First National Bank & Trust Co.

National Labor Relations Board - Board Decisions

Feb 19, 1974

209 N.L.R.B. 95 (N.L.R.B. 1974)

FIRST NATIONAL BANK & TRUST CO.
First National Bank & Trust Co . and Darlene M.
Snyder. Case 6-CA-6472
February 19, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 26, 1973, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to Lhe provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified below.
We do not agree with the Administrative Law
Judge's finding that it was unnecessary to consider
the independent 8(a)(1) allegation regarding Snyder's
discharge for engaging in protected concerted activi-
ties, while at the same time finding that Respondent
did not discharge Snyder in part because of engaging
in such activit;es.
As found by the Administrative Law Judge, Snyder
was responsible for, and participated in, employee
objections to Respondent's lunch policy and the
discharge of Sam Harris. The evening before Sny-
der's discharge, Respondent's Branch Manager
Cherry was told that Snyder was going to the Labor
Board with respect to both the discharge of Harris
and Respondent's lunch policy.
On the next day, December 13, the discharge
interview took place. Cherry. Vice President McCon-
nell, and Snyder were present. According to Cherry,
she told Snyder that she knew that Snyder did not
like her job, and that she was going to have to let her
(Snyder) go. Snyder asked if it was because of Harris,
and Cherry responded that that was not the only
reason. Cherry admitted on cross-examination that
one of the reasons she fired Snyder was because
Snyder was causing "unrest among the girls."
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Admmistiat ive Law Judge's resolutions with respect to
credibility unless the cleai preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F2d 362 (CA 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
2 The supervisory status of Sam Harris is unclear , and therefore we make
no finding as to the protected status of Snyder's activities with respect to his
95
According to McConnell on cross-examination when
shown his pretrial affidavit, he claimed that he alone
was responsible for the discharge of Snyder, and that,
immediately after hearing about Snyder's complaints
about the lunches and her attempts to aid Sam
Harris, he became angry at Snyder, declared that he
wouldn't "put up with that kind of stuff," and then
discharged Snyder. Without attempting to resolve the
conflict between the testimony of Cherry and that of
McConnell as to which bore sole responsibility for
the decision to fire Snyder, we find that in either case
Snyder's participation in the employee objections to
Respondent's lunch policy was a reason for the
discharge of Snyder.
Respondent's lunch policy clearly is a condition of
employment, and the employees' objections to that
policy, including Snyder's participation therein, are
concerted activity for the purpose of mutual aid or
protection within the meaning of Section 7 of the
Act.2 Therefore, we conclude that Respondent, in
addition to violating Section 8(a)(4) by discharging
Snyder because of its belief that she had filed, or was
about to file, charges against Respondent with the
Board, also interfered with, restrained, and coerced
Snyder in the exercise of her Section 7 rights in
violation of Section 8(a)(l), by discharging her in
part for exercising those rights.3
We also disagree with the Administrative Law
Judge's conclusion that Respondent Branch Manag-
er Cherry's threat to see to it that Snyder would
"never got [sic] another job in the whole area," was
too remote from any activity protected by the Act to
be considered as constituting an unfair labor prac-
tice. This conclusion was based on the finding that
Cherry made this statement so as to alleviate the
"disturbance" caused by the refusal of Snyder and
her father to leave the premises.
The record discloses, however, that when, on
December 18, shortly after her discharge, Snyder and
her father went to the bank and asked Cherry for an
employment reference for Snyder, Cherry's first
response was that she would give Snyder a recom-
mendation which stated that Snyder had gone to the
Board. Snyder denied that she had done so, and it
was during the ensuing conversation that Cherry
uttered the threat to blacklist Snyder with other
employers.
Clearly, then, Cherry's threat was made in the
reinstatement
3 .Southwest Latex Corporation, 175 NLRB 358; The Office Towel Supply
Company, Incorporated. 97 NLRB 449 Chairman Miller concurs in this
finding, and would support the order herein on this 8 (a)(1) basis He is of
the view that the Administrative Law Judge and the majority have stretched
the language of Section 8(a)(4) beyond its reasonable scope. and he
therefore respectfully dissents from the 8(aX4) finding But since the 8(a)( I)
findings would , in his view, fully support the entire order and notice herein,
he concurs in the remedy adopted by his colleagues.
209 NLRB No. 14
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
context of a conversation between Snyder and her
father on the one hand, and Cherry on the other,
which concerned one of the reasons for Snyder's
unlawful discharge; namely, Respondent's belief that
Snyder had filed charges with the Board. Moreover,
there is in this record no evidence of any "disturb-
ance" which would excuse a blacklist threat. Indeed,
the record shows only a strong disagreement between
Snyder and her father with Respondent regarding
Respondent's stated intention of seriously qualifying
Snyder's employment reference, of which Snyder
would have had no need had Respondent not
illegally discharged her. For these reasons, we find
that Cherry's threat to blacklist Snyder was intended
to force Snyder to cease exercising her protected
rights, including filing charges and giving testimony
under the Act, in violation of Section 8(a)(1) of the
Act `t
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge. as
modified below, and hereby orders that Respondent,
First National Bank & Trust Co., North Hills,
Pittsburgh, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order, as so modified.
1. Substitute the following for paragraph I (c) and
reletter paragraph (d) as (e):
"(c) Threatening to prevent its employees from
obtaining employment elsewhere by blacklisting
them with other employers because its employees
have exercised their rights. protected by the Act,
including'the right to file charges and give testimony
under the Act.
"(d) Discouraging employees from filing charges
under the Act, or restraining employees from
engaging in concerted activities with respect to their
working conditions, by discharging or in any other
manner discriminating against them in regard to
their hire or tenure of employment or any term or
condition of employment."
2. Substitute the attached notice for that of the
Administrative Law Judge.
4 Chairman -tiller finds no basis in the record for reversing the
Administrative Law judge's plainly sensible interpretation of the circum-
stances surrounding the remark made by Cherry. and accordingly does not
join in this additional 8(a)(1) finding or in the change in the Order which his
colleagues have made in thi. connection
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Darlene M. Snyder her former
job or, if that job no longer exists, a substantially
equivalent job, with backpay.
WE WILL Nor discharge, or otherwise discrimi-
nate against, employees because they intend to
file unfair labor practice charges with the Nation-
al Labor Relations Board, or because they engage
in protected activities concerning their working
conditions.
WI: WILL NOT coercively question employees or
create the impression that we are engaging in
surveillance of them concerning their exercise of
rights guaranteed by the Act.
WI- WILL NO r threaten to prevent our employ-
ees from obtaining other jobs in the area because
our employees have exercised their rights guaran-
teed by the Act, including the right to file charges
and give testimony under the Act.
WE WILL NOl in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights protected by the Act.
FIRS! NATIONAL BANK
& TRUST CO.
(Employer)
Dated By
(Representative) (Title)
This is an offical notice and must not he defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced. or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may he directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
S 1 A rEMI NT OF 111E CASE
Joci. A. HARMATZ, Administrative Law Judge: Based on
a charge filed by Darlene M. Snyder on December 19,
1972, and an amended charge filed on February 12, 1973. a
complaint was issued on February 21. 1973, which alleges
essentially that First National Bank & Trust Co., herein
called the Respondent. engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (4) of the
National Labor Relations Act, as amended.
A trial was conducted before me on March 8 and 9,
FIRST NATIONAL BANK & TRUST CO.
1973, at Pittsburgh, Pennsylvania. Upon the entire record,
and my observation of the witnesses and their demeanor,
and after due consideration of the briefs filed by the
General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
1. JLRISDICTION
Respondent , a national banking association , with its
principal office in Washington, Pennsylvania, is engaged in
consumer and commercial banking at several locations,
including Pittsburgh, Pennsylvania. During the 12-month
period immediately preceding the issuance of the com-
plaint , Respondent 's gross volume of business exceeded
$500,000, including the transmittal of checks to out -of-state
banks for collection purposes of a value exceeding $50,000.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
There is no labor organization involved in this proceed-
ing. The issues turn on the credibility of witnesses, and the
main question concerns the lawfulness or unlawfulness of
the discharge, on December 13, 1972, of the Charging
Party, Darlene Snyder.' This discharge, according to the
allegations in the complaint, occurred against a back-
ground of alleged independent 8(a)(1) violations including
coercive interrogation , creating the impression of surveil-
lance , and a threat to blacklist an employee unless she
refrained from engaging in concerted activity and filing
charges under the Act.
Respondent's branch bank in North Hills, Pittsburgh,
Pennsylvania , is a small facility , serving an essentially
residential community . It is staffed by three tellers, a head
teller , a bank manager or head cashier , an assistant
manager, and a bookkeeper-proof operator,2 constituting
the entire permanently assigned work force.
Darlene Snyder was hired on September 19, 1972, as one
i The complaint was amended to further allege that Darlene Snyder was
denied severance pay by virtue of her protected activity and Respondent's
suspicion or knowledgc that she was involved in a proceeding before the
National Labor Relations Board in violation of Sec 8 (a)(1) and (4) of the
Act The General Counsel conceded at the hearing that, if the discharge
were found unlawful, the usual cease -and-desist remedy would be
appropriate to fully redress this alleged violation
2 The complaint alleges, the answer admits , and I find that J Knox
McConnell, a vice president of Respondent . Billie J Cherry , the branch
manager, Barbara Fisher, the head teller , and John R Rossi, the assistant
manager , were at all times material supervisors and agents of Respondent
within the meaning of the Act
9 Unless otherwise indicated all dates refer to 1972
4 The testimony is in dispute as to whether Snyder, in her initial
employment interview, was told by Cherry, the branch manager , that she
would have a daily lunchbrcak of one-half hour I do not regard resolution
of this issue as necessary to a disposition of this case . I do note , however,
that all employees affected by the lunch policy acknowledged griping about
it and since Cherry herself admitted , in essence, that the lunch situation was
less than ideal , I do not regard the employee discussions as frivolous nor in
any sense without legitimate foundation These discussions bear directly
upon their conditions of work . and were protected by See 7 irrespective of
97
of three tellers , and she occupied that position until her
discharge on December 13, 1972.3
B. The Events Preceding the Discharge
Prior to her discharge , Snyder participated in discussions
with other nonsupervisory tellers, namely, Dorothy Trim-
mer and Rita Hollis, relative to the Respondent 's lunch
policy. In this regard , undisputed testimony shows that by
virtue of the press of business during the normal lunch
hours, coupled with the size of the available work force, the
tellers were not allowed a half-hour lunchbreak as such.4
Instead , the tellers did not leave the premises , but their
lunch was ordered from outside services after menu
requests were solicited among them . They ate in a
backroom. The break had no fixed duration, but upon
completion of lunch, each teller was expected to return to
her cage to enable another to eat.' The record does not
show specifically the number of employee discussions
concerning the lunch policy , but its clear import is that
there were several. Although Hollis and Trimmer, as
Respondent 's witnesses , on direct examination attempted
to mitigate their concern for the lunch question, both, on
cross-examination , admitted that they complained or
griped about management 's practice in this regard. It is
clear, however, that prior to December 10 no protest
concerning the lunches was ever addressed to any agent of
Respondent.
In addition to her participation in the above discussions,
Snyder was the protagonist of a brief and abortive
expression on behalf of Samuel J. Harris. Harris was hired
on October 2, 1972, and assigned to the North Hills
branch . He was to be trained as branch manager and to
replace Mrs. Cherry, who at the end of 1972 was to be
transferred to another location .6 On December 7, 1972,
Harris was terminated by Vice President J. Knox McCon-
nell.7 During his tenure with the bank , Harris was regarded
highly by tellers Snyder and Hollis. On December 8, when
these tellers learned of Hams' termination both felt bad,
with Snyder taking it the hardest. That day, at Snyder's
insistence, Hollis and Snyder called Harris from the home
of Hollis' niece .8 Both , in turn , expressed their surprise and
dismay to Harris. Hollis then got off the phone while
the degree to which employees were dissatisfied Hence I need not consider
conflicts in testimony as to the degree to which employees found this
practice objectionable
Certain aspects of the practice including whether or not a teller was at
times required to eat at the cage or teller 's window are in dispute Without
resolving this dispute , which I deem immaterial (see In 4, supra ) I have
based the above findings on a composite of the testimony adduced on
behalf of Respondent
, Harris also functioned as loan manager for the branch during his
training period
7 Respondent's explanation for this discharge is undisputed and
evidences that Harris was legitimately terminated when a replacement with
a more extensive background in banking was hired
4 Hollis admits that she felt had about Harris' discharge , but that she
really viewed the whole matter as none of her business 7 hough the phone
call in question was made from the home of her niece, her testimony is
generally to the effect that Snyder, a very young lady, who impressed me as
highly impressionable and hardly overpowering , had influenced her to do
things in connection with the Harris incident of which Hollis wanted no
part For these and other reasons, including significant contradictions in her
testimony , and her general demeanor , I discredit Hollis' intimations along
these lines , and find that , at least initially , she willingly expressed her
(( ontinued)
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snyder resumed the conversation. Snyder testified that
Harris told her that one of the others would be next to go,
because that is the way Cherry is .9 At some point,
thereafter, Snyder related to Hollis that Harris had said
that "one of the two of us was going to get fired."
It further appears that Snyder was somehow struck with
the idea of going to the Labor Board with respect to both
the Harris discharge and the lunch situation. After the
above-mentioned phone call, Snyder had dinner with
Hollis and Trimmer, the other rank-and-file tellers. They
discussed the possibility of going to the Labor Board
concerning these issues, and Snyder stated that she wanted
both Trimmer and Hollis to get behind her and go to the
Labor Board. The record does not disclose precisely what
Trimmer and Hollis told Snyder in response to this
suggestion. However, Hollis testified that, following the
dinner conversation, Snyder continued to push the Harris
matter and called her frequently about this. Hollis'
husband grew disturbed, and the calls ceased, as did all
other discussions with Hollis, when her husband answered
one of Snyder's calls and told Snyder to stop bothering his
wife.
This basically is what transpired between the tellers prior
to Snyder's discharge. As a result of the foregoing, Hollis
became increasingly concerned about her job. On Tuesday
evening, December 12, Hollis telephoned Barbara Fisher,
the head teller.10 Hollis told Fisher that Snyder was
harassing her by calling at her home and trying to get Sam
back to the bank. Hollis expressed concern for her job,
indicating to Fisher that Snyder had told her that Harris
had indicated that Hollis' job was in jeopardy. Hollis also
informed Fisher that Snyder was going to the Labor Board
concerning the lunches and Harris. Fisher reassured Hollis
that the latter need not be concerned about her job.11
Following this conversation, and that same evening, Fisher
called Cherry, the branch manager, and related what Hollis
had told her, including the assertion that Snyder was going
to the Labor Board with respect to both the discharge of
Harris and Respondent's lunch policy.
C. The Events of December 13; the Discharge
On the morning of December 13, a Wednesday, Cherry,
concern for the discharge both after learning thereof and in the phone
conversation with Harris
9 Harris' account of the conversation is at variance with that of Snyder in
this regard. Harris makes no reference to the above statement, but testified
that he told both girls "to do what Cherry tells them and they won't have
trouble " I find that this difference is attributable to a failure of
communication, and I accept Snyder's account, since it is probably in
accord with her understanding and logically consistent with certain of her
subsequent actions
is Although certain testimony indicates that this occurred either on the
Monday or Tuesday before the discharge, since the discharge occurred on
Wednesday, December 13, and all witnesses agree that the phone call was
placed the evening prior thereto, I place this incident on Tuesday,
December 12
ii This represents the substance of the phone conversation as related by
Fisher and Hollis, whose testimony, as to this incident, I find believable
i2 I accept her testimony as to what transpired in this conversation I do
note, however, that it has no probative value with respect to the question of
whether or not Snyder had, in fact, communicated with the Board Hollis
was not examined on this point
i3 Fisher was not examined as to this conversation, and hence Snyder's
testimony in this regard was not subject to a denial or specific contradiction
obviously as a result of her conversation with Fisher,
sought out Hollis to inform her that she need not be
concerned about her job. However, in this conversation,
they also discussed the fact that Snyder wanted Hollis to
go with her to the Labor Board and that this was
mentioned in the sense that this "was one way of getting
him back." Cherry, after a shift in her testimony, finally
acknowledged that Hollis informed her "that the Labor
Board informed Darlene [Snyder] that she would have to
have more than one person to complain about a condition
in her place of business." 12
Sometime that same day, probably during the morning
hours, Snyder approached Fisher and asked if she was
going to be fired. Fisher informed Snyder that she couldn't
tell her at that time. Fisher went onto ask why Snyder had
gone to Harris with her problems, and Snyder explained
that Harris was to be the new manager and that she felt she
could talk to him. According to the testimony of Snyder,
Fisher then asked, "Why did you go to the Labor Board?"
This Snyder denied, whereupon Fisher admonished
Snyder about lying, stating "the man from the Labor
Board could tell me who it was." Snyder further testified
that Fisher stated that if she was fired she could thank Sam
Harris for it.13
The discharge interview was held at the close of the day
and was attended by Snyder, Cherry, and McConnell.
According to Cherry, she and Fisher did not discuss
Snyder on December 13.14 During the discharge interview
Cherry told Snyder that she knew that Snyder did not like
her job, and that Cherry was going to have to let her go.
Snyder then asked if it was because of Harris, and Cherry
said that that was not the only reason. McConnell then
spoke up and said that this was his office and he was going
to get someone with more experience and make a few other
changes. McConnell also stated that the bank would not
hold Snyder back in any way in securing a job or as far as
unemployment compensation was concerned.15 According
to Snyder, McConnell stated that she would be paid until
the end of the month of December. McConnell denied this
stating that he merely told Snyder that she would be paid
through her pay period , meaning December 15.16
Snyder's account of this conversation is, nonetheless , inconsistent with the
general tenor of Fisher's testimony, but because of my general suspicion of
Respondent's witnesses, including Fisher as discussed in depth infra, I credit
Snyder
is Fisher testified and I find that sometime prior to the discharge, not
necessarily on that day, she and Cherry had discussed Snyder and agreed
that they did not think that she was loyal According to Fisher "That put the
icing on the cake, when she was trying to get Sam Harris back He was no
longer employed at the bank She had no reason to be concerned about him.
Her concern was with First National Bank & Trust Company."
i', Based on a composite of the testimony of Cherry, McConnell, and
Snyder, which, at least as to the foregoing, is basically consistent However,
McConnell did contradict Snyder as to the reference to Harris , Cherry's
testimony is silent on this point McConnell testified that he, and not
Cherry, in absolute terms denied that the Harris incident had anything to do
with the discharge However, because I find McConnell 's testimony
unworthy of belief, for reasons stated below, and since Respondent's other
supervisors admitted that Snyder 's effort on behalf of Harris was a reason
for the discharge, I credit Snyder
i6 This conflict is disposed of, infra, in the section entitled "The alleged
discrimination "
FIRST NATIONAL BANK & TRUST CO. 99
D. Concluding Findings
1. Discrimination - The discharge and alleged
denial of severance pay
a. The discharge
The General Counsel contends that the Respondent
independently violated Section 8(a)(1) and (4) as well by
discharging Snyder because she engaged in protected
concerted activity, and/or because Respondent believed
she had filed charges with the Board.
Respondent, by way of defense, asserts that the dis-
charge was predicated on legitimate considerations;
namely, Snyder's poor work record and incompetence. In
addition, the failure to terminate Snyder at an earlier date,
according to Respondent, was attributable to a difficulty in
securing a replacement, which at the time of discharge was
allegedly available. The timing of the discharge is further
explained as necessitated by the discovery of her disloyalty
and that her efforts to involve another employee (Hollis) in
her activities had "upset" the latter. Respondent also
points to the fact that no other employee actually
supported Snyder in her activities with respect to the
lunches and Harris' discharge.17 For the reasons stated
below, i find that Respondent's position is not supported
by credible evidence.
In Respondent's behalf testimony was adduced from
Fisher, Cherry, McConnell, and fellow employees Hollis
and Trimmer to the effect that Snyder was slow in
performing her work, that she had a poor manner in
relating to customers, and that she had bad work habits
and a poor appearance, including an improper physical
posture within the teller's cage and an offensive body odor.
According to Snyder, prior to her discharge, she was
never told her work was unsatisfactory, although her
slowness in balancing her window18 was called to her
attention by Fisher and other employees in a "joking"
manner . Snyder's testimony also concedes that when she
had problems with balancing she would seek out Harris for
assistance . This testimony tends to support Respondent's
claim concerning her slowness in balancing, and I am
satisfied that Snyder did encounter some difficulty with
this aspect of her job. However, as is true of Respondent's
criticism of Snyder's work performance in other respects, I
find that Respondent's expressed concern over the slow-
ness in balancing was highly exaggerated and not a
significant factor contributing to her discharge. My
17 An issue exists as to the supervisory status of Harris, with Respondent
arguing that he was and the General Counsel claiming he was not a
supervisor . In the view I take of the case, I need not resolve this issue
iA The balancing of the window is a daily bookkeeping task of each
teller, in order to determine the cash position as against their transactions
on a particular day Although tellers normally performed this function at
their cage, Snyder , because she smoked, was permitted to balance her
window in a backroom
14 I note at this point that , as the General Counsel observes.
Respondent's witnesses , particularly Vice President McConnell and Branch
Manager Cherry, offered contradictory testimony as to highly material
matters which clearly were within their direct knowledge Overall, the
testimony adduced in behalf of Respondent was marked by hedging,
frequent retraction , corrected half-truths, and contradiction The character
of this testimony , as well as the demeanor of the witnesses involved, render
highly suspect the entirety of Respondent's factual case
conclusion in this regard is based not only on a mistrust of
Respondent's witnesses generally, 19 but also my difficulty
in comprehending why, if Snyder's balancing had been
marked by "daydreaming" and a slowness that had a
critical bearing on teller operations, Respondent continued
to permit her to balance alone in isolation in a backroom,
rather than withdraw this privilege, granted solely to allow
Snyder to smoke while so engaged.xu
With respect to all other matters going to the defense I
regard Respondent's testimony as totally incredible. I
believe that the criticism- of Snyder's appearance, her
manner of handling customers, and other alleged indiscre-
tions are at best highly exaggerated and, at the least,
conjured. In my opinion, the key witnesses to her work
performance and its bearing upon the discharge contained
serious contradictions21 inexplicable except to the extent
that they implicitly support the General Counsel's claim
that the true reason for the action taken against Snyder
was one which, in the mind of these witnesses, ought to be
concealed.
For example, a key focal point to analysis of Respon-
dent's defense is the testimony of Vice President McCon-
nell and Branch Manager Cherry. Neither is what I would
regard as a low-level supervisor. Both occupy positions of
responsibility in Respondent's operations and cannot he
regarded as inexperienced in handling personnel matters.
Both attended and were the sole management representa-
tives at the discharge interview which resulted in Snyder's
dismissal. Their testimony constitutes the only direct
evidence of the state of mind held by the agents of
Respondent who could have made the discharge decision.
Yet, the testimony of McConnell and Cherry as to the
circumstances surrounding the discharge clashed in signifi-
cant respects and was related by each in a manner which
precludes any assumption that the differences were
attributable to a mere lapse in recollection. Thus, McCon-
nell testified that he arrived at the branch about 2 or 2:30
p.m., December 13, and noticed that Snyder's posture at
the cage was poor. He called Cherry into the office and
told her that he wanted Snyder dismissed. Cherry,
according to McConnell, seemed very surprised, and she
stated, "We're very short of help .... It really comes at a
had time." McConnell states that he then informed Cherry,
"I want her out and I want her out now. Either 1 will
dismiss her or you dismiss her According to
McConnell, he assuaged Cherry, by informing her that the
bank had a replacement for Snyder.
It is apparent from McConnell's version that he claimed
20 Head Teller Fisher did testify that, with respect to Snyder's privileged
use of the backroom , "nothing was ever said about this," but that she would
require Snyder to reopen her window when Snyder was seen daydreaming
in the backroom though her balancing had been completed As related
above, if this was regarded as a serious problem, i am certain that Snyder's
right to use the backroom would have been eliminated
21 One example of the attempt to overstate Snydet's work deficiency was
heard through the testimony of Cherry Cherry. initially, and other of
Respondent's witnesses insisted that all tellers have the same duties and no
special tasks are assigned to them On cross-examination . however, she
conceded that Snyder alone was responsible for the tallying of welfare
checks, food stamps, and the vacation club Although Cherry offered an
explanation for this discrepancy in her testimony . I find it unpersuasive,
and, in any event , its mere offering reflects her penchant for shading the
truth to build a case against Snyder.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive responsibility for the decision to terminate
Snyder. The significance of this phase of McConnell's
testimony takes on special meaning when coupled with his
denial, on direct examination, that, prior to the discharge,
he had any knowledge that Snyder said she had gone o.
was going to the Labor Board, and where he further
indicated that prior to the discharge he had not discussed
Snyder with anyone.22 I find it highly significant that
under McConnell's version of the discharge, by ascribing
the discharge decision to himself alone and then denying
knowledge of Snyder's extra work activities, Respondent
would enjoy a clear defense to the 8(a)(1) and (4)
allegations of the complaint.
Cherry's account is almost completely at odds with that
of McConnell. According to Cherry, when she learned on
December 13 that Snyder was trying to get the other girls
to "get something to get him [Harris] back," this
"finalized" Cherry's opinion that Snyder was not a loyal
employee, and she decided "to let Snyder go." Cherry
states that when McConnell presented himself to her that
day, mentioning something about Snyder's posture,23
Cherry stated, "Don't mention that because I'm finished
with her. I'm finished with her right now." According to
Cherry, it was she who informed McConnell that a
replacement had been contacted and was available.24
Cherry testified that McConnell had misstated the facts,
insofar as he testified both that he made the decision to fire
Snyder and that Cherry had opposed the discharge on
grounds that there was a shortage of tellers.
These differences in my opinion are highly material to
analysis of the allegation that Snyder was unlawfully
discharged. On the basis thereof, I find incredible the
testimony concerning the availability of a replacement and
find Respondent's defense, in this regard, to be after-
thought. In addition, McConnell's attempt to establish an
ironclad defense through testimony which I find unbelieva-
ble is consistent with, and inferentially lends direct support
to, General Counsel's claim that the various legitimate
considerations asserted in justification of the discharge
were pretextual.
Indeed, the effort to conceal the true reason for the
discharge was not limited to McConnell. Thus, Head Teller
Fisher, when questioned as to whether Hollis informed her
on December 12 that Snyder was going to the Labor Board
concerning Harris, initially denied this, but then conceded
that Hollis had done so. Subsequently, on two occasions,
Fisher testified that Hollis' references to the Labor Board
did not "sink in." It is clear, however, from the overall
testimony of Fisher and Cherry, as well, that this fact did
sink in and was of sufficient importance for Fisher to
immediately report it to Cherry.25
A similar abortive attempt to dimin sh the significance of
the threatened Labor Board action was made by Cherry,
22 On cross-examination, when confronted by his pretrial affidavit,
McConnell admitted that prior to the discharge he heard that Snyder was
complaining about lunches and trying to get help for Sam Harris That
when McConnell heard this he blew up at Cherry and stated, "I won't put
up with that kind of stuff," and then proceeded to discharge Snyder
23 Cherry states that McConnell entered the bank about 3 20 p in , rather
than between 2 and 2 30 p in as he testified Since the bank closes its doors
to customers at 3 p in on Wednesdays, McConnell could hardly have seen
Snyder in poor posture while customers were in the bank that day
who at first testified that she was certain that Hollis had
not mentioned the Labor Board in their conversation on
the morning of December 13. When confronted with her
pretrial affidavit, she reacted by attempting to excuse its
content on the ground that the affidavit was given "when
we had no counsel." She then conceded that she had in fact
discussed with Hollis that Snyder wanted to go to the
Labor Board. Cherry also testified that in a discussion with
Fisher she learned that Hollis told the latter that Snyder
had said they had to have more than one employee to go to
the Labor Board.26
Consistent with this pattern, employees called by
Respondent also gave testimony indicating an attempt to
shade the importance of Snyder's expressed intention of
going to the Labor Board. Thus, Hollis, in testifying as to
her conversation on December 12 with Fisher, stated that
she did not tell Fisher that Snyder wanted her to go to the
Labor Board. As was true of Cherry, Hollis, on reviewing
her pretrial affidavit, corrected her testimony by admitting
that this, in fact, had been related to Fisher. Trimmer, the
other teller, testified initially that Snyder had not suggested
that Trimmer, Hollis, and Snyder should go to the Labor
Board, but on reviewing her affidavit she admitted that
Snyder said "we ought to go."
In my opinion, the foregoing more than limits the
trustworthiness of Respondent 's witnesses, for the com-
monality displayed in their testimony concerning the
Labor Board negates any assumption that the faulty recall,
on essentially the same point, by all these witnesses was
attributable to mere coincidence. I see a deliberate, though
unsuccessful, attempt to suppress the truth; namely, that
the intentions of Snyder concerning the Labor Board were
within the knowledge of Respondent's agents and that it
was an important consideration leading to Snyder's
discharge.
Upon careful consideration of the entire record, I am
satisfied and find that Snyder was discharged because
Respondent believed that she had or was going to file
charges with the Board concerning the lunch policy and/or
the Harris discharge. It is apparent from this record that,
through Hollis and Trimmer, Respondent's supervisors,
Cherry and Fisher, were led to believe that Snyder had
filed charges concerning certain matters. These supervisors
admitted that Snyder's activities on behalf of Harris
exhibited the type of disloyalty that required her termina-
tion . Fisher, on the morning of the discharge , interrogated
Snyder concerning this matter and accused her of filing
charges with the Board in behalf of Harris. Snyder was
subsequently discharged, in midweek on the first working
day after Fisher and Cherry acquired knowledge of
Snyder's intention to fi:e a charge. I have heretofore
discredited Respondent's testimony that a history of
incompetence was a factor contributing to the discharge.
24 Her testimony in this regard conflicts with McConnell 's insofar as he
claims that Cherry opposed the discharge for lack of an available
replacement
25 Fisher's expressed disinterest in the discovery of Snyder's intentions
with respect to the Labor Board is not only dubious in the light of the
probabilities , but is inconsistent with her subsequent action of reporting this
fact to Cherry
26 Cherry stated that this was one of the reasons she was not concerned
with the Labor Board
FIRST NATIONAL BANK & TRUST CO. 101
On the other hand, I have found from Respondent's own
witnesses that there was a deliberate, though unsuccessful,
effort to create the impression that the possibility of Labor
Board charges had nothing to do with the discharge. From
the foiegoing, and the entire record, I infer to the contrary
and find that Snyder was discharged solely because
management believed that she was going to invoke the
processes of the Board.27
As heretofore indicated, Snyder had not in fact filed
charges prior to her discharge, but had only expressed her
interest in doing so. Nonetheless, in my opinion, Respon-
dent was precluded by virtue of Section 8(a)(4) from
discriminating against her. The Board has held that the
"contemplation" by employees of recourse to its remedies
"is . . . the necessary first step in instituting Board
proceedings and, as such, must come under the safeguards
for such proceedings "28 The Board went on to state: 29
Thus, the discharge of an employee because he made
known a decision to seek Board assistance on behalf of
himself or for himself and others is an independent
violation of Section 8(a)(4).
It is true, as Respondent argues, that the Board's 8(a)(4)
order in Hoover Design was not enforced by the U.S. Court
of Appeals for the Sixth Circuit.30 However, in view of
subsequent precedent, in all due respect to that court, I do
not regard its decision as presently constituting persuasive
authority. That holding predated the Supreme Court's
decision in N.L.R.B. v. Scrrvener,11 and was based on a
strict construction of Section 8(a)(4) as previously en-
dorsed by the Eighth Circuit Court of Appeals in N. L. R. B.
v. Richie Manufacturing Company, 354 F.2d 90 (C.A. 8,
1965). Scrivener also arose in the Eighth Circuit: the latter
had held therein that Section 8(a)(4) does not "encompass
discharges of employees for giving written sworn state-
ments to Board field examiners." There, too, the circuit
court relied on the decision in Ritchie. But the Supreme
Court reversed and, in the process, held that Section 8(a)(4)
is not to be limited to its literal terms, but is to be
construed liberally "in order to effectuate the Section's
remedial purpose." In my opinion, the Supreme Court's
decision in Scrivener preserves the continuing viability of
the Board's view in Hoover Design. If Section 8(a)(4)
applies during the prehearing investigative stages to protect
employees who have neither filed a charge nor testified at a
Yr 1 do not agree with the General Counsel that Respondent would have
discharged Snyder had her conduct been limited to participation in
employee discussions concerning the lunch policy or the Harris discharge.
Therefore, and because I believe Snyder's suggested method of seeking
recourse as to these matters supplied the motivation for Respondent's action
against her, I shall consider all remaining issues from the standpoint of the
8(a)(4) allegation and deem it unnecessary to consider those issues which
are only relevant to an independent 8(a)(1) allegation based on dtscnmina-
tion for engaging in protected concerted activities
Finally, I note that my analysis of the evidence does not include the
conflict to testimony between McConnell and Harris as to what was said
between them in conversations on December 12 and 13 This credibility
issue in my opinion is cumulative to the result reached
28 Hoover Design Corporation, 167 s LRB 461, 462
=' Ibid
so Hoover Design Corporation v 'v LR B, 402 F.2d 987 (('.A 6, 1968)
Si 405 U S 1 17 (1972).
32 See N L R B v Industrial Union of Marine & Shipbuilding Workers,
391 U S 418, 424 (1968)
hearing, it follows that employees who express an intention
to file a charge are similarly protected. To hold otherwise
would condone restraints upon employee access to Board
procedures,32 and thereby reach a result inconsistent with
the congressional objective "to prevent the Board's
channels of information from being dried up by employer
intimidation of prospective complainants. . . . [Emphasis
supplied.]"33 I therefore find, contrary to Respondent, that
Snyder's contemplated action of filing a charge with the
Board was within the protective ambit of Section 8(a)(4).34
Having found that Snyder was discharged because Re-
spondent believed that she had filed a charge, I find that
Respondent thereby violated Section 8(a)(4) and (1) of the
Act.
b. The withholding of severance pay
According to the testimony of Snyder, as partially
corroborated by her father, McConnell on December 13
and Cherry on December 18 promised to continue her pay
through the end of that month. The General Counsel
argues that this benefit was later denied for discriminatory
reasons. I find that the General Counsel has not sustained
his burden of proving that Snyder was entitled to or
promised this benefit, and for that reason I shall dismiss
the 8(a)(1) and (4) allegations of the complaint related
thereto.
The General Counsel adduced no evidence that Respon-
dent had any form of practice whereby severance pay was
granted to tellers upon their termination. Furthermore, in
view of her short tenure with the bank, I deem it highly
unlikely that, if such a practice existed, Snyder would have
met even the most liberal of eligibility requirements for any
such benefit. Finally, considering the circumstances sur-
rounding her discharge, I consider it highly improbable
that Respondent's agents would have manifested such
generosity to Snyder.35 Accordingly, I shall dismiss this
portion of the complaint.
2. Interference, restraint, and coercion
a. Interrogation
I have found that, on December 13, when Snyder
inquired of Fisher as to herjob status, Fisher asked Snyder
why she had filed a charge. In addition, Cherry admitted to
11 See N L R.B v Scrivener. supra at 122
sa it seems clear enough to me that Sec 8(a)(4)'s objective of maintaining
unimpeded access to Board processes precludes from consideration, as a
defense to such an allegation , issues going to the meritorious or frivolous
nature of the employees threat to file a charge No risk of success should be
borne to prospective complaints as a precondition for the protection of Sec.
8(a)(4), nor should employers be licensed to visit reprisals on employees
simply because grievances addressed to the Board ultimately are rejected by
that agency Accordingly , I deem immaterial , and need not consider, the
questions raised as to whether other employees supported Snyder's desire to
file a charge, and whether Harris was a supervisor
I-, Although I do not give weight to testimony supportive of the General
Counsel in this regard, I do not believe that Snyder and Werner were
deliberately stating falsehoods I deem their testimony as consistent with
their understanding, though actually at odds with what was said by Cherry
and McConnell Considering the overall testimony of Snyder and Werner, I
regard them as truthful witnesses and I attribute this conflict to variant
perspectives, rather than fabrication or mistruth
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seeking out Hollis, on that same day, to discuss the latter's
expressed concern for her job. During this conversation,
Cherry admitted to questioning Hollis as to Snyder's
complaints concerning the lunch policy. I find that, in the
overall context of this case, Respondent, on these occa-
sions, engaged in coercive interrogation and thereby
violated Section 8(a)(1) of the Act.
b. The impression of surveillance
I have credited Snyder's testimony that, on the morning
of the discharge, Fisher, after questioning her as to why she
had filed a charge, responded to Snyder's denial thereof by
stating that it was known that Snyder had gone to the
Board, that she was lying about it. and that the truth could
be discovered through a Board agent. In the context of
Respondent's other unfair labor practices, I find on the
basis of Fisher's statements that Respondent further
violated Section 8(a)(1).
c. The threatened blacklisting
It is true that on December 18, when Snyder and Werner
appeared at the bank seeking, inter aha, an employment
reference , Cherry, at one point , stated that if Snyder and
her father didn 't leave the premises , Cherry would see to it
that Snyder would "never got [sic] another job in the whole
area."36 The General Counsel, in support of this 8(a)(1)
allegation, construes this as a threat of blacklisting "unless
she [Snyder] and her father dropped the whole matter." I
do not agree that the record admits of such an interpreta-
tion . This statement was made at a time when Werner was
insisting upon a favorable reference letter , and after
tempers had become heated , and after Werner had been
requested by Cherry to leave. My impression from the
record is that Cherry's threat was limited to alleviating the
disturbance and that it was too remote from any activity
protected by the Act to be considered as constituting an
unfair labor practice . Accordingly , I shall dismiss the
8(a)(1) allegation based on this incident.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By coercively interrogating employees as to activities
protected by Section 7 of the Act, and by creating the
impression that such activities were subject to surveillance,
Respondent has violated Section 8(a)(1) of the Act.
3. By discharging Darlene M. Snyder because Respon-
dent believed that she had filed charges with the National
Labor Relations Board, the Respondent has engaged in
discrimination in violation of Section 8(a)(4) and (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it shall take certain affirmative
actions designed to effectuate the policies of the Act.
It has been found that Respondent violated Section
8(a)(4) and (1) of the Act by discriminatorily discharging
Darlene M. Snyder. I shall therefore recommend that
Respondent offer her immediate and full reinstatement to
her former job or, if this job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges. I shall further
recommend that Respondent make her whole for any loss
of earnings she may have suffered as a result of her
discharge by payment of a sum of money equal to that she
normally would have earned from the date of discharge to
the date of Respondent's offer of reinstatement, less net
earnings, with backpay and interest thereon to be comput-
ed in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant io Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER37
Respondent, First National Bank & Trust Co., Pitts-
burgh, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
activities protected by the Act.
(b) Creating the impression that employee activity
protected by the Act is subject to surveillance.
(c) Discouraging employees from filing charges under
the Act, by discharging or in any other manner discrimi-
nating against them in regard to their hire or tenure of
employment or any term or condition of employment.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed by the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Darlene M. Snyder, immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(h) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay
Based on the testimony of Snyder and Cherry provided in Sec 102 48 of the Rules and Regulations, be adopted by the
17 In the event no exceptions are filed as provided by Sec 102 46 of the Board and become its findings, conclusions, and Order, and all objections
Rules and Regulations of the National Labor Relations Board, the findings, thereto shall he deemed waived for all purposes
conclusions, recommendations, and recommended Order herein shall, as
FIRST NATIONAL BANK & TRUST CO.
due and the right to reinstatement and employment under
the terms of this recommended Order.
(c) Post at its bank in North Hills, Pittsburgh, Pennsylva-
nia, the attached notice marked "Appendix."38 Copies of
said notice , on forms provided by the Regional Director
for Region 6, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, where notices to employees are customarily posted.
•{K In the event that the Board's 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
103
Reasonable steps shall he taken to insure that said notices
are not altered, defaced , or covered by any other material.
(d) Notify the Regional Director for Region 6. in writing,
within 20 days from the receipt of this Order , what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegation of the
complaint that the Respondent violated Section 8(a)(1) of
the Act by threatening an employee with blacklisting be,
and it hereby is, dismissed.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."