Fall River Savings Bank

National Labor Relations Board - Board Decisions

Jan 28, 1980

247 N.L.R.B. 631 (N.L.R.B. 1980)

FALL RIVER SAVINGS BANK
Fall River Savings Bank and Retail Store Employees
Union, Local #1325, United Food and Commer-
cial Workers International Union, AFL-CIO.'
Cases I-CA-1 5058 and -CA-15784
January 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 26, 1979, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Fall River Savings Bank,
Fall River, Massachusetts, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
' On June 7 1979. the Retail Clerks International Union and the
Amalgamated Meatcutters and Butcher Workmen of North America merged.
forming the United Food and Commercial Workers Union, AFL-CIO. The
name of the Union herein, formerly Retail Store Employees Union, Local #
1325, Retail Clerks International Union, has been amended to reflect this
change.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces 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.
We correct the Administrative Law Judge's reference to the Union's having
"lost" the election held April 28, 1978. At the time of his Decision, the results
were inconclusive due to challenged ballots. See our Decision in the
representation case. 246 NLRB No. 128, issued on December 6, 1979,
ordering that the challenges be counted. The Union subsequently won the
election.
In affirming the Administrative Law Judge's finding that Falvey's question-
ing her supervisor about calling in an employee for Saturday work without
following seniority related to a matter of common concern to the employees,
we note the following evidence, in addition to that cited by the Administrative
Law Judge. In August 1978, about a month before Falvey's termination in
response to a protest by teller Sousa that Falvey was getting more Saturday
work than she, although Sousa had been there longer, Supervisor Pimental
247 NLRB No. 88
devised a seniority system for Sat urdays. A list of tellers, in order of seniority,
was passed around to all of the tellers, and a copy was posted in the
lunchroom of the main office as well. Stone, Respondent's vice president and
treasurer, admitted that Saturday volunteers were selected according to
seniority.
'Teller Falvey's manner toward her supervisor may have been impolitic. A
more deferential approach would have been preferable, but the point she was
making concerning the application of seniority to Saturday work at branches
was protected concerted activity. Her right to express her concern on the
seniority issue, pursuant to a recently established company policy, is not lost
because of her lack of deference to her supervisor, as her action was not so
extreme as to fall outside the protection of the Act. It appears that there was a
personality clash between Falvey and this particular supervisor, as Falvey had
had no previous incidents during her more than I-year employment with
Respondent.
In adopting the Administrative Law Judge's conclusion that Respondent's
discharge of Falvey because of her protected concerted activity on Saturday
violated Sec. 8(a)(l) of the Act, we do not rely on his comment that
Respondent's "motive in discharging her" was significant in this case. It has
long been settled that a violation of Sec. 8(aXI) does not turn on the
employer's motive, but rather on "whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere with the free exercise of
employee rights under the Act." American Freighlwsys Co.. Inc.. 124 NLRB
146, 147(1959).
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE: Administrative Law Judge: This
consolidated proceeding involves allegations that the above-
named Respondent discharged its employee Deborah Falvey
because of her protected concerted activities in violation of
Section 8(a)(1) of the Act.' The proceeding was initiated by a
charge filed by the above-named Union on October 12,
1978.2 On November 9 the charge was amended, and on
November 20 complaint issued. On May 21, 1979, hearing
was held in Boston, Massachusetts.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs, I hereby
make the following:
FINDINGS OF FACT
I. THE FACTS
Respondent is a Massachusetts corporation engaged in the
operation of a savings bank in Fall River, Massachusetts,
with a main office and several branch offices.' Deborah
Falvey was a teller employed at the main branch. When
needed, she would also work at branch offices on Saturday.
It was the practice of Respondent, adopted after employee
complaints, to assign Saturday work to employees who were
regular tellers on the basis of seniority. On Saturday,
September 23, Falvey was assigned to work at the South
' The complaint also alleged that Falvey's discharge was motivated by her
union activities and was violative of Sec. 8(aXl) and (3) of the Act. The
record indicates that an election had been held on April 28, 1978, which the
Union lost. Although the representation case was still open, as the events
surrounding Falvey's discharge occurred 5 months after the election, and
Falvey's union activities appeared minimal, I concluded that General Counsel
had not made a prima facie case of an 8(aX3) violation and granted
Respondent's motion to dismiss at the hearing.
Unless otherwise indicated all dates hereinafter are in 1978.
' Jurisdiction is not in issue. Respondent admits that it annually purchases
and receives supplies valued in excess of 550,000 directly from points outside
the Commonwealth of Massachusetts and that it has gross annual revenues in
excess of S500,000.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Branch, which was under the supervision of Joyce DeMello
Burns. She overheard Burns tell teller Marilyn Cadieux that
she had called Kathy to come in to work. Falvey asked
"Kathy who?" and Burns said, "Kathy Sousa." According
to Burns, Falvey said Sousa couldn't come to work there
because she didn't have seniority and there were other girls
before her. Burns explained that she had not realized earlier
she would be shorthanded and Sousa was the only one she
knew to call. Falvey said it didn't matter, Sousa couldn't
come to work. Burns remarked "You have a lovely attitude,
don't you?" and Falvey replied, "My attitude is none of your
business." Burns asked Falvey if she had someone she
wanted to call and Falvey said no and that it wasn't even
certain Karen (the girl scheduled to work) was not coming
in. Burns said they were about to open and Falvey said,
"[t]hat's not the point." Burns said, "[t]he point is I'm
running the branch, not you, and anything further you have
to say you can take up at the main office on Monday."
Later that day, after the bank was closed, Burns gave a
written warning to Falvey for insubordination and attitude.
The warning stated: "When I called for extra help on
Saturday 9/23/78, Debby questioned my decision on who I
called. When I asked about her attitude, I was told 'It's none
of your business.' At this point I reminded her I was the
manager." Falvey refused to acknowledge the warning.
The warning notice provides for the employee's statement,
and after leaving Burns' office Falvey wrote the following:
"When manager Joyce DeMello called for additional help,
she called Cathy. I stated 'Cathy who?' She stated, 'Cathy
Sousa.' I stated that 'Cathy worked in the mortgage
department and not as a teller trying to be helpful. Joyce
DeMello then stated to me 'I don't like either your face or
your attitude.' I replied, 'It's none of your business.' I feel
that she should not make an derogatory comments regarding
my face."
Monday, at the main office, Falvey told employees about
the incident and showed them her warning with her written
comments. Afterwards, she reported the matter to Daciano
Stone, Respondent's treasurer, and showed him the warning
notice. He said he would look into it. Stone contacted Burns
and asked her to submit a report of the incident. She
submitted a report along the lines described above. The
report was subscribed to by Marilyn Cadieux, who had
witnessed the incident between Falvey and Burns.
On Thursday, Falvey was discharged by Stone. In
preparation for the discharge, Stone had prepared the
following:
EMPLOYEE TERMINATION NOTICE
Date: Sep. 28, 1978
IrMPIOYI;I:: Falvey, Deborah
154 Woodland Drive
Somerset, Mass. 02726
SSAN: 031-48-6616
I'OSITION/TITI.I: Clerk Teller
' Hugh H. Wilson Corporation. 171 NLRB 1040. 1046 (1968).
' Diagnostic Center Hospital Corp.. of Texas. 228 NLRB 1215 (1977).
Incident: Confrontation with immediate supervisor,
Joyce E. DeMello, Manager of the South Branch, on
Saturday, Sep. 23, 1978
FINDINGS UPON INVESTIGATION:
1. Employee wilfully questioned and interfered with the
prerogative of management.
2. Blatantly demonstrated insubordination to immedi-
ate supervisor in the presence of another employee.
3. Flagrantly displayed her "WARNING NOTICE" to
other employees to invite sympathy and to ridicule
the nature and true reason for its issuance.
4. Falsely quoted a "DEROGATORY" statement allegedly
made by management.
DETERMINATION:
Termination effective as of Sep. 28, 1978
D. M. Stone, Treasurer
Stone testified that in the terminal conversation with
Falvey he specified the four reasons appearing in the notice,
and that he intended to give her a copy but was turned off by
her statement that she was going to sue the bank.
II. ANALYSIS AND CONCLUSIONS
The complaint, as amended, alleges that Respondent
violated Section 8(a)(1) of the Act by issuing a warning to
Falvey because she questioned the order of seniority in
which employees were called for weekend work and by
discharging her because she discussed the warning with
other employees.
As to the warning itself, Respondent contends a violation
may not be found because the activity of Falvey was not
protected concerted activity. Thus, it is argued there is no
showing that she was acting on behalf of other employees or
that her statements reflected the common concern of other
employees, and this is not a case of an attempt to enforce a
provision of a collective-bargaining agreement. As to Fal-
vey's uncontradicted testimony of a seniority policy for
weekend work, it is argued that that policy related to the
advance selection of tellers and did not apply to the situation
presented on September 23.
I do not agree with Respondent's contentions. The activity
of an employee may be held to be concerted if the subject
matter of her complaint was "of moment to the group"'4 or
related to a matter of common concern.' Seniority is clearly
a matter of common concern. As a matter of fact, in 1978,
according to Falvey's uncontradicted testimony, another
teller had complained about the amount of Saturday work
Falvey was getting and as a result Respondent had adopted a
policy of assigning Saturday work to volunteers on a
seniority basis. That this policy was applicable to advance
selection for Saturday work and not to Saturday no-shows,
as Respondent points out, would not preclude Falvey from
questioning management's failure to apply seniority in a no-
show situation. The test of the prohibited nature of her
activity is not whether her position had merit' or was even
' Mushroom Transportation Ca Inc.. 142 NLRB 1150, 1158 (1963),
reversed on other grounds 330 F. 2d 686 (3d Cir. 1964).
632
FALL RIVER SAVINGS BANK
reasonable;' rather, the test is whether her activity related to
a matter of common concern. I find that it did and that her
activity was protected concerted activity.
Respondent contends that in any event Falvey's warning
was not unlawful because it was addressed to her insubordi-
nation and loud and rude remarks. I find this contention
without merit. An employee engaged in protected activity
does not lose the protection of the Act if in the course of
such activity she is unpleasant, rude, or impolite. American
Telephone & Telegraph Co., 211 NLRB 782 (1974).
For the foregoing reasons, I find that Respondent violated
Section 8(a)(1) of the Act by issuing a written warning to
Falvey for questioning her supervisor about the calling in of
employees for Saturday work without following seniority.
As to Falvey's discharge, the complaint alleges that it was
unlawful because it was based on Falvey's showing the
warning to other employees. Respondent denies that the
reason for the discharge was the showing of the warning as
such; rather, it contends it was the showing of the warning
with false accusations which tended to ridicule and under-
mine management. Respondent contends such conduct is
not protected. However, Respondent argues that even if
Falvey's statement on the warning was true, the showing of
the warning was not protected concerted activity because it
did not relate to a matter of common concern, nor was
Falvey seeking assistance from other employees or trying to
initiate some form of concerted action. Rather, according to
Respondent, Falvey's conduct in showing the warning to
other employees related to her displeasure over Burns'
remark about her face and involved only a matter personal
to her as to which she was not seeking any assistance or
concerted action from other employees.
It is not entirely clear why Falvey showed her warning to
other employees beyond apprising them of the unfair
treatment and unwarranted remark of Burns. It is clear,
however, she was not seeking assistance or attempting to stir
some concerted action. However, the validity of Burns'
discharge does not hinge on Falvey's purpose, but on
Respondent's perception of her conduct and its motive in
discharging her. In my judgment, Respondent perceived
Falvey's conduct in showing the warning to other employees
as the continuation or extension of what it considered her
insubordination on Saturday. This is clear from Stone's
termination notice. Significantly, the subject matter of the
notice is not the showing of the warning notice; rather the
subject matter is the "Incident: Confrontation with immedi-
ate supervisor . . . on Saturday, Sep. 23, 1978." Moreover,
in the notice Stone did not address himself only to Falvey's
display of the warning to other employees. To the contrary,
he adverted to her "wilfully" questioning the prerogatives of
management and to her "blatantly demonstrated insubordi-
nation." In light of these remarks, which exhibit Respon-
dent's strong feelings against Falvey's protected activity on
Saturday, a finding that her discharge was attributable only
to her showing the warning notice to other employees on
Monday is not warranted. Rather, the showing of the notice
must be viewed as inseparably related to Falvey's conduct on
Saturday. As that conduct was protected, her discharge was
violative of Section 8(a)(1) of the Act.
In light of the analysis above, it is irrelevant whether or
not Falvey's assertion against Burns was true or false. If
false, it was not sufficiently egregious to remove Falvey from
the protection of the Act to which she was entitled because
of her protected activity. In any event, I credit Falvey's
testimony that Burns told her she didn't like her face. Apart
from demeanor (Falvey appeared no less truthful than
Burns), I can not understand why Falvey would have
replied, "It's none of your business" to Burns if all that
Burns had referred to was her attitude. I can't believe that
Falvey would view objections to her attitude as being none of
her supervisor's business. As to Cadieux, I was not favorably
impressed by her demeanor. She gave me the impression of
wanting to please her employer and of being unsympathetic
to Falvey.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 1, above,
occurring in connection with the operations described
herein, have a close, intimate, and substantial relationship to
trade, traffic and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. In particular, having found
that Respondent unlawfully issued a warning to Deborah
Falvey on September 23, 1978, and unlawfully discharged
her on September 28, 1978, 1 shall recommend that
Respondent expunge the warning from her record and offer
her immediate and full reinstatement to her former job, or if
such job no longer exists, to a substantially equivalent job,
without prejudice to her seniority or other rights and
privileges, and that Respondent make Falvey whole for any
loss of earnings she may have suffered as a result of her
unlawful discharge by payment to her of the amount she
normally would have earned from the date of her discharge
until the date of Respondent's offer of reinstatement with
interest thereon to be computed in the manner described in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corporation. 231 NLRB 651 (1977).?
CONCLUSIONS OF LAW
I. Fall River Savings Bank is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Store Employees Union, Local 1325, Retail Store
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By issuing a warning to and discharging Deborah
Falvey for engaging in protected concerted activity, Respon-
' N.L.R.B. v Washington Aluminum Co.. Inc.. 370 U.S. 9 (1962).
633
'See. generally Iis Plumbing Hing Co., 138 NLRB 716 (1962).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent engaged, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, Fall River Savings Bank, Fall River,
Massachusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Issuing written warnings or discharging employees for
engaging in concerted activities for their mutual aid or
protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Expunge from the record of Deborah Falvey the
written warning issued to her on September 23, 1978.
(b) Offer Deborah Falvey immediate, full, and uncondi-
tional reinstatement to her former job, or, if such job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges and
make her whole for any loss of pay she may have suffered by
reason of her unlawful discharge by payment to her of a sum
of money equal to the amount she normally would have
earned as wages, from the date of her discharge to the date
of her reinstatement, in the manner set forth in the section
entitled "The Remedy."
(c) Preserve and, upon request, make available for the
National Labor Relations Board and its agents, for examina-
tion and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records relevant and necessary to determine the
amount of backpay due under the terms of this Order.
(d) Post at its Fall River, Massachusetts, facility, includ-
ing the main office and the branch offices, copies of the
attached notice marked "Appendix."' ° Copies of said notice,
on forms provided by the Regional Director for Region I,
after being duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.
' 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 recomended 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.
"' In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law when we issued a warning
to Deborah Falvey and discharged her and has ordered us to
post this notice.
WE WILL NOT issue warnings to employees or
discharge employees because they have engaged in
concerted activities for their mutual aid and protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them under Section 7 of the National
Labor Relations Act, as amended.
WE WILL expunge from Deborah Falvey's record the
written warning issued on September 23, 1978.
WE WILL offer to reinstate Deborah Falvey to her
former job, or, if such job no longer exists, to a
substantially equivalent job, and WE WILL make her
whole by paying her the wages which she lost because
we discharged her unlawfully.
FALL RIVER SAVINGS BANK
634