The Savings Bank Co.

National Labor Relations Board - Board Decisions

Nov 13, 1973

207 N.L.R.B. 269 (N.L.R.B. 1973)

THE SAVINGS BANK COMPANY
The Savings Bank Company and Office and Profes-
sional Employees International Union, Local
#422, AFL-CIO-CLC. Cases 9-CA-7545 and
9-RC-9648
November 13, 1973
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 13, 1973, Administrative Law Judge
Benjamin A. Theeman issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge 1 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Savings
Bank Company, Chillicothe, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
IT IS FURTHER ORDERED that the election held in
Case 9-RC-9648 be, and it hereby is, set aside, and
that said case is hereby severed and remanded to the
Regional Director for Region 9 to conduct a new
election at such time as he deems that the circum-
stances will permit the free choice of a bargaining
representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
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 Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record anti find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
269
BENJAMIN A. THEEMAN, Administrative Law Judge: The
complaint in Case 9-CA-75451 alleges that The Savings
Bank Company (Bank or Respondent) during July,
August, and September 1972, (a) granted wage increases to
employees ; and (b) through its personnel coordinator,
Roger Palmer , interrogated employees and advised em-
ployees of wage benefits that would be coming to them all
in violation of Sections 8(a)(1) and 2 (6) and (7) of the
National Labor Relations Act, as amended , 29 U.S.C. §
151, et seq. (the Act).
The petition for certification in Case 9-RC-9648, was
filed on June 30, 1972. A stipulation for certification upon
consent election was executed by the parties and approved
by the Regional Director for Region 9 on July 31 , 1972. An
election was conducted on September 7, 1972. The tally of
ballots showed 32 sligible voters and 31 ballots cast; 13
were for the Union, 17 were against, and I vote was
challenged . The challenged vote was insufficient to affect
the election . On September 14, 1972, the Union filed timely
objections to the election . After an investigation, the
Regional Director issued his report on December 13, 1972,
recommending to the Board (a) that the Union 's Objec-
tions 3 and 4 be overruled , and (b) that a hearing be held to
resolve the issues raised by Objections I and 2.2 No
exceptions were filed to the report. By Order dated January
5, 1973, the Board adopted the Regional Director 's order
and remanded the case to the Regional Director for
appropriate hearing. The Regional Director by order and
notice dated March 13 , 1973, consolidated the two cases
for hearing.
Pursuant to said notice , the hearing was held in
Columbus, Ohio , on April 10 , 1973. All parties appeared
and were represented by Counsel. They were given full
opportunity to participate , adduce evidence, examine and
cross-examine witnesses, and present oral argument. All
parties have submitted briefs that have been read and
considered.
Upon the iintire record, and from my observation of the
witnesses,3 I make the following:
I Issued on March 13, 1973, based on a charge filed on January 18. 1973,
by Office and Professional Employees International Union. Local # 422,
AFL-CIO-CLC.
2 Objection I was based on interrogations alleged in the complaint and
others that occurred dung July 1972. The latter were not pleaded because
they were barred by Section 10(b) of the Act Objection 2 in essence is the
same act of granting employees improper pay increases alleged in the
complaint-
3 The testimony of all witnesses has been considered. In evaluating the
testimony of each witness, demeanor was relied on. In addition, inconsisten-
cies and conflicting evidence were considered and set forth herein. The
absence of a statement or resolution of a conflict in specific testimony, or of
an analysis of such testimony, does not mean that such did not occur. See
Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159,116 t Further, to
the extent that a witness is credited only in part, it is done upon the
evidentiary rule that it is not uncommon "to believe some and not all of a
witness' testimony." N.LR B v. Universal Camera Corporation, 179 F.2d
749, 754 (C.A. 2, 1950) reversed on other grounds, 340 U.S. 474 (1951);
(Continued)
207 NLRB No. 49
270 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
FINDINGS OF FACT
1. BUSINESS OF THE BANK
The Bank is an Ohio corporation engaged in general
commercial banking in Chillicothe, Ohio .4 During the 12
months preceding the hearing (a representative period) the
Bank received gross income from its banking operations in
excess of $500,000. During the same period, the Bank
transferred funds and other commercial paper valued in
excess of $50,000 from its location in Chillicothe to firms
outside Ohio.
It is found, as admitted, that the Bank is and has been an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
It is found, as admitted, that Office and Professional
Employees International Union, Local # 422,
AFL-CIO-CLC (the Union), is and has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO THE ELECTION
A. The Issues
The issues in this case have been adequately set forth in
the statement of the case above.
B. The Union Campaign
The record does not show precisely when in 1972 the
union organization campaign at the Bank started. Rose
Marie McCoppm, Nancy Detillian,, Charlotte Wolf, Vir-
ginia Kreider, Carolyn Krick, Marsha Landrum, Cheryl
Swinderman, and a few other employees attended several
union meetings in June 1972. McCoppin passed out 31
authorization cards to bank employees in one day in the
early part of July. This occurred after a meeting the
previous day with the business representative of the Union.
The distribution of cards by McCoppin occurred in the
bank lobby before the Bank opened for business. The other
named employees signed union cards. Some of them on
occasions spoke to other employees about the Union.
Except for McCoppin the named employees indicated they
were not very active in the union organization campaign.
Bank officials admit and it is found that the Bank had
knowledge that the union campaign was going on. From
the foregoing and the record as a whole it is concluded that
the Union organization campaign did not start at the Bank
prior to June 1972.5
N.L.R. B. v. United Brotherhood of Carpenters, 230 F.2d 256, 259 (C.A 1,
1956); cf. N.L R B. v. Florida Citrus Canners Co-Op, 288 F 2d 630, 638
(C.A. 5, 1961).
4 It has a central office and two branch banks in that city.
5 This finding takes into consideration the fact that Landrum testified
she attended union meetings "through the summer" approximately "May,
C. The Bank Gave Improper Wage Increases
1. The Bank's wage policy 1971-1972
Hall, president of the Bank since January 1971, testified
that as a result of a study made by him in 1971, he
determined that the Bank had not been meeting the wage
standards of other Chillicothe banks. He stated further that
late in 1971 he decided to raise salaries in the Bank 15
percent but was prevented from doing so because the
Federal Wage Freeze was in effect, limiting proposed
increases to 5-1/2 percent. On December 15, 1971, at the
Bank's Christmas party, Hall announced to the employees
that 1971 was the last year a Christmas bonus would be
given; that commencing January 1972 the employees
would be given a 5-1/2 percent increase: a portion in
January and the remainder of the 5-1/2 percent on the
anniversary date of their employments Again according to
Hall, the Bank received information about June 13, 1972,
that indicated that because of its size, it was not subject to
wage controls. Hall, with Ted Toenniges, assistant vice
president, and Roger Palmer, personnel coordinator,
started to plan to put the 15-percent increase for their
employees into effect. On June 28, 1972, they were putting
together the final implementation of this plan when they
were advised of the union organizational campaign. Then
upon the advice of counsel that granting increases during
the union campaign was illegal ; the Bank refrained from
giving any increases . Shortly thereafter, the Bank changed
counsel and was informed it had no right to stop making
increases and to continue giving raises as it had done
before. In July, August, and September it made the
anniversary date increases that are alleged herein as
improper. There is no evidence to show that the Bank at
any time informed the employees about the proposed 15-
percent plan.
2. The individual employees' increases in wages
McCoppin began working for the Bank May 21, 1969. In
January 1970 and 1971 she received 5 cents-an-hour
increases. In January 1972 Toenniges told her she was
receiving 5 cents and that ' from then on she would also
receive an increase on the anniversary of the date she
started with the Bank. About the first week of June 1972
she received an additional 6 cents an hour retroactive to
her anniversary date. At this time she was told the increase
could not be more because of wages controls.?
Krick was employed as a teller by the Bank in July 1970
at a starting pay of $325 a month. In January 1971 she
received a $20-a-month raise. In January 1972 she received
an 8-cents-per-hour increase at which time she was told by
either Toenniges or Palmer she would later receive an
anniversary raise. In July 1972 Palmer gave her a 28-cents-
per-hour increase and told her it was an anniversary raise.
Detillian began working for the Bank as a part-time
employee in March 1971 at $1.60 an hour. Two months
June "
6 The record is not clear on the following but it does show that the policy
also provided for a review of the employee 's situation for increase purposes
90 days and 6 months after the date the employee was hired.
' The record does not contain evidence of the salary paid McCoppin.
THE SAVINGS BANK COMPANY 271
later with no change in pay she became a full-time
employee. In January 1972 Detillian received a 9-cents-an-
hour increase. On her anniversary in March 1972 she
received an additional 11 cents an hour. At that time
Toenmges told her that the 9-cent and 11-cent raise
combined was 5-1/2 percent because that was the
maximum allowed under the wage puce control.8
Wolf, a drivein teller, started working for the Bank on
June 11, 1971. Later in 1971 she received a 10-cents-an-
hour increase. In January 1972, she received an additional
8 cents per hour. At that time Toenniges told her that the 8
cents was a token raise ; that she would receive the
remainder of a 5-1/2-percent increase on her anniversary
date. \ In June she spoke to Toenniges, he told her the
balance due was 3 cents per hour. She did not get the 3
cents on her first request. She spoke to Toenniges three or
four times thereafter. Each time he told her he was trying
to do more for her. In July, after Palmer became personnel
coordinator she spoke to him and asked him about her 3
cents. He said she would not get it "because of the-union
petition." Later in July, she met with Hall and Palmer.
They told her what her raise would be in dollars which
translated into 28 cents per hour. No explanation for the
increase was given to her.
Landrum was employed by the Bank as a part-time proof
operator in August 1971 at,$1.60 per hour. She became full
time a month later at the same pay. In February and
March 1972 she received 5-cent increases. Nothing was
said to her on each occasion about raises. Hall and Palmer
spoke to her in August on her anniversary date and gave
her a 25-cents-per-hour increase . It is noted the combined
increases totalling 35 cents yield a 21-percent increase on
$1.60 per hour salary.
Kreider began working for the Bank in October 1971 as
a part-time employee at $1.65 per hour. In February 1972
she became a full-time employee and received a 6-cents-
per-hour increase in pay. In August 1972, Hall and Palmer
spoke to her and gave her a 25-cents-per-hour increase.
They told her they were giving her the raise for May 1972;
that it was a 6-month anniversary raise because she had
been on full time for 6 months .9 It is noted that the
combined increases totalling 31 cents yield about a 19-
percent increase based upon $1.65 per hour.
Swinderman was hired by Toenniges for the Bank as a
teller in May 1972 at $1.85 per hour. At the time, he told
her that at the end of 90 days or 3 months she would get an
increase or a review. In August, Palmer spoke to Swinder-
man and told her she would be getting her 90-day raise.
Before the Union election took place in September 1972,
she received a 25-cents-per-hour increase. It is noted that
this yields a 14-percent increase on $1.85-per-hour salary.
3. Conclusion that the increases in pay are
improper
Respondent contends that the increases given the
employees in July, August and September 1972, were
motivated by economic considerations only. Respondent
points out as stated above that its plan to give employees a
15-percent increase across the board originated in Decem-
ber 1971, but was held in abeyance by circumstances
beyond Respondent's control. In July 1972 Respondent
contends it reinstated its 15-percent plan and paid
increases under it after it had been advised by counsel that
such payments were the proper thing to do.
The General Counsel contends (1) the July, August, and
September 1972 increases after the petition was filed were
abnormally high and were intended to counteract the
Union organizing campaign, and (2) the 15-percent plan
"had never been proposed. However, the fact that
anniversary raises had been mentioned to employees,
coupled with- the partial lifting of wage controls gave
Respondent an opportunity to give abnormally large raises
to those employees whose anniversary dates came after the
Petition was filed, while manufacturing a previous inten-
-tion to give these abnormally large raises."
The following analysis will deal pointedly with the five
increases given by Respondent in July, August, and
September 1972. It is unnecessary to make a determination
as to whether Respondent did or did not have an effective
15-percent. plan.1° A study of the -record shows that the
increases made were inconsistent with a 15-percent plan.
In December 1971 Respondent purportedly intended to
put into effect a 15-percent increase plan. Instead it put a
5-1/2-percent increase into effect paying part in January
1971 and the remainder on the anniversary date of the
employee. The record shows that six employees" working
at that time were given increases and informed that the
increases were given according to the 5,-1/2-percent system.
The seventh employee, Swinderman was hired in May 1972
after the 5-1/2-percent system was put into effect. It is
reasonable to assume that if the, 15-percent plan had been
reinstated in July 1972, these seven employees would have
been given equal treatment under it. An analysis of the
facts shows that they were not.
McCoppin was given a 5-1/2-percent increase in two
steps. In total she received an 11-cent-per-hour increase, 5
cents in January 1972 and 6 cents in June retroactively to
her anniversary date in May. No evidence of any payment
to her of the additional 9-1/2 percent to make up a 15-
percent increase is shown.
Detillian was given what purported to be a 5-1/2-percent
increase in two steps. In total she received a 20-cent-per-
hour increase, 9 cents in January 1972 and l I cents in
March on her anniversary date. The record contains no
information why Detillian was given what amounts to a 12-
1/2-percent increase on her base pay of $1.60 per hour
instead of the stated 5-112-percent ceiling, or that she
received an additional 2 1/2 percent increase thereafter to
make up the total of a 15 -percent increase.
Wolf was given what started out to be a 5-1/2-percent
increase. She received a total increase of 36 cents per hour
8 It is noted that the combined increases totalling 20 cents yields a 12-
1/2-percent increase based on $1.60 per hour.
9 Palmer, personnel coordinator , admitted that Kreider's 6-month
anniversary date had been overlooked ; that when he became coordinator in
July 1972 he noticed the omission , spoke to Hall about it, and they both
went to Kreider to give her the increase retroactively.
10 It is significant as stated above that Respondent , in view of its alleged
program of changing its salary system, failed to inform the employees of the
proposed 15-percent plan. If a finding were considered necessary , it would
be concluded that poor to the election the Bank had no effective 15-percent
plan.
1' McCoppm, Krick, Detillian, Wolf, Landrum, and Kreider.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in two steps. In January 1972 she was paid 8- cents.
According to her testimony and Palmer's there was still
due her 3 cents per hour to make up the 5-1/2-percent
increase . In July 1972 without explanation Wolf was paid
28 cents an hour additional. The 36 cents-per-hour increase
does not fit into - the 15-percent plan, insofar as that
amount exceeded 15 percent by 6 cents. This overage is
computed as follows: if I1 cents (8 + 3) represented a 5-
1/2-percent increase , then a 15-percent increase would
total 30 cents.
Landrum was employed in August 1971. Nothing was
said to her at her 6-month anniversary in February 1972.
In 1972 she received a total increase of 35 cents per hour in
3 steps; 5 cents in February, 5 cents in March and 25 cents
in August.12 The record shows she received 10 cents.
Under the 15-percent plan she should have received a total
of 24 cents. Instead she received a total of 35 cents or a 22-
percent increase on her base pay of $1.60 per hour.
Kreider was employed in October 1971. In 1972, she
received a total increase of 31 cents per hour in two steps.
In February 1972 she was paid 6 cents. In August 1972 she
received an additional 25 cents retroactive to her,6 month
anniversary. Under the 15-percent plan she should have
received a-total of,25 cents. Instead she received 31 cents or
a total increase of 19 percent on her base pay of $1.65 per
hour.
Swinderman was employed in March 1972 at $1.85 per
hour and was told there would be a review in 90 days. In
September, before the election, she was given a 25-cents-
per-hour increase. This was equivalent to a 13-1/2-percent
increase. -
The foregoing shows that the increases made by the
Bank during July, August, and September were not made
as alleged by the Bank according to any set plan
established by the Bank to give raises. That allegation
failing, it cannot be concluded that the raises were
motivated by economic considerations, or at least only by
economic considerations. The Bank offers no other system
or basis for the raises as given. It is specially noted that the
Bank did not give equal raises to McCoppin and Detillian
who had anniversary dates prior to the date of the filing of
the petition and who had already been paid the balance of
the 5-1/2-percent increase for their anniversary date.
Contrast those payments with the payments made-to -Wolf
and Kreider whose anniversary dates were prior to June 30
but who had not been paid their increases. When they were
paid after June 30 they were in the excessive amounts. The
one thing that is consistent about the increases is that in
July, August, and September 1972, they were larger than
any made before; and were made after the petition was
filed and before the election during the time of greatest
12 Hall and Palmer spoke to Landrum in August 1972, but told her no
more than that she was getting the increase and its amount.
13 As stated above the increases to Wolf and Kreider were given during
this period retroactively to an earlier anniversary date.
14 This conclusion is supported by acts of illegal interrogation and
threats of reduced benefits made by the Bank during this period as shown
below. It is recognized that the conclusion herein is an inference . But it is
considered that under all the circumstances herein the inference is well
founded and permissible. Cf. Shattuck Denn Mining Corp. v.N.L.R.B., 362
F.2d 466, 486 (CA_ 9, 1966), dealing with a Sec. 8(a)(3) situation . See also
N.L.R.B. v. Miller Redwood Co., 407 F.2d 1366, 1369 (C.A. 9, 1969).
15 There is "no doubt that [Sec. 8(a)(l)] prohibits not only intrusive
union activity. It is reasonable to assume that under these
circumstances, the Bank seized upon the opportunity of
giving anniversary increases 13 in unusually large amounts
in order to induce the employees to vote against the
Union.14 Under these circumstances, the payments inter-
fere with the employees rights guaranteed under Section 7
of the Act and constitute a violation of Section 8(a)(1) of
the Act.15
D. The Bank Improperly Interrogates Employees
The General Counsel alleges that several instances of
improper interrogation occurred between bank officials
and employees, As - stated above some are alleged as
violative of the Act. Others because of Section 10(b) of the
Act are alleged as objections to the election. As each
instance is dealt with, a notation will be made in a footnote
as to its category.
J. July conversation between Toenniges and
McCoppin 16
In July 1972 Toenniges held a conversation with
McCoppin. According to McCoppin, among other items
discussed Toenniges asked McCoppin if she was for the
Union and if she was for the Union because her father was
for the Union.17 In addition, he pointed out to McCoppin
that the Bank had been lenient with her in relation to
taking time off because of her diabetic daughter; that the
Bank could no longer be that lenient if the Union got in.18
Toenniges admitted that he was aware that McCoppin
had been involved in passing out union cards and that he
knew that her father was active in union matters in
Chillicothe. Toenniges stated he had no recall as to what he
said to McCoppin about her father. He denied that he
asked her how she felt about the Union, which denial is not
credited. He admitted that in the conversation with her he
pointed out to McCoppin that "she had need for time off
occasionally because of her daughter ... and if the Union
wins the election . . . it's not always the case that
somebody can guarantee that everything is going to remain
in force, that is in force. All the benefits and everything
else."
Toenniges' words are not the same as those McCoppin
used in the last sentence of the first paragraph in this
section. McCoppin and Toenniges both state that neither is
repeating the specific words then used by Toenniges. But
what appears reasonable is that the clear import of
Toenniges' words is that expressed by McCoppin: a change
in McCoppin's benefits will occur if the Union gets in.
Accordingly, it is concluded that the words used by
Toenniges expressed an implied threat of loss of benefits if
threats and promises but also conduct immediately favorable to employees
which is undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reasonably calculated
to have that effect." N L.R B v Exchange Parts Co., 375 U.S. 405, 409
(1964).
16 This conversation is alleged as an objection to the election
17 McCoppm's father had participated in a union election for the
hospital board in Chillicothe
18 Once in 1971 and again in 1972 McCoppin's child became seriously ill.
McCoppin took time off to stay with her daughter. The Bank gave her
permission to do so and paid her for the time off.
THE SAVINGS BANK COMPANY
the Union came in . From the foregoing and the record as a
whole it is found that Toenniges' questioning of McCoppin
and the threat of lost benefits interfered with the rights of
employees guaranteed by Section 7 of the Act. Having
occurred after the petition was filed and before the
election, these actions interfered with the election and the
free choice of the employees with regard to their union
representative.
2. Conversations between Palmer and
McCoppin 19
McCoppin held a conversation with Palmer in late July
or early August 1972. Palmer asked McCoppin why she
was for the Union. She told him that she didn't think it was
fair for new employees to come in at a higher wage than
older employees who were training them. He asked her if
she was afraid she would lose her job if the Union didn't
get in. She answered in the negative and asked him if she
should be afraid. He did not answer.
Palmer and McCoppin had another conversation the last
week in August not long before the union election. He told
her there was a teller 's position open that she was qualified
for; that she could have it if she wanted it and since she
was going on vacation to let him know when she
returned.20 He also told her he was working on a plan to
balance the wages of the old employees with the new, and
that the Bank was establishing a policy not to hire new
employees at a greater pay than the old employees.
It is concluded that the first conversation with Palmer
was improper interrogation of employees about their union
activities and violated Section 8(a)(1) of the Act. Assur-
ances were not given McCoppin that there would be no
reprisals in relation thereto.21 The second conversation
contains no mention of union activity but nonetheless was
also improper. McCoppin's union activities and prefer-
ences were known to the Bank . When Palmer told
McCoppin that the Bank was curing the practice of hiring
new employees with higher pay than the older employees
he was telling her that she did not need the Union in order
to have her gripe settled. A promise of benefit at this time
and under these circumstances impinges upon the employ-
ees' freedom of choice as to the rights guaranteed in
Section 7 of the Act. Accordingly, it is found that both of
the Palmer/McCoppin conversations violated Section
8(a)(1) of the Act.22
19 These conversations are alleged as violations.
20 This offer of a better job is not alleged as a violation.
21 The Board has said, "Questioning of selected employees about their
union sympathies . . . without any assurance against reprisal , by its very
nature tends to inhibit employees in the exercise of their right to organize."
Engineered Steel Products, Inc., 188 NLRB 298. See also Struksnes
Construction Co. Inc., 165 NLRB 1062 , and N.LR. B. v. Cameo Inc., 340
F.2d 803 (C.A. 5, 1965) cert . denied 382 U.S. 926( 1965).
22 Whether or not these conversations are violative of Sec. 8 (a)(1) of the
Act is a close question . The coercion and interference that may accompany
the interrogation is mild when viewed in the light of hard core conduct that
has often accompanied a representation campaign . But the evidence shows
that the Bank was opposed to the Union and made its position clear to the
employees . Thus, viewing all the incidents herein collectively and recogniz-
ing that they occurred during an active campaign opposing the Union they
amount to part of a coordinated pattern of coercion . As stated by the Fifth
Circuit in N. L. R. B. v. Builders Supply Co. of Houston, 410 F.2d 606, 608,
(1969), enfg . as modified 168 NLRB 163, the interrogation under such
273
3. Conversation between Bochard and Detillian 23
In early July 1972, Detillian held a conversation with
Bochard , acting manager of the central branch .24 Bochard
called her into his office . There he asked her how she felt
about the Union . She told him she was for the Union
because in that way the employees could get fair wages. He
then told her that with the Union , the employees would
operate on a timeclock ; punch in and out and be docked
for all time off, even emergencies ; 25 union dues would be
high ; and the Union could do a lot of damage to the Bank.
He also stated that the Bank was getting ready to give
raises but could not do so until after the election was over.
A few days later, Bochard and she had another
conversation at her work station . Bochard asked her if she
had changed her mind about the Union . Detillian replied
that if he stayed "off our backs maybe we would. He was
only making us more determined ." Bochard said, "nobody
was more determined than me."
The circumstances of these conversations are similar to
those between McCoppin and Toenniges. Like her,
Detillian was interrogated about her union activities with
no assurances that no reprisals would occur because of
them and was threatened with loss of benefits should the
Union be successful . Both these actions interfered with the
rights guaranteed employees in Section 7 of the Act. Both
these actions interfered with the holding of the election.
4. Conversation between Toenniges and Wolf 26
In June 1972 Wolf spoke to Toenniges about her 3-cent
increase . He told her he was trying to do more for her. In
July she spoke to Palmer who told her that she could not
get the increase "because of the union petition." In July
she again spoke to Toenniges . The following conversation
occurred:
A. ... he approached me at my place of work and
asked me how I felt about the union . I told him I
thought we needed it. That it would be helpful, that
they were hiring girls in making more than the girls that
had been experienced there and that I couldn 't even get
a three cent raise . And he told me that we didn't need a
union. That they could not help us. And he said if we
had a problem , we would not be any more allowed to
go directly to him for help . . . He also told me that the
Mead would govern our union.
Q. What is the Mead?
circumstances is coercive "since it took place in an atmosphere of active
opposition to the union , Bourne v. N.LR.B.. 332 F.2d 47. 48. 56 (2d Cir.,
1964). without explanation to the employees of the purpose of the
questioning and under circumstances indicating that it had no legitimate
purpose, Edward Fields. Inc. v. N.LR.B., 325 F.2d 754. 758-759 (2d Cir.,
1964), and was unaccompanied by any assurances against reprisals, see
N.LR.B. v. Lorbes, Corp., 345 F.2d 346, 348 (2d Cir., 1965)." The
interrogation also exceeded the limits set by the Board in Struksnes
Construction Co., Inc., 165 NLRB 1062. The test is whether under the
attendant circumstances the questioning tends to be coercive, not whether
the employees are coerced . N.LR.B. v. Varo, Inc., 425 F.2d 293. 298 (C.A. 5.
1970).
23 This conversation is alleged as an objection to the election.
24 Bochard was not called as a witness.
25 Mrs. Detillian had taken time off on two occasions to take her
daughter to the doctor . She noted her comings and goings in writing. She
was not docked for her time off.
26 This conversation is alleged as an objection to the election.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Mead. The union at the Mead Paper Mill.
Q. Where it that?
A. That is in Chillicothe.... And he asked me if I
knew how the union got in to the mill.
And I said "No, I don't."
And he said, "Well, they brought prostitutes in
for the men."
Toenniges admitted he held a conversation with Wolf. He
denied that he asked her how she felt about the Union but
admitted that he told her she or the Bank didn't need a
union. On direct examination he denied saying anything
like the statement "the union had supplied prostitutes for
the men." On cross he also denied saying that "the union at
Mead had gotten in by the use of prostitutes." After he was
reminded that he had given a statement to a representative
of the Board he recalled that he told McCoppin or Wolf
about a union that organized a company by the use of a
male prostitute who was hired to find a woman within the
company that he could become friends with and solicit
information from.
With regard to the foregoing conversation the testimony
of Wolf is generally credited. Undoubtedly the subject of
union use of prostitution (male or female) in the course of
a union campaign was brought up. It is considered
unnecessary to make a finding as to whether the subject as
discussed was objectionable. However, it is found that
Toenniges did interrogate Wolf about her union feelings
and did so without any assurances that no reprisals would
be taken. Such interrogation is coercive and interferes with
the holding of a free election.
IV. OBJECTIONS TO THE ELECTION
Objection I dealt with certain interrogations of McCop-
pin, Detillian, and Wolf. They have been found to have
interfered with holding of a free election under the
laboratory conditions imposed by the Board. Accordingly
it is recommended that Objection I be sustained as herein
set forth 27
Objection 2 dealt with the increases granted the em-
ployees in July, August, and September which have been
found to be violative of Section 8(a)(1) of the Act. This
conduct having occurred between the day of the filing of
the petition and the day of the election also interferes with
the exercise of a free and untrammeled choice in an
election. Oleson's Foods No. 4 Inc., 167 NLRB 543, 551;
Irving Air Chute Company, Inc., 149 NLRB 627, 629; Dal-
Tex Optical Company, Inc., 137 NLRB 1782, 1786. It is
recommended that Objection 2 be sustained.
It is found that the above conduct of the Bank resulted in
substantial interference with the election held on Septem-
ber 7, 1972 in Case 9-RC-9648.
V. THE EFFECT UPON COMMERCE OF RESPONDENT'S
UNFAIR LABOR PRACTICES
The activities of the Bank set forth in section III, above,
occurring in connection with the Respondent's operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
It having been found that the Bank has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act. It having been further found that the
Employer has engaged in certain conduct affecting the
results of the election conducted on September 7, 1972, it is
recommended that the election be set aside and that a new
election be conducted by the Regional Director at an
appropriate time.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Savings Bank Company, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Office and Professional Employees International
Union, Local # 422, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as above found, the Bank has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. Other than as above found, the Bank has not
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. By engaging in threatening, coercive and other
conduct, as above found, the Bank unlawfully interfered
with the freedom of choice of its employees in their
selection of a bargaining representative on September 7,
1972.
6. The aforesaid conduct constituting unfair labor
practices and conduct illegally affecting the results of a
Board-conducted election is conduct affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER28
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that The Savings Bank Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
sentiments.
27 The objectionable conduct occurred after the filing of the petition and
before the election. It is not necessary that such conduct be a violation of
the Act to be found objectionable so long as the conduct is found to have an
impact on the election See Independent Inc, d/b/a Daily Advertiser v
N LR.B., 406 F.2d 203, 207 (C.A. 5,1969).
28 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its €indings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
THE SAVINGS BANK COMPANY 275
(b) Threatening its employees with cessation or reduction
of benefits or more onerous working conditions in the
event they chose the Union.
(c) Promising or granting the employees unusually large
increases in pay or other benefits in order to induce them
not to vote for or join a union.
(d) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Post at each of its places of business in Chillicothe,
Ohio, copies of the attached notice marked "Appendix." zs
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
IT Is FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleges any unlawful conduct
other than that as above found.
IT IS FURTHER RECOMMENDED that the election held on
September 7, 1972, in Case 9-RC-9648, be set aside, and
that said case be remanded to the Regional Director for
Region 9 of the Board to conduct a new election at such
time as he deems that circumstances permit the employees'
free choice of a bargaining representative.
zs 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
Judge of the National Labor Relations Board , it was found
that we violated the Act in the respects set forth in his
Decision, and to remedy these unfair labor practices, we
advise you that:
WE WILL NOT coercively question any employee
regarding his own or ' other employees' lawful union
activity.
WE WILL NOT threaten any employee that he or she
will suffer the loss of any existing benefits or conditions
of employment or will be treated less favorably because
of union activity.
WE WILL NOT promise or grant any employee an
unusually large increase in pay or other benefit to
induce him or her to refrain from joining a union, or
engaging in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any employee in the exercise of
his or her right to join or assist Office and Professional
Employees International Union , Local # 422,
AFL-CIO-CLC, or any other labor organization to
bargain collectively through their representatives, or to
engage in other concerted activity, or to refrain from
such activity , except as such right may be affected by
some agreement as provided in Section 8(a)(3) of the
Act.
All our employees are free to support or to become or
remain members of Office and Professional Employees
International Union , Local # 422 , AFL-CIO-CLC, or
any other labor organization , or to refrain from such
activity, subject to Section 8(a)(3) of the Act.
THE SAVINGS BANK
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be 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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 2407, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 513-684-3621.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
As the result of a trial before the Administrative Law