who told them that they were terminated and could not
enter the bank and to "hand over" their keys to the
bank. Nance told McKelvey that she did not have her
key with her and suggested to Nolan, who appeared to
hesitate, that she not surrender her key to McKelvey
since he was not an officer of the bank, and reminded
her of repeated instructions from Hamby, the former
manager, and apparently from Day, that they should not
surrender their keys to anyone except an officer of the
bank. McKelvey reminded them that he was chairman of
the board. Nance told McKelvey that he was violating
their rights and McKelvey told them that they did not
14 According to Respondent, it is this last information that prompted it
to discharge Nance and Nolan the following day before it opened for
business.
832
THE EXCHANGE BANK
have any rights.' McKelvey told them they could talk
to Malcolm Boaz about their rights. They requested to
talk with Cecil Day which request was denied. McKel-
vey thereupon entered the bank and locked the door
behind him.
Nance and Nolan then went to the nearby post office
where they hoped to find Cecil Day. Day had the duty
of collecting the bank's mail at the post office each
morning. Not finding Day there, they used the copying
machine to make copies of their "demand letter." Nance
then went to a pay phone and telephoned the bank and
spoke with Janis Strong in the bookkeeping department.
She told Strong that she and Nedra had not been permit-
ted to enter the bank (fired) and said, "you girls come on
out."
Within a few minutes, 6' 6 of the remaining 10 unit em-
ployees concertedly ceased work and left the bank, join-
ing Nance and Nolan.
As Janis Strong started to leave the bank she asked
Day if Nance and Nolan had been fired. He refused to
answer. According to Susan Janes, as she was leaving
Day called her into his office and asked if she wanted to
work for the bank. She told him she did. Strong then
went to Day's office and told him the employees had
agreed to give him 2 weeks but he had failed to keep his
part of the bargain by firing Nance and Nolan. Day told
them that they had talked among themselves about the
Friday meetings, which he had asked them not to do,
and that they should not have had their meeting. He
argued that they did not have any right to make any de-
mands since they were not a union. Day's conduct here
is alleged, and found, to constitute coercive interrogation
and a threat of discharge in violation of Section 8(a)(1)
of the Act.
These eight employees went to the home of Martha
Beasley, one of the striking employees, who lived
nearby, to consider their plight. One of the first decisions
made was to deliver to the bank their demand for recog-
nition. To accomplish this, Nance telephoned Day, and
Nolan telephoned Judy Mohler, and advised them that at
10 a.m. that day something would be deposited in night
depository which would be of great interest to them.
The letter was so deposited and admittedly received by
the bank.
They then contacted a local attorney, Dan Sharp, and
advised him of what had happened. Sharp telephoned
the bank's attorney, Boaz, and inquired about the em-
ployees returning to work. Boaz told him that he would
talk with the six employees who walked out on an indi-
vidual basis about returning to work, but not to Nance
and Nolan. '
15 McKelvey denies making this statement. However, in view of
McKelvey's acts at that time and subsequently, it is evident that in
McKelvey's mind the employees did not have any rights. Having ob-
served McKelvey on the witness stand for several hours and heard his
testimony, I am persuaded that he would have said what he thought. Ac-
cordingly, I credit Nance and Nolan.
i6 Janis Strong, Susan Janes, Peggy Morgan, Martha Beasley, Linda
Reed, and Joyce Kelton concertedly walked out. Tellers Holt and Pritch-
ard did not join the strike.
17 This is not alleged as an unconditional offer to return to work.
Since none of the six striking employees attempted to talk with Boaz, it is
obvious that any offer which might be construed here was conditioned
upon the reinstatement of Nance and Nolan.
i. Analysis and conclusion: on the discharges of
Nance and Nolan
I can only marvel at the Respondent's ingenious de-
fense to the discharges of Nance and Nolan, which was
clearly fathered by desperation, when considered in light
of the largely undisputed facts in this case. That defense
is that the well-known leadership of Nance and Nolan in
the employees' clearly protected concerted activity for
the preceding 10 days and their leadership role in the
formation of the Bargaining Group, a Section 2(5) labor
organization, were not factors considered by McKelvey
and Boaz when they decided to precipitously discharge
them on February 26. The Respondent contends that
McKelvey, after a telephone discussion with Boaz, and
with Boaz' agreement, decided to discharge Nance and
Nolan because of the uncorroborated report to McKel-
vey by Pritchard that Nance and Nolan had urged, or
suggested, to the other employees at the Sunday meeting
that they not train new employees. I
According to McKelvey, after Pritchard's third tele-
phone call to him about the employees' meeting, he tele-
phoned co-board member and corporate attorney, Mal-
colm Boaz. He told Boaz of the employees' meeting and
i" It appeared for a time at the hearing. and the Respondent alludes to
certain incidents in its brief, that a precipitating reason for Nance's dis-
charge might include some kind of culpability in the banking irregulari-
ties which brought about the termination of Hamby. Although I believe
the Respondent has totally abandoned all contentions that this was a
factor, to the extent that a shadow of such contention might continue, I
shall deal briefly with that issue here.
Nance was, inter alia, the "cash items" teller for the bank. A "cash
item" in banking nomenclature is a "cold check,' "hot check," "bad
check," or any item which had been credited to the customer's account
but could not be collected by the bank. Among Hamby's problems with
the Kentucky State Banking Commission and the bank was that for a
period of more than 10 months a customer named "Hawkins" had out-
standing at all times cash items ranging from $50,000 to $550,000, which
Hamby did not collect. As noted, when such items, including those of
Hawkins, were returned to the bank they were sent to Nance as "cash
items" teller. Nance testified that when such items were received she
would check the customer's account and if it contained sufficient funds
she would charge the item back to the account, and if not she would
notify the customer and attempt to collect the item. Any item she could
not collect or any "large" item was brought to the attention of Hamby,
the bank's chief executive officer, and board member at that time. It ap-
pears that most of the Hawkins' items were in this category and were
reported immediately to Hamby. This, it is admitted, was the extent of
Nance's obligation in this regard.
However, the Respondent, in brief, alludes to the fact that Nance re-
tained these items in her drawer for a 10-month period, except for a
period of time Hamby held them personally, and did not report these
items to McKelvey. It argues, and Nance agrees, that on other occasions
she had advised McKelvey of cash items. The record contains no exam-
ples or specifics concerning these occasions. In any event, the items,
when in Nance's possession, were in her drawer, to which all officers of
the bank, and McKelvey, had access. Moreover, a weekly list of such
cash items was prepared and presumably available to McKelvey, as
chairman of the board It is clear that Nance handled the Hawkins' cash
items under the usual procedures: advised Hamby of such items; Hamby
assumed, as was his responsibility, the duty to collect on them; did not do
anything to conceal such items from McKelvey, or other board members
or bank officers; and had no duty, as suggested by the Respondent, to
call such items to the personal attention of McKelvey. Indeed, McKelvey
does not specifically deny that he was at all times unaware of these items.
In the event the Respondent relies to any extent upon Nance's handling
of the Hawkins' items as a reason for her discharge, I find and conclude
that Nance was in no way culpable in this regard, and such is merely a
pretext to discharge her for engaging in protected concerted and union
activities
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Nance and Nolan had reiterated that they were not
going to train the new employee and had urged the
other employees to also refuse. Based upon this alone, he
and Boaz decided that Nance and Nolan would be termi-
nated immediately, prior to the commencement of busi-
ness on Monday, because such a refusal might create tur-
moil at the bank. The Respondent argues, and would
have me believe, that although Pritchard had advised
McKelvey of the organization of the Collective Bargain-
ing Group and the election of Nance and Nolan as its of-
ficers, and what the group planned to do, these matters
were not discussed with Boaz and, thus, played no role
in the decision to discharge Nance and Nolan before
work on Monday, rather than as previously planned, let
them come to work on Monday and decide any disciplin-
ary action if they refused, when ordered to train the new
employee.
Prior to the hearing it appears that the sole reason ad-
vanced by the Respondent for the discharges of Nance
and Nolan was their statement to Day on Friday that
they "would not" or "would rather not" train the new
employee during the 2-week period Day asked them to
give him. It was not until it was pointed out that Day
and McKelvey had known of their position since Friday
evening, and that McKelvey had made the decision,
which he reaffirmed to Day on Saturday, that no action
would be taken until Monday if they actually refused to
train the employee when ordered to do so, that Respond-
ent added the allegation that it was Nance's and Nolan's
asserted inducement to the other employees to refuse to
train new employees, that prompted McKelvey to
change his mind and fire them prior to their refusal to
train the new employee.
The lengthy pretrial affidavits of McKelvey and Boaz,
which were taken by Boaz, and submitted to the Region-
al Office during its investigation of this case, do not
allude to any such incident as a factor in the Respond-
ent's decision to fire Nance and Nolan, but, inter alia, as-
serts only that it was their announced refusal to train the
employee for which they were discharged.' 9 I am per-
suaded that this defense was concocted as an after-
thought when the Respondent realized that the only per-
tinent events occurring between Friday, February 23,
and Monday, February 26, were the two employee meet-
ings, one of which resulted in the formation of a collec-
tive-bargaining group and the election of Nance and
Nolan as its officers. In short, I find and conclude that,
even assuming Pritchard's report to McKelvey to be
true, Respondent was motivated to discharge Nance and
Nolan solely because of the leadership role they assumed
in the employees' clearly protected concerted activity
and the formation of the collective-bargaining group as a
labor organization.
The General Counsel's evidence of discriminatory mo-
tivation here far exceeds the test of causation adopted by
the Board in Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980). Accordingly, I find and con-
clude that the discharges of Nance and Nolan violate
Section 8(a)(3) and (1) of the Act.
19 Indeed, the affidavits do not mention the telephone calls by Pritch-
ard to McKelvey on February 25
2. Analysis and conclusions on the nature of the
strike
On the facts here the nature of the February 26 con-
certed work stoppage and strike requires little analysis or
discussion. Having found that the Respondent committed
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act by the discharges of Patsy Nance and
Nedra Nolan, there can be no doubt that the resulting
work stoppage and strike by the six employees named in
the complaint was in protected concerted protest of
these unfair labor practices. Accordingly, I find and con-
clude that the strike which commenced at the bank on
February 26 was directly caused and prolonged by these
and other unfair labor practices of the Respondent and is
an unfair labor practice strike.
3. Analysis and conclusions on the demand for
recognition
Having found that the Exchange Bank Collective Bar-
gaining Group was a Section 2(5) labor organization rep-
resenting a majority of employees in an appropriate unit
on February 25, and the letter deposited in the Respond-
ent's night depository constituted a lawful request to bar-
gain with the Respondent on matters pertaining to
wages, hours, and other conditions of employment, the
Respondent's March 7 refusal by letter to recognize and
bargain in good faith with the group violates Section
8(a)(5) and (1) of the Act.
In its letter declining to recognize and bargain with
the Exchange Bank Collective Bargaining Group, the
Respondent asserted its good-faith doubt that the group
represented an uncoerced majority of the employees in
the described unit or any appropriate unit, noting the un-
reliability of the so-called authorization cards. The Re-
spondent further alluded to the petition for certification
of representative which the Group had filed in Case 9-
RC-12832,20 and that such filing raised a question con-
cerning representation. It further asserted a doubt as to
the appropriateness of the unit described.
I find and conclude that, on February 26, the Re-
spondent did not have a good-faith doubt that the Bar-
gaining Group represented a majority of the employees
in the unit described or, indeed, in any appropriate unit.
McKelvey knew, based upon Pritchard's reports to him
on Sunday, that nine employees had signed papers
authorizing the Group to act as their collective-bargain-
ing representative. Nine employees constituted a major-
ity of the Respondent's employees in any appropriate
group even if assistant cashier Hamlet, as well as Wertz,
who began work on February 26, were included, there
were a maximum of 14 employees. Nine is clearly a ma-
jority.
While it is true, as argued by the Respondent, that it
has a right to force the Union to prove its majority status
in a Board-conducted election, this is true only if the Re-
spondent refrains from engaging in unfair labor practices
which tend to undermine and dissipate the Union's ma-
l' This petition was either withdrawn or dismissed upon the issuance
of the complaint herein alleging that Respondent's refusal to recognize
the Group violated Sec. 8(a)(5) and (1) of the Act.
834
THE EXCHANGE BANK
jority status and preclude the holding of a free and fair
Board-conducted election wherein the employees could
express their free choice with respect to representation.
Here the Respondent's unfair labor practices between
February 23 and February 26, including the discharges
of Nance and Nolan, were so outrageous and pervasive
that they absolutely precluded the conduct of a free and
fair election. By failing and refusing to recognize the
Bargaining Group as the exclusive representative of its
employees on February 26, 1979, the Respondent violat-
ed Section 8(a)(5) and (1) of the Act. The Respondent
shall be ordered to bargain in good faith with the Bar-
gaining Group and its successors, retroactive to Febru-
ary 26, 1979. See Trading Port. Inc., 219 NLRB 298
(1975). 2 1
As to the Respondent's contention that the unit de-
scribed in the demand letter of February 26 was inappro-
priate:
It is well settled that a union's request for recogni-
tion is sufficient to raise a duty to bargain on the
part of an employer if the employer is apprised in
general terms of the proposed unit description. The
request need not be grammatically perfect and need
not define the unit in minute detail, and the request
is sufficient if it describes any appropriate unit, it
need not describe the most appropriate unit. 22
The demand letter described the unit only as "nonex-
empt employees." The parties appear to argue that the
term "nonexempt," a term more common in issues in-
volving matters under the jurisdiction of the wage and
hour division of the Department of Labor, meant hourly
paid employees who received overtime pay-thus,
exempted employees who were to be excluded were the
officers of the bank and others who were salaried and
did not receive overtime pay. As in Pilot, supra, the unit
description was sufficient to raise a duty on the part of
the employer to bargain upon demand.
F. The Unconditional Offer by the Striking Employees
To Return to Work
On or before March 19, the six striking employees
contacted attorney Mark Pierce. On that date Pierce
telephoned the Respondent's counsel and board member,
Malcolm Boaz, and told Boaz all six striking employees
were unconditionally offering to return to work. Boaz
replied that all striking employees had been permanently
replaced and there were no positions available. By letter
to Boaz, dated March 22, Pierce confirmed the March 19
telephone conversation and reiterated the unconditional
offer to return. By letter dated April 13 to Pierce from
the Respondent's labor counsel, the Respondent again
declined to reinstate them contending that they had been
permanently replaced and at most were economic strik-
ers and would be accorded reinstatement rights in ac-
cordance with the "Strictures" of The Laidlaw Corpora-
tion v. N.L.R.B., 414 F.2d 99 (7th Cir. 1969).
21 See, generally, .L.R.B v. Girsel Packing Company, Inc., 395 U.S
575 (1969)
22 Pilot Freight Carrieri. Inc, etc, 223 NLRB 286, 304 (1976).
It is so well settled that unfair labor practice strikers
are entitled to immediate and full reinstatement to their
former positions upon their unconditional offer to return
to work, even if respondent is required to terminate their
replacements, that no cases need be cited. This issue is
not addressed by the parties in brief.
Accordingly, the Respondent violated Section 8(a)(3)
and (I) of the Act by failing and refusing to immediately
reinstate these six unfair labor practice strikers on March
19 upon their unconditional offer to return to work.
G. The Merger of the Exchange Bank Collective
Bargaining Group With the IAM-IAM's Demand To
Bargain
By the first part of March, the Bargaining Group rec-
ognized that they did not have the expertise in labor re-
lations matters to deal effectively with the employer, and
commenced searching for a more experienced labor or-
ganization with which to affiliate. Nance, Nolan, Strong,
and perhaps other members contacted representatives of
several labor organizations 2 3 and discussed the possibil-
ity of a merger with them. The latter part of March a
group of the employees met with Tommy Mayfield, an
organizer for District Lodge 154 of the IAM, the Dis-
trict Lodge with jurisdiction over Local Lodge 2507,
which represented other employees in the Mayfield area.
As a result of this discussion with Mayfield, all 10 mem-
bers of the Bargaining Group were notified that there
would be a meeting with Mayfield at DeVanti's restau-
rant for the purpose of considering and voting on the
question of whether to "disband" the Exchange Bank
Collective Bargaining Group and merge with, or become
a part of, IAM Local Lodge 2507. In the afternoon, on
April 10, 8 of the 10 members of the Bargaining Group
met with Mayfield and another union official where
there was extensive discussion among the group and the
union officials concerning affiliation. All members
present were permitted to participate in the discussion
and to ask questions.
After much discussion the union officials left the room
and the employees were read a resolution which had the
effect of disbanding the Exchange Bank Collective Bar-
gaining Group and, forthwith, affiliating with Local
Lodge 2507 of the IAM. The resolution provided that
Local Lodge 2507 of the IAM would assume and admin-
ister all terms, conditions, and covenants contained in
any labor agreement executed with The Exchange Bank.
The negotiating committeemen and stewards for the
Group remained the same. All membership fees and dues
in the treasury of the Group were transferred to Local
Lodge 2507.
The members voted by secret ballot on the resolution
and it carried seven votes to one. All eight employees
then signed and dated the resolution as of 5:30 p.m. April
10. Each of the eight then signed an IAM authorization
card. 2 4
21 Among the labor organizations contacted were: Amalgamated Meat-
cuiters, Tire and Rubber Workers, Teamsters, Amalgamated Clothing
Workers, and the IAM.
2- Subsequently three other employees signed such cards: Linda Foy
on May 4, Patti Hlopwood on May 0, and Julie Sasseen on July 16.
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I agree with the General Counsel that under the cir-
cumstances here the due process standards of this affili-
ation of labor organizations more than comply with the
Board's minimum standards. 25
Although Local Lodge 2507 represents other employ-
ees, The Exchange Bank unit continues to meet separate-
ly and have its own officers and committeepersons and
any contract negotiated does not have to be ratified by
any other units of Local 2507.
Accordingly, I find and conclude that, as of 5:50 p.m.,
April 10, the Exchange Bank Collective Bargaining
Group was dissolved by affiliation with Local Lodge
2507 of the IAM, and Local Lodge 2507 of the IAM
became, and has remained, the exclusive collective-bar-
gaining representative of all the employees in the unit de-
scribed herein.
By certified mail directed to Cecil Day, on April 25,
Tommy Mayfield notified The Exchange Bank of the af-
filiation and that Local Lodge 2507 of the IAM was now
the exclusive representative of all the unit employees. He
made a continuing request that the Respondent meet
with it and negotiate to conclusion an agreement cover-
ing "wages, hours of employment and all other terms
and conditions of employment" of the employees in the
appropriate unit.
By letter dated April 30 from the Respondent's labor
counsel to Local Lodge 2507, the Respondent again re-
fused to recognize Local 2507 as the "alleged" successor
of the Bargaining Group, asserting a good-faith doubt of
the Union's majority status. It contended its good-faith
doubt of majority status was bolstered by the fact that all
the striking employees had been permanently replaced
and would be entitled to vote in any Board-conducted
election. In its brief the Respondent contends that at that
time there were 20 employees in the unit.
First, the replacements for these six unfair labor prac-
tice strikers and the two discharged employees would
not be allowed to vote in a Board-conducted election. 2 6
Having found herein that the strike was an unfair labor
practice strike, the replacements for such strikers were
temporary employees, as were the replacements for
Nance and Noland. Therefore, the unit as described by
the Respondent, excluding these replacements, consisted
of 13 employees. 27
In any event, I find, as with the Respondent's refusal
to recognize and bargain with the Bargaining Group,
that such refusal was not based upon any good-faith
doubt of the Union's majority status, but that the refusal
was designed to undermine and dissipate the Union's
strength, and therefore the Respondent's unfair labor
practices precluded the conduct of a free and fair elec-
tion. Such refusal violates Section 8(a)(5) and (1) of the
Act.
a2 New Orleans Public Service. Inc., 237 NLRB 919 (1978); Amoco Pro-
duction Company, 239 NLRB 1195.
26 In the event no determination on the nature of the strike or the le-
gality of the discharged employees had been made at the time of the elec-
tion, the replacements and alleged discriminatees would be permitted to
cast a challenged ballot. Whether such challenged ballots were sustained
or overruled would depend upon the Board's finding with regard to the
nature of the strike and the legality of the discharges.
" New employee Wertz, hired on February 26, would be included in
the unit.
H. Additional 8(a)(1) Allegations
It appears that all was quiet at the Respondent until
late June. On June 26, Lynda Foy overheard Cecil Day,
in response to an employee's question about a raise, tell
her that it would probably be sometime "next year."
When Foy told this to the other employees, 8 or 10 of
them again gathered in the bookkeeping department and
discussed their situation. They then went collectively to
Day's office, but were unable to see him because he was
busy. On June 26, the employees decided to draw up a
petition demanding a 25-cent-an-hour across-the-board
increase. This petition was signed by 10 employees.
However, before presenting the petition to Day, Day
called each of the employees into his office, except Foy,
and gave them a 10-cent-an-hour raise. 28 Later that day,
Foy went to Day's office and asked about her raise. She
was also given a 10-cent-an-hour merit increase.
The following day two employees who had signed the
petition asked that their names be withdrawn, or the pe-
tition torn up. When Foy balked, they reported the inci-
dent to Day. Day summoned Foy to his office where
Chairman of the Board McKelvey was also present. I
credit Foy's version of her conversation with Day and
McKelvey, which is, in part, corroborated by McKel-
vey. McKelvey immediately reminded Foy of how he
had met her on the street and given her a job, and stated,
"you turn right around and start making demands." He
continued, ". . . the other bunch tried to tell us what to
do, and look where they are now." McKelvey told her
she did not know how hard it was to get a job "after
you've been involved in something like this." McKelvey
told Foy he was not pleased at all about the demands
and on at least three occasions asked her why she did
not quit.29 McKelvey then left the room after repeating
he was not pleased.
The General Counsel alleges that McKelvey's remarks
to Foy violated Section 8(a)(1) of the Act, in that his
telling Foy to quit if she did not like it there constituted
a veiled threat of discharge; his telling Foy it would be
difficult to obtain other employment because she en-
gaged in protected concerted activity is also coercive, as
alleged in paragraphs 5(b)(i)(ii) and (iii).
I find and conclude that these allegations have been
sustained and that McKelvey's conduct violated Section
8(a)(1) of the Act as alleged.
After McKelvey left, Day told Foy that at least 10
people had told him that Foy had gotten "all this" start-
ed, and that she was a troublemaker and instigator in the
bookkeeping department, and "it can't be allowed to go
on." He then asked her why she would not tear up the
petition and told her he would do whatever was neces-
sary to see that the bank ran smoothly.
The foregoing is alleged (pars. 5(a)(v) and (vi)) and
found to constitute an impression of surveillance and a
threat of disciplinary action for instigating the petition
and engaging in protected concerted activity.
28 It appears that two employees who did not sign the petition had
been called into Day's office on June 26 and granted the raise
29 McKelvey admits one such statement.
836
THE EXCHANGE BANK
Under the facts here, and in view of the bitter animus
demonstrated by both McKelvey and Day toward the
employees engaging in protected concerted and union
activity, Day's remarks inevitably tended to interfere
with, restrain, and coerce employees in the exercise of
their Section 7 rights as alleged.
The foregoing concludes the findings of fact and con-
clusions with respect to the complaint allegations. As
noted elsewhere in this Decision, the pertinent facts ger-
mane to findings and conclusions with respect to the pri-
mary issues in this case are either admitted, or not dis-
puted, by the Respondent. The concerted activities of
the employees commencing on February 16 were clearly
for the purpose of obtaining better wages and working
conditions and are clearly protected concerted activities
for which the Respondent could not retaliate. Their ac-
tivities on February 22 and 23 and the interviews with
Day were likewise clearly protected concerted activity.
Many of the 8(a)(l) violations found herein arising out of
these individual interviews are not in dispute; i.e., the in-
terrogation concerning whether the employees would
report for work on Monday; instructions not to discuss
the interviews with other employees; refusing, upon re-
quest, to tell employees decisions made by other employ-
ees, while insisting upon immediate decisions from them
concerning their working on Monday and for 2 weeks;
and the refusal, without cause, to meet with them as a
group.
The facts relevant to the employees' formation of a
Section 2(5) labor organization are not in dispute. While
the conclusion that the employees' activity on February
25 resulted in the formation of a labor organization is a
legal conclusion made by me, such conclusion is well
supported by the facts and Board precedent.
The demand by the Bargaining Group that the Re-
spondent bargain with it and the Respondent's refusal is
not in dispute. The Respondent's asserted good-faith
doubt that the group represented a majority of the em-
ployees in any possible appropriate unit is clearly with-
out merit in view of its knowledge of the number of em-
ployees who were engaged in the February 16, 23, and
25 activity. Similarly, the discharges of Nance and
Nolan, and the Respondent's motive therefor, raise no se-
rious questions. Nor does the nature of the February 26
strike; the strikers' March 19 unconditional offer to
return to work and the Respondent's refusal; the merger
with Local Lodge 2507 of the IAM, and the Respond-
ent's duty to bargain with it. Most of the other issues in
this case do not present serious questions of fact or law.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above in
connection with its business as set forth in section I,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to disputes obstructing the free flow of
commerce.
CONCLUSIONS OF LAW
1. Jurisdiction by the Board is properly asserted in this
proceeding.
2. All clerical employees, including tellers and book-
keeping employees employed by the employer at its
Mayfield, Kentucky, bank, excluding all officers, profes-
sional employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
3. At all times between February 25 and April 10,
1979, the Exchange Bank Collective Bargaining Group
was the duly designated exclusive collective-bargaining
representative of all the employees in the unit described
above, within the meaning of Section 9(a) of the Act.
4. On April 10, 1979, the Exchange Bank Collective
Bargaining Group was dissolved as a labor organization
and forthwith merged with Local Lodge 2507 of the In-
ternational Association of Machinists and Aerospace
Workers, AFL-CIO.
5. At all times since April 10, 1979, Local Lodge 2507
of the IAM has been, and is, the duly designated exclu-
sive collective-bargaining representative of the employ-
ees in the unit described above, within the meaning of
Section 9(a) of the Act.
6. On February 26, the Bargaining Group, described in
item 3, above, requested the Respondent to recognize
and bargain with it on matters pertaining to hours of
work, wages, and other terms and conditions of employ-
ment of the employees in the unit described above. On
April 25, 1979, Local Lodge 2507 of the IAM, described
in item 5 above, made a similar and continuing demand
upon the Respondent.
7. From February 26 to April 10, 1979, the Respond-
ent failed and refused to recognize and bargain collec-
tively with the Bargaining Group regarding wages,
hours, and other terms and conditions of employment of
the employees in the unit described above.
8. Since April 10, 1979, at all times, the Respondent
has failed and refused to recognize and bargain collec-
tively with Local Lodge 2507 of the IAM, described
above, regarding wages, hours of work, and other terms
and conditions of employment of its employees in the
unit described above.
9. By coercively interrogating its employees concern-
ing their union and protected concerted activities, and
those activities of other employees; threatening its em-
ployees with discharge or other reprisals for engaging in
protected concerted and union activities; refusing, with-
out cause, to meet with its employees as a group to dis-
cuss rates of pay, wages, and other terms and conditions
of employment; warning its employees not to discuss
with other employees conversations concerning rates of
pay, wages, and other terms and conditions of employ-
ment; insisting that employees meet individually with
management to discuss wages and other working condi-
tions, promising its employees economic benefits or
better jobs to induce them to forgo engaging in protect-
ed concerted activity; creating the impression that it has
its employees' protected concerted and union activities
under surveillance; attempting to force employees to quit
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they engaged in protected concerted activity,
and telling employees it would be difficult to obtain em-
ployment elsewhere because they engaged in protected
concerted activity, Respondent has violated Section
8(a)(1) of the Act.
10. The strike which commenced at the Respondent
on February 26, 1979, was caused and prolonged by the
Respondent's unfair labor practices and is, and has been
at all times, an unfair labor practice strike.
11. By discharging its employees Pat Nance and Nedra
Nolan on February 26, and thereafter failing and refusing
to reinstate them to their former positions without loss of
pay or other benefits; on or about March 19, upon their
unconditional offer to return to work, failing and refus-
ing to reinstate to their former positions its unfair labor
practice strikers Martha Beasley, Susan Janes, Joyce
Kelton, Peggy Morgan, Linda Reid (Reed), and Janis
Strong, the Respondent has violated Section 8(a)(3) and
(1) of the Act.
12. By failing and refusing to recognize and bargain
with the Exchange Bank Collective Bargaining Group
from February 26 to April 10, 1979, and thereafter fail-
ing and refusing to recognize and bargain with Local
Lodge 2507 of the IAM, as the exclusive collective-bar-
gaining representatives of the employees in the unit de-
scribed above, and to bargain in good faith on matters
pertaining to hours of work, wages, and other terms and
conditions of employment, the Respondent has violated
Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has committed acts
in violation of Section 8(a)(1), (3), and (5) of the Act, it
shall be ordered to cease and desist therefrom and from
any other unlawful activity and to take certain affirma-
tive actions designed to effectuate the purposes and poli-
cies of the Act. Such affirmative action shall include the
posting of the usual informational notice to employees at-
tached hereto as "Appendix;" offer immediate and full
reinstatement to its employees Pat Nance, Nedra Nolan,
Martha Beasley, Susan Janes, Joyce Kelton, Peggy
Morgan, Linda Reid (Reed), and Janis Strong to their
former positions, discharging if necessary any replace-
ments, or, if those positions no longer exist, to substan-
tially equivalent positions without loss of seniority or
other benefits; and to make them whole for any loss of
earnings they may have sustained by reason of the unfair
labor practices against them. Loss of earnings for the six
unfair labor practice strikers shall be computed from 5
days after March 19, 1979. All loss of earnings and other
benefits due under the terms of this Order shall be com-
puted with interest thereon in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).30
The Respondent's unfair labor practices found here are
clearly so outrageous, pervasive, and egregious that it is
highly unlikely that traditional remedies would be effec-
tive in overcoming their lingering coercive effects on the
employees in this small unit so that a free and fair Board-
conducted election could be held for the employees to
s0 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
express a free and uncoerced choice on the selection of
representation. Hasbro Industries, Inc., 254 NLRB 587
(1981); Ed Chandler Ford, Inc., 254 NLRB 851 (1981).
Accordingly, the Respondent shall be ordered to recog-
nize and bargain with Local Lodge 2507 of the IAM
concerning all mandatory bargaining subjects retroactive
to February 26, 1979 (the date of the first demand).
I have found, as alleged in the complaint, that the Re-
spondent violated Section 8(a)(l) of the Act on February
23 when Day refused to meet collectively with the em-
ployees and insisted upon talking with them on an indi-
vidual basis only, if they wished to learn anything con-
cerning their pay raises. This violates the Act because at
that time the employees did not have a duly designated
exclusive collective-bargaining representative. As found
herein, Local Lodge 2507 of the IAM is, and has been
since April 10, 1979, the employees' duly designated ex-
clusive collective-bargaining representative and the Re-
spondent's duty, as ordered herein, is to bargain exclu-
sively with the Union. Accordingly, the Respondent
shall not be ordered to cease and desist from that activity
under the present circumstances where the employees
have collective representation.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I issue the following:
ORDER3 '
The Respondent, The Exchange Bank, Mayfield, Ken-
tucky, its officers, successors, agents, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their protected concerted or union activity or such activ-
ity by other employees.
(b) Threatening its employees with discharge or other
reprisals for engaging in protected concerted or union
activity.
(c) Warning or instructing its employees not to discuss
conversations concerning wages and other terms and
conditions of employment with each other.
(d) Insisting that employees meet with management or
an individual basis for the purpose of discussing wages
and other working conditions.
(e) Promising its employees better economic benefits
on jobs to induce them to abandon engaging in protected
concerted and union activity.
(f) Creating the impression that it has its employees'
protected concerted and union activity under surveil-
lance.
(g) Attempting to force its employees to quit because
they engaged in protected concerted or union activity.
(h) Telling its employees it would be more difficult to
obtain a job elsewhere because they have engaged in
protected concerted and union activity.
al In the event no exceptions are filed as provided by 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. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
838
THE EXCHANGE BANK
(i) Discharging its employees because they engage in
protected concerted and union activity in order to dis-
courage other employees from engaging in such activity.
(j) Failing and refusing to immediately reinstate its
unfair labor practice strikers upon their unconditional
offer to return to work.
(k) Refusing to bargain collectively with respect to
wages, hours, and other terms and conditions of employ-
ment with Local Lodge 2507 of the International Associ-
ation of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive bargaining representative of its employ-
ees in the appropriate unit as found herein.
(1) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Immediately recognize and bargain collectively
with the above-named Union as the exclusive representa-
tive of all the employees in the unit described previously
with respect to wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody such agreement in a signed contract.
(b) Offer Pat Nance, Nedra Nolan, Martha Beasley,
Susan Janes, Joyce Kelton, Peggy Morgan, Linda Reid,
and Janis Strong immediate and full reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights and privileges
previously enjoyed; and make each employee whole for
any loss of earnings they may have suffered due to the
discrimination practiced against them by paying each of
them the sum they would have earned, less net interim
earnings, with interest thereon as set forth in the section
of this Decision entitled "The Remedy." The above-de-
scribed pay due the six unfair labor practice strikers shall
be computed from 5 days after their April 19, 1979, un-
conditional offer to return to work.
(c) Post at its place of business in Mayfield, Kentucky,
copies of the attached notice marked "Appendix."3 2
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by an au-
thorized representative of the Respondent, are to be
posted by the Respondent 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. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
32 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 read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
839