State Bank Of India

National Labor Relations Board - Board Decisions

Mar 18, 1987

283 N.L.R.B. 266 (N.L.R.B. 1987)

266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
State Bank of India and Local 6, International Fed-
eration, of Health Professionals, International
Longshoremen's Association, AFL-CIO. Case
2-CA-19329
18 March 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 31- January 1985 Administrative Law Judge
Howard Edelman issued the attached decision. The
Charging Party filed limited exceptions and the Re-
spondent filed exceptions and a supporting brief.
The General Counsel filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a 'three-
member panel.
The Board has considered the decision and the
record _in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
The judge found, inter alia, that the Respondent,
by suspending employee Scaria and also by sus-
pending and subsequently terminating him and em-
ployee Viswam, violated Section 8(a)(1), (3), and
(4) of the Act. The Respondent excepts, contend-
ing, inter alia, that even if the General Counsel had
established a prima facie case, it was rebutted be-
cause the Respondent proved that its disciplinary
actions would have occurred even in the absence
of Viswam's and Scaria's protected activity. We
find merit in this contention and dismiss the com-
plaint in its entirety.
The Respondent hired Scaria in March 1975 as a
mail clerk and Viswam in April 1977 as a bank
messenger. As fully set forth in the attached deci-
sion, the judge found, and the Respondent admits,
that both Scaria and Viswam were active union ad-
herents of long standing.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent also excepted to our assertion of junsdiction. This ex-
ception is without merit State Bank of India, 273 NLRB 264 (1984), enfd
808 F 2d 526 (7th Cir 1986)
We also find totally without merit the allegations of bias and prejudice
on the part of the judge made by William Perry, president of Local 6. On
our full consideration of the record we find no evidence that the judge
prejudged the case, made prejudicial rulings, or demonstrated a bias
against Perry, or Local 6, in his analysis or discussion of the evidence
Additionally, we find that Perry's conduct, set forth in the remedy sec-
tion in the attached judge's decision, is disgraceful and inexcusable. Any
similar conduct will result in a more severe penalty than censure
The initial incident in issue occurred on 27 Sep-
tember 1982 when Scaria was suspended for 3 days
by the Respondent's personnel director, Griffin, for
cursing and frightening _his supervisor, Ghate, on
24 September. Griffin investigated the incident by
interviewing Ghate, directing Ghate to. describe
the incident in writing, and attending separate
meetings with Viswam and Scaria. In Ghate's oral
statement to Griffin she asserted that on 23 Sep-
tember she had warned Viswam about "referring
out" incoming calls.- At 5:40 p.m. on Friday, the
next day, Ghate left work and saw Viswam and
Scaria at the corner of Park Avenue and 54th
Street. As Ghate approached, Scaria spoke' loudly
and cursed Ghate in Hindi after asking her, "You
want telephone calls, is ' it your father's phone?"
Ghate explained to Griffin that the translation of
Scaria's Hindi obscenities was "bastard" and "one
who fucks his mother."2 Ghate also asserted that
Scaria repeated his words, approached in a threat-
ening manner, and- left with Viswam after Ghate
threatened to call the police. Ghate's written state-
ment of these events-did not vary from that of her
interview with Griffin, except that Ghate did not
translate the "bad words."
On 27 September Ghate confronted Scaria
during a meeting which also included Scaria's im-
mediate supervisor, Gururajan, and Griffin. Ghate
accused Scaria of confronting and cursing her, but
did not specify the nature of Scaria's curses. When
Gururajan asked Ghate to translate the curses from
Scaria's Hindi, Ghate replied, "I am a lady" several
times and offered to repeat the language if Gurura-
jan specifically asked, which he did not. Scaria' was
questioned primarily ^by Gururajan. Scaria repeat-
edly denied any knowledge of the incident. Scaria
also asserted that he, Viswam, and other employees
had left the bank at 5 p.m., walked to the subway
entrance at Lexington Avenue and East 59th
Street, and went home.
In a subsequent interview on the same day, at-
tended by Griffin and Viswam's supervisor, Rao,
Viswam corroborated Scaria's statement. Viswam
also mentioned another bank employee, Simon,
who had accompanied them to the subway. Griffin
then interviewed Simon. Simon asserted that he
saw Viswam and Scaria at the subway entrance
after leaving the bank with them at 5 p.m. Simon,
however, did not see them board the train or pass
through the turnstile.3
2 The judge did not mention this testimony or discredit Ghate as a wit-
ness.
3 Contrary to the judge's findings, Griffin did not testify "that after
speaking to Simon she had no doubt that Scaria and Viswam were at the
subway with Simon and boarded their train " Instead, Griffin testified
Continued
283 NLRB No. 41
STATE BANK OF INDIA
After conducting the investigation , Gururajan
and Griffin suspended Scaria for 3 days . Viswam,
who allegedly was present but remained silent
during the incident , was not disciplined . Gururajan
testified that , compared to Scaria 's muteness and
unresponsiveness during the interview , he was per-
suaded by Ghate 's responsiveness to questioning
and obvious agitation . Griffin testified that during
the investigation she found no reason to doubt
Ghate. Although Simon placed Scaria on Lexing-
ton Avenue and East 59th Street after 5 p.m., the
incident occurred approximately 30 minutes later at
Park Avenue and East 54th Street . Griffin asserted
that even if Scaria's alibi was true, it was reasona-
ble to assume that Viswam and Scaria could have
walked six city blocks in approximately 30 minutes.
Two months later , on 17 and 18 November, the
Respondent notified Viswam and Scaria by letter
that they had been terminated for hiring Johnson, a
former union organizer , to assault Ghate. On 29
October Johnson entered the bank and passed a
note to Ghate . The note contained his name, tele-
phone number , and an allegation that Viswam "has
tried to hire me to beat you up." Ghate brought
Johnson to Griffin. Johnson told Griffin that after
he beat up Ghate , he was to contact Scaria for a
cash bonus . Johnson handed Griffin a slip of paper
with Scaria's name and telephone number on it.
Griffin took the paper to Bhattacharjee, the Re-
spondent's deputy chief manager, and conveyed
Johnson 's story . Bhattacharjee, after identifying the
handwriting in the note as Viswam's, called the
Respondent 's labor attorneys . Griffin accompanied
Johnson to their law offices where Attorney Con-
neely took Johnson 's affidavit.
According to the affidavit, Johnson knew
Viswam from their organizing activities for the
Union . In early October, Viswam asked Johnson to
arrange having "someone beat up." Thereafter,
Viswam , gave Johnson $100 to assault a person
whom he would identify later . On 29 October
Johnson telephoned Viswam, and they agreed to
meet that day at the bank . Johnson arrived at the
bank and met Viswam in the reception area.
Viswarn then accompanied Johnson to his desk.
Viswam identified Ghate, who was working
nearby, described Ghate 's customary subway line
and departure time , and gave Johnson Scaria's
name and telephone number on a slip of paper.
Viswam, who was leaving the, country later that
day, directed Johnson to assault Ghate early the
following week. He also told Johnson to contact
that she did not doubt that Scaria "was at the train station at 5 o'clock"
and that Scaria "had forty minutes to get back to the place" where
Scaria reportedly cursed at Ghate. Griffin did not state her belief wheth-
er Scaria had passed through the turnstile or boarded the train.
267
Scaria for a bonus once Ghate had been assaulted.
Viswam and Johnson left the bank together and
separated. Johnson then returned to the bank and
told his story to Ghate.
After Johnson described these events to Connee-
ly, Johnson and Griffin left the law offices. Griffin
returned to the bank and asked the receptionist, Di-
Fulvio, if anyone had visited Viswam that day. Di-
Fulvio confirmed that a man who resembled John-
son entered the reception area twice and on the
first occasion to visit and speak with Viswam. Di-
Fulvio's account was confirmed by her affidavit
and that of Kotak, the bank's deputy manager.
Conneely subsequently contacted the Board's Re-
gional Office and confirmed that Johnson had
worked as an organizer for the Union. On the basis
of Johnson's previous affiliation with the Union,
DiFulvio's statement and affidavit , 19'otak 's affida-
vit, and Johnson's statement, affidavit, and detailed
knowledge of Viswam's overseas trip and depar-
ture time , Scaria's name and phone number, and
Ghate's , customary departure time from work and
subway line , the Respondent terminated Viswam
and Scaria on 17 and 18 November.
Assuming that the General Counsel presented a
prima facie showing, we agree with the Respond-
ent that its disciplinary actions would have oc-
curred even in the absence of Viswam's and Scor-
ia's union activities . Regarding Scaria's 3-day sus-
pension for allegedly cursing Ghate, the judge
found that "Ghate did not, during the course of
Respondent 's investigation , disclose what the `bad
words' were." The record contradicts this finding.
Ghate testified that, during her first meeting with
Griffin on 2T September, she translated Scaria's
Hindi words as meaning "`bastard' , and the other
word . . . `one who fucks his mother.""
Based on the foregoing, we find that the case
cited by the judge , Art Steel of California, 256
NLRB 816 (1981), is inapplicable . In Art Steel, the
Board found that an employer acted pretextually
when, without' confronting an employee with either
his,accuser or an accusation, it disciplined that em-
ployee by relying exclusively on a conclusory alle-
gation that he had used "bad words." In the instant
case, however, Ghate translated Scaria's Hindi
curses during , her first meeting with Griffin.
During the 27 September meeting which Scaria,
Ghate, Griffin, and Gururajan attended , the Re-
spondent also confronted Scaria with both his ac-
cuser and the accusation.
The judge also , found that because a witness left
work with Viswam and Scaria at 5 p.m. and
walked three blocks with them to a subway station
approximately ' six blocks away from their alleged
encounter with Ghate at 5:40 p.m., it would have
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been unlikely "for them to have taken the train to
the next stop and to double back and intercept
Ghate at a corner of 54th Street and Lexington
Avenue." We note, however, that no witness saw
Viswam or Scaria -board the train or pass through
the turnstile and that Griffin testified that even if
Scaria's witness spoke truthfully, it was reasonable
to assume that Viswam and Scaria could have
walked six city blocks in approximately 30 minutes.
The judge also found that neither Viswam nor
Scaria was sufficiently motivated to have cursed
Ghate because "there is no evidence that Viswam
was particularly angry about [Ghate's] memo or
displayed such conduct which would trigger such
an elaborate and planned response." Regarding his
telephone message practices, however, Viswam tes-
tified that Ghate had previously warned him orally
and in writing and that Ghate's warnings were
common knowledge at the bank. Viswam also testi-
fied that Ghate continually complained about his
work and that she "was always trying to harass
me." Accordingly, we do not agree with the
judge's conclusion that the Respondent's suspen-
sion of Scaria was unreasonable and we find that
the Respondent has demonstrated that it would
have disciplined Scaria even absent his union and
protected concerted activities.
Regarding the Respondent's termination of
Viswam and Scaria for having hired Johnson to as-
sault Ghate, the judge found that the Respondent's
investigation was "perfunctory and one sided." The
judge found that, given the "bizarre" nature of
Johnson's confession and demeanor, the Respond-
ent should have contacted not only Viswam and
Scaria for an explanation, but also other witnesses
"who could have shed light on Johnson's credibil-
ity or explained troubling aspects of the affidavit."
Applying Lancer Corp., 271 NLRB 1426 (1984), the
judge concluded that the Respondent's- termination
of Viswam and Scaria . was unreasonable because
their discharge was not predicated on a "full and
fair investigation."
In concluding that the Respondent's investiga-
tion was deficient, the judge noted that had it con-
tacted Viswam or Scaria, "they might have been
able to explain Johnson's motivation, or to shed
light on his' credibility or to explain how Johnson
became aware of some of the details set forth in his
affidavit." The judge also posited that had the Re-
spondent' contacted the Union's president, Perry,
he might have explained Johnson's knowledge of
Ghate's name and subway route because "Perry
. .. had filed a charge alleging the discriminatory
suspension of Scaria, which investigation' was pend-
ing at the time Johnson gave his affidavit and these
details might well have been within the knowledge
of Local 6 representatives and available to John-
son." The judge's speculation may or may not be
correct. However, the issue is not whether the Re-
spondent's investigation would have been more
thorough had it elicited possible explanations from
Viswam, Scaria, and Perry, but whether the Re-
spondent's disciplinary investigation would have
been the same had Viswam and Searia not been as-
sociated with the Union.4
The judge cited several cases , including Lancer
Corp., supra, to infer that the Respondent's investi-
gation was perfunctory because it did not contact
Viswam, Scaria, or Perry. None of these cases,
however, necessarily requires an employer to estab-
lish conclusively either the veracity or related mo-
tivation of a witness against an alleged discrimina-
tee. They also do not require an employer, in all
circumstances before an employee's termination, to
allow the employee to have his say. Although the
judge- found that the Respondent; by not 'allowing
Viswam and Scaria to explain Johnson's accusa-
tion, did not follow its customary practices, the
only evidence of its disciplinary procedures is Grif-
fin's assertion that the Respondent "usually, it de-
pends on the situation," gave employees a chance
to explain reported misconduct. But the allegation
of a man, known to have been a union employee,
that employees, who also were associated with the
Union and who had only 2 months earlier been im-
plicated in and/or disciplined for related conduct
in cursing at a supervisor, 'had hired him to assault
the same supervisor obviously constitutes unusual,
not ordinary, circumstances. There' is no evidence
that the Respondent had been previously confront-
ed with a situation similar to that here. That, how-
ever, does not warrant a finding that it departed
from its "customary" disciplinary practices. Thus,
as noted above, it is not clear that the Respondent
had a uniform practice with respect to disciplinary
procedures. In any ' event, given the nature of the
misconduct of Viswam and Scaria reported by
Johnson, the: situation which confronted the Re-
spondent obviously was unusual and serious and
not one for which "customary" disciplinary proce-
dures would apply.
We also find that even assuming Viswam and
Scaria had explained their second reported offense
against Ghate, the clear weight' of the evidence
suggests that,' even absent their protected activities,
the Respondent's disciplinary actions would not
have varied.' The judge speculated- that if Viswam,
Scaria, and Perry had been consulted by the Re-
spondent, they might have explained that Johnson
could have obtained his detailed 'knowledge about
4 See Wright Line, 251 NLRB 1083 (1980)
STATE BANK OF INDIA 269
Ghate from the Union's previously filed unfair
labor practice charge against the Respondent. But
the judge's retrospective version of the incident is
only speculation and ignores the Respondent's obli-
gation to Ghate, its supervisor and agent, to hold
her safe from harm in the face of a plausible, work-
related physical danger. Because it was reasonable
for the Respondent to have believed Johnson
rather than any possible denials by Viswam or
Scaria, who had been implicated previously in simi-
lar misconduct and had an obvious reason to bear a
grudge against Ghate, the judge's analysis of the
incident is neither reasonable nor probable. Because
we find that the Respondent acted reasonably
under the unusual circumstances of this case, we
shall dismiss the entire complaint.5
ORDER
The complaint is dismissed.
5 In dismissing the complaint, we note that the judge's analysis of the
Respondent's alleged violation of Sec 8(a)(4) of the Act is the same as
that of the Respondent's alleged 8(a)(3) and (1) violations. The record
does not establish a specific causal relationship between Viswam and
Scan's use of Board processes and the Respondent's disciplinary actions
Judy M. Sandier Esq., for the General Counsel.
John F. Gibbons, Esq., and Israel Kornstein, Esq. (Kelly,
Drye & Warren), for the Respondent.
Saul Jakubawitz, Esq., for the, discriminatees K.M. Vis-
wambharan and Johannes Scaria.
William Perry, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on May 21, 22, 23, and 25, June
8, and August 2, 1984.
On December 29, 1982, Local 6, International Federa-
tion of Health Professionals, International Longshore-
men's Association, AFL-CIO (Local 6), filed a charge
against the State Bank of India (Respondent), alleging
that Respondent had discharged its employees K. M.
Viswambharan and Johannes Scaria (Viswam and
Scaria), in violation of Section 8(a)(1), (3), and (4) of the
Act. On January 31, 1983, Local 6 filed an amended
charge alleging, inter alia, that Respondent had suspend-
ed Scaria, prior to his discharge, in violation of Section
8(a)(1), (3), and (4) of the Act. On March 22, 1984, a
complaint issued alleging that Respondent- had suspended
Scaria and thereafter discharged Scaria and Viswam in
violation of Section 8(a)(1), (3), and (4) of the Act.
Briefs were .filed by the General Counsel and Re-
spondent. 'On my consideration of the entire record,' the
I Following the close of the bearing counsel for Respondent filed a
motion to correct the official transcript The General Counsel, counsel
for Local 6, and counsel for the discriminatees did not oppose this
motion. On due consideration, I issue an Order correcting the transcript
to reflect the changes set forth in Respondent's motion The above
briefs, and my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Respondent is a banking or financial institution orga-
nized under the laws of India. It is licensed to do busi-
ness in the State of New York where it has a facility lo-
cated at 460 Park Avenue, New York, New York.
During the normal course of its business operations, Re-
spondent annually derives gross revenues in excess of $1
million and engages in interstate financial transactions in
excess of $100,000 from its New York facility.
Respondent denies that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. Respondent contends that it is a direct in-
strumentality of the government of India and, therefore,
is not an employer within the meaning of the Act.2 This
same contention was made by Respondent concerning its
Chicago , Illinois facility and rejected by the Board. State
Bank of India , 229 NLRB 838 (1977). The Board con-
cluded that Respondent was not excluded within the
meaning of Section 2 (2) of the Act which provides that
the term "employer" shall not include "the , United States
or any wholly owned Government corporation, or any
Federal Reserve Bank , or any State or political subdivi-
sion thereof' and that "there is no public policy or
policy of the Act which, on the ground that the employ-
er is disclosed to be an `agency' or `instrumentality' of a
foreign state, justifies us to continue to decline jurisdic-
tion in cases affecting employees in our own country
whose employer meets the Board 's jurisdictional stand-
ards for such enterprises ." The Board therefore conclud-
ed it would effectuate the purposes of the Act to assert
jurisdiction . This contention was raised again by Re-
spondent in connection with its New York facility in
State Bank of India, 273 NLRB 264 (1984), and again re-
jected by the Board . Accordingly, I conclude that Re-
spondent is an employer engaged in commerce within
the ,meaning of Section 2(2), (6), and (7) of the Act. (262
NLRB 1108 (1982).)
I 'conclude Local 6 is a labor organization within the
meaning of Section 2(5) of the Act . Port Chester Nursing
Home, 269 NLRB 150 (1984); State Bank of India, 262
NLRB 1108.
II. THE UNION ACTIVITIES OF SCARIA AND
VISWAM-RESPONDENT UNION ANIMUS
Scaria was hired by Respondent in March 1975 as a
mailclerk. He worked continually for Respondent until
his, discharge on November 1982. During this period
Scaria was a satisfactory employee and was offered a su-
pervisory position by Respondent in January 1981 and
March 1982, which he turned down.
motion shall become part of the record herein and is designated as J
Exh 1
2 The facts on which this contention is based are contained in R Exhs.
19 through 26 and are summarized concisely in the administrative law
judge's decision in State Bank of India, 262 NLRB 1108 ( 1982), involving
Respondent's New York facility.
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Viswam was hired in April 1977 as a bank messenger
and worked for Respondent continually thereafter until
his discharge on November 1982. During this period
Viswam was a satisfactory employee. At the time of his
discharge he had been promoted to the position of letter
of credit negotiator. Viswam was offered a supervisory
position in November 1980 but turned it down.
In 1977 Viswam and Scaria were among a small group
of employees who began organizing Respondent's em-
ployees. They formed an independent labor organization
called Local 777. On January 12, 1978, following a peti-
tion filed with Region 2, Local 777 was certified by the
Board. Shortly thereafter Respondent and Local 777 en-
tered in a collective-bargaining agreement. Viswam
thereafter served the local as the shop steward.
By 1980, Viswam and Scaria were dissatisfied with the
lack of success achieved by Local 777 in obtaining bene-
fits and improved working conditions for the unit em-
ployees. Viswam wanted to affiliate with a stronger
union. Local 777's attorney advised him to call William
Perry, president of Local 6. Viswam contacted Perry
and he and Scaria met with Perry. It was decided -that
Local 777 would attempt to merge with Local 6. In fur-
therance of this merger, Viswam and Scaria circulated
and posted Local 6 literature and arranged a meeting of
employees where they obtained about 65 employee sig-
natures in support of the merger. Thereafter, Local 6,
through its president, Perry, requested Respondent to
bargain with it. Respondent refused. On December 8,
1980, Local 6 filed unfair labor practice charges against
Respondent alleging violations of Section 8(a)(1) and (5)
of the Act.3 On January 22, 1981, a complaint issued al-
leging an unlawful refusal to recognize and bargain with
Local 6. The case was tried in September 1981. During
the trial, Viswam and Scaria were the principal witnesses
in support of the charge.4
Sometime in January 1981 after the complaint in the
above case (2-CA-17711) issued, P. K. Bhattacharjee,
Respondent's deputy chief manager and the second rank-
ing officer in the New York office, called Scaria to his
office. He offered Scaria a promotion to a supervisory
position. During this meeting he discussed the pending
unfair labor practice case and told Scaria that Respond-
ent did not want Local 6 and that if he took this promo-
tion it would "bust the Union." Scaria refused to accept
this offer of promotion and later confirmed such refusal
in writing, setting forth his reason as fear on his part that
Respondent was trying to promote him out of the unit to
fire him. Bhattacharjee, who -was called as a witness by
Respondent, did not deny this conversation. I fully credit
Scaria's testimony regarding this conversation.5
About July 1981, shortly before the trial of the above-
described, unfair labor practice complaint was scheduled
to take place, Viswam was attending a send-off party for
a Case 2-CA-17711
4 On February 12, 1982, the administrative law judge issued his deci-
sion in the above case in which he dismissed the complaint in its entirety
On July 21, 1982, the Board affirmed the judge (262 NLRB 1108 )
5 I was favorably impressed with Scaria's demeanor throughout the
course of his testimony His answers were very candid and forthright
during both direct and cross-examination I was also very impressed with
Scam's recollection of the facts.
Chandurka, Respondent's deputy chief of contract and
admittedly an agent and supervisor of Respondent. Chan-
durka was going to work at the bank's main office in
India. During this party, Viswam testified he spoke to
Chandurka and Chandurka expressed his feeling that he
had not discriminated against him for his union activities.
However, Chandurka told him he had better "watch
out" for Respondent. Viswam responded that he was
aware Respondent could fire him. Chandurka was not
called as a witness by Respondent. Viswam's testimony
is therefore undenied. I fully credit Viswam's testimony
concerning this conversation.6 As a result of Chandur-
ka's threat, an unfair labor practice charge was filed by
Local 6 against Respondent.? The charge was with-
drawn by Local 6 only after the Regional Director as-
sured Local 6 that Respondent had given Viswam "writ-
ten assurances to the effect that it will not discriminate
against him because of his union activities."
Sometime in September 1981, during the hearing in
connection with the refusal-to-bargain charge described
above, Viswam met Bhatacharjee in the lobby of the
Federal Building, Federal Plaza, New York. Viswam tes-
tified that Bhatacharjee came over to him during a recess
in the trial and told him that he needed Viswam's sup-
port and that Respondent did not need a union. Bhatta-
charjee told Viswam he needed his help to see that there
was no union in the bank. He then told Viswam that Re-
spondent would accede to the employees' demands if
there was no union. Although Bhattacharjee was called
as a witness, he did not deny this conversation. As, set
forth above, I found Viswam to be a credible witness.
Accordingly, I fully credit his testimony concerning this
conversation.
In October 1981, shortly after the trial of the unfair
labor practice complaint described above. Viswam and
Scaria planned to picket Respondent at the Waldorf As-
toria Hotel which was the site of a scheduled reception
to celebrate the arrival from India of Padmanabhan, the
chairman of the bank. In furtherance of this planned
picketing, which was to protest working conditions,
Viswam and Scaria posted picketing notices throughout
the bank and distributed such notices to employees. The
picketing was to take place on October 5, 1981, at 5:30
p.m.
On October 4, Bhattacharjee called Scaria and
Viswam into his office. Both Scaria and Viswam testified
that Bhattacharjee pleaded with them to cancel the pick-
eting planned for October 5 at the Waldorf. He told
them if the picketing- took place, his name and career
would be spoiled. Viswam and Scaria listened, but gave
no commitment. On October 5, Bhattacharjee called
Viswam into his office. Viswam testified that he again
pleaded with him to cancel the planned picketing, ex-
plaining if the picketing took place as scheduled, his
career would be spoiled. As an inducement, Bhattachar-
jee told Viswam he would arrange a meeting with Bank
Chairman Padmanabhan so that Viswam could presum-
6 Viswam impressed me as a credible witness I was impressed by his
demeanor He was very forthright during both direct and cross-examina-
tion and like Scaria displayed an excellent recollection of the facts
7 Case 2-CA- 18302
STATE BANK OF INDIA
ably present the employees' demands. Viswam agreed
and the scheduled picketing was canceled. Bhattacharjee,
although called as a witness by Respondent, did not
deny these conversations. As set forth above, I have
found Scaria and Viswam to be credible witnesses. Ac-
cordingly, I fully credit their testimony concerning the
above meetings.
On July 21, 1982, the Board, as set forth in footnote 3,
affirmed the judge's decision dismissing the complaint
which had alleged that Respondent had refused to recog-
nize and bargain with Local 6. Shortly thereafter, Local
6 filed with Region 2 a petition for election. Viswam and
Scaria solicited and obtained from Respondent's employ-
ees a sufficient number of signed authorization cards
which were used to support this petition for an election.
Pursuant to the petition, an election was scheduled for
September 2, 1982.
On September 2, the election was held. Viswam was
the observer for Local 6. Following the vote, the ballots
were counted and Local 6 won by a count of 44 for
Local 6 to 33 for no union.. Present for Respondent
during the count, which took place in the conference
room at Respondent''s facility, was Bhattacharjee and Re-
spondent's attorney, John Gibbons. Present for Local 6
was William Perry, Local, 6 president, and Scaria and
Viswam. Perry testified that following the count he at-
tempted to shake hands with Gibbons but he refused and
walked away from him. Perry, Viswam, and Scaria were
left and began laughing. Gibbons then walked by, heard
them laughing, and stated to the group, "I'm going to
fuck you." Viswam and Scana corroborate Perry's testi-
mony. Gibbons testified that he signed the tally of ballots
and left the room without saying a word. He concedes
he saw a big smile on Viswam's face. He denies that
Perry tried to shake his hand or that he told Perry,
Viswam, or Scaria, either individually or collectively,
that he would "fuck" them or words to that effect. Bhat-
tacharjee could not remember that Gibbons made the
statement attributed to him by Scaria, Viswam, and
Perry. I credit the testimony of Perry, Scaria, and
Viswam. As set forth above, I have concluded that
Scaria and Viswam are credible witnesses. I was not im-
pressed with Bhattacharjee's demeanor. His responses
during cross-examination were often vague. His memory
of the above incident was particularly vague. Moreover,
his testimony on cross-examination concerning Respond-
ent's' decision to terminate Scaria and Viswam was often
evasive. Additionally, during the trial of this case, as set
forth in the record, Perry and Gibbons demonstrated an
intense hostility toward each other. During the short
period of time Perry appeared,8 his manner toward Gib-
bons was to goad and antagonize him, and Gibbons' re-
sponse was to become angry and lose his temper. Perry's
testimony is consistent with their conduct at this trial.
Counsel for Respondent, in an attempt to discredit the
testimony of, Perry, Viswam, and Scaria, established that
in several prior investigatory affidavits taken by Board
agents after the election, neither Scaria nor Viswam in-
cluded Gibbons' statement in their affidavit, nor, did
8 Perry was ejected from the hearing because of improper conduct di-
rected to me during the course of this hearing discussed in detail below
271
Perry in sworn testimony in an unemployment insurance
proceeding involving the subsequent discharges of Scaria
and Viswam. I have considered this evidence arid, not-
withstanding, conclude for the reasons described, above
that the mutually corroborative testimony of Perry,
Scaria, and Viswam is credible.
In September 1982, Scaria and Viswam again orga-
nized and scheduled picketing to take place at the Wal-
dorf Astoria Hotel at a time when Respondent's chair-
man, Padmanabhan, was coming over from India for a
reception. The picketing was again to protest the em-
ployees working conditions. Scaria and Viswam testified
that Bhattacharjee again called them into his office and
pleaded with them not to picket. -During this conversa-
tion, Scaria testified that Bhattacharjee told them their
"union activities were interfering with the bank." At the
conclusion of this meeting Scaria and Viswam did not
agree to cancel the scheduled picketing. The following
day Bhattacherjee called Scaria, into his office. He plead-
ed with him to cancel the picketing and told him "it [the
picketing] was, bad for the bank." Pursuant to Bhatta-
charjee's promise that he would arrange a meeting with
Padmanabhan, Scaria and Viswam agreed to cancel the
scheduled picketing. Bhattacharjee, although called as a
witness by Respondent, did not deny these conversa-
tions. Accordingly, I fully credit the testimony of Scaria
and Viswam.
On, September 27, 1982, Scaria was suspended for 3
days for allegedly verbally assaulting Respondent's su-
pervisor, Sheela Ghate. Scaria denied that he had spoken
to Ghate that day. On November 17 and 18, 1982, Re-
spondent discharged Scaria and Viswam for allegedly
conspiring with an individual named Joseph Johnson Jr.
to physically assault Ghate.9
The General' Counsel has the burden of proving union
animus was a substantial or motivating factor in the sus-
pension of Scaria and in the discharges of Scaria and
Viswam. NLRB ,v. Transportation Management Corp., 462
U.S. 393 (1983); Wright Line, 251 NLRB 1083 `(1980),
enfd. 662 F.2d 899 (Tst Cir. 1981), cert. denied 455 U,S.-
989 (1982).
Respondent admits, and indeed' the evidence estab-
lished, Respondent's knowledge of Scalia's and Vis-
wam's activities on behalf of Local 6. Such activities in-
cluded testifying in the September 1981 trial and 'the
filing of unfair' labor practice charges alleging unlawful
threats.. Respondent further admits, and the evidence
fully established, that Scaria and Viswam were the most '
active employees on behalf of Local 6. In fact, the evi-
dence established that Scaria and Viswam were the heart
and soul of Local 6 as far as its existence in Respondent's
facility was concerned and Respondent acknowledged
this by its conduct. For example, it was Scaria and
Viswam who planned and scheduled the above-described
picketing in 1981 and 1982; it was Scaria and Viswam
with whom Bhaattacharjee pleaded to cancel such sched-
uled picketing, and it was Scaria and Viswam who ulti,
mately agreed to cancel the scheduled picketing.
' The facts surrounding the above suspension and discharges will be
set forth in the section of this decision relating to Respondent's defense.
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The evidence also conclusively established Respond-
ent's intense union animus directed to Local 6 generally
and to Scaria's and Viswam 's activities on behalf of
Local 6 in particular. The following facts conclusively
establish Respondent 's animus.
(a) Bhattacharjee 's January 1981 conversation with
Scaria in - which he stated that Respondent did not want
Local 6 and it would "bust the union."
(b) Chandurka 's threat to Viswam that he had better
"watch out" for Respondent , in connection with his ac-
tivities on behalf of Local 6, and the subsequent unfair
labor practice charge filed which resulted in written as-
surances by Respondent that it would not discriminate
against Viswam.
(c) Bhattacharjee's September 1981 statements to
Viswam to the effect that Respondent did not want
Local 6 as the bargaining representative of its employees
and would accede to the employees ' demands if Viswam
dissuaded the employees from supporting Local 6. Such
conduct could arguably constitute a violation of Section
8(a)(1). St. Francis Federation of Nurses v. NLRB, 729
F.2d 844 (D.C. Cir. 1984).
(d) Bhattacharjee 's pleas to Scaria and Viswam to
cancel scheduled picketing , a protected activity , in Octo-
ber 1981 and in September 1982, shortly before the sus-
pension of Scaria and discharge of Scaria and Viswam,
because such picketing would embarrass Respondent and
ruin Bhattacharjee 's career . These picketing incidents
standing alone would, in my opinion , supply sufficient
motivation for Respondent to want to rid itself of Scaria
and Viswam . It is clear that by threatening to picket,
these employees had Respondent by the throat, and Re-
spondent did not like it.
(e) Gibbons' statement following Local 6 's election
victory that he would "fuck" the Union.
Even a casual examination of Respondent 's conduct di-
rected at Scaria and Viswam , as described above, estab-
lishes conclusively , in my opinion, intense union animus
directed at Scaria and Viswam and a substantial motivat-
ing factor in the suspension and discharges . It is obvious
that if Respondent were able to rid itself of Scaria and
Viswam it would effectively rid itself of Local 6.
Additionally, the timing of the suspension and dis-
charges, within a month of the Local 6 election victory
and a second threat to picket Respondent , further sup-
port a discriminatory motivation for the suspension and
discharge . In short, the General Counsel has established
not only a motivating -factor, but a solid prima facie case.
Once such motivating factor is established, the burden of
proof shifts to Respondent to establish that the same
action would have taken place even in the absence of the
employees ' protected activities . NLRB v. Transportation
Management, supra; Wright Line, supra.
III. RESPONDENT'S DEFENSE
On September 27, 1982, Respondent's supervisor,
Sheela Ghate , went to Respondent 's personnel director,
Selena Griffin, a supervisor and agent of Respondent,
and reported the following incident to Respondent in
writing:
On September 24, 1982 I left the office at 5:40
PM and was walking to the 5th Avenue subway
station . Mr.- Scaria and Mr. Viswambharan were
standing at the , corner of 54th Street and Park
Avenue. As I approached that corner Mr. Scaria
spoke to me loudly in Hindi. The meaning was `You
want telephone calls, is it you father 's phone?; and
then he said bad words. He repeated the same thing
again and came towards me in a threatening ges-
ture..I said to Mr. Scaria , "If you do not stop,
I will call police." Then both of them walked away.
Ghate did not, during the course of Respondent 's investi-
gation, disclose what the "bad words" were or describe
the "threatening gesture." On September 23, Ghate had
given Viswam a warning memo for referring out calls he
allegedly should have taken. Ghate told Griffin she as-
sumed the reference to "telephone calls" by Scaria was
in connection with this memo.
Griffin then reported the incident to Respondent's su-
pervisor, Gururajan , who was Scaria's direct supervisor.
Gururajan, Griffin, and Ghate then met with Scaria in
Gururajan's office . Gururajan then said to Scaria, "I be-
lieve you confronted Mrs. Ghate on Friday [September ,
24]." Scaria said he did not know anything . In this con-
nection Scaria testified that he had left the office at 5
p.m. on September 24 with Viswam and other bank em
ployees and taken the Lexington Avenue subway home.
Respondent's facility is on 57th -Street and Park Avenue
and the Lexington Avenue subway is on 59th Street and'
Lexington Avenue . Park Avenue and Lexington are al
city block apart.
After meeting with Scaria, Griffin and Rao, Viswarn's
supervisor, met with Viswam. Rao told Viswam he un
derstood something had taken place between Scaria and
Ghate after work on September 24. Viswam, as did
Scaria, denied knowing or seeing anything. He did, how-'
ever, tell Griffin and Rao that he, Scaria, Simon, a bank
employee, and other , employees had left the office at 5
p.m. and walked to the Lexington Avenue subway to go
home.
Griffin then spoke with - Simon who confirmed that
both Viswam and Scaria left work at 5 p .m. and went
with him to the Lexington Avenue subway station. Ac-'
cording to Griffin , Simon told her that he did not exact-
ly see them board the train because he went to' buy
tokens. However, Griffin testified that after speaking to,
Simon she had no doubt that Scaria and Viswam were at
the subway with Simon and boarded their train , but con-
cluded that it was possible for Scaria and Viswam to
have gotten off the train at the next stop and doubled
back in time to intercept Ghate. Ghate usually left work
at 5:30 p.m.
On the basis of the above investigation, Griffin testi-
fied she made the decision to suspend Scaria for 3 days.
No disciplinary , action was imposed on Viswam.
An analysis of the above facts establishes' that:
(a) The suspension was predicated on alleged state-
ments by Scaria to Ghate which are in part incoherent
and in part subjective and conclusory . Scaria was alleged
to have said "You want telephone calls, is it your fa-
ther's phone." I simply do not understand what this sen-
STATE BANK OF INDIA
tence means, even assuming it was allegedly related to
Ghate's warning memo to Viswam the previous day. I
certainly do not see how it could be insulting or threat-
ening . The reference to Scaria saying "bad words" and
making a "threatening gesture" is totally subjective and
conclusary. Art Steel of California, 256 NLRB 816, 821
(1981). 11, is undisputed that at the time of the suspension,
Respondent had no knowledge of what such "bad
words" or the "threatening gesture" were. Ghate testi-
fied she did not disclose these bad words or describe the
gesture, to Respondent supervisors during the investiga-
tion. Nor is there any evidence to establish that Griffin
or other Respondent supervisors pushed Ghate to reveal
what "bad words" were allegedly used or the nature of
the "threatening gesture."
(b) The alleged incident took place after working
hours and outside of Respondent's facility.
(c) The alleged incident did not involve Scaria's super-
visor.
(d) It is simply not probable that the incident could
have taken place as described. Griffin admitted that the
investigation established that Scaria and Viswam left
work at 5 p.m. and went to the Lexington Avenue
subway at Lexington and 59th Street. This is 2 blocks
north and 1 long city block east of Respondent's facility.
She then testified she concluded it was possible for them
to have taken the train to the next stop and to double
back and intercept Ghate at a corner of the 54th Street
and Lexington Avenue. Ghate generally left about 5:30
p.m. It would be virtually impossible for Scaria and
Viswam to double back from the subway given the un-
predictability of New York subways and pick the one
corner, out of four, that Ghate would traverse, wait
there for her, and then pick her out of the thousands of
people crowding this area during the height of New
York's rush hour by 5:40 p.m., the alleged time of the in-
cident. Indeed, there is no evidence that they were
aware of what subway Ghate took, or the route she cus-
tomarily took to reach the Fifth Avenue subway. She
could have taken any number of routes to her subway
that would have bypassed 54th Street and Park Avenue
entirely, -
(e) It is unlikely that Scaria and Viswam would have
undertaken such a complex and devious action with such
little likelihood of success merely to say a few, "bad
words" concerning a memo to Viswam. In this connec-
tion there is no evidence that Viswam , was particularly
angry about the memo or displayed such conduct which
would trigger such an elaborate and planned response.
(f) There is no evidence that Respondent suspended
other employees or in anyway disciplined other employ-
ees based on similar incidents.
In view of this analysis, I conclude that Respondent
has failed to meet its burden and establish the suspension
would have occurred in any event. Transportation Man-
agement, supra. Accordingly, I conclude that Respondent
suspended Scaria because he engaged in activities in sup-
port of Local 6. Since such activities involved testifying
during Board proceedings, filing of unfair labor practice
charges„ and participating in a Board-conducted election,
I conclude that by engaging in such conduct, Respond-
ent violated Section 8(a)(1), (3), and (4) of the Act.
273
On October 29, 1982, shortly after noontime, Joseph
Johnson Jr., a recent organizer for Local 6, but then un-
employed, and a stranger to Respondent, walked into
Respondent's facility and handed Sheela Ghate a note
which said:
Mr. Viswam has tried to hire me to beat you up.
My name is Joseph Johnson, Jr. I can be reached at
452-3812.
It [presumably a reference to the alleged assault]
is supposed to take place after he leaves the coun-
try. Let him stay out!
Keep this confidential between you, I, and the
authorities.
Ghate, read the note and asked Johnson to cone with
her. He went with Ghate who took him to Griffin's
office. Ghate showed Griffin the note and Johnson then
related an alleged plot whereby he was hired by Viswain
to beat up Ghate. He told Griffin after-he beat up Ghate
he was to call Scaria and he would receive a cash bonus.
He gave a slip of paper to Griffin with Scaria's tele-
phone number on it. Griffin took the note and slip of
paper to Bhattacharjee, showed them to him, and related
Johnson's story. Bhattacharjee recognized Viswam's
handwriting. Bhattacharjee called his attorneys and on
their advice it was decided to turn the investigation of
this matter over to them. It was then recommended by
Respondent's attorneys that Johnson be brought to their
office so an affidavit could be taken. Johnson agreed to
this and went with Griffin by cab to the attorney's
office.
Griffin testified that Johnson was dressed in an "osten-
tatious" manner and observed that he "stood out in a
crowd." Bhattacharjee testified that Griffin later told
him, in connection with reporting her impressions of
Johnson, that during the ride to the attorney's office he
recited poetry, evidently written by him, to her and that
she thought Johnson "was not that bad" (a reference to
his character and credibility rather than his poetry).
When they reached Respondent attorney's office,
Johnson was interviewed by Brian Conneely, an associ-
ate in the firm's labor department. Conneely took an affi-
davit from Johnson which set forth the details of the al-
leged conspiracy. 10
Johnson stated that in early October he was at the of-
fices'of Local 6 when he happened to meet Viswam. He
knew Viswam in connection with his Local 6 activities
on behalf of Respondent's employees. Viiswam came to
him and said, "I need to have someone beat up." He said
he would give Johnson the name of the intended victim
and the day of the assault later. Johnson agreed to per-
form this alleged act for Viswam.
The following day Johnson stated he called the NLRB
(Region 2) and spoke to one of the Board investigators.
(The Board investigator's' name was not set forth in the
affidavit, however, Johnson testified he told Conneely
50 In recounting this alleged conspiracy, I am using the affidavit of
Johnson taken by Conneely rather than Johnson's testimony at trial be-
cause it was the contents of the affidavit that was used by Respondent in
reaching its decision to discharge Scaria and Viswam (See R, Exh. 15.)
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he knew David Leach, at the time a field attorney
employed by the' NLRB and working out of Regioti' 2.)
He related 'to this Board investigator his conversation
with Viswam the day before and was advised to come to
Region 2 to give an affidavit. He never did this. The fol-
lowing day he called Viswam at his office telephone
number and the made an appointment for lunch. During
this lunch' appointment Viswam asked how much the job
would cost and they agreed to a $100 price. According
to Johnson, Viswam gave him the-$100 during lunch and
said he would call him later to let him know who he
wanted beat up and when.
On October 29, Johnson stated he called Local 6's
office and the secretary told him Viswam was trying to
contact him. Johnson states he called Viswam at his
office and he told him to meet him at Respondent's facil-
ity that same day about noontime. Johnson met Viswam
in Respondent's reception area . He accompanied Viswam
to his desk where Viswam pointed out Ghate. At this
time he told him what time she left for work and the
subway station she entered. Viswam then told Johnson
to do the job early the following week when he had left
the country. Viswam then gave Johnson a slip of paper
with, Scaria's name and phone number on it (described
aboe), and told him to contact Scaria when the job was
done. According to Johnson, he and Viswam then left
Respondent's facility and headed in opposite directions.'
When Viswam was out of sight Johnson doubled back to
Respondent's facility 'and gave,the note described above
to Ghate.
After Johnson left the attorney's office, Griffin re-
turned to Respondent's facility. She asked their recep-
tionist ,whether anyone had come to see Viswam that
day and the receptionist described a man answering
Johnson's description who she said later returned to the
bank.
Respondent Attorney Conneely thereafter called Carol
Sobin, a field attorney working out of Region 2 and as-
signed to investigate the unfair labor practice charge
filed by Local 6 concerning Scaria's suspension, Sobin
confirmed that Johnson was an organizer for Local 6.
The following, week, John Gibbons, Respondent's pri-
mary attorney, returned to his office and took over the
investigation. Gibbons had been out of town on October
29. On his return Conneely briefed him about the events
of October 29 and Gibbons reviewed Johnson's affidavit,
the note to Ghate, and slip of paper with Scaria's name
and phone number on it. Conneely told Gibbons that
Johnson had said he knew, Leach, a field attorney work-
ing out, of Region- 2. Later that day Gibbons called
Leach who ,confirmed that he knew Johnson to be an or-
ganizer for Local 6 and that he had been involved in an
8(a)(3) -proceeding which Region 2 had prosecuted.
The following week, Conneely contacted Region- 29
and spoke with a Board agent and asked if he knew
Johnson. The agent referred him to Seaport Manor, Inc.,
248 NLRB 886 (1980), in which the Board had found
Johnson to have been discriminatorily discharged.
Johnson was frequently used by Local 6 as a "Plant."
He would obtain a job at a plant Local 6 intended to or-
ganize and organize it from within. On occasion he
would be discriminatorily discharged in connection with
these activities.
On November - 4, Gibbons spoke with Board Agent
Sobin who was investigating Scaria's unfair labor prac-
tice charge described above. He - had asked - her several
days before to ask Viswam whether Johnson had been in
to see him at the bank on October 29. During this con-
versation Sobin' told' him she had asked Viswam this
question and he replied that he had not.
On the basis of this investigation, which was conduct-
ed under Gibbons' supervision, Gibbons contacted Re-
spondent 'by a letter dated November 15, 1982, recom-
mending that Respondent discharge both Scaria and
Viswam. Respondent, by letters dated November 17 and
18, notified Scaria and Viswam respectively that they
had been terminated.
At no time during this investigation did Respondent's
personnel or its attorneys contact Johnson's employer,
William Perry, president of Local 6, or Scaria or
Viswam. When Griffin was asked during her testimony
why Respondent had not spoken to Scaria or Viswam,
she replied that Respondent just assumed they would
deny the accusation. No reason was offered by Respond-
ent for not contacting Perry. Respondent did report this
alleged conspiracy to the police. However, according to
the testimony of Johnson, Scaria, and Viswam, the ,police
did not contact them and there have been no criminal
proceedings.
Griffin admitted during her testimony that when Re-
spondent.contemplated disciplinary action against its em-
ployees, they were invariably interviewed so that they
could present their position, offer an explanation, or
rebut accusations before any disciplinary action was
taken.
The central issue concerning Respondent's defense is
whether it acted reasonably and conducted a €ull and fair
investigation as a basis for the discharge of Scaria and
Viswam, or whether the investigation was prefunctory
and the results of such investigation used as anexcuse,
for Respondent- to rid itself of union adherents. Lancer
Corp., 271 NLRB 1426 (1984); Tama Meat Packing Corp.,
230 NLRB 116 (1977); J. W. Mortell Co., 168 NLRB 435
(1967); Norfolk Tallow Co., 154 NLRB 1052 (1965).
The first thing that seems obvious to me is that John-
son's story is rather bizarre. It is certainly bizarre that
two white collar employees with relatively long terms of
employment with Respondent, who are reliable workers,
with good work records, and family men, would engage
in a criminal conspiracy which could not only end their
careers with Respondent, but send them to jail and de-
stroy their families. And what would be their motiva-
tion? Merely to retaliate against Ghate because she issued
the memo to Viswam described above. Johnson 's allega-
tion is a very serious allegation and, under these circum-
stances, a full and fair investigation was required.
Not only is the allegation bizarre, but the person
making the allegation is a total stranger to Respondent.
Moreover, Respondent had serious doubts concerning his
credibility. In this connection, Griffin' described Johnson
as dressed in a very "ostentatious" manner and observed
that "he stood out in a crowd." She later reported to
STATE BANK OF INDIA 275
Bhattacharjee that during their cab ride to the attorney's
office Johnson had recited poetry he had written to her
and "was not that bad ." During the trial , Johnson was
questioned about his literary talents as follows:
Q. Well, do you write books?
JOHNSON: Yes, I do.
Q. And do you write autobiographies?
JOHNSON: I write fiction and nonfiction, plays,
short stories . I'm a professional writer. I'm an ac-
complished writer , on a scale that I'm sure that
you're not even aware of.
JUDGE EDELMAN : What kind of stories do you
write?
JOHNSON : I write fiction , nonfiction . I got a book
on-I got a manuscript of the 70's; I got a baseball
story about a ' federal agent.
JUDGE EDELMAN: You've got a baseball story
about a federal agent?
JOHNSON: Well, yes.
JUDGE EDELMAN: What was the story about?
JOHNSON: It's a fellow that goes into military,
get's programmed by the military to be in a special
program that the president is initiating . Then he
goes through life and he becomes a part of orga-
nized crime and he joins sides in this managing con-
trol of America . He grows up to be a leader of a
family and he goes to jail and he comes out to be a
G-man.
JUDGE EDELMAN: When does he become a ball
player?
JOHNSON: He's a ball player from a child. He
joins the nastalgia league when he's 12 years old
and he goes throughout life playing baseball, play-
ing ball.
JUDGE EDELMAN: He goes through his life play-
ing- baseball except when he's in the army or-
JOHNSON: In the army or conducting business
with this organized crime people that are trying to
get him to work for him for ten years so they could
control the economy of America for ten years.
I feel certain that Johnson's poetry was consistent with
his prose and that Griffin had serious doubts about John-
son's credibility as her observations to Bhattacharjee in-
dicate. Moreover, during the trial of this case I was un-
impressed with the demeanor of both Griffin and Bhatta-
charjee. Both impressed me as being vague and evasive
especially in connection with their testimony as to the
character of Johnson. I feel certain that Griffin had seri-
ous doubts about Johnson's credibility and conveyed this
to Bhattacharjee.
I am also convinced beyond any doubt that when Re-
spondent and its attorneys reviewed Johnson's affidavit
they saw it as a vehicle by, which they could rid them-
selves effectively of Local 6. As set forth above, Viswam
and Scaria were effectively' Local 6 as far as the employ-
ees were concerned . I am further convinced that Re-
spondent's attorneys who have an extensive practice
before the NLRB and are well versed as to Board law,
carefully orchestrated an investigation which would give
the appearance of a full investigation , but intentionally
failed to contact available witnesses who might show
that Johnson was not a credible witness, or who might
explain incriminating details set forth in his affidavit. Re-
spondent 's attorneys were aware that Johnson was a
stranger as far as Respondent was concerned and Con-
neely, the attorney who took the affidavit, could observe
as well as Griffin that Johnson was "ostentatious" and
"stood out in a crowd ." On hearing Johnson's story, it
must have struck Conneely and Gibbons, who later re-
viewed the affidavit, as bizarre . Moreover, as Johnson's
testimony clearly indicates , even casual questioning es-
tablishes that he has some problems distinguishing be-
tween fact and fiction . Even if Griffin did not recount
her observations and impressions about Johnson to Con-
neely and Gibbons, which she probably did as a skilled
attorney, Conneely should have been able to observe it
himself during his questioning . However, it is obvious
that neither Conneely nor Gibbons wanted to become
aware of anything negative about Johnson 's credibility,
or to have any incriminating aspects set forth in John-
son's affidavit explained . This is evidenced by the ques-
tions they did not ask , the curious facts contained in
Johnson 's affidavit that did not trouble them , and the
witness who they failed to contact , including Viswam
and Scaria, that could have shed light on Johnson's
credibility, his motivation for telling this strange tale, or
explained certain statements set forth in Johnson's affida-
vit that tended to implicate Scaria and Viswam.
For example , Johnson was never asked if he was con-
victed of a crime , or if he had undergone psychiatric
treatment, if he would be willing to take a lie detector
test, or whether he had any animosity toward Scaria or
Viswam.
Additionally, Gibbons was not at all troubled by the
fact that some 3 weeks prior to October 29, Viswam al-
legedly paid Johnson $ 100 in advance to beat up a bank
employee, and Johnson kept the money and never re-
ported this felony to the police . When he was asked
about this, his response was that he was not at all upset
by Johnson keeping the money or.his failure to report a
conspiracy to commit a felony to the police . Evidently,
this did not trigger any suspicions about Johnson 's credi-
bility either.
However, the most revealing aspect about the investi-
gation was the people that were not contacted who
could have shed light on Johnson 's credibility or ex-
plained troubling aspects of the affidavit . David Leach,
then a field attorney with Region 2 , was called by Gib-
bons, but was not asked if Johnson had called him or
anyone in 'Region 2 to report the proposed assault as set
forth in Johnson's affidavit. Perry , president of Local 6
and Johnson 's employer, was not called and, questioned
about Johnson 's character, credibility , or motivation.
Perry testified that during Johnson 's employment he had
told Perry he heard voices from outerspace and that he
bought a Rolls Royce automobile . Perry on one occasion
observed Johnson sitting on the curb on Madison
Avenue wearing nothing but his undershorts and a mo-
torcycle helmet . Perry further testified that, Johnson was
reported to him by a motel owner as having stripped a
motel room while on an organizing assignment for Local
6. On another occasion Johnson was ordered out of one
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the nursing homes represented by Local 6,_ on which
occasion the nursing home administrator referred to him
as a "crazy man." Had Gibbons taken the trouble to call
Perry, Perry would have undoubtedly related these inci-
dents. Perry might also have been able to explain how
Johnson was aware, of Ghate's name and the subway
route she took home. After all, Perry, on behalf of Local
6, had filed a charge alleging the discriminatory suspen-
sion of Scaria, which investigation was pending at the
time Johnson gave his affidavit and these details might
well have been within the knowledge of Local 6 repre-
sentatives and available to Johnson. Perry might also
have been able to explain possible motivation for John-
son's affidavit. Perry should have been called, but was
not.
However, the most striking example of Respondent's
attorneys' failure to conduct a complete investigation of
Johnson's allegations is their failure to contact Scaria and
Viswam. Griffin testified they were not contacted be-
cause it was assumed they would not admit the allega-
tions and Respondent would not believe their denial. In
view of the seriousness of the allegation and the effect it
could have on their careers and their lives, elemental fair
play cries out that they be contacted and confronted
with the allegations so that they might have the opportu-
nity to explain them. Had they been contacted they
might have been able to,explain Johnson's motivation, or
to shed light on his credibility or to explain how Johnson
became aware of some of the details set forth in his affi-
davit. For example, Viswam testified that the slip of
paper with Scaria's name and telephone number on it,
which Respondent regarded as highly incriminating, was
written by Viswam and given to Perry, so Perry could
contact Scaria if necessary while Viswam was out of the
country. Johnson,' who had access to Local 6's office,'
could have obtained the slip from Local 6's office. That
Gibbons was aware that Viswam and Scaria should have
been contacted is evidenced by his request to Board
Agent Sobin that she ask Viswam if Johnson visited
Viswam at the bank on October 29. This was a question,
among others, that Gibbons should have asked Viswam
directly if he were truly interested in conducting -a full
investigation. He did not do this because he then would
have had to confront Viswam with Johnson 's allegations
and Viswam might have been able to explain them, and
tell Gibbons that Johnson was not a reliable witness and
apparently neither Respondent nor its attorney wanted to
be confronted with such explanation. Although Board
Agent `Sobin allegedly told Gibbons that Viswam denied
Johnson was at the' bank on October 29, there is no evi-
dence regarding the actual questions Sobin asked
Viswam or the circumstances of such inquiry. Such ques-
tions were certainly not relevant to the investigation she
was at the time conducting. Gibbons should have con-
fronted Viswam and Scaria and asked the questions him-
self. - - -
Respondent's principal reasons for crediting Johnson's
affidavit were the handwritten note in Viswam's hand-
writing with Scaria's telephone number on it and the fact
that Johnson knew where Ghate lived and the subway
route she took home. As set forth above, both of these
factors could have been explained had Respondent con-
tacted Perry , Viswam, or Scaria as should have been
done for a full, open, and fair investigation . Even if-it
turned out that the above-named individuals were unable
to explain such factors, this is no excuse for failing to
make such contacts because Gibbons could not have
known one way or the other what , if any, explanation he
would have received without first contacting such indi-
viduals and asking the appropriate questions . The Board
has repeatedly held in appropriate circumstances that an
impartial inquiry requires that an employee accused of
conduct requiring some disciplinary measure be provided
an adequate chance to defend himself. Lancer Corp;
Tama Meat Packing Corp :, supra ; J. W. Mortell Co.; Nor-
folk Tallow Co ., supra.
An analysis of Gibbons ' investigation establishes that it
consisted entirely of Johnson's affidavit, which was fully
credited , by Respondent, the statement of Respondent's
receptionist who stated that she observed Johnson meet
with Viswam in his office on October 29, and a-few tele-
phone calls to Board agents at Regions 2.and 29, who
were asked whether Johnson was a Local 6 organizer.
The investigation conducted by Gibbons is analogous to
the Board conducting an unfair labor practice investiga-
tion on a charge filed against an employer by interview-
ing only the charging parties' witnesses 'and-thereafter is-
suing a complaint without giving the employer a chance
to rebut or explain the allegations charged . I am con-
vinced, had similar accusations been made by Johnson
concerning other employees rather than Scaria and
Viswam, the Local 6 adherents , Respondent would have
conducted an extensive investigation which would have
included calling in the employees and giving them the
opportunity to defend themselves and to explain and
rebut the allegations against them . In this connection,
Respondent admitted that in cases where it contemplates
disciplinary action against its employees , the employee in
question is invariably given the opportunity to explain or
rebut the accusations against him before any disciplinary
action is taken.
Therefore , in view of Respondent 's prefunctory and
one-sided investigation of Johnson's allegations, and in
view of Respondent 's departure from it usual practice of
giving employees subject to potential discipline an op-
portunity to explain or rebut accusations against them,
coupled with the activity by Viswam and Scaria on
behalf of Local 6, and Respondent 's intense animosity, I
conclude that Respondent has failed to meet its burden
to establish that the discharges would have taken place
in any event. Rather, it is apparent to me that the dis-
charges were purely discriminatorily motivated because
of Scaria's and Viswam 's activities on behalf of Local 6,
which activities included their participation in the Board
proceedings described above. Accordingly , I conclude
that by discharging Viswam and Scaria, Respondent vio-
lated Section 8(a)(1), (3 ), and (4) of the Act.
CONCLUSIONS OF LAw
1. Respondent is an employer engaged, in commerce
within the meaning of ,Section 2(2), (6), and (7) of the
Act.
STATE BANK OF INDIA 277
2. Local 6 is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, by suspending its employee, Scaria,
violated Section 8(a)(3) and (4) of the Act.
4. Respondent by discharging and thereafter refusing
to reinstate its employees Scaria and Viswambharan vio-
lated Section 8(a)(1), (3), and (4) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act, I shall recommend that it cease and
desist from engaging in such unfair labor, practices and
take certain affirmative action set forth below. Respond-
ent shall offer K. M. Viswambharan and' Johannes Scaria
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions without prejudice to their seniority
or other rights or privileges. In addition, Respondent
shall make Viswambharan and Scaria whole for any loss
of earnings or other benefits they may have suffered by
reason of the discrimination practiced against them. All
backpay shall be computed in the manner set forth in F
W. Woolworth Co., 90 NLRB 289 (1950), with interest
computed in the manner set forth in Florida Steel Co.,
231 NLRB 651 (1977). See, generally, Isis Plumbing Co.,
138 NLRB 716 (1962). Additionally, I ' shall require that
Respondent remove from its records any reference to the
unlawful discharges of Viswambharan and, Scaria. Re-
spondent shall also be required to provide written notice
of such expunctions and to inform them that Respond-
ent's unlawful conduct will not be used as a basis for
future personnel actions concerning them. Sterling
Sugars, 261 NLRB 472 (1982).
On May 22, 1984, during the second day of this hear-
ing, William Perry, who appeared on behalf of Local 6,
was ordered to leave the hearing because he engaged in
gross disrespectful conduct demeaning to the court and
the judicial process. During the cross-examination of
Scaria, Respondent Attorney Gibbons, in connection
with the issue of the so-called bad words allegedly used
by Scaria, asked Scaria, "Is it offensive in Hindu to refer
to somebody as a person- who fucks his mother?" Both
the General Counsel and counsel for the discriminatees
objected. Gibbons replied: "That is the comment that
Ms. Ghjte [sic] will testify was made to her by Mr.
Scaria on September 24th, 1982." I then replied that it
was my clear recollection based on the testimony of
Gururahan that the nature of the "bad words" was never
disclosed by Ghate prior to Respondent's, suspension of
Scaria and was about to sustain the objection when
Perry interrupted and the following exchange ensued:
MR. PERRY: That's kind of confusing. I don't
know. I don't understand. Ms. Gajte' [sic] was sup-
posed to say that she's going to fuck her mother. I
thought she's a female-
MR. GIBBONS: I object to this.
MR. PERRY: He's objecting to it? He raised the
damn thing.
JUDGE EDELMAN: Mr. Perry-
MR. PERRY: I mean where-
JUDGE EDELMAN: One second, please. Allegedly,
this is what Mr. Scaria said . There is an objection
and I am attempting to sustain the objection be-
cause-
MR. PERRY: The question was not posed, your
Honor, "Did you say this?" Is it offensive? It's of-
fensive in any language.
JUDGE EDELMAN: Well, the issue is-
MR. GIBBONS : I'll take that as a stipulation.
MR. PERRY: Well, I will take that as it stipula-
tion-
JUDGE EDELMAN: Excuse me.
MR_ PERRY: If that's what Mr. Gibbons always
does, screws his mother, I will take that as a stipula-
tion.
MR. GIBBONS: I am not going to put [up] with
this.
JUDGE EDELMAN: I'm not going to put up with it
either, Mr. Perry and if we have it again you're
going to be leaving.I I
A few minutes later Perry objected to the turning over
to Gibbons of an affidavit submitted by Scaria in a prior
related case. Gibbons was cross- examining Scaria at the
time. After considerable discussion during which time
Perry was permitted to state his position, I ruled Gib-
bons was entitled to the affidavit for purposes of cross-
examination. The following exchange ensued:
JUDGE EDELMAN: My ruling is that he's entitled
to any statement given in whatever case relating to
his direct testimony. I overrule your objection.
MR. PERRY: Your Honor, you didn't even hear
his direct testimony. Your Honor said yesterday
that he can get, any statements. That's what your
Honor said! You didn't even hear his testimony yet.
And you already made a ruling!
JUDGE EDELMAN: Mr. Perry, I've made my
ruling. Please sit down.
MR. PERRY: Don't order me! I'm not finished yet!
JUDGE EDELMAN : I said please. You are fin-
iShed.12
A few minutes later Gibbons asked Scaria a question
and Perry objected. I overruled the objection and the
following exchange ensued:
JUDGE EDELMAN: Overruled. Go ahead.
MR. PERRY: (To the witness) If you don't re-
member, you don't have to answer.
MR. GIBBONS: I object to Mr. Perry coaching the
witness while he's testifying.
JUDGE EDELMAN: Mr. Perry, it's not your prov-
ince to do that. If you want to request that I in-
struct him, you may do so.
MR. PERRY: When I request of your Honor, I am
falling on deaf ears, with all due respect.
it Tr 331-332A.
12 Tr 348
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
JUDGE EDELMAN: Mr. Perry, one more remark
like that and you will not be falling on deaf ears-
you will be out of this room.
MR. PERRY : You personally going to throw me
out?
JUDGE EDELMAN: No. I'm going to order you
out. As a matter of fact, Mr. Perry, leave this room.
MR. PERRY : Good. Good day. And let the
record reflect that I am being asked to leave and I
am being denied due process of the law. -
JUDGE EDELMAN: You are not being asked. You
are being ordered.
MR. PERRY : Fuck you!
JUDGE EDELMAN-. Let the record indicate that.
MR. PERRY : I think you must be taking money
too.
JUDGE EDELMAN: The record has indicated that.
Good day. 3
While Perry is not an attorney, he invariably repre-
sents Local 6 which has been involved in extensive
Board litigation over the years. Seaport Manor,- supra;
State Bank of India, 229 NLRB 838; American Geri-Care,
258 NLRB 1116 (1981); Port Chester Nursing Home, 269
NLRB 150 (1984). An examination of the record-herein,
and of other records in cases involving Local 6, indicates
that Perry is very knowledgeable about the Board's
Rules and the Federal Rules of Evidence. He certainly
knows how a representative appearing before the Board
is supposed to conduct oneself. I consider his conduct,
described above, to be outrageous and demeaning to the
Board's process. Accordingly, I recommend that the
Board in its decision strongly censure Perry and/or take
other appropriate action.
[Recommended Order omitted from publication.]
13 Tr. 360 and 361