First Data Resources, Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1979

241 N.L.R.B. 713 (N.L.R.B. 1979)

FIRST DATA RESOURCES. INC.
First Data Resources, Inc. and Operating Engineers
Local Union No. 3 of the International Union of
Operating Engineers, AFL-CIO. Cases 20-CA-
13830 and 20-RC-14585
April 3, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On January 19, 1979, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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, findings,' 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, First Data Resources, Inc.,
San Mateo, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the election held on
May 4, 1978, in Case 20-RC-14585 be, and it hereby
is, set aside and that the Regional Director for Region
20 be, and she hereby is, directed to conduct a new
election pursuant to the following:
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I Respondent and General Counsel have 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 re-
spect 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 find-
ings.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge: These
consolidated cases were heard by me at San Francisco,
California, on October 3 and 4, 1978.'
i All dates are in 1978, unless otherwise noted.
Pursuant to initial and first amended charges filed, re-
spectively, on May 9 and June 29 by Operating Engineers
Local Union No. 3 of the International Union of Operating
Engineers, AFL-CIO (hereinafter called the Union), the
Regional Director for Region 20 issued a complaint on
June 30 against First Data Resources, Inc. (hereinafter
called Respondent), alleging, in substance, that Respondent
had violated Section 8(a)(1) and 8(a)(3) of the National La-
bor Relations Act, as amended (hereinafter called the Act),
by certain coercive oral statements made to Respondent's
employees in the period before a representation election
and by discharging employee Susan M. Bake because she
engaged in union and/or protected concerted activities.
Pursuant to the Union's petition for representation elec-
tion filed on March 23 in Case 20-RC- 14585 and a Stipula-
tion for Certification Upon Consent Election executed by
the parties, a secret-ballot election was conducted on May 4
in a unit of all full-time and regular part-time operators,
clerks, balancers, couriers, and statisticians employed by
Respondent at its San Mateo, California, facility. The
Union lost that election 102 to 57, with challenged and void
ballots insufficient to affect the results of the election.
Timely objections were thereafter filed by the Union to the
conduct of the election. On July 6, the Regional Director
for Region 20 issued her Report on Objections, in which she
recommended that one of the Union's objections be over-
ruled and noted that the remaining objections dealt with
substantially the same conduct which was the subject of
the complaint in Case 20-CA-13830. On August 15, the
Director issued an order consolidating cases and a notice of
hearing in the above-captioned cases, her earlier recom-
mendation to overrule one of the Union's objections having
become final.
All parties were afforded full opportunity to appear and
introduce evidence at the hearing, to examine witnesses,
and to file briefs.'
Issues
As narrowed by hearing developments,' the issues in both
the objections case and the unfair labor practice case are as
follows:
1. Whether, on or about March 27, Respondent's Gen-
eral Manager Thomas Hunter and/or its Home Office Per-
sonnel Agent Judith Willms instructed employees at Re-
spondent's San Mateo facility to engage in surveillance of
the union activities of their fellow employees, in violation of
Section 8(a)(1) of the Act.
2. Whether, on a date in April, Respondent's manager of
administration, Robert J. Obermeyer, told employee Susan
Bake that she had been terminated because of her union
and/or protected concerted activities, in violation of Sec-
tion 8(a)(1) of the Act.
2 The Union did not enter an appearance at the hearing, nor did it file a
brief. Briefs were timely received from Respondent and from the General
Counsel and received due consideration.
I At the close of the presentation of his case in chief, I granted the General
Counsel's motion to delete the allegations of complaint par. 6(a) pertaining
to an alleged threat to close Respondent's San Mateo facility occurring on or
about March 23. No evidence was introduced which would tend to support
that allegation and, accordingly, it is not in issue in either the objections case
or the unfair labor practice case.
241 NLRB No. 114
713
DEFCISIONS OF NATIONAL LABOR RLATIONS BOARID
3. Whether, during the month of April, Respondent
transferred work from its San Mateo facility to its head-
quarters facility in Omaha, Nebraska, in order to discour-
age its employees from voting for the Union, in violation of
Section 8(a)( I) of' the Act.
4. Whether, in mid-April. Thomas Hunter solicited
grievances from employees at Respondent's San Mateo fa-
cility and promised to remedy said grievances in order to
discourage employees from voting for the Union, in viola-
tion of Section 8(a)(1) of the Act.
5. Whether, on or about May 1, Thomas Hunter threat-
ened to transfer work from the San Mateo facility to the
Omaha facility in order to discourage employees from vot-
ing for the Union. in violation of Section 8(a)(1).
6. Whether Respondent terminated employee Susan M.
Bake on March 30 because of her union activities and/or
because she engaged in other protected concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, in violation of Section 8(a)(3) and (I) of the
Act.
7. If any of the foregoing conduct occurred, whether
such conduct requires the setting aside of the May 4 elec-
tion and the direction of a second election.
Upon the entire record herein, including my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FA(IT
I. JURISI)I(II()ON
Respondent is a Delaware corporation engaged in pro-
viding data processing services for various banks through-
out the United States, with headquarters offices and a data
processing facility at Omaha, Nebraska, and other data
processing facilities elsewhere, including at San Mateo,
California. the facility involved herein. In the year preced-
ing the issuance of the complaint, a representative period,
Respondent purchased and received at its San Mateo facil-
ity goods valued in excess of $50,000 directly from suppliers
located outside the State of California. Accordingly, I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2). (6).
and (7) of the Act.
II. IHE LABOR ORG;ANIZATION INVOLVED
The Union is a labor organization within the meaning of'
Section 2(5) of the Act.
IIl. 'IIE ALLEGED UNFAIR I.ABOR PRAC(IIES
Introduction
Respondent's primary business "product" is the perform-
ance of computer data processing, records keeping, and
billing and mailing for various commercial bank customers
in connection with the latter's retail credit card businesses,
including Master Charge and Visa. In this regard, Respon-
dent receives from its customer banks copies of retail
charge slips made out in connection with credit card trans-
actions and enters said charges and related account data
onto computer tapes. Using computer technology, Respon-
dent prints monthly billing statements and mails them to
individual credit card holders. At its San Mateo facility,
Respondent employs over 150 persons engaged in the mis-
cellaneous "data capture," entry. and billing processes. The
bargaining unit in which the election was conducted in
Case 20R(' 14585 consisted of such employees. In addi-
tion to that data processing clerical group, Respondent also
employs a number of customer service representatives, in-
cluding alleged discriminatee Susan Bake, whose principal
function was to serve as liaison between Respondent and its
various bank customers. T[he customer service representa-
tives were expressly excluded from the bargaining unit in
the representation case.4
A. lThe March 27 Meeling
In anticipation of' the election, Respondent held one
meeting on March 27, attended not only by its supervisors
and managers but also by the customer service representa-
tives, including Bake, for he purpose of issuing instructions
regarding appropriate conduct during the preelection cam-
paign period.
Respondent's general manager. Thomas Hunter, opened
the meeting by advising those present that there was an
attempt to organize the "clerical" workers, mentioning in
passing that the organizational attempt had come as a sur-
prise to him. He also stated that he wasn't personally op-
posed to unions, that his parents had been union members,
but that union representation of the data processing cleri-
cals was not "in the best interest of the Company," Hunter
then introduced and turned the meeting over to Judith
Willms, a representative from Respondent's headquarters
personnel office in Omaha.' Willms began by passing out a
typewritten pamphlet consisting of seven pages, 3-1/2 pages
of which contained istructions under the general heading
"What You Can Do" and the balance of which contained
instructions under the general heading "What You Cannot
Do." Willms then spent the better part of an hour reading
each instruction in turn and making clarifying or supple-
mentary comments in connection with each such item. Al-
though, as noted, the first section of that pamphlet was
captioned "What You Can Do, " Bake credibly testified,
without contradiction, that persons present were affirma-
tively instructed to engage in the conduct described under
that general heading. In that regard, the complaint alleges
with respect to the March 27 meeting that Respondent "...
instructed its employees to engage in surveillance of union
activities of their fellow employees." Somewhat more gener-
4 Respondent's counsel expresily conceded at the trial and on brief that
Bake was an employee within the meaning of the Act and that the class of
customer service representatives were not supervisors within the meaning of
the Act. Contrary to the suggestion of Respondent's counsel made at the
hearing I find that all customer service representatives were nonmanagerial
and were, in fact. employees within the meaning of the Act.
'Although Respondent did not expressly concede this point, and although
the record would not permit a finding that Willms had regular supervisory
authority over any of Respondent's employees, it is clear, and I find, that
Willms was an agent of Respondent for purposes of addressing and issuing
instructions to the assembled group on March 27. Accordingly, to the extent
that Willms' remarks discussed infra may have interfered with, restrained, or
coerced employees in the exercise of their rights under Sec. 7 of the Act,
Respondent was bound thereby.
714
FIRST DATA RESOURCES. INC.
ally, the objections allege that during the March 27 meeting
Respondent "... ordered nonmanagement employees to
initiate contacts with bargaining unit employees for the
purpose of campaigning against the Union .... "
With respect to the complaint allegation pertaining to
instructions that employees engage in surveillance of their
fellow employees' activities, there is substantial and undis-
puted evidence. First. although the seven-page instruction
sheet generally advises that employees may not be ques-
tioned about their union activities or be spied upon while
engaging in the same, some of the instructions clearly en-
courage the gathering of information about employees'
union activities through lawful means. For example, item
21 in the instruction sheets states:
You cannot ask employees about the internal affairs of
the union such as when they are going to meet, where
they are meeting, or how many employees attended
their meetings. (Some employees may. of their own
will, walk up and tell you about these things. It is not
an unfair labor practice to listen. However, you must
not ask questions to obtain additional information.)
In addition, item 23 states:
While you can approach employees to bring up the
subject of the union, you should not start out the con-
versation with a question such as "What do you think
about the union?" This may be misunderstood. Instead
say, "This union nonsense will soon be over .... " or
"Joe, I think you know this union would not be to your
advantage ... ."
Finally, item 26 states:
You cannot ask an employee for an expression of
thought about the union or its officers, however, you
can say rhetorically, "I sure don't know why people
think they will be better off with the union?"
More specifically, Bake credibly testified that Willms had
told those present at the meeting that they should
... try and find out what the employees in the bargain-
ing unit were saying and thinking. And we were sup-
posed to try to indirectly get into conversations with
them. They told us that's why they called the customer
service people in, because they felt we had a lot of
contact, which we did, with all the employees in the
bargaining unit. And they wanted us to listen. And if
we heard anything, we were supposed to come to Tom
Hunter . . . right away and tell them [sic] what we
heard and. . ... who was involved in the conversation,
who was for the Union.
Although Hunter testified in only summary and conclu-
sionary terms regarding the events of the March 27 meet-
ing, he substantially acknowledged the truthfulness of
Bake's testimony when he stated:
Well, most of the time, as I said, we spent very specif-
ically going through the do's and don'ts. In that sense.
thev were told what to do and what not to do, the
things on the list. In a more general nature, they were
told to, you know, just keep their eyes and ears open,
and if they had some information that would be of
value to share it with me.
Regarding the more general assertion in the Union's ob-
jections-that "nonmanagement" employees were ordered
to initiate contacts with employees in the bargaining unit
and to participate in Respondent's antiunion campaign
the record is also clear that such indeed occurred. At least
the first 31/2 pages of the "do's and don'ts" pamphlet issued
to Bake, among others, amount to a series of instructions
regarding how to initiate conversations with unit employees
and what to say to them for the purpose of discouraging
them from voting for the Union. That pamphlet is in evi-
dence and its contents speak for themselves. By way of il-
lustration, however, the following representative quotes will
suffice:
[3] Tell the employees we do not want a union and we
do not need a union. You may tell employees that it is
our honest opinion that if a union gets into our Com-
pany, it will not work to their best interest, but could
work to their disadvantage.
[9J Tell employees of the disadvantages of belonging to
a union, such as loss of income due to strikes, require-
ments to serve on a picket line, union dues, union fines,
and possible union assessments.
[1 I] Tell employees that no union and no law requires
our Company to agree to anything it doesn't want to
agree to.
* . . . 9
[121 Tell employees about any "bad" or unhappy expe-
riences you may have had or may have heard about
with unions in the past.
[131 Tell employees anything you know about the
Union or its officers even of a critical nature such as
jury tampering, theft of employee pension funds, and
high salaries for union officers. You may want to talk
about strikes in your area that were hard on union
families.
Bake also credibly testified, without material contradic-
tion from other witnesses, that after Willms had concluded
her reading of the seven-page pamphlet to the group, she
invited questions. The only question raised swas from Bake,
who asked, "Is it necessary that we take this position
against the Union or can we remain neutral in this issue?"
According to Bake, Willms replied "[i]n no uncertain
terms" that those present ". .. absolutely had to take the
Company's side: it was considered part of [their] job to do
that."
Hunter's version of this exchange was not materially dif-
ferent. His version of Wiilms' reply to Bake's question was
that "... this was a very important matter and could
greatly affect the Company one way or another, and that's
basically why everybody had to understand this and be in-
volved." Hunter further testified without contradiction. and
I find, that after the exchange between Willms and Bake, he
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made the "... comment that the managers and supervisors
in that room had to see me, if they had any problems at all
with following the Company policy in this regard."
No evidence was introduced to show that Respondent
made any subsequent efforts to involve customer service
representatives in its campaign activities or to use them to
gather information concerning union activities of the em-
ployees in the data processing clerical unit. Nor is there any
evidence that employees in the data processing clerical unit
were made aware of Respondent's plans, as detailed above,
for the gathering of information regarding union activities
among that group.
Concluding Findings Regarding the March 27 Meeting
To the extent that Bake, and other customer service rep-
resentatives present at the March 27 meeting, were "em-
ployees." it follows that Respondent's instructions to the
assembled group to assist Respondent in its antiunion cam-
paigning and related activities violated Section 8(a)( ) of
the Act. Such instructions to employees plainly interfere
with their rights under Section 7 of the Act to, inter alia,
"... assist labor organizations...."
It is no defense that Respondent may have intended its
instructions to be followed only by its supervisory staff or
that Respondent may have mistakenly assumed that cus-
tomer service representatives were "managerial" or "super-
visory" personnel. While Respondent's intentions may have
been pristine, the effect of the instructions was no less coer-
cive on employees such as Bake, who had every right to
assist their fellow employees in the data processing clerical
unit in achieving union representation, if they so chose, and
every right to avoid "getting involved" entirely, if they so
chose. Accordingly, I shall include in my recommended Or-
der that Respondent cease and desist from instructing em-
ployees within or without the data processing clerical unit
to assist it in its antiunion campaign or surveillance activi-
ties.
I also conclude that Respondent's "instructions" in the
March 27 meeting, standing alone, had no impact on the
free exercise of choice by voters in the data processing cleri-
cal bargaining unit. There was no evidence that such unit
employees ever learned of the existence of those instruc-
tions. Accordingly, the events of the March 27 meeting do
not provide a basis for setting aside the May 4 election, and
I shall so recommend to the Board.
B. The March 30 Discharge of Susan Bake
Bake had been employed in the nominal6 capacity of cus-
tomer service representative for approximately 4 months
before she was discharged on March 30. Respondent main-
tains that Bake was discharged solely because she was
caught making an unauthorized examination of the person-
nel file of Robert James Obermeyer, Respondent's then
mnanager of administration. The General counsel contends
that Respondent's reasons were pretextual and that Bake
was really fired because she had engaged in certain pro-
tected activities. In this regard, the General Counsel adverts
to two separate incidents: First, "approximately a week"
6 Bake was still in training, however, and had not been assigned to service
any particular customer account at the time she was discharged.
before her discharge, she had discussed with fellow cus-
tomer service representatives the possibility of engaging in a
concerted "sick-out" in order to protest their dissatisfaction
with their wages and working conditions: and, second, she
had conspicuously presented herself at the March 27 meet-
ing as being opposed to being required to participate in
Respondent's preelection campaign against the Union.
Respondent's managers and supervisors' each denied
knowing, at any time befo)re her discharge, that Bake had
been involved in any "sick-out" discussions with fellow cus-
tomer service representatives. It is undenied, however, as
noted above, that they were aware of Bake's exchange with
Willms during the March 27 meeting.
The "sick-out" discussion occurred as follows, according
to Bake's credited testimony: Approximately a week before
she was fired, Bake was talking with fellow customer service
representatives Elaine Zajchowski, Tim Conway, and Dave
Hanlon in a small office which Zajchowski and Conway
shared. Their discussions centered around mutual com-
plaints that they were "underpaid and overworked" and
were being required to work weekends and late hours with-
out compensation. Bake eventually proposed, "Instead of
sitting around griping about it, why don't we do something
about it? And I suggested that we call in sick for 2 weeks
and have a sick-in at the Company ... so we talked about
that for quite a while. And I remember Tim Conway saying
that we would all get fired the minute they caught on to
what was happening. It wouldn't work. And people
wouldn't agree to do it anyway. So it was pointless. But we
talked about it for an hour. And after that, we all went to
lunch, without really resolving anything." The discussion
concerning a possible "sick-out" was never revived there-
after.
On or about March 28, in the early afternoon, Bake was
called into the office of Charles Fote, Respondent's cus-
tomer operations manager at the San Mateo facility. She
was met there by Fote, General Manager Hunter, and
Omaha Personnel Representative Willms. Upon her arrival,
Hunter asked Bake to photocopy all the personnel files of
all the employees who were in the data processing clerical
bargaining unit, pursuant to a request from Omaha. Bake
testified, and I find, that Hunter told her that she was being
asked to perform this task ". . . because they needed some-
body that they could trust; and they would have had
Cheryl Orr' do it, but she was very busy and she was going
to help ... some .... "
Bake then accompanied Willms and Orr to the room
where Respondent maintained all of its personnel files and
where the photocopy machine was located. According to
Bake, either Willms or Orr then specified that Bake was to
copy the files of only those persons who were in the bar-
gaining unit and one or the other asked Bake whether she
knew which people were in the bargaining unit and which
weren't, since she was not supposed to photocopy files for
any non-bargaining-unit persons. Bake indicated some un-
certainty as to which persons should be considered in the
bargaining unit, and she, Willms, and Orr, mutually pre-
7Specifically Hunter, Fote, Placzek, Orr, and Obermeyer.
a Orr was Obermeyer's assistant at the time and was alternately referred to
as "personnel coordinator" and "personnel clerk."
716
FIRST DATA RESOURCES. INC.
pared a list of names of all persons whose files Bake was not
to remove, since that list was smaller than the list of all the
persons who were in the bargaining unit. After issuing these
instructions to Bake and assisting her in preparation of the
list, Orr and Willms left Bake alone in the photocopy room.
Bake and Orr gave somewhat different accounts of what
transpired thereafter. Bake initially testified in a very sum-
mary form on direct examination that for the balance of the
afternoon, she performed her assigned task of pulling files
belonging to bargaining-unit employees from the two large
drawers in which all of Respondent's personnel files were
contained and photocopying them. She stated that the pro-
cess was time-consuming and required frequent reference to
the list of persons whose files she wasn't supposed to be
copying. She acknowledged that Orr came in and helped
her "occasionally" during this process because Bake was
"going too slow." Her testimony on direct examination to-
tally omitted reference to the fact, which she later readily
conceded on cross-examination, that, while she was alone in
the room, she had removed Obermeyer's personnel file and
had opened it and was studying it when detected in that
latter activity by Orr. She acknowledged further that Ober-
meyer's name was one of those on the list of persons whose
file she was not to inspect or remove. She denied that Orr
had come into the room earlier to warn her that she should
not be looking at personnel files other than the ones she was
instructed to photocopy. Her denials were somewhat half-
hearted and unconvincing in this regard, couched as they
were in terms of a lack of recollection. She acknowledged,
however, that, when Orr saw her looking at Obermeyer's
file and asked her what she was doing, Bake replied, "I told
her that I could be fired for that."
Because of Bake's lack of candor regarding the events in
question, because she exhibited markedly evasive demeanor
during this stage of her testimony, and because of other
internal inconsistencies in her testimony regarding those
events which it is unnecessary to detail herein, I credit Orr's
version of the events. Orr testified in substance as follows:
Bake began the photocopying task at approximately 2 p.m.
It was hoped that the photocopying would be completed by
a 4 p.m. mail-out deadline. Shortly before 3 p.m., Orr came
into Bake's work area and noticed that the pile of work
which Bake had completed by then was quite small. Bake
had not yet completed copying in the first of the two file
drawers which are arranged alphabetically. She then no-
ticed that Bake was nevertheless "leafing through the fold-
ers" in the second of the two file drawers ". . . as though for
a certain name." When Orr asked Bake what she was doing,
Bake stuttered and said, "Nothing." Her suspicions
aroused, Orr pressed Bake, and Bake replied that she was
looking for salary information regarding one or more per-
sons whose files were in the second of the two drawers be-
cause there had been "rumors" in her department and she
wanted to know what the actual salary figures were. Orr
then admonished Bake and instructed her not to do that,
noting that salaries were "confidential information" and
that Bake's review for that purpose would be a "violation of
confidentiality." Orr then reminded Bake that they were
operating under a 4 p.m. deadline, although it did not ap-
pear that Bake would be able to accomplish the task by
then because of the small amount of work which she had
already completed. Orr then stayed with Bake for a while
and assisted her with the copying. Orr then left the room to
attend to another project and returned about 15 minutes
later and saw Bake with Obermeyer's personnel file opened
and laid out on top of other files contained in the file
drawer. Seeing that Bake was "reading through the pages"
of Obermeyer's file, Orr again remonstrated with Bake, tell-
ing her that she was engaged in "a breach of confidential-
ity" and that she should not be doing that. At this point
Bake said, "Well, I really don't want to do this. It's hot in
here. Can I leave?" Somewhat piqued, Orr told Bake to
leave, but continued working on the photocopying project
herself, stopping in time to mail out as many photocopied
files as she could by the 4 p.m. deadline. Orr was required
to continue the photocopying project the following morn-
ing, Bake having called in sick on that morning.
In the meantime, shortly after Bake had been permitted
to abandon the photocopying project on the afternoon of
March 28, Orr encountered Willms. Noting that Orr ap-
peared to be upset, Willms asked what had happened, and
Orr related the events to Willms as just described.
Thereafter, according to the credited, uncontradicted,
and mutually corroborative accounts of General Manager
Hunter, Customer Operations Manager Charles Fote, and
Customer Service Manager Timothy Placzek, who was
Bake's immediate supervisor, the following events oc-
curred: At approximately 5:30 p.m. on March 28, Orr and
Willms approached Hunter in quick succession and each
related the earlier episode involving Bake's perusal of Ober-
meyer's personnel file. Hunter, who was about to leave
town on a business trip, met briefly with Fote, who had also
heard about the incident. and Hunter told Fote to "look
into the matter." Hunter did not dictate any specific course
of action to Fote, nor was he subsequently consulted in any
fashion before Bake was discharged. On either that same
day or the following morning, Fote spoke with Bake's su-
pervisor, Placzek, and told him to discharge Bake, specifi-
cally refering to Bake's breach of"confidentiality."
As noted above, Bake stayed away from work on March
29, claiming illness. She returned on March 30 and worked
a full day before being called into Placzek's office, where-
upon she was discharged, after first declining an option of-
fered by Placzek that she submit a voluntary resignation.
Bake and Placzek offer somewhat conflicting versions of
the discharge conversation in Placzek's office. They both
agree that Placzek told Bake that she was being fired be-
cause of her breach of confidentiality in the Obermeyer file
incident. They agreed that this was the main subject of dis-
cussion in the discharge conversation. Bake claims and
Placzek denies, however, that Placzek also mentioned
Bake's "attitude" as an additional reason for her discharge.
I credit Placzek's denial for reasons discussed earlier. Bake
was least persuasive in those portions of her testimony deal-
ing with the facts surrounding her discharge.
Although never specifically referred to in any of the cir-
cumstances leading up to Bake's discharge, the following
instructions are contained within Respondent's employee
handbook, which each new employee received and which
was in effect at the time of Bake's discharge:
Confidentiality in Your Daily Work
It is possible you may acquire information pertaining
to a fellow employee, friend, neighbor, public figure,
717
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
etc. Under no circumstances are you to reveal or dis-
cuss such information with anyone, other than in a
discussion pertinent to Company operations. Violation
of this rule is grounds for immediate dismissal.
Respondent's executive vice president for operations,
Craig Hoenshell, credibly testified, in substance, that the
confidentiality of data maintained by Respondent regard-
ing financial transactions and related information concern-
ing their customer banks and the individual credit card
holders ". . . is basically a contracted portion of the services
that we provide to our customers." Respondent also typi-
cally employs a detailed screening process for employees
who will work in positions which would give them access to
information or materials which might enable them to intro-
duce fraudulent credit cards into the marketplace. The
screening process may include background investigations of
prospective employees, as well as psychological interviews
and testing to determine suitability for this type of work.
The results of such investigation, interviews, and tests are
maintained in the personnel files stored in the drawers to
which Bake was given access for a limited purpose in con-
nection with the photocopying assignment on March 28.
Hoenshell acknowledged, however, that Obermeyer's par-
ticular file did not contain such sensitive background and
psychological information, since he had been hired specifi-
cally because of prior experience he had in the industry and
because he possessed skills which Respondent needed.
San Mateo Customs Operations Manager Fote credibly
testified that in addition to Bake, two other persons had
been discharged at the San Mateo facility since its opening
in January 1977 for having breached Respondent's "confi-
dentiality" rules. Each case involved employees who had
obtained access to information pertaining to customer ac-
counts for which they had no direct responsibility.
Respondent's Knowledge of Bake's Protected Activities:
Postdischarge Conversation Between Bake and Obermeyer
Obermeyer admitted that he learned about Bake's sug-
gestions for a "sick-out" about a week after Bake was dis-
charged. The subject came up in a casual conversation be-
tween Obermeyer and Tim Conway 9 in Obermeyer's office.
The two were personal friends and had frequent discus-
sions, both in the office and during off-hours social meet-
ings. In fact, Obermeyer testified that he was told by Con-
way that Bake had suggested a "walkout"--not a "sick-
out."
The General Counsel maintains, however, that Respon-
dent's knowledge of Bake's "sick-out" discussions must
have been acquired before Bake was discharged, since ober-
meyer allegedly alluded to that activity in a postdischarge
telephone conversation with Bake during which he assert-
edly cited the "sick-out" discussion as one of several "rea-
sons" why Bake was discharged. Although they both agree
that Obermeyer telephoned Bake "about a week" after she
was discharged, the contents of that telephone conversation
are disputed by the two participants.
Bake's version was somewhat summary in character. She
testified that Obermeyer began by saying that he had heard
9 Conway had been one of the customer service representatives involved in
the discussion when Bake had proposed a "sick-out,"
that she was "really upset" about having been fired because
she thought she had been "set up." According to Bake,
Obermeyer then said that ". .. there were a lot of reasons
that [she] was fired, other than the ones [she] had been
told." Bake's version continued:
Hie told me that-he accused me of trying to start this
sick-in among the customer service reps. He said:
Didn't you-Isn't it true that you tried to do this?
* * * * *
And he said that was one of the reasons that I was
fired. And he said a few other things about my conduct
around the office... he said that I had done something
which wasn't appropriate ... and that there were a lot
of reasons I was fired. And he kind he irritated me. I
mean, it--he was kind of hostile, so I got mad and I
hung up the phone....
Obermeyer's version was that he had been induced to call
Bake by Bake's fellow employee, Zajchowski, who had told
him that Bake was upset that none of her fellow employees
had called to console her since her discharge and because
she felt that she had been "set up" by having been given the
photocopying assignment which ostensibly led to her dis-
charge. Obermeyer then called Bake and told her he was
calling her for "two reasons": First, to tell her that she had
not been "set up" by management-that she had made an
"honest mistake" by looking at his personnel file, but there
had been no effort to "frame" her or "any kind of special
deal to get her fired." The second point which Obermeyer
testified he raised with Bake was that he believed that there
were "other reasons" why she "could have been fired"
specifically for her "bad attitude." Obermeyer claims that
the only specific example which he cited to Bake concern-
ing her "attitude" was an incident when he had observed
Bake sitting on a couch in the executive area and had jok-
ingly commented: "Some folks have it easy around here."
Obermeyer reminded Bake that Bake had "flipped [him] a
bird"' 0 in reply. According to Obermeyer, Bake refused to
accept his efforts to persuade her that she had not been "set
up" and began cursing Respondent, whereupon Obermeyer
interrupted her, saying, "Hey, I'm not sticking up for any-
body here. I'm just letting you know the real facts." Bake
then began crying and hung up the phone, Obermeyer testi-
fied. He specifically denied even having raised the "sick-
out" incident with her.
For reasons set forth below, I am unable to credit either
version entirely. I find, preliminarily, that Obermeyer had
learned of Bake's "sick-out" discussions from Conway be-
fore he called Bake and that he raised the matter with her
probably when citing examples of her "bad attitude." As to
whether he had knowledge concerning the "sick-out" mat-
ter before he called her, Obermeyer was both evasive and
equivocal in his testimony." As to whether or not he raised
that matter with Bake, in agreement with the General
O0 A possible regional collotquialism for the familiar insulting gesture in-
volving extension of the middle digit of either hand.
1 Based on his seeming admission of pre-telephone-call knowledge, along
with his later claimed lack of recollection, and his evasive responses as he
testified.
718
FIRS1 DATA RESOURCES. INC.
Counsel's point, I find it unlikely that Bake would manu-
flcture a story which identified only Obermeyer as knowl-
edgeable regarding her "sick-out" discussions unless Ober-
meyer had, indeed, raised the matter with her. To credit
Obermever's denial would be to assume that Bake had
merely made a "lucky guess" in identifying Obermever as
the management representative with knowledge under cir-
cumstances where the evidence eventually revealed that
Obermeyer was, in fact, the only management agent to
have such knowledge at the time. Moreover, since Ober-
meyer seemed bent on convincing Bake that she had no
basis for feeling aggrieved over having been discharged. it is
unlikely that he would withhold reference to his knowledge
of her "sick-out" discussions in reminding her that she had
not been possessed of a good "attitude" even before her
discharge. Accordingly, the probabilities favor Bake's ver-
sion on this point.
Having resorted to "probabilities" in this analysis. it
must also be observed that it would be highly improbable
for Obermeyer to have raised these subjects with Bake t'or
the purpose of revealing that her discharge was pretextual.
It is on this basis that I do not credit Bake's assertion that
Obermeyer told her that her "sick-out" discussion was one
of the supposed "other reasons" for her discharge. In this
regard, I find that Bake was upset during the conversation
and that her ability to faithfully relate its nuances was
thereby seriously impaired. I further find that Obermeyer
was telling the truth when he testified that he was not pur-
porting to reveal to Bake any "inside" knowledge he had as
to "reasons" why Bake was discharged other than her un-
authorized snooping in his personnel file. Rather, I find that
Obermeyer, in the context of an attempt to disabuse Bake
of the notion that she had been wronged, ventured his per-
sonal opinion to Bake that she "could have been fired" (but
was not) because of other failings which Obermeyer (alone
among Respondent's agents) knew about. Accordingly, I do
not interpret Obermeyer's remarks as in any sense an "ad-
mission" by an agent of Respondent that ulterior motives
influenced the decision to terminate Bake. I further credit
Obermeyer's claims that he did not learn of Bake's "sick-
out" discussions until after Bake had been terminated and
that he was personally unaware of any "other reasons"
which might have influenced the decision to terminate her.
Concluding Findings Regarding Bake's Discharge and
Her Conversation With Obermeyer
I conclude that the evidence is insufficient to establish
that Bake's discharge was motivated in whole or in part by
either her implicit resistance to participation in Respon-
dent's antiunion campaign. as reflected in her exchange
with Willms during the March 27 meeting. or by her sug-
gestion to fellow customer service representatives that they
engage in a "sick-out" to protest working conditions. I as-
sume, without deciding, that Bake was engaged in activities
protected by Section 7 of the Act in each incident.? I con-
2 In view olf m ultimate recommended disposition as to Bake, it is unnec-
essary to engage in a detailed and wholly academic study) of he question
whether an attempt to induce a "sick-oul" as opposed to a concerted
"walkout" to protest working conditions is protected by Sec. 7 of the Act
The possible legal distinction hetween the to t pes of activilies is insignifi-
cant in the peculiar context of this case. Whatever knowledge hat Respon-
clude. nevertheless. that Bake was discharged only because
she willfully violated express instructions not to look at per-
sonnel files other than the files which she was assigned to
photocopy. I further conclude that this breach on Bake's
part was sufficient to cause Respondent to decide that she
was unreliable and therefore not suited for the customer
service job for which she was training. In short. Respon-
dent's asserted reasons for terminating her do not appear to
be pretextual.
The General Counsel does not directly argue that Bake's
photocopying assignment 'was an attempt to entrap her into
violating express instructions regarding the inviolability of
non bargaining unit personnel files. Nor does anything in
the record suggest that Respondent had ulterior motives in
giving Bake that assignment. To the contrary. the record
strongly suggests that she was given the assignment because
Respondent's personnel clerks were busy on other assign-
ments and the job had to be done by someone other than a
member of the bargaining unit. The choice of Bake specifi-
cally is rendered plausible by virtue of the fact that she
admittedly had not yet been given a customer account to
service at the time she was asked to help with the "rush"
photocopying assignment. She further admitted that she did
not have any specific "assignment" but rather "just sort of
did odd jobs for everybody" in the 4-month period between
her hire and her discharge.
Nor was her misconduct in perusing Obermey'er's person-
nel file a trivial or minor breach. The General Counsel has
implied that, absent discriminatory reasons. Respondent
would not ordinarily terminate someone simply for looking
at a manager's personnel file. The record affords no basis
for such speculation. In this regard, it is immaterial that
Bake's misconduct may not literally have been encom-
passed by the specific "confidentiality" rule contained in
Respondent's employee handbook. There is substantial and
unrebutted evidence that Respondent took confidentiality
of records seriously not only to protect the privacy of per-
sons about whom the records of were maintained but also
out of concern that any employee who engaged in unautho-
rized perusal of records would not be suited for work in an
industry which is pecull rly vulnerable to fraud or embez-
zlement. Perhaps most telling in connection with the ques-
tion whether Bake's breach was sufficiently serious to ne-
gate any inference that Respondent's decision to discharge
her was pretextual was Bake's own spontaneous reaction
when she was detected by Orr. As she admitted, "I told
[Orr] that I could be fired for that," when Orr found her
and asked what she was doing. It therefore came as no
surprise to Bake that she was, in fact, discharged. Bake's
only suspicion was that she had been "set up" to commit an
act for which the normal penalty. as she knew. was dis-
charge.
The General Counsel further notes that Bake had been
offered a "supervisory rosition" shortly before her dis-
dent had was knowledge of Bake's plans for a "walkout" --not a "sickout,"
as Obermeer stressed in descnring the information about the plans as he
received it from (onway. Bake', suggestion to other employees that the)
withhold their services to protest conditions of employment was at least
presumptively protected concerted activity See. e.g. McGa Laboraurtories. a
Division f Amerincan HoTpital Suppl Corporatrrons, 206 NlRB 602. 603
(1973): ' i R B v Empire Gas, nc. 566 F.2d 6h1 10th Cir 1977) See also
Ing Beach Youth (enter. Inc. ,s A qa/ Long Beach outh lome. etc.. 230
NIRB 648. 649 650 1977).
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, implying that Bake was held in high regard and
that her breach of "confidentiality" would have been over-
looked but for a discriminatory ulterior motive. In fact, ap-
parently because Respondent had not yet given Bake a spe-
cific customer account to service and because she was just
doing "odd jobs," she was offered a wholly different assign-
ment as a "supervisor" in the retrievals department, a
"small department," as Bake characterized it, in Respon-
dent's production area. Bake considered the offer for a few
days and then declined it. Asked by Respondent's attorney
whether she considered such an assignment to be a "promo-
tion," Bake replied: "No, not really."
In summary, the preponderance of the credible record
evidence shows that Bake was regarded by Respondent un-
til the photocopying incident as a trustworthy employee
who had not yet had an opportunity to perform as a cus-
tomer service representative. Respondent's knowledge of
her resistance to participating in management's antiunion
campaign was not attended by any evidence of hostility
toward her. She was given the photocopying assignment
because she was deemed reliable and trustworthy and be-
cause she was available. She violated specific instructions
not to review personnel files of employees other than those
which she was instructed to copy. Her violation was willful.
It is entirely plausible that Respondent would determine to
discharge her for that reason alone. It is now unexception-
able to observe that even had Respondent resented her for
any of her protected activities and desired to get rid of her
for that reason, Respondent owed Bake no special duty of
forbearance when she was detected in a serious breach of
an important policy. Her discharge was not discriminatory.
I have heretofore found, in substance, that although he
did not cite it as a reason for her having been discharged,
Obermeyer did tell Bake, in substance, that she could have
been fired because of her "attitude" as exemplified by, inter
alia, her (presumptively protected) "sick-out" discussions
with fellow customer service representatives. The message
inherent in such a comment is that employees who engage
in such protected discussions looking toward a concerted
work stoppage to protest working conditions are vulnerable
to discharge. Such a message is inherently coercive and vio-
lates Section 8(a)(1) when communicated to employees. I
find that Bake was an employee within the meaning of Sec-
tion 2(3) of the Act even though no longer employed by
Respondent at the time the remark was communicated and
even though I have found that she was lawfully discharged.
Little Rock Crate & Basket Co., 227 NLRB 1406 (1977),
and cases cited therein at footnote 4. It follows that Ober-
meyer's remarks violated Section 8(a)(1). Accordingly, I
shall recommend that Respondent be ordered to cease and
desist from communicating such messages to present or for-
mer employees and to post a notice containing appropriate
reassurances in that regard.
I further find and shall so recommend that the foregoing
violation did not have an adverse impact upon the exercise
of free employee choice in the May 4 election, there being
no evidence that employees in the voting unit knew that
such remarks had been communicated to Bake.
C. Alleged Violations of Section 8(a)(1) Involving the
Prospective Bargaining Unit
Introduction
Respondent held preelection campaign meetings at-
tended by bargaining unit employees during three different
periods.' Separate meetings for each shift (and in some
cases for each department in each shift) were held during
each period. Although General Manager Hunter testified
that his remarks were essentially the same for each group
during a given period, the evidence focused on Hunter's
remarks made to swing shift employees in the data entry
department. It is alleged that Hunter's remarks in those
meetings included the unlawful solicitation of employee
grievances and promises to remedy same (during Meetings
I and 2) and a threat to transfer work from the San Mateo
facility to the Omaha facility in order to discourage support
for the Union (in Meeting 3). In addition, it is alleged that
Respondent transferred work from San Mateo to Omaha
shortly before the election in order to discourage support
for the Union.
By way of further introduction, reference is made to a
campaign letter mailed to all prospective bargaining-unit
employees by General Manager Hunter around April 6.
Respondent unsuccessfully sought to offer that letter (Res.
Exh. 3) as a form of corroboration of Hunter's testimony as
to what he had said in the meetings, since he claimed not to
have varied from the positions taken in that letter in any of
his campaign speeches. I rejected Respondent's proffer in
that regard, but subsequently received the letter into evi-
dence for the limited value it might have in understanding
the total context in which certain preelection remarks were
made. With that latter purpose in mind," it is noted that the
letter included the following text:"
Everyone should contact his or her supervisor if
there is any question as to how the election will work
and what the result would be if the union were success-
ful.
I again suggest to you that there is a substantial risk
to all of us from this involvement with the union. It is
a very serious thing and can have a very negative effect
on your future as well as the future of First Data Re-
sources San Mateo.
Make no mistake. I am not saying that if the union
wins the election we would close the operation the next
day. Nothing of the kind.
However, as I have indicated previously, the most
important resource we have is the ability to provide
quick and uninterrupted service to our customers. I am
i" The first series of similar meetings occurred in "late March or early
April," the record permitting no more specific finding as to the timing. Simi-
larly, the second series was "about ten days before the [May 41 election" (i.e.,
on or about Monday, April 24). Although all witnesses were also somewhat
vague about the timing of the third series of meetings, context permits me to
find that the one specifically in question involving data entry clerks on the
swing shift occurred on Monday, May .These shall be referred to as "Meet-
ing ," "Meeting 2," and "Meeting 3," respectively.
,4 The contents of the letter were not alleged as violative of Sec. 8(aX 1) nor
as objectionable conduct affecting the election.
" The text below omits only the first five paragraphs, which deal solely
with information about the timing of, and other procedures associated with,
the election.
720
FIRST DATA RESOURCES, INC.
very concerned about the possibility of work stoppages
and interruptions which would be possible if a union
represented our employees. Again, don't be afraid to
talk about the situation. You want to be informed; we
want you to be informed.
Meeting I
The only witnesses who testified regarding the "late
March early April" meeting involving swing shift data en-
try employees were former employee Patricia Detrinidad
and General Manager Hunter.' The meeting was attended
by more than 16 persons.
The complaint alleges, in substance, that at this meeting
Hunter "solicited employee grievances and promised to
remedy them" to discourage support for the Union." For
contextual purposes, and because other aspects of the meet-
ing arguably relate to later conduct of Respondent chal-
lenged by the complaint, the findings below are not con-
fined simply to the "grievance solicitation" aspects of the
meeting.
Hunter admittedly opened this meeting by telling em-
ployees that he had nothing against unions and that his
parents had been union members but that having been pre-
sented with the Union's election petition was like having
divorce papers "slapped on" him by his wife, without hav-
ing had any prior indication that there were any complaints
about the relationship. He also said that, based on allega-
tions contained in the petition as to the size of the bargain-
ing unit, he had some doubt whether the Union's showing
of interest had been adequate (i.e., the unit was alleged to
have consisted of fewer persons than Hunter believed were
in it, hence the possibility that a bare 30 percent interest
showing in the alleged unit might not be sufficient). Hunter
quickly dismissed this concern, however, by admittedly say-
ing that it didn't matter to him "whether a sufficient num-
ber of people had signed the petition . . .. that if we had
problems or anything that people were unhappy with in the
company, then certainly we wanted to be aware of it."
Hunter also admittedly voiced his concern for the conse-
quences of union representation of his clerical work force,
particularly in the event of a strike. Emphasizing that Re-
spondent's bank customers might be lost if the Union got
in, Hunter asked the assembled group what would be their
guess as to the "first word" Respondent's customers would
think of when they heard the word "union" associated with
Respondent's business. Several employees replied in cho-
rus: "Strike." Hunter said "Yes."i "
Whatever other substantive "campaign" remarks Hunter
may have made during this portion of his speech are not
1t Their testimony is only marginally in conflict on material points, as is
true of respective witness' accounts of the other meetings discussed below.
Many of the findings below are based on a composite of the credited testi-
mony of each witness, since neither one offered anything approaching a
systematic "start-to-finish" account. This resulted in a murky and disjointed
record, which is a problem by no means unique to this case.
'' Complaint par. Vl(c) alleged that this occurred "on an unknown date
during the middle of April." The proof revealed that activity arguably of this
type occurred in both Meeting I and Meeting 2. although pnmarily in Meet-
ing 1. The contents of both meetings were fully litigated, and the variance
between pleading and proof as to the timing is deemed insignificant.
1s Based on Detinnidad's credited specific recollection. which Hunter did
not specifically deny.
reflected in the record with any clarity, except that Hunter
testified generally that in all of his speeches during this pe-
riod he spoke of the possibility of the bank customers either
taking their business elsewhere, or of Respondent's sending
work to one of its other data processing centers in the event
of a work stoppage at San Mateo.
After concluding this portion of his speech, Hunter in-
vited "questions"' 9 from the group. A substantial portion of
the meeting was then devoted to complaints from the audi-
ence and responses from Hunter. At least three different
areas of employees' dissatisfaction emerged from the series
of questions that followed. Thus, both witnesses agree that
one such complaint was that ". . everybody was scared of
Bart Jackson, who was ... our boss ... he used to intimi-
date us. So people didn't really feel free to talk to him about
our problems. And we didn't feel that our supervisor had
any power as to the rights we had . . . like our wages and
stuff."20 In this context, an employee named "Grace" raised
the possibility of having a company-paid person to "repre-
sent" the employees, referring to some such arrangement in
existence when she had worked for Greyhound Corpora-
tion. Both Hunter and Detrinidad agree, and I find, that
Hunter replied (as Hunter put it in his testimony):
And I had never heard of anything like that, I said, but
it was certainly a possibility and something we could
look into.
Another complaint from several employees had to do
with assertedly unfair production quotas, particularly as
applied to persons who did "balancing" of accounts each of
which required varying amounts of time and involved vary-
ing degrees of difficulty. According to Detrinidad's credited
testimony, Hunter replied that it was a "possibility . . . to
get balancers off production."2 '
Many other complaints were voiced by employees related
to the perceived unfairness of Respondent's "probation"
system, although the record fails to reflect what, if any-
thing, Hunter said specifically on that issue, other than his
concession that his replies were generally the same for all of
the complaints raised. Hunter also recalled a complaint
having been raised about the uncleanliness of the women's
restroom, to which he replied that he hadn't been aware of
the condition of the restroom.
After at least 15 or 16 employees had been heard from,
Hunter concluded the meeting by saying that he had been
unaware of employees' concerns in many of the areas which
had been brought up, specifically referring to the com-
1' Hunter's term. Detrinidad repeatedly characterized Hunter's invitation
at this point as calling for "grievances," although she refrained from insisting
that this was the specific term actually employed by Hunter. Her character-
ization was accurate insofar as it applied to the nature of the "questions"
which emerged from the assembled employees, and the conflict on this point
need not be resolved.
20 Credited testimony of Detrinidad.
21 Hunter testified to the effect that his reply was that he was personally
unfamiliar with the production quota system as it might apply to balancers
and that he told employees that he "... would try to learn more about that."
Detnnidad's version is credited, because Hunter elsewhere stated that his
answer to each complaint was generally the same and, as noted, he specifi-
cally recalled promising to "look into the possibility" of hiring a company-
paid representative for the employees. Accordingly, it is doubtful that his
answer on the question of production quotas for balancers was as neutral
and noncommittal as his above-discussed version would imply.
721
DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD
plaints about Bart Jackson as being intimidating and unap-
proachable. He also admitted expressing "suprise" at this
point that employees had not raised these matters with their
supervisor, reminding employees of the existence of a two-
or three-tiered "standard procedure" for dealing with com-
plaints and encouraging them to resort to the same in the
future.
In this latter regard, Respondent's employee handbook,
which had been in existence prior to the organizational at-
tempt, contains the following provision:
Problems and complaints. If you have a personal work
related problem or feel you have a reasonable com-
plaint, please discuss it with someone in authority.
Complaints of a personal nature are often the result of
misinformation or misinterpretation of the facts. You
should feel free to discuss any complaints or criticisms
which disturb you with your supervisor, who is obli-
gated to make a sincere effort to assist in solving the
problem. If you do not feel the supervisor's decision or
explanation is satisfactory, you should make an ap-
pointment with the department or division manager,
who will investigate the entire matter and either sup-
port, modify. or overrule the supervisor's previous po-
sition with an appropriate explanation to each of you.
As Hunter testified, the term "supervisor," as used in the
quoted text, referred to the immediate, first-level shift su-
pervisor; the "department manager," in the case of data
entry employees, would be Bart Jackson; and the "division
manager" would be Hunter, as general manager. While the
quoted text implies that the next level of appeal above "su-
pervisor" could be either Jackson or himself, Hunter stated
that he preferred to be involved only after Jackson had had
an opportunity to resolve the matter hence the frequent
reference in his testimony to a "three-stage" procedure.
Meeting 2
In connection with Respondent's second series of cam-
paign addresses, Hunter and Bart Jackson met with ap-
proximately 30 swing shift data entry employees around
April 24. From all of the testimony on the subject, it is
evident that Hunter's role in the meeting was primarily to
make certain introductory and closing remarks discussed
below. Jackson responded to questions about the manner in
which Respondent applied and calculated its productivity
quota system, particularly as to balancers doing the "final
edit" work, which had been a subject of concern in Meeting
I. Former employee Detrinidad and management witnesses
Hunter and Jackson each testified about the meeting, albeit
in a somewhat haphazard manner which makes it difficult
to determine precisely how and when certain remarks were
made. From a synthesis of the credited testimony of all the
witnesses, I find as follows concerning that meeting:
Hunter opened the meeting with some remarks to the
effect that he was going to have Bart Jackson respond to
questions they had raised. Hunter and Jackson both testi-
fied that Hunter also mentioned at that point that a person-
nel representative from Omaha would be coming to San
Mateo in the near future and that employees would be able
to address any additional questions to that representative.
Detrinidad states, evidently referring to the same remarks,
that Hunter said that he was ". .. looking into the repre-
sentative to settle the grievances between employees and
management that would be hired by the management." I
credit Hunter's and Jackson's version on this point, since
Detrinidad seemed to be characterizing and relating her
personal conclusions rather than faithfully reporting Hunt-
er's words. Detrinidad also changed her version somewhat
when she next recounted the same incident. 21 find that
Hunter's remarks on this subject in Meeting 2 were unre-
lated to his statement in Meeting 1 about "looking into the
possibility" of a company-paid employee representative.
Jackson then took the floor. Detrinidad credibly testified
without contradiction that Jackson opened his remarks by
saying that he knew that he was known as "Black Bart"
and then in a "very friendly" way stated that he "wanted to
hear [employees'] grievances and he wanted to talk things
out and find out what was happening."
Certain complaints were then heard from employees,
mainly relating to perceived unfairness in the pay rate sys-
tem for various increments of work. One employee ques-
tioned why her recent pay increase had apparently taken
only her production into account and why she had not been
given additional credit for her work attitude and attend-
ance. Hunter interjected, according to Detrinidad's credited
and uncontroverted testimony, that that ". . . didn't sound
right and [I] would have to look into it. Because people
were supposed to be getting paid based not only on the
production, but also on their attitude towards work and
their attendance."
Jackson took up most of the meeting in responding to
specific questions and giving purely factual answers as to
the manner in which Respondent computed productivity
and the weight given to certain increments of work. At
some point in the meeting, according to the text of a pre-
trial affidavit given by Hunter, which he did not contradict
and which has the character of an admission:
One of the employees said that it was really nice of
me and Jackson to come down and talk with them.
One of the employees said that this kind of meeting
is good, that she knew of another company that did
this on a regular basis. I agreed with her that it was a
good idea. I informed the group that we would have
our director of personnel out here for three days to
basically do the same thing, that [sic] to answer any
questions that they had.
Concluding Findings Regarding the Alleged Solicitation
of Grievances
For reasons discussed below, I conclude that Hunter's
actions in Meetings I and 2 involved impermissible solicita-
tion of employee grievances, together with implicit assur-
ances that some or all of them would be resolved, in viola-
tion of Section 8(a)( ).
It is undisputed that Hunter announced in Meeting 1, in
effect, that the existence of union organizational activities
21 This time, Detrinidad reported that Hunter said that he was "... look-
ing into the representative that-- to come and talk to us and see how we felt
about having that person represent us [emphasis supplied.l" The phrase fol-
lowing the underscored portion appears particularly to reflect an unconvinc-
ing effort to tie together the remarks in Meeting I and Meeting 2.
722
FIRST DATA RESOURCES. INC.
among the data processing clericals was evidence of em-
ployee dissatisfaction and that Respondent "wanted to be
aware of" any employee "problems or anything that people
were unhappy with in the company." These opening re-
marks, coupled with Hunter's use of the analogy to having
been served with divorce papers without prior notice that
there was anything amiss in the marriage relationship, pre-
dictably and clearly had the effect of encouraging employ-
ees to air their grievances over the employment relation-
ship. Thus, when Hunter called for "questions" from the
third shift data entry group, the responses were virtually all
in the form of complaints or grievances about employment
conditions.
It is further admitted that Hunter either expressly or im-
pliedly promised employees that he would "look into" sev-
eral of the complaints and suggestions raised in Meetings I
and 2, as in the case of, for example, the suggestion regard-
ing a "company-paid" employee representative. Moreover,
Meeting 2 was in a very real sense itself a type of "remedy"
for the "grievance" expressed in Meeting I about the inac-
cessibility and intimidating presence of Manager Bart Jack-
son. Thus, Jackson was presented to the employees in
Meeting 2 as a sympathetic and responsive manager, quite
obviously in an effort to patch up the impaired relationship
between him and his subordinates which had manifested
itself in Meeting . Finally, Hunter encouraged employees
in the overall belief that Respondent's management would
be more sensitive and responsive in the future to employee
dissatisfaction when he stated his agreement with the re-
marks of an employee in Meeting 2 who had praised him
and Jackson for being "really nice" and who had suggested
that meetings of this type on a "regular basis" would be "a
good idea."
The Board has regularly held that, absent an established
practice of doing so, the holding of meetings during a union
organizing campaign at which employees are encouraged to
air their grievances necessarily implies a promise to remedy
them, thereby constituting a form of impermissible promise
of benefit to discourage union support. E.g., Reliance Elec-
tric Company, Madison Plant Mechanical Drives Division,
191 NLRB 44, 46 (1971); York Division, Borg-Warner Cor-
poration, 229 NLRB 1149, 1152 53 (1977); Raley's, Inc.,
236 NLRB 971, 972 (1978): cf. Uarco, Incorporated, 216
NLRB 1, 2 (1974).
Hunter's conduct in Meetings I and 2 fits the classic
mold. Not only did Hunter's solicitation of grievances in
itself give rise to the inference that Respondent would seek
to remedy them, but Hunter's responses as detailed above
served to reinforce that inference. For this reason, the facts
of this case are in marked contrast to those in Uarco, Incor-
porated, supra, in which the Board held (Member Jenkins in
dissent) that the "inference" of promising to remedy griev-
ances raised by an employer's meetings with employees had
been "rebutted" by express "no promises" remarks made
concurrent with the soliciting and airing of employee com-
plaints.
Nor does the preexistence of a form of "grievance proce-
dure" as contained in Respondent's employee handbook re-
quire a different conclusion. Contrary to the assertion of
Respondent's attorney on brief, the meetings involved far
more than a mere explanation of"existing procedures." In-
deed, the fact that meetings were held by top management
officials in which employee complaints were solicited and
the fact that Jackson was "produced" for the benefit of
employees who had previously found him to be unap-
proachable prove that the existing written "procedure" had
been ineffective and that Respondent felt obliged to go to
unprecedented and extraordinary lengths in order to per-
suade employees that they could obtain satisfaction on their
complaints without the need for union representation. The
Stride Rite Corporation, 228 NLRB 224, 225 (1977).
Accordingly, I shall include in my recommended Order a
provision that Respondent cease and desist from soliciting
employee grievances in order to discourage support for the
Union.
Events Associated With the Transfer of Work to Omaha
Three arguably interrelated events occurred on May I.
First, admittedly due in part to a management decision
made a few days earlier to divert a substantial amount of
data entry and balancing work from the San Mateo facility
to the Omaha facility, prospective bargaining-unit employ-
ees on the swing shift were left with nothing to do through-
out their work shift. All affected employees were paid their
normal hourly rates for that shift, however. Second, Hunter
held Meeting 3 with swing shift employees, during which he
adverted to that diversion of work. Finally, Jackson had an
impromptu meeting with a group of swing shift employees,
during which he explained why work had been diverted to
Omaha and also spoke about the likelihood that work
would be diverted in the future as a management counter-
measure in the event of a strike or work stoppage by em-
ployees.
With respect to the timing of and motivation for the di-
version of work to Omaha, resulting in the lack of work for
swing shift employees on May 1, I find as follows: One of
Respondent's major bank customers, Wells Fargo Bank,
had signaled its intention months earlier to phase into the
performance of much of the data capture, entry, and bal-
ancing work previously done by Respondent, using one of
its own recently acquired computers. In anticipation of the
reduced demand from Wells Fargo, Respondent had been
in the process of reducing its own work force by attrition
since mid-March. A problem was created when Wells Far-
go repeatedly postponed the predicted date of making the
conversion. Thus, as of March 28, the date on which Wells
Fargo had originally intended to convert to its own system,
Respondent found itself with fewer employees than were
necessary to keep up with the still-arriving work from Wells
Fargo. Thereafter, there occurred a process of almost
weekly postponement of the conversion date. This began to
result in "holdovers" at the end of each week, i.e., uncom-
pleted data processing and entry work due to "short" staff-
ing. This, according to Jackson's credited testimony, "cost
the banks money."
After several postponements of the conversion date, with
the attendant problem for Respondent of increased "hold-
overs," Jackson recommended by memorandum dated
April 26 that some of the anticipated workload" for the
13 Jackson credibly testified that Respondent expected about 50.000 mer-
chant sales slips (or "tickets") from Wells Fargo to arrive on the weekend
preceding Monda). May 1. His April 26 memo (Resp. Exh. 4(b)) corrobo-
rates this testimony Evidently, this was in addition to holdovers which
would also have to be done on the following Monday, unless the holdovers
were sent elsewhere.
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following Monday (May I) be rerouted to Omaha by means
of the "emergency punching procedure"24 which had been
developed as a backstop means of dealing with holdovers.
Although details were not presented on this point, Respon-
dent's plan was evidently to reroute as much of the antici-
pated work to Omaha as was necessary to leave San Mateo
with a manageable workload for Monday, May 1. Jackson
further credibly testified, however, that Wells Fargo ended
up sending far fewer "tickets" on Saturday than had been
anticipated (in fact only about 16,000). In the meantime,
the work which would otherwise have been held over for
San Mateo employees on Monday had been transferred to
Omaha, leaving an unusually small amount of work to be
performed by San Mateo employees on that Monday. Thus,
according to Hunter and Jackson's mutually corroborative
testimony, first shift employees were able to accomplish all
of the incoming work that day, but there was none left for
the swing shift employees.
With respect to Hunter's conduct in Meeting 3, which
occurred later on May , I find as follows: Hunter narrated
a "slide show," one of which slides depicted in cartoon form
a large piece of construction machinery adjacent to a fright-
ened woman seated at a small computer terminal. Hunter
added that the Union was not "appropriate" for the cleri-
cals since it "didn't have anything to do with [the clericals']
work." Continuing with his use of slide-projected visual
aids, Hunter displayed a map of the United States showing
the locations of Respondent's various computer centers, in-
cluding Omaha. At this point, based on a synthesis of the
credible, albeit disjointed, testimony of employees Detrini-
dad and Jackie Bulnes, Hunter commented that when there
were too many holdovers work could be transferred to
Omaha "as we could see today. by a flick of a switch."
Hunter also used this opportunity to again remind employ-
ees that if there were a strike, work would be lost from the
San Mateo facility-either because bank customers would
take their business elsewhere, or because a strike would
force Respondent to get its work done elsewhere.
Any additional remarks which Hunter may have made
during Meeting 3 are not evident from the record.
When Meeting 3 concluded, 12 to 15 data processing em-
ployees met informally with their supervisor, Cheryl Holms,
and the discussion turned to the lack of work for swing shift
employees due to the rerouting of substantial amounts to
Omaha. Jackson joined the group and was questioned as to
why there was no work. He explained, in substance (the
witnesses found his remarks too confusing and detailed to
recall), that the existence of too many holdovers had forced
the rerouting of work to Omaha. At least one employee
voiced the suspicion that the rerouting was a scare tactic
related to the upcoming election. Bulnes acknowledged,
however, and I find, that Jackson denied that any scare
tactic was involved and said that the reason for the work
transfer had been related to the holdover problem. At some
point during this impromptu meeting, Jackson again re-
minded employees that a work stoppage at San Mateo
24 The technical details of this procedure were not made a matter of rec-
ord, but the San Mateo facility was "tied into" the network of computer
terminals maintained at Respondent's other facilities, including Omaha.
And, as found below, Hunter referred in Meeting 3 to Respondent's ability
to reroute work to other computer centers "at the flick of a switch."
25 Credited testimony of Detrinidad, not contradicted by Hunter.
would result in a loss of work at the San Mateo facility
because Respondent's bank customers would have to have
their data processing work done promptly and either Re-
spondent would have to transfer work elsewhere or the
bank customers would have to find another way of having
their work accomplished. 6
Concluding Findings Relating to the Alleged
Discriminatory Work Transfer and the Alleged Threats
To Transfer Work
For reasons set forth hereinafter, I conclude that Respon-
dent's transfer of work to Omaha affecting swing shift em-
ployees on May I was not discriminatory and was not influ-
enced by union considerations and that Hunter did not, in
his May I speech in Meeting 3, "threaten" to transfer work
from San Mateo in order to discourage employees from
voting for union representation.
As to the question of Respondent's motivation for having
transferred substantial work to Omaha around May 1, the
only specific evidence was that outlined earlier. In sum-
mary, the evidence shows, and I conclude, that the transfer
of work was due to the coincident factors of an ongoing
"holdover" problem deriving from Wells Fargo's vacilla-
tion on the timing of its cessation of use of Respondent's
services and the specific problem occasioned by Wells Far-
go's furnishing substantially fewer tickets for processing
than it had earlier predicted would be sent to Respondent
for handling on May . Accordingly, I conclude that Re-
spondent did not engage in objectionable conduct or violate
Section 8(a)(I) by such transfer of work.
As to the issue of Hunter's alleged "threat" to transfer
work made during Meeting 3, the evidence failed to reveal
that such a threat was made. Rather, it is clear that Hunter
did no more than to repeat earlier remarks which he had
made, to the effect that a work stoppage would necessarily
involve loss of work for San Mateo employees, either be-
cause bank customers would take their business elsewhere
or because Respondent would have to send the work to
another data processing center in order to serve whatever
customers continued to use Respondent during a San Ma-
teo work stoppage. In my opinion, Hunter's remarks were
privileged by Section 8(c) of the Act in that they constituted
"predictions" which were reasonably based on specifically
articulated facts. Under such circumstances, Respondent's
employees were able to recognize that Hunter was not
merely threatening them with retaliation for selecting a
union, nor for going on strike, for that matter, but was
merely stating his opinion, based on the nature of Respon-
dent's business and the existence of its computer link-ups
with other data processing centers, that if such a strike were
to occur it would be likely that business would be lost and
be handled either by a business rival or by another of Re-
spondent's centers.
26 The initial testimony of employee Bulnes during direct examination on
this subject was somewhat vague and summary in character, but it would
clearly invite the interpretation that Jackson had predicted loss of work
opportunities for San Mateo employees simply as a result of the Union's
"getting in." Bulnes eventually conceded on cross-examination, however.
that Jackson's remarks in this regard were made "in reference to what would
happen if there was a strike or work stoppage." I so find.
724
FIRST DATA RESOURCES. INC.
Although neither the complaint nor the objections specif-
ically raise the question, I have considered the fact that
Respondent frequently referred to the possibility, of loss of
work in the event of strikes as an integral part of its overall
campaign "pitch" to employees. I am mindful of the fact
that under some circumstances an employer violates Sec-
tion 8(a)(1) and, in an election context, engages in objec-
tionable conduct, by emphasizing the specter of strikes and
their inevitability in the event employees select a bargaining
representative. I have reviewed Board cases in this area
with the possibility in mind that Respondent's pattern of
conduct in this regard might, in its totality, have amounted
to a violation of Section 8(a)(l) or to objectionable conduct
affecting the election. I have nevertheless concluded that
Respondent's conduct in this area was free from such taint.
Of paramount importance in this analysis was the fact that
while Respondent's agents regularly reminded employees of
the possibility of loss of work in the event of a strike, there
was a distinct lack of any parallel message that strikes
themselves would necessarily occur as a consequence of
union representation.
Thus, if the "free speech" guarantees in Section 8(c) are
to be given any substance, in order for an employer to vio-
late the Act by an antiunion campaign involving emphasis
on the adverse consequences of strikes, there must be some
concomitant suggestion by the employer that strikes would
be inevitable in the event employees were to select a union
representative. See, e.g. Wex-Tex of Headland, Inc., 236
NLRB 1001 (1978): Four Winds Industries, Inc., 211 NLRB
542 (1974); Tommrv's Spanish Foods, Inc.. 187 NLRB 235
(1970).
Unlike the cited cases, there was no indication by Re-
spondent herein that it would be obdurate or unyielding in
any efforts by the Union to achieve changes from the status
quo, should it become the employees' representative. Nor
did Respondent in any other manner suggest that employ-
ees would have to resort to a strike in order to obtain any'
benefit from union representation. In summary, therefore, I
conclude that Respondent did not, by the totality of its
preelection conduct, unlawfully threaten employees that the
selection of a bargaining representative would virtually in-
sure that strikes, with their potential adverse consequences,
would occur.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By including customer service representatives in its
March 27 meeting in its general instructions issued there to
engage in the gathering of information about the union ac-
tivities of employees in the data processing clerical unit and
to engage in antiunion campaign activities on behalf of
management, Respondent violated Section 8(a)(l) of the
Act.
4. By Obermeyer's having told Bake during her postdis-
charge telephone conversation that her protected concerted
activities (i.e., her "sick-out" plans) could have been
grounds for discharging her, Respondent violated Section
8(a)(1) of the Act.
5. By' soliciting and impliedly promising to remedy some
or all of its employees' grievances during the preelection
period, Respondent violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except as specifically found above, Respondent did
not violate the Act in any other respects.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices affecting commerce, I find it neces-
sary to order that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act, including the posting of appropriate
remedial notices to employees at its San Mateo, California,
facility.
I shall also recommend, in view of my finding that the
aforesaid violations included one directed at, and affecting
the rights of; bargaining unit employees, that the results of
the May 4 election be set aside and a new election be held.'
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:
ORDER2"
The Respondent, First Data Resources, Inc.. San Mateo,
California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Instructing employees to gather information about
the union activities of fellow employees or otherwise in-
structing employees to participate in management anti-
union campaign activities
(b) Telling employees that they' are vulnerable to dis-
charge for engaging in discussions about, or advocating.
conduct protected by Section 7 of the Act.
(c) Soliciting employee grievances and impliedly or ex-
pressly promising to remedy some or all of them in order to
discourage employees from seeking union representation.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its San Mateo, California, facility copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
27 Having earlier found that. of the three violations of Sec. 8(aXI) noted
above, only one (i.e., number 5, above) directly affected employees in the
bargaining and voting unit, this recommendation is linked to said violation
only.
Zn 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.
19 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board "
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gion 20, after being duly signed by an authorized represent-
ative of Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all loca-
tions 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.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
ITr IS FURTHER RECOMMENDED that the Union's objections
which were addressed to Respondent's solicitation of and
promises to remedy employees' grievances be sustained,
that the results of the May 4 election be set aside, and that
a new election be directed.
IT IS FURTHER ORDERED that the complaint be dismissed
in all other respects.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence and arguments, it has been decided that
we violated the law, and we have been ordered to post this
notice. We intend to carry out the order of the Board and to
abide by the following:
The National Labor Relations Act gives employees the
following rights:
To organize themselves
To form, join, or assist unions
To bargain with their employers regarding wages
and other working conditions through a representa-
tive which they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of the above activities,
except to the extent that the employees' bargaining
representative and employer have a contract which
imposes a lawful requirement that employees be-
come members of the employees' bargaining organi-
zation.
In recognition of these rights, we hereby notify you that:
WE WILL NOT instruct or require employees to keep
track of or gather information about the union activi-
ties of fellow employees or to report those activities to
members of management.
WE WILL NOT instruct employees to engage in cam-
paign activities against Operating Engineers Local
Union No. 3 of the International Union of Operating
Engineers, AFL-CIO, or any other union seeking to
represent our employees.
WE WILL NOT tell employees that they could be fired
or otherwise treated adversely because they discuss,
plan, or engage in activities protected by the National
Labor Relations Act, such as the concerted withhold-
ing of services to protest wages or other terms or condi-
tions of employment.
WE WILL NOT promise employees benefits to dis-
courage them from choosing Operating Engineers Lo-
cal Union No. 3 or any other labor union as their col-
lective-bargaining representative, such as by asking
them what their grievances are and promising to rem-
edy those grievances.
WE WILL NOI in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
FIRST DATA RESOURCES, INC.
726