First National Bank of Pueblo

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 184 (N.L.R.B. 1979)

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First National Bank of Pueblo and Office and Profes-
sional Employees International Union, Local 5,
AFL-CIO. Case 27-CA-5475
January 24, 1979
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY, AND TRUESDALE
On March 3, 1978, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in opposition to those exceptions.
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 Ihe 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 only to
the extent consistent herewith.
For the reasons set forth below, we do not agree
with the Administrative Law Judge's dismissal of the
complaint's allegations that Respondent violated
Section 8(a)(l) by interfering with the Union's solici-
tation of employees and Section 8(a)(3) and (1) by
discharging employee Judy Whorton.
I. INTERFERENCE WITH THE SOLICITATION OF EMPLOYEES
On the day before the Board-conducted election,
union representative Joe McGee distributed leaflets
on public property-a sidewalk-at the bank's en-
trance used by employees on breaks and at lunch-
time. McGee, who was unable to distinguish employ-
ees from customers, began handing leaflets to all
interested individuals approximately half an hour
prior to the scheduled lunch break. After about 15
minutes, Respondent's president, Armstrong, asked
McGee why he was passing out handbills to custom-
ers. McGee explained his actions. Armstrong then
stated, "that's a pretty chicken s- thing to be doing"
and went back into the bank. McGee continued dis-
tributing the leaflets and Armstrong returned with
Respondent's chairman of the board, Johnston.
Johnston hovered, spread-eagled, over McGee and
prevented McGee from handing out a leaflet by
grabbing it out of his hands saying, "Oh no you
don't." Armstrong and Johnston then left.
The Administrative Law Judge found that since
the General Counsel failed to show that the rights of
any employee to receive information from the Union
240 NLRB No. 49
was infringed by Respondent's above conduct, and
inasmuch as the entire incident arose from
Johnston's belief that McGee was leafletting custom-
ers. Respondent did not violate Section 8(a)(1). We
disagree. It is well established that an employer can-
not legally interfere with a union's solicitation of em-
ployees when it takes place on a public street and
does not obstruct the ingress or egress from the
Employer's premises. It is uncontroverted that Mc-
Gee was on the public sidewalk and that he did not
block the entrance to the bank. McGee testified that
he knew that employees used the entrance at lunch-
time and that he intended to catch them at the begin-
ning of the lunch period. As noted above, McGee
could not distinguish employees from customers, so
he distributed leaflets to anyone who was interested.
Consequently, it is clear that McGee was attempting
to solicit Respondent's employees, as part of the
Union's campaign to organize them, and that Section
7 of the Act protects such activity. Therefore, there is
no basis for Respondent's trying to prohibit such ac-
tivly on a public street and Respondent, by interfer-
ins with McGee's organizing efforts, violated Section
8(a)(l) of the Act.'
11. DISCHARGE OF VWHORTON
Judy Whorton was a union observer at the Board-
conducted election on May 4. Whorton was an excel-
lent employee whose work was often praised by Re-
spondent's officials. Approximately 3 days after the
election, Whorton's supervisor, Lessar, told Whorton
that she (Whorton) was getting a raise. Whorton re-
plied that she did not believe it because she thought
that Respondent's vice president was not happy with
her being an observer for the Union. Lessar stated
that she was not happy about it either, and she
wlshed that Whorton had not done it. About July 12.
Lessar informed Whorton that she wanted to pro-
mote her.
On Saturday, July 16, Whorton telephoned Lessar
and informed Lessar of her (Whorton) grandfather's
death and inquired about the funeral leave policy.
About I hour later, Whorton learned that the grand-
father of a friend of hers had died and that the fu-
neral would be on Monday, July 18. On Monday,
Lessar called Whorton and told her that she could
have that Thursday off for her grandfather's funeral.
Whorton informed Lessar that she would not be in
that day (Monday) because she had a funeral of a
very close friend to attend. Lessar asked whether she
had any leave time accumulated so that she could be
paid for the day. Whorton replied no, but that she
C (ompare. I.ant, l)ru Srev Irprured. 88 N I.RB 584 ( 195().
FIRST NATIONAL BANK OF PUEBLO 185
would take leave without pay. Lessar said "okay."
On Tuesday, Whorton was discharged for taking
time off, assertedly without authorization.
Although the Administrative Law Judge conclud-
ed that Respondent did not establish its defense that
Whorton was discharged for an unauthorized ab-
sence,2 he found that, in view of the Respondent's
lack of union animus, its favorable treatment of
Whorton after the election, and the lapse in time be-
tween the election on May 4 and her discharge on
July 19, General Counsel had not established that
there was a causal connection between Whorton's
union activity and her discharge. Accordingly. the
Administrative Law Judge dismissed the 8(a)(3) and
(I) allegation of the complaint. We disagree.
The record establishes that Whorton notified her
supervisor that she was not going to be at work on
the Monday in question and that Lessar granted her
permission or reasonably caused Whorton to believe
that she had permission to be absent. Thus, as found
by the Administrative Law Judge, the evidence does
not support the unauthorized absence rationale of
Respondent. If the stated motive for a discharge is
found to be false, it can be inferred that the motive is
an unlawful one which Respondent desires to con-
ceal, at least where the surrounding facts tend to
reinforce that inference.3
Based upon the foregoing, we infer that Whorton's
discharge was motivated by some consideration that
Respondent had purposefully failed to reveal and,
contrary to the Administrative Law Judge, that the
only motive apparent from this record is union ani-
mus. The inference of union animus is supported by
Respondent's unlawful interference with the Union's
solicitation of Respondent's employees and Lessar's
statements to Whorton regarding Respondent's nega-
tive attitude toward her being a union observer.
Hence, we conclude that Whorton's discharge was
caused by her engaging in protected concerted activi-
ty and that the reason proffered by Respondent for
the discharge was no more than a transparent ration-
alization intended to hide the real cause of the dis-
charge. Accordingly, we find that Respondent's pre-
textual discharge of Whorton violated Section 8(a)(3)
and (1) of the Act.
2 The Administrative Law Judge based his conclusion on the fact that
Whorton could easily have assumed she was given permission to take the
day off without pay, that the following day Whorton told a supervlsor that
she believed that she had permission to be absent, that Lessar told Whlrton
that she (Lessar) felt that she was partly at fault for not explaining it clearl.
and that Whorton a good employee. was fired without any prior warning
3Shattuck Denn Mining Corporation (Iron King Branch) s'. 1. R . 362
F.2d 466. 470 (9th (ir. 1966)
R -. ME I)
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section
8(a)(3) and (I) of the Act by discriminatorily dis-
charging Whorton, we shall order that Respondent
offer to fully and immediately reinstate her to her
former job or. if that job no longer exists, to a sub-
stantially equivalent job. We shall also order Respon-
dent to make her whole for any loss of earnings she
may have suffered by reason of the discrimination
against her, by payment of a sum of money equal to
that which she would have earned from the date of
her unlawful discharge, less her net earnings, if any.,
during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950). Interest on the backpay shall be comput-
ed as set forth in our decision in Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
First National Bank of Pueblo, Pueblo, Colorado, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interfering with the Union's solicitation of em-
ployees.
(b) Discharging or otherwise discriminating
against employees for supporting or engaging in ac-
tivities on behalf of Office and Professional Employ-
ees International Union, Local 5, AFL-CIO, or any
)ther labor organization.
(c) In any other manner interfering with or at-
tempting to restrain or coerce employees in the exer-
cise of the rights guaranteed them in Section 7 of the
Act.
2. Take the following action necessary to effectu-
ate the policies of the Act:
(a) Offer Judy A. Whorton full and immediate re-
instatement to her former job or, if that job no longer
exists, to a substantially equivalent position, with full
seniority, privileges, and benefits, and make her
whole for any losses she may have suffered because
of the discrimination practiced against her, in accor-
dance with the provisions set forth in the section of
this Decision entitled "Remedy."
(b) Post at its Pueblo. Colorado. facility. copies of
4 See. generall , l/ P.lhin, & lHeruin (, 138 Nl RB 716 1
9
h62
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the attached notice marked "Appendix." 5 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 27, after being duly signed by its
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER TRUESDALE, dissenting in part:
I agree with my colleagues that Respondent, by
interfering with Union Representative McGee's or-
ganizing efforts, violated Section 8(a)(1) of the Act. I
would affirm the Administrative Law Judge's conclu-
sion, however, for the reasons given by him, that the
discharge of Judy Whorton was not in violation of
Section 8(a)(3) of the Act.
5 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
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with a union's solicita-
tion of our employees.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees for supporting or en-
gaging in activities on behalf of Office and Pro-
fessional Employees International Union, Local
5, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their Section 7 rights.
WE WILL offer Judy Whorton full and immedi-
ate reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent po-
sition without prejudice to her seniority or any
other rights and privileges previously enjoyed,
and WE WILL make her whole for her loss of earn-
ings because of our discrimination against her,
plus interest.
FIRST NATIONAL BANK OF PUEBLO
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ. Administrative Law Judge: This
case was heard at Pueblo, Colorado, on December 6, 1977.
The charge was filed on July 22, 1977, by Office and Pro-
fessional Employees International Union, Local 5, AFL-
CIO, herein called the Union. The complaint, which issued
on August 30, 1977, and was amended on September 23,
1977, alleges that First National Bank of Pueblo, herein
called Respondent or the bank, violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
Issues
The primary issues are:
1. Whether Respondent threatened employees that
Mountain Banks (the holding company that owned Re-
spondent) would not have a unionized bank or agree to
any union contract, and would sell the bank and remove
the trust department to Denver if the employees selected
the Union to represent them.
2. Whether Respondent violated Section 8(a)(l) of the
Act by interfering with the solicitation of employees by a
union representative.
3. Whether Respondent violated Section 8(aX3) and (1)
of the Act by discharging Judy Whorton because of her
activities on behalf of the Union.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Colorado corporation with its principal
office and place of business at 5th and Main Street,
Pueblo, Colorado, is engaged in the business of providing
banking services. Respondent annually has a gross volume
of business in excess of $1 million and annually engages in
interstate financial transactions in excess of $100,000 from
its location in Pueblo, Colorado. It annually furnishes
banking services valued in excess of $50,000 to persons
who annually purchase goods valued in excess of $50,000
from points directly outside Colorado. The complaint al-
leges, the answer admits, and I find, that Respondent is an
employer within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
FIRST NATIONAL BANK OF PUEBLO 187
III THE AILLEGED UNFAIR LABOR PRACTICES
A. Background
The Union began an organizational drive among Re-
spondent's employees in mid-January 1977, and on March
15, 1977, filed a petition for an election.' An election which
the Union lost, was held on May 4, 1977. Objections were
filed and later withdrawn. The results of the election were
certified as final on June 10, 1977.
The complaint alleges that on April 26, an official of
Respondent met with employees and made coercive re-
marks to undermine the Union; that on May 3, Respon-
dent interfered with the Union's solicitation of employees
outside the bank; and that on July 19, Respondent dis-
charged Judy A. Whorton, who was a union observer at
the election, because of her union activities.
B. The 8(a)(l) Allegations
I. The April 26, 1977, meeting
Sometime in March 1977, Respondent's cashier, Bunce,
met with the employees in the various departments of the
bank. He spoke to the employees about the benefits the
employees received from the bank. The Union was not
mentioned. 2
In early April 1977. J. Robert Armstrong, Respondent's
president,3 found an anonymous message in the bank sug-
gestion box. The message said that management had been
telling the employees of the benefits that the bank was giv-
ing them and asked what the profits were that the employ-
ees were making for the bank. Armstrong responded by
writing on the message the statement that the bank was
planning to discuss its financial picture with each depart-
ment after the first quarterly report was out for 1977.
The bank has nine different departments with a total of
approximately 120 regular employees and approximately 8
part-timers. Near the end of April 1977, Armstrong held
separate meetings for each of the nine departments. The
meeting for the trust department was held on April 26.
1977. There were approximately nine employees in that de-
partment and all of them attended. One of those employees
was Judy A. Whorton, the alleged discriminatee.
Whorton testified to the following: Armstrong spoke
about the progress the bank had made with relation to
other banks in town and compared the wages in their bank
and other banks. He said that if the Union came in, the
bank's holding company, Mountain Banks, would not
agree to a unionized bank and one thing that could happen
would be that the trust department would be moved to
tThe unit was: "All employees emploed hb the emploer at ts 5th and
Main Street and Ist and Main Street facility in Pueblo. Colorado. nludig
officers, hut excluding all managerial personnel. the president. the exciutiJe
vice president, the vice president of installment loans, the cashier. the senlor
vice president, trust officers. supervlsors. confidential employees and guards
as defined in the Act."
:There is no allegation Ihat anthing said al thoe meetings violated the
Act.
Respondent admits and I find that Armstrong is an agent f Respon-
dent
Denver or Colorado Springs. He also said that if the Union
came in Mountain Banks would sell the bank to another
holding company, that he would lose his job. that he liked
his job, and that he would like the employees to vote "no"
in the election.
Armstrong acknowledged in his testimony that he spoke
to the trust department employees on April 26, 1977. How-
ever, he flatly denied all of Whorton's testimony concern-
ing how Mountain Banks or Respondent would respond to
unionization. He testified that he did not talk about unions
at all. Armstrong testified that at the nine different meet-
ings he held he discussed the financial affairs of Respon-
dent and went into such matters as dividend policies and
wage scales. After each presentation he opened the meeting
up for questions. According to Armstrong, one of the em-
ployees asked whether the trust department was going to
be moved; he replied that some 4 years before there had
been discussion concerning a merger of the trust depart-
ment with the trust department of a bank in Colorado
Springs, and that the bank was thinking of having surveys
done in order to consider improving its system. Armstrong
testified that sometime during the meeting an employee
asked a question concerning the Union but he avoided an-
suering that question.
Jim Hadley is an administrative assistant in the trust
department. He voted in the election. Hadley was a leader
o,' an employee committee against the Union and he sent
out information on behalf of that committee with his name
as chairperson. Hadley was present during the April 26
meeting. His testimony corroborated that of Armstrong.
Hadley averred that Armstrong spoke to the employees
about the internal policies and finances of the bank and
what they meant to the average employee, that Armstrong
did not talk about anything concerning the Union or labor
organizations, and that Armstrong did not say anything
about how Mountain Banks felt about the Union or the
possible sale of the bank. Hadley testified that one of the
employees said that he had heard rumors that the bank was
thinking about consolidating trust departments and that
Armstrong replied that they were considering consolida-
tion but that no decisions had been made. According to
Iladley there were rumors in the bank that if the Union
were voted in the bank might shut down its trust depart-
ment, but nothing of that nature was said at the meeting.
As set forth above, Whorton testified that Armstrong
made a number of coercive remarks concerning union ac-
tivity at the April 26 meeting. Armstrong flatly denied
making those remarks and his testimony was corroborated
by Hadley. None of those witnesses was completely disin-
terested. Whorton is an alleged discriminatee. The animus
stemming from the remarks attributed to Armstrong could
help her establish that she was fired in violation of the Act.
Armstrong, as president of Respondent. also has an inter-
est in the outcome of this case. Hadley, as a leader of the
committee against the Union, could hardly be called disin-
terested. Under these circumstances, a credibility determi-
nation would have been made much simpler if additional
witnesses had been called on the matter. Armstrong had
meetings in all of the bank's departments. He spoke to
more than 100 employees at the various meetings. Eight
other employees were present at the very meeting about
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Whorton testified. However, General Counsel called
no witness to corroborate Whorton's testimony. Credibility
can never be determined by merely counting the number of
witnesses on each side, but Hadley's corroboration of
Armstrong's testimony cannot be ignored. While giving
weight to the possibility that Hadley might have been bi-
ased, his testimony was straightforward and quite believa-
ble. I credit Armstrong and Hadley rather than Whorton
and find that the General Counsel has not established by a
preponderance of the credible evidence that Armstrong
made the unlawful remarks alleged in paragraphs V(a), (b),
and (c) of the complaint.
2. The incident outside the bank on May 3, 1977
Joseph F. McGee is an International representative for
the Office and Professional Employees International
Union, and since May 1977 he has been a trustee for Local
5 of that Union. About 10:30 a.m. on May 3, 1977, which
was a day before the election, McGee was distributing leaf-
lets at the front entrance of the bank. That entrance is
normally used by customers. Employees only use it at
lunchtime or if they go on a break. Lunchtime begins at I I
a.m. McGee was at the bank too early for the lunch break
and he was handing out handbills to customers. One of the
customers asked Respondent's president, Armstrong, why
the man was standing there handing out handbills. Arm-
strong went outside and asked McGee why McGee was
passing out handbills to the customers when there were not
any employees around. McGee replied that he could not
distinguish between employees and customers. Armstrong
responded by saying "that's a pretty chicken shit thing to
be doing" and then Armstrong went back into the bank.
Shortly thereafter Robert Johnston, Respondent's chair-
man of the board,4 came into the bank and Armstrong told
him what was going on. Armstrong and Johnston then
went outside where Johnston spoke to McGee. Johnston
put his stomach against McGee's belt and asked McGee
what the hell he was doing. McGee replied that he was
passing out handbills to people on the street. Johnston said
that they were customers, not employees. Johnston then
stood in a spread-eagle fashion hovering over McGee 5 and
said, "How about if I do this." Shortly, thereafter a man
and woman were entering the bank and McGee attempted
to hand them leaflets. Johnston, who was still hovering
over McGee, grabbed a leaflet out of McGee's hand and
said, "Oh, no you don't." Johnston and Armstrong then
left and went into the bank. McGee continued to distribute
leaflets for 10 or 15 minutes when an employee he recog-
nized came by. He asked the employee to call the police.
When a policeman arrived, McGee said that he had felt
physically harassed and threatened and that he had been
prevented from handing out leaflets, so he wanted to make
a complaint against Johnston. McGee requested the po-
liceman to talk to Johnston about the matter. The po-
liceman went into the bank and then came out and said
Respondent admits and I find that Johnston s an agent of Respondent
McGee, in his testimony. used expressions such as "spread eagle" and
"hovering." There was little detail concerning the exact ph'sical relallon-
ship of the parties.
that he had had a conversation with Johnston, and that
things should be all right. At the time of this incident Mc-
Gee was on the public sidewalk and he was not blocking
the door. He did not know whether anyone in the bank
could see what had happened.6
Employees have the right to receive information from a
union and an employer can interfere with that right only in
very limited circumstances where a lawful no-solicitation
rule is applied. An employer cannot lawfully interfere with
such communication when it takes place in a public street
and where it does not interfere with ingress or egress from
his establishment. However, the General Counsel has not
established that the right of any employee to receive infor-
mation from the Union was infringed. Johnston's concern
was with the distribution of handbills to customers rather
than to employees. There is no showing that the one hand-
bill that Johnston took was being given to an employee.
McGee may have felt threatened by Johnston's "hovering
over" him, but it was a transient incident that had no
meaningful impact. McGee called the police and received
assurances that things should be all right. The entire inci-
dent involved a petty, momentary squabble which arose
from Johnston's belief that McGee was handing out circu-
lars to customers. I find that the General Counsel has not
established by a preponderance of the credible evidence
that Armstrong and Johnston unlawfully interfered with
MAcGee in his lawful solicitation of employees support as
alleged in paragraph V(d) of the complaint.
C. The Discharge of Whorton
1. The events preceding the alleged unauthorized absence
Judy A. Whorton was hired as a senior clerk typist and
receptionist in Respondent's trust department on January
31, 1977. She was discharged on July 19, 1977. Respondent
contends that she was discharged because of an unauthor-
ized absence from work. The General Counsel contends
that the discharge was motivated by her union activity.
The Union's organizational drive began in mid-January
1977, and the Union held biweekly meetings from then
until the election on May 4, 1977. Whorton attended most
of those meetings and at some of them she took blank
authorization cards. She signed one of the cards. Whorton
was one of the two union observers at the election. 7
Respondent's representatives saw Whorton act as the
union observer at the election on May 4, 1977. At that
point Respondent had knowledge that Whorton was ac-
tively associating herself with the union cause.8
6 hese findings are based on a composite of the credible testimony of
McGee and Armstrong. Johnston did not testify.
7Union Representative McGee testified that he had difficulty obtaining
union observers because the employees thought that the) might be fired if
theN acted on behalf of the Union. Even if McGee's belief as to the feelings
of the employees was accurate. there is no basis in the record for finding the
Respondent as responsible for inculcating such a fear.
I here is no basis in the record for inferring that Respondent had knowl-
edge of Whorlon's union activities prior to that time . anruc (orporation
and TirttrAe & Maonning (vol (orporaion 231 NLRB 858; Samsonrte Corpo-
rllton Inc,, 206 N RB 343, 349 (1973)
FIRST NATIONAL BANK OF PUEBLO 189
Whorton performed her work well. Frank B. Martinez,
Respondent's assistant vice president,9 acknowledged in
his testimony that Whorton was a good employee.
Whorton's work was often praised by Respondent's offi-
cials. She was hired at $515 a month. In February she was
included in a departmental raise which increased her pay
to $560 a month. When she had been employed for 3
months she was given an evaluation in which she received
two excellent, two above average, and one average rating
for the five criteria listed. The only complaint she received
was from a supervisor who said she did not smile enough.
About 3 days after the May 4, 1977, election, Whorton
was called into the office of her immediate supervisor, Vi-
vian Lessar.' ° They went over Whorton's evaluation and
Lessar said that Whorton was getting a raise. Whorton re-
plied that she did not believe it because she thought that
Vonhaney (one of Respondent's officials) was not too hap-
py with her for being an observer for the Union. Lessar
said that she was not happy about it either, and that she
wished the witness had not done it." Whorton was given a
raise of $30 a month to $590 a month. Prior to that time
she did not know how much the raise would be. Later other
employees told her that the $30 a month was the most that
any employee had received. The raise was not automatic
but was based on what Respondent thought she was worth.
About July 12 or 13, 1977, I week before the discharge,
Lessar told Whorton that she wanted to promote Whorton
to the security desk. That would have meant another raise
in addition to a promotion.
On Monday, July 18, 1977, Whorton did not report to
work under circumstances which Respondent contends
amounted to an unauthorized absence. She was discharged
the following day, July 19, 1977.
2. The alleged unauthorized absence
On Saturday, July 16, 1977, Whorton learned that her
grandfather had died. A few hours later she called her im-
mediate supervisor, Lessar, at Lessar's home. Whorton said
that her grandfather had died and she wanted to know
what Respondent's funeral policy was concerning whether
her grandfather was considered immediate family and how
many days off she would receive as funeral leave. Lessar
said that she did not know but that she would check the
handbook and call back Monday morning before Whorton
came to work.
About I hour after Whorton spoke to Lessar on July 16,
1977, Whorton learned that the grandfather of a friend of
hers had died and that his funeral would be the following
Monday, July 18, 1977.
At 7:10 a.m. on Monday, July 18, Lessar called Whorton
on the telephone and read to her the section of Respon-
dent's handbook relating to funeral leave.'2 Whorton said:
Part of his responsibility as assistant ice president related to personnel.
and he took an active role In hiring, firing and disciplining employees I find
that he was a supervisor within the meaning of the Act.
i0 Respondent admits and I find that Lessar was a supervisor within the
meaning of the Act
These findings are based on the credited testimony of Whorton lesar
did not take the stand Counsel for Respondent represented on the record
that Lessar has recently undergone a ver, serious operation and that was
whfi she was not called as a witness.
The relevant sections of that handbook read:
"In other words, I would only have one day off for my
grandfather's funeral" and Lessar answered in the affirma-
tive. Whorton told Lessar that she needed Thursday off for
the funeral and Lessar replied, "Yes, you have it." Whor-
ton then said, "I would like to inform you that I will not be
able to work today." Lessar asked the reason and Whorton
replied that she had a funeral to attend that day. When
Lessar asked who it was, Whorton replied that it was not a
relative but that it was someone she felt very close to. Les-
sar asked whether Whorton had any personal time accu-
mulated so that she could be paid. Whorton replied that
she did not and that she would take it without pay, but that
she wanted to let Lessar know that she would not be there.
Lessar said, "okay." 13
Later the same day, Lessar explained Whorton's absence
to Respondent's vice president, Martinez. Lessar told Mar-
tinez of her conversations with Whorton the preceding Sat-
urday and that morning. According to the credited testi-
mony of Martinez, the report he received from Lessar was,
in substance, that Whorton told Lessar that she would not
be at work that day because she was attending a funeral of
her best friend's grandfather, that Lessar told Whorton
that an employee had to use either personal time or vaca-
tiun time for the funeral of a friend, that Whorton said that
she did not have either, and that she would be in to work
on Tuesday and Wednesday and then would be off Thurs-
day for her grandfather's funeral.
Lessar asked Martinez what he wanted to do about the
situation and Martinez replied that he would check and get
back to her.
Later that morning Martinez spoke to Respondent's
president, Armstrong, about Whorton's absence. Martinez
testified that he went to Armstrong because at that point
he considered Whorton's absence to be unauthorized in
that Lessar did not give permission for her to have the day
off, and Whorton simply stated that she would be off. Mar-
tinez reported to Armstrong what Lessar had told him.
Martinez incorrectly reported that on Saturday Whorton
told Lessar that she wanted the following Monday off for
her grandfather's funeral. Armstrong told Martinez to talk
to Whorton when she returned the next morning, and after
t'ley listened to her side, they would make a decision.
On Tuesday, July 19, 1977, when Whorton reported for
work, Martinez spoke to her. Martinez asked why she had
not been to work the previous day. She replied that she had
a funeral to attend and explained the circumstances. Marti-
nez asked why she took the full day off for her friend's
funeral and Whorton replied that she thought employees
received the full day off for a friend's funeral. Martinez
One day off, with pas, will be granted for death of other relatives
Other relatives shall consist of any relative not included in the immedi-
ate family such as grandparents.
For the death of a close friend you may take paid time off under our
Personal Time-Off Polic, or Vacation time
~ The above findings are based on the credible testimony of Whorion. A,
explained above. Lessar was unavailable to testify through the fault of none
of the parties. Without Lessar's testimony. it is difficult to determine wheth-
er her "okas" remark at the end of the conversation was an authorization
for Whorton to take Monday off or simply an acknowledgment of
Whorton's statement that she would not work that das As set forth below.
it appears that when .essar reported the incident to higher-ranking officials.
she did not tell them hatl he had authorlied the abhsence
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said that the only time an employee could take time off for
a friend's funeral was when the employee had accumulated
personal or vacation time. Whorton said that she was not
aware of that, and she had talked to Lessar. Martinez
asked whether Lessar gave permission for her to take the
day off. Whorton replied that Lessar did not say that she
could not take the day off, that when she informed Lessar
that she would not be at work that day the only thing that
Lessar asked was whether she had personal time so that she
would be paid for it, and that when she said that she did
not have the time, Lessar said, "okay." 14
After speaking to Whorton, Martinez met with Lessar
and Armstrong. There was a discussion concerning wheth-
er the Monday off was supposed to have been for her
grandfather's or her friend's funeral, which indicated that
even with all the prior discussion, they did not have their
facts straight. They decided that Whorton had not asked
for or received permission to take July 18 off and had sim-
ply told them that she would not be there. They concluded
that it was an unauthorized absence and that she should be
terminated.
Shortly thereafter, Martinez called Whorton into his of-
fice and discharged her. He told her that the discharge was
for taking time off without authorization. She replied that
she was sorry, and that it must have been a misunderstand-
ing. Later that day when Whorton was clearing out her
desk, Lessar approached her. Lessar said that she was sorry
to see Whorton go because she was a good worker. Lessar
also said that she had fought for Whorton, and that she felt
it was partly her fault in that she did not explain things
clearly enough to Whorton. She offered to give Whorton a
recommendation for a job, and later she did give such a
recommendation.
Armstrong testified that Whorton was discharged for un-
authorized absence and not for union activity.
The General Counsel contends that Whorton was treat-
ed differently than comparable employees and that the dis-
parate treatment indicated an improper motive. The evi-
dence does not support that contention. The only other
incident of unauthorized absence involved Vicki Carr on
Mullenax [sic]. She quit rather than accept a termination
for unauthorized absence. Respondent did authorize ab-
sences in a number of situations. Whorton herself was
granted an authorized leave. On July 4, 1977, her car broke
down in Texas and she called Lessar, who told her that it
would be all right for her to miss work on July 5. However,
except in emergency situations, the company policy was
not to grant leave without pay unless it was approved sick
leave. Respondent considered unauthorized absence a dis-
chargeable offense.
Martinez credibly testified that he had discharged a
number of other employees. One was discharged after re-
ceiving prior discipline because of her attitude toward cus-
tomers. Another was fired for excessive absenteeism after
14 hese findings are based in the credited teimons )of Wholrton. Marti-
nez' testimony concerning that cnsersation was largely crroboratives Al-
though Martinez did not testify concerning the ka) remark. he did credi-
bl) aver that Whorton told hin that she understood that she had permission
from l.essar to take the da off, and that she w as cerN sorrs that she had
misunderstood.
going through certain disciplinary steps. Another was fired
for tardiness after going through similar steps. Company
policy was to go through disciplinary steps for minor prob-
lems. However, unauthorized absence was considered a
serious problem and Respondent does not go through
those disciplinary steps in such cases.
Employees have been discharged for excessive absentee-
ism. That is very different from unauthorized absenteeism.
With excessive absenteeism, all of the absenteeism has
been authorized. Under company policy, even authorized
absenteeism is considered excessive if it exceeds six sepa-
rate occurrences in a 12-month period. If an employee calls
in sick, he or she is automatically authorized to be absent
and company policy is to accept the word of the employee
with regard to sick claims unless there is excessive sickness-
es. Employees with excessive absences have been given
warnings before discharge. However, in those situations, all
of the absences have been authorized, and therefore they
are not comparable to situations in which there is an unau-
thorized absence.
3. Conclusions with regard to the 8(a)(3) allegation
Whorton was active on behalf of the Union and acted as
the Union's observer at the election of May 4, 1977. Re-
spondent knew that Whorton supported the Union when
company officials saw her acting as an observer. Thereaf-
ter, she was discharged under very questionable circum-
stances.
Respondent contends that Whorton was discharged for
an unauthorized absence on July 18, 1977. The evidence
described above establishes that Whorton spoke to her su-
pervisor, Lessar, before she was scheduled to report for
work and told her supervisor that she was going to a fu-
neral. At that point, if Lessar thought that Whorton should
report for work, she could have said so, but she did not.
Instead there was a conversation concerning whether
Whorton could be paid for the day off. In the total context
of the conversation, Whorton could easily have assumed
that Lessar was tacitly authorizing her leave without pay.
Supervisor Martinez admitted that the following day when
he questioned Whorton concerning the previous day's ab-
sence, Whorton told him that she understood that she had
permission from Lessar. Later the same day, Lessar told
Whorton that she (Lessar) felt that it was in part her fault
in that she did not explain things to Whorton clearly
enough. Whorton, who admittedly was a good employee,
was peremptorily fired without any prior warning. Under
all the circumstances, I do not believe that Respondent has
established its defense. However, that does not necessarily
mean that the General Counsel has established its case.
In Shattuck Denn Mining Corporation v. N.L.R.B., 362
F.2d 466, 470 (9th Cir. 1966 )," the court held:
Actual motive, a state of mind, being the question, it is
seldom that direct evidence will be available that is
not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may in-
See also .L.R.B. s. (amco, Inlorporated 369 F.2d 125. 128 (5th Cir.
1966h: 4m,,,rilin (ulling Strlirm. I,t 365 F.2d 168. 172 (7th Cir. 1966;:
1. R . (ri r t Equipment 1,,I. 307 F.2d 275. 278 (5th ('it. 1962}.
FIRST NATIONAL BANK OF PUEBLO 191
fer motive from the total circumstances proved. Other-
wise no person accused of unlawful motive who took
the stand and testified to a lawful motive could be
brought to book. Nor is a trier of fact-here the trial
examiner-required to be any more naif than is a
judge. If he finds that the stated motive for a discharge
is false, he certainly can infer that there is another
motive. More than that, he can infer that the motive is
one that the employer desires to conceal-an unlawful
motive-at least where, as in this case, the surround-
ing facts tend to reinforce that inference.
The "surrounding facts" in the instant case do not tend to
reinforce the inference that Respondent had an unlawful
motive in discharging Whorton.
There is no credited evidence that Respondent harbored
the type of hostility toward union activists that would have
motivated it to discharge Whorton because she was an ob-
server for the Union.'6 As is set forth above, the allegations
in the complaint relating to the independent violations of
Section 8(a)(XI) have not been established by a preponder-
ance of the credible evidence. Supervisor Lessar did tell
Whorton a few days after the election that she (Lessar) was
not happy that Whorton had acted as an observer and
wished that she had not. However, Whorton, not Lessar,
had raised that subject in a discussion. The remark was
made during a conversation in which Lessar was going
over Whorton's laudatory evaluation and telling her that
she would get a raise. Thereafter, Lessar told Whorton that
Whorton was being considered for a promotion and anoth-
er raise. In total context, Lessar's remark cannot be con-
strued as showing a motive for Respondent to discharge
Whorton because of her protected activity.
Surrounding circumstances such as the timing of the dis-
charge with relation to the date that Respondent obtained
knowledge of Whorton's union activity and the treatment
of Whorton after such knowledge was obtained must also
be considered.
Respondent learned of Whorton's union activism on the
date of the election, May 4, 1977. There is no indication in
the record that Whorton engaged in any union activity af-
ter that date. About 3 days after May 4, 1977, Lessar was
given a favorable evaluation and a raise. Whorton under-
stood from other employees that the $30 per month raise
she received was more than any other employee had been
given. She did not know the amount of the raise until she
received it. The raise was a merit one and could easily have
been reduced or done away with if Respondent were hos-
tile toward Whorton because of her known union activity.
On July 4 Lessar authorized Whorton to be absent from
16 Cf. J. Rat McDermolt & Co. Inc. 233 NLRB 946. 951 952 (1977)
work on July 5 because of car repairs. No hostility was
shown to Whorton in that regard.
On July 12 or 13, 1977, Lessar spoke to Whorton about
promoting her to the security desk and giving her both a
promotion and a raise. It is most unlikely that Lessar
would have made such remarks if Respondent harbored an
animus against Whorton because of her known union ac-
tivity.
Whorton was discharged on July 19, 1977. Respondent
knew of her union activity on May 4, 1977. Thus, 2-1/2
months elapsed between Respondent's knowledge of her
union activity and the discharge. During those 2-1/2
months, there were several incidents as described above
indicating that Respondent bore no hostility toward Whor-
ton. The Union lost the May 4, 1977 election, objections
were filed which were later withdrawn, and the results of
the election were certified on June 10, 1977. By July) 19,
1977, Respondent had little reason to be concerned about
unionization and it would have had little to gain by dis-
charging a union adherent at that late date. While unlawful
discharges are sometimes made for pure revenge or for
long range effect, the evidence in this case does not support
such a conclusion.
The insubstantial nature of Respondent's defense raises
doubts in this case. However, the surrounding circumstan-
ces are not such as to warrant an inference that Respon-
dent's motive was unlawful. Of particular importance is the
lack of proof that Respondent harbored the type of union
animus that would make it plausible to believe that Re-
spondent's motive was unlawful. The favorable treatment
that Whorton received after Respondent knew of her union
activity also indicates a lack of animosity against Whorton.
The 2-1/2-month interval between Respondent's knowl-
edge of her union activity and the discharge must also be
considered. Viewing the record as a whole, I find that the
General Counsel has not established by a preponderance
of the credible evidence that there was a causal connection
between Whorton's union activity and her discharge, or
that Respondent violated Section 8(a)(3) as alleged in the
complaint.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 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. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent vio-
lated the Act as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.l