Citizens Natl. Bank of Willmar

CITIZENS NATL. BANK OF WILLMAR Citizens National Bank of Willmar and Willmar Bank Employees Association. Case 18-CA 5641- I September 26, 1979 DECISION AND ORDER On March 23, 1979, Administrative Law Judge El- bert D. Gadsden issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs, Respondent filed cross-exceptions and a sup- porting brief, and the Charging Party filed an answer- ing brief to Respondent's cross-exceptions. Addition- ally, the Minnesota AFL-CIO filed an amicus curiae brief. The National Labor Relations Board has consid- ered the record' and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Admin- istrative Law Judge and to adopt his recommended Order, as modified herein.4 i The unopposed motions by the General Counsel and Respondent to cor- rect the transcript are hereby granted. 2 We hereby note the follow ing inadvertent errors of the Administrative Law Judge, which are insufficient to affect the results of our Decision: In sec. liA, of his Decision, the Administrative Law Judge states that Respondent admitted in its answer that certain named persons, including Jeffery Berg- huis, are supervisors within the meaning of Sec. 2(11) of the Act, and are its agents, whereas Respondent's answer denied that Berghuis has such status: in sec. Il,D, of his Decision, the Administrative Law Judge states that the Union was certified by the Board on June 20, 1977, rather than May 20. 1977; and, in the "Analysis and Conclusions" section of his Decision, the Administrative Law Judge refers to U.S. Lingerie Corporation, 170 NLRB 750 (1968), as a decision of the Supreme Court rather than of the Board. The Charging Party and the General Counsel except to the Administra- tive Law Judge's failure to conclude that Respondent discriminalorily changed its employees' work schedules in November 1977 in violation of Sec. 8(aX3) and (1) of the Act. We find no merit in these exceptions. In this regard, the Administrative Law Judge merely found that Respondent's change in its employees' work schedules "appears" to have resulted from Respondent's animus against the Union. Such an inference is not supported by the record. The change in employees' work schedules was uniformly ap- plied by Respondent to all of its employees who previously had worked on a rotation basis at the drive-up window of the bank. There is nothing other than the fact that all those affected were union supporters to indicate the change was for antiunion reasons. Accordingly, we find insufficient evidence to establish that Respondent, by changing employees work schedules in No- vember 1977, violated Sec. 8(aX3) and (I). We additionally find no ment in the General Counsel's exceptions to the Administrative Law Judge's failure to conclude that Respondent violated Sec. 8(aX3) and (1) by giving preferential treatment to employees Mary Schwenk, Ruth Wintheiser, and Debbie Beam in October and November 1977. This allegation was neither alleged in the complaint nor fully litigated at the hearing. In view of our Decision herein, we find it unnecessary to pass upon the Administrative Law Judge's discussion in the "Anlaysis and Conclusions" section of his Decision of the applicability of N.L.R.B. v. Great Dane Trail- ers, Inc.. 388 U.S. 26 (1967), and other related cases cited therein. ' The Administrative Law Judge did not include any injunctive language in his recommended Order, although he did use the broad cease-and-desist language, "in any other manner" in his notice. We have considered this case in light of the standards set forth in Hickmortt Foods. Inc., 242 NRLB 1357 (1979), and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that Respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statu- 1. The Administrative Law Judge found that, al- though Respondent had unilaterally changed employ- ees' work schedules in November 1977,. Respondent did not violate Section 8(a)(5) and (1) of the Act be- cause the Union had waived its right to bargain over this matter. We agree with his conclusion, but we do so only for the following reasons. Prior to November 22 or 23, Respondent's policy was that any teller who had been scheduled to work on a Friday evening at a drive-up teller window did not have to work the previous Monday evening. On either November 22 or 23, Supervisor Holst, at the direction of Respondent's president, announced a change in this policy at an employee meeting. The employees present at this meeting included Ericson, the Union's president, and Andresen, its secretary- treasurer. The change announced by Hoist was that tellers would no longer be excused from working Monday evenings when scheduled to work Friday evenings. This new policy was to become effective and in fact became effective the following Monday, November 28. It is undisputed that, prior to its an- nouncement or implementation, Respondent did not bargain with the Union concerning the decision or the effects of this change. On either November 23 or 24 John Mack, the Union's attorney and business agent, was informed by Andresen of the announced change. Thereafter, on November 29, at the next contract negotiating session held between the parties, Mack informed Beihoffer, Respondent's attorney and negotiator, that he ob- jected to the recent change made by Respondent. Bei- hoffer responded that he was unaware of the change and that he would investigate the matter. Later dur- ing the session, Beihoffer informed Mack that he had investigated the matter and that Respondent's posi- tion was that the change made was consistent with its past practice of scheduling employees to work up to 40 hours per week, when necessary. Subsequent to this meeting, the Union filed the in- stant unfair labor practice charge alleging, inter alia, that the change in employees' work schedules made by Respondent violated Section 8(a)(5) and (I) of the Act. However, it is clear from the record, and partic- ularly Mack's admissions, that other than the No- vember 29 conversation referred to above, Mack did not have any discussion with Respondent concerning such change, did not request that Respondent rescind the change, and did not request that Respondent bar- gain with the Charging Party concerning this matter. It is well established that it is incumbent upon a union which has notice of an employer's proposed tory rights. Accordingly. we shall modify the recommended Order so as to include the narrow injunctive language, "in any like or related manner." Unless specifically stated otherwise, all dates herein refer to 1977. 245 NLRB No. 47 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change in terms and conditions of employment to timely request bargaining in order to preserve its right to bargain on that subject.6 The union cannot be con- tent with merely protesting the action or filing an un- fair labor practice charge over the matter.7 In the in- stant case, although the Union objected at the November 29 negotiations session to Respondent's previously announced change in the employees' work schedules and thereafter filed an unfair labor practice charge, it admittedly did not seek bargaining over the matter. In fact, when Respondent explained its ac- tions, the Union accepted the explanation without ad- ditional comment. We therefore conclude that, hav- ing failed to exercise its right to demand bargaining over the issue, the Union may not now effectively claim that Respondent unlawfully refused to bargain. Accordingly, we adopt the Administrative Law Judge's dismissal of this portion of the complaint. 2. The Administrative Law Judge concluded that Respondent violated Section 8(a)(3) and (1) of the Act by sponsoring a picnic from which it discrimina- torily excluded those of its employees who were union members. Respondent excepts to the Administrative Law Judge's conclusions. We find merit in these ex- ceptions, as indicated below. In July 1977 Respondent's vice president, Peterson, held a picnic at his home, as he customarily had done in preceding years. Invited to the picnic were certain officials of Respondent, two of Peterson's neighbors, and three bargaining unit employees. The three em- ployees were invited by Peterson because they had been excluded from a picnic held only for employees who were union members at employee Doris Bos- hart's home. None of the employees invited to Bos- hart's picnic were invited by Peterson to the picnic at his home. Although, in previous years, picnics spon- sored by Respondent were held at Boshart's home, Boshart did not offer her home in 1977 for such a purpose. In finding the alleged violation, the Administrative Law Judge drew an inference that the picnic held at Peterson's home in July was sponsored by Respon- dent. Such an inference is not warranted herein. Thus, the record clearly reveals that, unlike Respon- dent-sponsored picnics held in the past, Peterson paid for the July 1977 picnic at his own expense. In this regard, we note that Peterson's canceled personal check covering the costs of the picnic was introduced in evidence. Further, Peterson testified without con- tradiction that he was not reimbursed by Respondent 6 The City Hospital of East Liverpool, Ohio. 234 NLRB 58 (1978); Clark- wood Corporation, 233 NLRB 1172 (1977); Globe-Union, Inc., 222 NLRB 1081 (1976); Medicenter, Mid-South Hospital, 221 NLRB 670 (1975). Ameri- can Buslines. Inc., 164 NLRB 1055 (1967). 'American Buslines, Inc., supra, at 1055-56. for these costs. Additionally, as noted above, those who attended the picnic did so solely at Peterson's invitation and the guests included not only bank per- sonnel but his neighbors as well. In these circum- stances, we find, contrary to the Administrative Law Judge, that the evidence herein is insufficient to estab- lish that the July picnic held at Peterson's home was sponsored by Respondent and that Respondent dis- criminatorily excluded certain employees therefrom in violation of the Act. Accordingly, we shall dismiss this portion of the complaint. 3. The General Counsel excepts to the Administra- tive Law Judge's failure to permit the amendment of the complaint at the hearing to allege an additional violation of Section 8(a)(l) of the Act; namely, an interrogation by Supervisor Hoist of employee Irene Wallin, and both the Union and the General Counsel except to the Administrative Law Judge's failure to find such a violation. We find merit in these excep- tions. On the last day of the hearing, following the pre- sentation of the General Counsel's case in chief. Su- pervisor Hoist was called to testify by Respondent. She testified, without contradiction, that on the first Friday in July, while at work, she noticed that the tellers had circled dates on their calendars and that they were whispering and passing notes. She asked employee Wallin what was happening and why notes were "laying around." Wallin responded that "the girls" were having a picnic at employee Boshart's home and that "the union girls" were invited. Hoist then continued to question Wallin and asked her whether Mack, the Union's attorney and business agent, was going to be there. Wallin answered that he was, and reiterated that the union girls were going to tbe at the picnic. Hoist also inquired whether Respon- dent's president was going to be invited and was told by Wallin that he would be uncomfortable there. That same day Hoist reported this conversation to the Respondent's vice president, Peterson. Following Hoist's testimony, counsel for the Gen- eral Counsel immediately moved to amend the com- plaint to allege Hoist's conversation with Wallin as an additional violation of Section 8(a)(l ) of the Act, spe- cifically stating that he had not been aware of this conversation prior to HoIst's testimony. The Admin- istrative Law Judge stated on the record that the mo- tion should be denied not only because of the "late- ness of the hour," but also because the motion was unnecessary as counsel for the General Counsel could urge in his post-hearing brief to the Administrative Law Judge the finding of such a violation, provided the matter was fully litigated. Although counsel for the General Counsel in fact sought the finding of such an additional violation in his brief to the Administra- tive Law Judge, and the Administrative Law Judge 390 CITIZENS NATL. BANK OF WILLMAR alludes in his Decision to an allegation in the com- plaint of unlawful interrogation, he did not specifi- cally resolve the issue in his Decision. We find that the Administrative Law Judge erred in not permitting the amendment of the complaint. Thus, counsel for the General Counsel's motion was made immediately after Holst's testimony and upon his first learning of the conversation in issue. Further, it is clear that the issue was fully litigated. Thus, although Section 102.17 of the Board's Rules and Regulations, Series 8, as amended, makes the granting of motions to amend discretionary with the Administrative Law Judge, where, as here, the matter has been fully litigated and the amendment conforms the complaint to the evi- dence adduced, the administrative law judge properly should grant the motion.8 We further find that such a violation has been es- tablished. While Hoist's initial inquiry of Wallin, by itself, may not have been improper, her further in- quiry as to whether Mack would be attending the picnic, made immediately after being informed of the union sympathies of those who would be in a attend- ance, amounted to unlawful interrogation. Such an inquiry was tantamount to inquiring whether union business would be conducted at the picnic. Accord- ingly, we find that Respondent, through Supervisor Hoist, violated Section 8(a)(1) of the Act.9 4. The Administrative Law Judge, in concluding that the employee strike commencing on December 16 was not an unfair labor practice strike, found that the only conduct of Respondent found to have been an unfair labor practice and over which employees had expressed concern at the December 7 meeting preceding the strike was exclusion of union members from the allegedly Respondent-sponsored July picnic. He found, however, that incident to be too remote to be considered a causative factor of the strike. He fur- ther concluded, based, inter alia, on the facts that the employees made it clear they would strike if the De- cember 14 negotiating session ended in impasse, and that they would strike until a collective-bargaining agreement was reached, that the "sole or principal" motivating cause for the strike was economic. Contrary to the standard used by Administrative Law Judge, the correct standard in determining whether a strike is an unfair labor practice strike is whether it is one which is caused "in whole or in part" by an unfair labor practice. 0 'See, e.g., The Lion Knitting Mills Company, 160 NLRB 801 (1966). 'Members Penelo and Murphy are of the view that Hoist's inquiry about Mack attending the picnic is only a technical contravention of the statute so minor in nature as not to warrant either a formal unfair labor practice find- ing or issuance of a formal cease-and-desist order. They would therefore dismiss the complaint in its entirety. I0 See, e.g., Tufts Brothers Incorporated 235 NLRB 808 (1978); Lrond Lersurelies, Inc., 213 NLRB 197 (1974). Inasmuch as we have found that the only unfair labor practice which Respondent has committed herein was the interrogation by Supervisor Hoist of employee Wallin, a matter over which there was no expression of concern at the December 7 meeting, we conclude, applying the appropriate standard herein, that the strike which commenced on December 16 was not an unfair labor practice strike. 5. The Charging Party and the General Counsel except to the Administrative Law Judge's failure to find that Respondent's December 29 letter to striking employees, in which it informed them of the possibil- ity that permanent replacements might be hired. did not constitute a threat of discharge in violation of Section 8(a)(1) of the Act. As we have found above that the strike herein was not an unfair labor practice strike, but rather was an economic strike, we find no merit to these exceptions. AMENDED CONCI.USIONS OF LAW" Substitute the following Conclusions of Law for the Administrative Law Judge's Conclusions of Law 3, 4. and 5: "3. By interrogating employee Wallin concerning its employees' union activities, Respondent engaged in an unfair labor practice within the meaning of Sec- tion 8(a)(1) of the Act. "4. The above-described unfair labor practice is an unfair labor practice affecting commerce with the meaning of Section 2(6) and (7) of the Act. "5. The strike of Respondent's employees which commenced on December 16, 1977. was not an unfair labor practice strike." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Citi- zens National Bank of Willmar, Minnesota, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in said recommended Order, as so modified: 1. Substitute the following for paragraphs l(a) and (b): " In his Conclusion of Law 3, the Administrative Law Judge inadvertentl) stated that Respondent violated Sec. 8(aKI) of the Act by telling its employ- ees that they need not join the Union and that they would earn more money without the Union. However, the record clearly shows, and the Administra- tive Law Judge found earlier in his Decision, that the incident referred to occurred more than 6 months prior to the filing of the instant charge, and, therefore, under Sec. 10(b) no violation of the Act can be found thereon. Accordingly, we shall amend the Administrative Law Judge's Conclusions of Law in this regard so as to reflect the violation found herein. 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(a) Interrogating employees about their union ac- tivities. "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. CITIZENS NATIONAL BANK OF WILLMAR DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge and an amended charge of unfair labor practices filed on December 15, 1977, and January 17, 1978, respec- tively, by Willmar Bank Employees Association, herein called the Union or the Charging Party, against Citizens National Bank of Willmar, herein called Respondent, a complaint was issued by the Regional Director for Region 18 on behalf of the General Counsel on February 2, 1978, and an amended complaint filed on March 8, 1978. In substance, the complaint alleges that Respondent held its annual picnic on July 3, 1977, and failed and refused to invite certain of its employees who were members of and represented by the Union; that Respondent refused and continues to refuse to bargain collectively in good faith with the Union by unilaterally instituting a new work schedule of its employees, which required said employees to work additional hours each month; that Respondent's employees went on a concerted work strike which was caused, moti- vated, and prolonged by Respondent's unfair labor prac- tices herein described; that said strike was therefore an un- fair labor practice strike; that Respondent sent its striking employees a letter which informed them that unless they returned to work in the immediate future, they would be permanently replaced; that Respondent's supervisor ille- gaily interrogated an employee about employees' union ac- tivities; and that the above-described conduct on the part of Respondent violated Section (a)(l) and (5) of the Act. Respondent filed an answer and an amended answer on February 8 and March 8, 1978, respectively, denying that it has engaged in any unfair labor practices as alleged in the complaint. The hearing in the above matter was held before me in Willmar, Minnesota, on May 4 and 5 and June 20, 1978. Briefs have been received from counsel for the General Counsel, counsel for the Union, and counsel for Respon- dent which have been carefully considered. Upon the entire record in this case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Respondent is now, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Minnesota. As such. Re- spondent maintains its principal office and place of business at 318 West Second Street, Willmar, Minnesota, where it is engaged in the general banking business. In the course and conduct of its business operations dur- ing the year ending December 31, 1977, which is represent- ative of its operations during all times material herein, Re- spondent derived gross revenues in excess of $500,000 from investments, securities, and notes. During the same period, Respondent engaged in interstate financial transactions from its Willmar, Minnesota, facility which exceeded $50,000. The complaint alleges, Respondent admits, and I find that Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 11. THE LABOR ()R(iANIZATION INVOLVED Attorney John E. Mack undisputedly and credibly testi- fied that, until about a month before this proceeding (May 5, 1978), he was business agent for the Willmar Bank Em- ployees Association; that as such business agent, he com- menced negotiations in June 1977 as the chief bargaining agent for the employees, to bargain with Respondent in an effort to reach an agreement on a collective-bargaining con- tract regarding wages, hours of work, holidays, bank recre- ational and social activities, etc., for employees. The Charging Party alleged, and Respondent admitted, that: "All fulltime and regular part-time office clerical em- ployees employed by Respondent at its Willmar, Minnesota office, including bookkeepers and tellers; excluding officers, lending officers trainees, managerial employees, profes- sional employees, guards and supervisors as defined in the Act, as amended, and all other employees constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act." Respondent further admitted in its answer that on May 13, 1977, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 18 among the employees of Respondent in the unit 392 CITIZENS NATL. BANK OF WILI.MAR hereinabove described: and that a majority of employees designated the Union as their representative for the purpose of collective bargaining with Respondent. Respondent fur- ther admitted that on May 20, 1977, the Union was certi- fied as the exclusive representative for purposes of collective bargaining of all the employees in the unit hereinabove de- scribed: and that at all times material herein, continuing to date, the Union has been the representative for purposes of collective bargaining of the employees in said unit with re- spect to pay, wages, hours of employment, and other terms and conditions of employment. Based upon the foregoing credited testimony, as well as other credited testimony of record, including the exhibits, I conclude and find that the Willmar Bank Employees Asso- ciation, the Union herein, is, and has been at all times ma- terial herein, a labor organization within the meaning of Section 2(5) of the Act. I1. THE Al.l.G(;ED NFAIR l.ABOR PRA( Tl(tS A. Background Facts Citizens National Bank of Willmar, Respondent herein, is a Minnesota corporation engaged in the general banking business at 318 West Second Street. Willmar, Minnesota. In its answer. Respondent admitted that the following named persons occupied positions set opposite their respec- tive names, and have been and are now supervisors of the Respondent, within the meaning of Section 2(11) of the Act, and are its agents: C.R. Forstrom Leo R. Pirsch Paul G. Peterson Richard R. Thull Karen Hoist Jeffery Berghuis Chairman of the Board of Directors President Vice President Assistant Vice President Assistant Cashier Assistant Installment Loan Officer The record has established that on or about March 14. 1977, Respondent's employees submitted to Respondent a demand for recognition as follows: We the undersigned, as employees of the Citizens Na- tional Bank of Willmar, having formed an employee's association, herewith request recognition from the Citi- zens National Bank of Willmar as the Exclusive Bar- gaining Representative for all full time and regular part-time clerical and office workers, including all full time and regular part-time bookkeepers and tellers, employed by the Citizens National Bank at its Will- mar, Minnesota office, exclusive of bank officers. guards, and supervisory employees with the authority to hire, fire, suspend, lay off, recall, promote, discharge or discipline other employees or effectively to recom- mend such action where the exercise of such authority is not merely routine in nature but requires the use of independent judgment. This request is backed by more than two-thirds of the above-described employees, and constitutes an appro- priate bargaining unit. This request is accompanied by a form tor your signa- ture as president of said Citizens National Bank of Willmar, Minnesota. If you have not signed this docu- ment or a suitable recognition document by Friday. March 18, 1977, we will assume that ou have declined recognition. In witness whereof, we. the following employees, have placed our hands this 14th day of March. 1977 Signed by: Sylvia Erickson Shirley Solyntjes Sandi Treml Taren NovotneN Irene Wallin Doris Boshart Glennis Andresen Mary Schwenk Jane Harguth Ruth Wintheiser Sandra Van Lerberghe Attached to the above request for recognition (Resp. Exh. 38) is a recognition agreement submitted to the Re- spondent for its voluntary signature to recognize the Will- mar Bank Employees Association as the exclusive collective bargaining representative of all its full-time and regular part-time clerical and office employees in the unit hereinbe- fore described. The record has also established without dispute that a union election was held by the employees under the aus- pices of the Board on May 13. 1977. Willmar Bank Em- ployees Association (WBEA) was certified the collective- bargaining representative of Respondent's employees on May 20. 1977. Undisputed evidence shows that John Mack commenced bargaining sessions with Respondent on June 28, 1977. and participated in approximately nine other such sessions at various periods during 1977, and on two other occasions in early 1978. Dale F. Beihoffer, attorney for Re- spondent since January 1977 was the principal negotiator for Respondent and participated in all of the bargaining sessions mentioned by the Union's negotiator. Mack (the Union's attorney). Both counsel for the General Counsel and counsel for the Union argue in their briefs that the allegations in the com- plaint herein must be viewed against a background of Re- spondent's animus towards any concerted or union activity of its employees. In support of their arguments, they cite various pieces of correspondence in the record, one of which refers to a charge of sex discrimination previously filed with the Equal Employment Opportunity Commission against Respondent. but subsequently withdrawn voluntar- ily by the employee (Ruth Wintheiser) on April 12. 1977 (G.C. Exh. 8). Other correspondence in the record (Empl. Exhs. E2 and E3) recites charges against Respondent involving a change in employees' working assignments on April 9. 1977, and charges that Respondent has refused and failed to bargain in good faith because it has refused to include in the con- tract a nondiscrimination clause against race, sex. creed. color. religion, or national origin; and that on May 16, 1977, Respondent told an employee she need not join the Union because she would get more money than union per- sonnel. On January 18. 1978. the Regional Director for Re- gion 18 held that Respondent's failure to agree to a nondis- crimination clause was not supported by sufficient evidence of bad-faith bargaining, and that the other charges were not 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supported by sufficient evidence and were not brought within the 6-month limitation; therefore, they were dis- missed. The Union's appeal of the Regional Director's rul- ings was affirmed by the Board's director of office of ap- peals (Empl. Exh. E3).' B. The Concerted and Protected Organizing Activities of Respondent's Employees and Respondent's Reactions Thereto Shirley Solynjes, who has been employed by Respondent since February 1976, testified that in early March or late February 1977, she called the home of Vice President Peter- son and asked permission to see him in his office. A few days later, she went to his office and told him that she had received a small raise in January 1977, but it was not equiv- alent to what the other employees had received. Vice Pres- ident Peterson told her he would speak with her supervisor, Doris Boshart. Not having heard from Peterson a week lat- er, Solyntjes said she revisited his office and asked him whether he had spoken to her supervisor, Doris Boshart, and Vice President Peterson said, "No." She then asked him what could he do about it or whether it was possible for her to get a raise in the near future. Solyntjes continued to testify as follows: Q. What, if anything, do you recall him responding to that? A. He kind of stuttered around a little bit and then he said, "Well, "about the union, he said, "Ifyou join the union," and then he said, "They'll probably be frozen. " He said, "If you don't join the union," the)' can maybe work something out for us, a type of raise or something. [Emphasis supplied.] Shirley Solyntjes said she left the office and she never received the raise. Vice President Peterson testified that he was not aware of any union activity of the employees at the time Solyntjes held her February 1977 conversation with him. He said he first became aware of employees' organizing activity about March 14, 1977, after three or four people went into Pres- ident Pirsch's office and presented him with the employees' request for recognition and request for agreement (Resp. Exh. 38). He categorically denied that he mentioned union activities to Shirley Solyntjes during their conversation in early March.' Based upon the foregoing credited evidence, I conclude and find that Respondent (Vice President Paul Peterson) did not refer to Shirley Solyntjes' union interest or activity during their conversation about a larger raise in pay. In fact, while it is possible and probable that Respondent's I The facts set forth above are undisputed and are not in conflict in the record. 2 While I credit employee Shirley Solyntjes' testimony that she had a con- versation with Vice President Paul Peterson, I do not credit her statements that he told her a larger salary increase would be affected by her joining the Union. I discredit her testimony in this regard not only because I was per- suaded by her demeanor that she was not testifying truthfully, but also be- cause the record does not show that Respondent (Peterson) had any knowl- edge of employees' organizing activities before March 14, 1977. 1 was persuaded by Peterson's demeanor that his denial of Solyntjes' account was truthful. employees were engaged in union activity in late February or early March 1977, I do not deem it reasonable to infer from the single effort of Solyntjes, on her own behalf, to obtain a larger raise that Respondent's employees were en- gaged in union activity at that time (prior to March 14, 1977). Moreover, even if the employees were in fact en- gaged in union activity before March 14, 1977, the record herein is barren of sufficient evidence upon which to infer or support a conclusion and finding that Respondent had knowledge of such activity at the time of Solyntjes' conver- sation with Peterson. Jeffkn Berghuis, assistant vice president of Respondent since January 1, 1978, testified that for several years prior to January 1978 he was an installment loan officer. In his current capacity, however, he said, he approves cashier checks, takes loan applications, assists on loan letters, and has them approved by Assistant Vice President Richard Thull. He acknowledged that on a rotation basis with Assistant Vice President Richard Thull and Assistant Cash- ier Karen Hoist, he is sometimes the only person in charge of the bank on Tuesday evenings and on every third Friday evening. Each of them, he said, is an officer of Respondent, and none of them voted in the union election. Assistant Vice President Berghuis admitted that on or about May 18, 1977, he wrote a note (G.C. Exh. 2) which read as follows: "Did you know you don't have to join- union. I found out yesterday through our attorney." He further acknowledged that he passed this note to Ruth Win- theiser, who acknowledged that she received the note from Berghuis and wrote a response thereon as follows: "What happens if we don't?" She said she passed the note back to Vice President Berghuis, who admitted that he then wrote thereon as follows: "You will get more money than union personnel." Berghuis also testified that the information which formed the substance of his advice in the note (that employees did not have to join the Union) was given to him by his super- visors, Peterson and President Pirsch, during a bank officers meeting. Berghuis said he based his statement-that employees would receive more money if they did not join the Union- upon his personal experience, and not upon any statement made by an official of Respondent. Berghuis further testified that he had the authority to sign cashier's checks and to initial the timecards of Respon- dent's employees when they forgot to do so, and that Thull, Pirsch and Peterson all had such authority. He said he col- lected the timecards an computed the payroll for all em- ployees including managerial personnel. However, he con- tends that no employees of the bank report to him personally, that he has no authority to hire, fire, transfer, suspend, lay off, recall, promote, assign work, or accept or process grievances, but that he does ask employees to assist other employees. He said he has never issued a warning, directed work, disciplined or rewarded any employee, or recommended any of the above actions with respect to em- ployees. However, employees have come to him with com- plaints and grievances. He said he does not grant leave or time off and has nothing to do with the formulation of bank policies. He does have the responsibility for locking up the bank every Tuesday evening, every third Thursday evening, 394 CITIZENS NATL. BANK OF WILLMAR and every third Friday evening. He admitted on cross-ex- amination that bank employees come to him with problems regarding scheduling, or to change their lunch hour. While Berghuis denied that he had any authority with respect to the formulation of bank policies. he did admit on cross-examination that on occasion he has advised Thull whether a particular applicant was a risk, and that occa- sionally tellers come to him for his O.K. of checks. The principal function of his job, he said, is to pay the bank bills (overhead) every month.' I therefore conclude and find upon the foregoing credited testimony that on or about May 16, 1977. Installment Loan Officer Berghuis had authority, and did in fact receive em- ployees' complaints and grievances; that he kept and marked their timecards when employees neglected to do so: that he changed their lunch hour when they requested a change; that he directed them to assist other employees in their work duties: that he attended management policy- making meetings and occasionally recommended the change in a bank form or the credit worthiness of an appli- cant for a loan: and that employees viewed him as a bank official with supervisory authority: consequently, I find that he had actual and apparent authority of a supervisor, and was and is a supervisor and agent of Respondent within the meaning of the Act. American Door Companvy. Inc., 181 NLRB 37 (1970). and Aircraft Plating Companvy Inc.. 213 NLRB 664 (1974). I further conclude and find that Berghuis, as such super- visor and agent of Respondent, told employee Ruth Win- theiser that she did not have to join the Union and she would earn more money than union personnel: that other employees saw Supervisor Berghuis' statements to em- ployee Wintheiser; that Supervisor Berghuis wrote Win- theiser his note to dissuade her from joining or to cause her to abandon or withdraw her membership and support for the Union: that such conduct demonstrated Respondent's animus towards unionization of is employees; and that but for the fact that such conduct by Respondent was com- mitted more than 6 months prior to the filing of the charges herein, it would have constituted restraining and coercive conduct violative of the Act. Although Beihoffer, negotiator for Respondent, testified that during the negotiation session on August 9. 1977. he disavowed the contents of the note and assured the Union that no such unlawful practice would be implemented by Respondent, I find such assurance, coming 3 months after the incident, was too late to constitute a valid and effective disavowal. Moreover, the record does not show that such disavowal was ever communicated to the employees. In any event, such disavowal could not erase the vividly mani- 'While I do not credit Assistant Installment Loan Officer Jeffery Berghuis' denial of having any supervisory authority over bank (teller) employees. I nevertheless credit essentially all of his enumerated duties because his testi- mony in this regard is not only undisputed, but to some extent corroborated by other bank official witnesses. However, I do not credit Berghuis' explana- tion that the statement in the subject note (that employees who do not join the Union earn more money) was based upon his personal experience. I do not credit the letter explanation because, when he testified in this regard. I observed that he was selective. cautious, and uneasy while answering ques- tions on cross-examination. Moreover. I was not satisfied that Berghuis had truthfully documented or established an personal prior experience upon which he could have reasonably based such an opinion. fested union animus of the Respondent. There is nothing in the record to show that Respondent had a change of heart towards the organizing efforts of its employees. Glenis R. Andresen testified that just prior to the union election in May 1977. but after the employees filed with the Board for recognition, she was having financial problems. As a result, she was a little apprehensive about her job security and the financial transactions of her husband. so she asked Berghuis if she could speak with him and he consented. Andresen testified that the substance of their conversation was as follows: I was scared for my husband's future opportunity for getting loans and I asked him [Berghuis] what might happen if I dropped the EEOC charge against the bank. And if I dropped an> thinking at all of going union. She continued to testify as follows: JUDGE GADSDEN: Just a moment. may I ask this question? Q. (By Mr. Sykes) Would you please tell us now what he said to you in response to this? A. He told me that if I had done these things. and he was talking about dropping the E.E.O.C. ('hbarge and stopping the union. He aid that I would he treated better. [Emphasis supplied. Jeffery Berghuis, in further testifying. admitted that he had a conversation with Glennis Andresen in 1977 when she told him she was very upset about the Union. He con- tinued to testify as follows: Q. Did she tell you what she meant b she was really upset? A. She just said she couldn't take it anymore. She said that she was afraid that her business dealings with her husband, her husband's business would be affected by what she did or what she did not do. Q. Did she say why she thought her husband's busi- ness dealings might be affected? A. Because her husband's business dealings were with the Citizens State Bank in Clara City of which Mr. Kelly Forstrom is president. Q. Does Kelly Forstrom have any relationship to the Citizens National Bank of Willmar? A. Yes, he does. Q. What is that? A. He is a member of the hoard. Q. Did she make any further remark or have an 3 further comment about her husband's business deal- ings? A. I can't really recall what she said about it. Q. Did you make any response to her in regard to these statements she made about her concern? A. I assured her that I didn't think that her hus- band's business with that bank would be affected whatsoever by what she did because I personall3 knew Kelly Forstrom as a neighbor all my life and I didn't think he was that kind of a person that would let some- thing like this interfere with other business dealings. Berghuis denied that he said anything to Andresen about her union involvement. 395 I)ECISIONS OF NATIONAL LABOR RELAlIONS BOARD Based upon the foregoing credited testimony. I conclude and find that Respondent (Assistant Installment Loan Offi- cer and Supervisor Berghuis) did. on or about May 14. 1977. promise employee Glennis Andresen that she and her husband would be treated better in their loan transactions with the Respondent bank if she would drop her EEOC charge against Respondent and abandon her interest in and support for the Union. I further find that such promise by Berghuis unequivocally cestahlis/hed evidence o(/ Respondenl's animus towards its employees' organizing a union, and that but for the occurrence of this incident more than 6 months before the filing of the charge herein, and consequently being barred by the statute of limitations, it would in all probability constitute coercive and restraining conduct io- lative of the Act.4 C. Did Respondent Discriminatle Against its Union Memler Employees in Hosting its A nnual July 4th Picnic Doris Boshart testified that on June 19, 1977. she had been employed by Respondent for 10 years: for the first 5. she had been a teller, and she was thereafter made head bookkeeper. Andresen said that Vice President Thull announced that the bank's annual picnic was to be held at her house on July 3, 1975, with the bank providing the food and drinks. She acknowledged that she had volunteered her home as the site for the picnic. She further stated that she had also offered her home for the 1975 and 1976 picnics, but not for the 1977 picnic. In 1977. she said, the annual picnic was held in August after being postponed several times since July 3 or 4. She said she was not invited to the 1977 picnic. Sylvia Erickson testified that she was not invited to the bank's summer picnic in 1977. She nevertheless confirmed that Respondent had a picnic on July 3, 1975, about which she had been told by other bank employees and to which she was invited by Vice President Richard Thull, who also asked her if she wanted to bring a guest. Glennis Andresen said she was not invited to the 1977 summer picnic by any member of management. She ac- knowledged that Respondent's Exhibits 20(a). 20(b), 20(c). and 20(d) are her timecards. Paul Peterson, vice president and cashier for Respondent. testified that during the first part of July 1977, before July 4, Karen Hoist came to his office and informed him that Irene Wallin had told her that the girls were planning a picnic at Doris Boshart's house on July 4. He said Hoist was referring to the eight girls who had formed the Union. He asked Hoist who was invited and who was not, and she told him who was not invited. He said he took no action at that time. However, he said, since he has a picnic at his house every year, he decided he would invite the four bank employees who were not invited to the July 4 picnic at Boshart's house. He asked President Pirsch about the pic- nic, describing the discussion as follows: I4 discredit Assistant Installment Loan Officer Berghuis' denial that he told Andresen that her husband would be treated better on his loan transac- tions if she would drop her EEOC charge and stop thinking about support- ing the Union. I credit Andresen's account in this regard because was persuaded by her polite but truthful demeanor that she was telling the truth. and because her version is consistent with the greater and credited evidence in this case. A. I asked Mr. Pirsch if it was all right if I had a picnic. Hie said, "What ae you asking me lir?" "Well," I said, "I am going to invite some of the people from the bank but not all of them and I don't want any repercussions," and he said, "T'his is a free country and Sou can invite whoever you want but the bank isn't going to pay for it." I said. "Of course not. I know that." Peterson further testified that the bank had a picnic at his home in July 1977 and that he personally invited the people in attendance. He further stated that prior picnics, held at Doris Boshart's house in 1975 and 1976, were held in re- sponse to her offer to host such picnics, and that he was one of the bank officials who invited the employees to attend them. In July 1977. he said, Boshart did not volunteer her home and he did not ask her to host the picnic: instead, he hosted the picnic himself and he did not invite Doris Bos- hart. He said he invited Dick Powell and his wife, Ruth Wen- theiser. Sandra Van Lerberghe, Debbie Beam. Karen fJoist and her husband. Richard Thull. Jeffery Berghuis. and Kevin Bostrom. President Pirsch was out of the city and did not attend the picnic. Peterson further stated that he did not invite Mary Schwenk. Taren Novotney, Glennis Andresen. Sylvia Erickson. Sandra Treml. Shirley Solyntjes. Irene Wallin, or Jane Harguth. None of these women attended the picnic. Peterson also testified that he invited his neigh- bor. John Miller. who is not an employee of the bank. He did not invite the bank's janitor, who had not attended the prior picnics. The picnic was held July 21 or 22. 1977. Peterson said he bought the meat and Kevin Bostrom bought the sweet corn: each individual brought his own drinks, and Peterson served coffee. At the trial he presented his own personal check, dated July 22. 1977 (Resp. Exh. 35), paid to a food store for T-bone steak. He testified that the bank did spon- sor and pay for employee picnics during 1976 and 1975. except for the beverages. He also presented and identified checks of the bank as proof that it paid for the 1976 picnic (Resp. Exh. 36). and for the picnic in 1975 (Resp. Exh. 37). Berghuis further testified that he was in charge of the pop machine in the bank in 1977. and to his knowledge, the money from that machine has never been used to defray expenses for bank functions such as a picnic. lie admitted that the bank had had a picnic in 1974, 1975. and 1976 at the home of Doris Boshart, and that the bank had supplied the meat and refreshments. He said he was never asked to contribute any' money towards such picnics. He acknowl- edged that the picnic of bank employees was held at Peter- son's home in July of 1977 and that persons in attendance were: Vice President Paul Peterson. Assistant C'ashier Ka- ren Hoist, Bookkeeper and Teller Ruth Wintheiser. Debbie Beam. Sandy VanLerberghe. Assistant Vice President Rich- ard Thull. and Kevin Bostrom. Berghuis further testified that he had personally been in- vited to the Juls 1977 picnic by Peterson and that he and his wife attended the picnic. There was also a nonbank em- ployee present at the picnic. He said Peterson provided everything except the sweet corn which was provided by Kevin Bostrom, and everybody brought their own drinks. 396 CITIZENS NATL. BANK OF WILLMAR The bank did not pay for any part of the sponsorship of the picnic. Glennis Renae Andresen was employed by Karen Hoist as a teller in October 1976. She testified that shortly after the employees submitted their petition for recognition to Re- spondent (March 14. 1977) she started experiencing some apprehension about her involvement with the Union. and she requested a conference with Assistant Installment oan Officer Jefferey Berghuis. According to her testimony thier conversation was as follows: A. I told Jeffrey Berghuis that I was scared for my husband's future possibility of getting loans and I asked him what might happen if I dropped the E.E.O.C. Charge against the bank. And if I dropped any thinkings at all of going union ... Q. (By Mr. Sykes) Would you please tell us now what he said to you in response to this? A. He told me that if I had done these things. and he was talking about dropping the E.E.O.C. Charge and stopping the union. He said tha I would he treated better ... * * * Q. (By Mr. Sykes) O.K., do you recall anything else that he said to you or you said to him at that time? A. Yes. Q. Would you please tell us what that was? A. Well, I live in Clara City and I asked him if I would have a chance of getting into Kelly Forstrom's bank in Clara City. If I had more of a chance then I would if I stayed with all of this, and. he said, "Yes. I am sure you would." In response to Andresen's testimonial account of their conversation, Berghuis testified that his reply to Andresen was simply as follows: I assured her that I didn't think that her husband's business with that bank would be affected whatsoever by what she did because I personally knew Kelly For- strom as a neighbor all my life and I didn't think he was that kind of a person that would let something like this interfere with other business dealings. Andresen also testified that the Willmar Bank Employees Association has been the certified collective-bargaining rep- resentative of Respondent's employees since May 20, 1977. that the Union commenced bargaining with Respondent in June 1977. and that she had participated in those bargain- ing sessions. She corroborates the prior credited testimony herein that the November change in work hours was never mentioned in the bargaining sessions. Andresen testified that she is secretary-treasurer of the Union, which met prior to November 1977. She said Mary Schwenk has not attended a union meeting since July of 1977 and she is currently $2.50 in arrears for union dues. which are $.50 a month. Andresen said that after she was made teller, Debbie Beam was hired by the Respondent in June 1977 without any teller experience, but she was not made a part of the rotating shift schedule. She said when she (Andresen) and other rotating tellers asked Karen Hoist. "Was Debbie Beam going to rotate also ?" Hoist replied. "she is just in the teller line to help you. she is not a teller", and she (Holst) walked away." In late October 1977. Andresen said the positions of Marx Schwenk. who was receptionist-secretary, and Debbie Beam. were switched, one for the other's.' Ruth Wintheiser testified that she has been an installment clerk for 2 years since the strike. She was acting teller inside the drive-up teller window for 2 months, until June 1977. At that time Penny Walters left the employ of the bank. and Wintheiser was moved to inside teller. She stated that she is not a member of the Union (WBEA) and she ac- knowledged that she had expressed her desire to be moved to an inside teller window to Karen Hoist and to other employees. Wintheiser also acknowledged that she pre- pared a complaint (G.C. Exh. 8) to the Equal EmploN ment Opportunity Commission on April 12, 1977. while she was still an outside teller. She acknowledged that she signed the request for union recognition dated March 14. 1977.' Based upon the foregoing credited testimony I conclude and find that Respondent (Supervisor Berghuis) promised employee Glennis Andresen better treatment b the bank with respect to family loans and to her opportunity to se- cure bank employment in Clara City. Minnesota. i she were to abandon her EEOC claim against Respondent and withdraw her membership and support from the Union; that Respondent implemented a change in employees' schedules (tellers who were members of the Union) without consulting, notifying, or discussing the change with the Union, the certified bargaining representative of the em- ployees; and that employees Mary Schwenk and Ruth Win- theiser were given better and more desired jobs and job hours by Respondent after they withdrew their support from the Union. I further find that the above conduct by the Respondent evidenced animnus towards enmployees' concerted and union ac- tivi:; and that such conduct would ordinarily have consti- tuted coercive, restraining, and discriminatory conduct against the employees for exercising such protected Section 7 rights. in violation of the Act. had it occurred within 6 months prior to the filing of the charges herein. These find- ings are further substantiated by additional evidence. infra. D. Respondent Changes W'ork Hours o1 Several Enplvees Irene Wallin testified that in April 1977. Karen Hoist called a meeting of the tellers and bookkeeping employees. I credit the testimonial account of Glennis Andresen with respect to her conversation with Supervisor Berghuis about her fears of reprisal hb Respon- dent concerning her husband's loan transactions and her opportuniti to se- cure employment with the bank in Clara City,. Minnesota I credit her testi- mony and discredit Berghuis' version, not only because I was persuaded b) her demeanor and not persuaded by his demeanor. that she was testifying truthfully. but also, because her version coincides with the logical consis- tency of all of the evidence of record. I also credit Andresen's testimon to the effect that Respondent's November change in the teller's work schedule was not mentioned in the bargaining sessions, and that employee Mary Schwenk had apparently abandoned the Union and was given Beam's posi- tion, which is a better job. I credit Ruth Wintheiser's testimony because it is Indisputed and it is consistent with the credited testimony, especially with respect to her having joined the Union in March and thereafter abandoning the Union after she was assigned to the Installment department and ultimately to a teller posi- tion. 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during which she advised them that Ruth Wintheiser was being assigned to the loan department. Teller Sylvia Erick- son objected because the reassignment changed her work- ing hours and affected her babysitting arrangement. Karen Hoist told her that was not the bank's problem and that she would have to fit into the change. Wallin said she then volunteered to take the drive-up window. The rotation schedule continued until Wintheiser was assigned to the loan department in October 1977 and she (Wallin) com- menced training Ruth Wintheiser to be a vault teller in April or May 1977. the day after Wintheiser dropped her lawsuit against the bank. Karen HoIst directed her to train Wintheiser as a vault teller and she complied with those instructions but did not lose any money or her title as a result thereof. Karen Hoist, assistant cashier for Respondent for 8 or 9 years, testified that she supervises Respondent's tellers; that Respondent has three teller windows and one loan teller window; and that in and prior to October 1977. Respon- dent had a policy that tellers who were scheduled to work on Friday evenings for I month on the inside did not have to work the previous Monday evening. HoIst's testimony in this regard was corroborated by the testimony of tellers Syl- via Erickson, Glennis Andresen. and Irene Wallin, who ad- ditionally testified that the policy was changed in Novem- ber of 1977. Hoist further testified that in or about the second or third week of November 1977, she held a meeting of all tellers and bookkeepers and advised them that from then on, everyone would work on all Mondays regardless of whether they worked Friday evenings. She denied she made this change in policy, but said that during a management meeting, Pres- ident Leo Pirsch had made the final decision to change the aforedescribed policy. Hoist testified that tellers may leave when the work is done, but if they work more than 40 hours a week, they receive time-and-a-half. If they work on Satur- day, the get time off during the week. She said when the bank no longer opens on Saturdays, in April, the employees go back to their rotating schedule. Employer's Exhibit 14 shows the rotating schedule on which the tellers at windows A, B, and C worked from April through October and a part of November 1977. Karen Hoist continued to testify as follows: A. I had a meeting with the tellers and explained to them the new procedures after 3:00. Q. You previously testified that there were six peo- ple who would be affected by the change. Can you name those people? A. At that time it would have been Sylvia Erickson, Shirley Solyntjes, Sandy Treml. Jane Harguth-there weren't six .... Q. You testified that the effect of this change was to add an hour-and-a-half. Isn't it true that the effect of the change was to require certain employees to come back on a Monday evening after they had been al- lowed to go home? A. For one person. Q. One person, yes. That person was going to have to come back to the bank? A. Yes. Q. You testified that there were six employees af- fected or who would be eventually affected because of that rotation and that they were Sylvia Erickson, Shir- ley Solyntjes, Sandy Treml. Jane Harguth. Irene Wal- lin, and Glennis Andresen, right? A. Yes. Q. Those were the only employees affected, is that not true? A. Yes. Q. Isn't it true that Cilennis Andresen asked ou at that meeting if Ruth Wintheiser and Mary Schwenk wouldn't be affected by this change, if thev wouldn't have to do this? A. I don't recall it, but I believe I said something in my testimony about it because the loan people weren't involved in that area. Q. You don't recall her asking? A. No. Q. Do you recall saying to her that they didn't have to because they didn't want to? A. No. Leo R. Pirsch. president of Respondent, admitted in his testimony that he instructed Karen Hoist to change the hours of the tellers during the November meeting and that he had the ultimate authority to do so. He admitted that he did not contact or advise any of the employees or the Union (Willmar Bank Employees Association), the certified bar- gaining representative of the employees, before ordering the work hours change. He also admitted that Respondent and the Union commenced negotiation sessions in midsummer (late June or early July 1977) in an effort to obtain a collec- tive-bargaining contract; that they had had several bargain- ing sessions before November and were in Federal media- tion with a Harvey Paulson, and had a bargaining session scheduled for late November. at the time he ordered the work hour change. With respect to the November 1977 change in employees' working hours, teller Irene Wallin testified as follows: "We asked if all the tellers would be included because this would mean it would be less a number of times for each one and she said 'No.' " Wallin further testified that Respondent Ex- hibit 14 describes the rotating work shifts instituted b the Respondent in November of 1977. She said the employees affected by the change were: Sylvia Erickson. Glennis An- dresen, Sandy Treml. Jane Harguth. Shirley Solyntjes and herself. She said employees not affected by the working hour change were: Ruth Wintheiser and Mary Schwenk. bookkeepers Doris Boshart and Taren Novotney, and the receptionist. Wallin also said Novotney could not do teller work but Boshart could. She further stated that she is a member of the Union and so was Mary Schwenk but not Ruth Wintheiser. Wallin said she worked with Sylvia Erick- son, Glennis Andresen, and Ruth Wintheiser until the latter went to the loan department, and she (Wallin) was required to work the drive-up window shift. In January 1977, she said, Ruth Wintheiser was hired for the drive-up window on a permanent working basis from 10:30 a.m. to 5:30 p.m.; and she trained Wintheiser for 3 or 4 months on the inside before she was assigned to the drive-up window.' I credit the above testimony of Irene Wallin. Karen Hoist. and President Leo R. Pirsch because it is essentially consistent and without conflict. 398 CITIZENS NATI. BANK OF WILl.MAR Based upon the foregoing credited testimony, I conclude and find that the Respondent had unqualified authority to reassign workers (Wintheiser Erickson, Andresen. and Beam) and to change their hours of work prior to union certification (June 20, 1977). However, while the Respon- dent was within its rights to make such changes, it is clear from the evidence of record that employees (Wintheiser, Schwenk, and Beam) who terminated their concerted, and ultimately their union activity, were given preferential treatment by Respondent, in the assignment of jobs and working hours, over employees who did not relinquish such activities or interests. In other words, it is unequivocally clear that the employees most adversely affected by the job reassignments and the change in working hours were the employees who were consistently union members. Such preferential treatment accorded to nonunion em- ployees by Respondent amounted to discrimination against the union employees. Moreover, such discriminatory con- duct committed by Respondent prior to the Union's certifi- cation on June 20. 1977. is evidence of Respondent's ani- mus towards the employees' concerted and union activities prior to that date. However, Respondent's unilateral change of the employees' work schedules in November 1977, without consulting or notifying the employees or the Union, (the certified collective-bargaining representatie of its employees) constituted bad faith bargaining, in violation of Section 8(a)(5) of the Act. E. Factors Relating to Emnplqvees' Vote To Strike Wallin testified that she is a member of the Union and. since the summer of 1977, had participated on behalf of the Union in bargaining with Respondent about salary., hours, vacations, holidays, insurance benefits, a nondiscrimination clause, and seniority. The Respondent's change in work hours in November of 1977 had never been discussed with the Union in any of the negotiating sessions. She said the employees attended a union meeting on December 7. 1977. and since an agreement had not been reached, they voted that if the next mediation session ended in an impasse, they would then take a strike vote. The mediation session did end in an impasse and the employees voted to strike, effec- tive December 16, 1977. In describing the events of that meeting. Irene Wallin continued to testify as follows: Q. Mrs. Wallin, would you please tell us how that strike came about. A. We felt that we had been in negotiations and mediation sessions for quite some time and nothing had, only a few items had been really settled upon or. not really settled upon but agreed upon. The changing of the hours was significant because it was not the first time this had happened and the women were angry about it. I think other things discussed were the pay- roll, of course, and the vacation benefits that we were trying to get for our employees. Also, one of the things that was discussed was a note that had been written by one of the officers to one of the employees. We also discussed filing unfair labor practices. Wallin further stated that she has remained on strike to the present time and has not made an offer to the Respon- dent to return to work. She identified Respondent i xhibit 15. a summary of agreed items which was presented or shown to the parties on the negotiating team for the em- ployees. She admitted that she attended meetings at the Federal Mediation Service on several occasions and. on one such occasion, she left work at II a.m. to do so. The strike vote was taken on the basis that the strike would last until an agreement with the bank is reached that the union mem- bers approve. Wallin also stated that when she was made vault teller she did not recei'e a raise. She said Jane ltar- guth lives 20 miles fr Willmar and Glennis Andresen lives in Clara City, Minnesota. On Mondays she would go home and prepare her dinner and return to the bank to work from 4 to 6:15 p.m. On November 29. 1977. the Respondent. during the ne- gotiation session. presented the Union and employees with a series of proposals towards a collectie-bargai ning con- tract (Resp. Exh. 17). Sylvia Erickson also corroborated other testirnon\ that the Union met in early December 1977. when Irene Wallin. Doris Boshart, Glennis Andresen, Shirles Sol ntjes. Sands Treml, Taren Novotney. herself. their attorney. John Mack. Archie Hanson. Gail Watkins, DarNll Terlisner and another person named Dan (She could not recall his last name.) were present. At that meeting. Erickson testified. she talked about their hours being changed and the note she found in the trash basket, as well as the 2-week shift. She said she also talked about the picnic or parts that had been held b3 the hank in July 1977 and the reasons for going on strike. She said the3 discussed unfair labor practice charges and theN unalil- mously decided by a vote to strike if negotiations with Re- spondent failed. She acknowledged that Respondent Ex- hibit 21(a) through (d) are her timecards. indicating her work schedules, and that she has not offered to return o work since the strike began on December 16. 1977. She further acknowledged that Respondent's Exhibit 15 is a tentative agreement reached between Respondent and the Union during the negotiation session on Novemnber 29. 1977. Glennis Andresen testified that the UI nion met during the first week in December 1977, at which time she and t'ellov employee Sylvia Erickson spoke about Irene Wallin's being replaced by Wintheiser. She said she (Andresen). Erickson. and Wallin also talked about the drive-up shifts being placed on a 2-week alternating basis, and that Wallin and Doris Boshart compared the past pattern of conipan) pic- nics with the last picnic in July 1977. about which the. ,ere not notified. She said their counsel. John Mack. advised them of their options. They discussed the pros and cons of' going on strike and unanimously decided by vote to strike. with the expectation of further bargaining. Howeser nego- tiations broke down and on December 15 the Union went to the National Labor Relations Board. On December 16. the Union went on strike and she and other striking em- ployees have been on strike since that time. Doris Boshart stated that Hanson. Olsen. and Terlisner of the bank were at the early December meeting. At that meeting, she said, the employees voted to strike and to file unfair labor practice charges against Respondent. At the end of the mediation session, the parties had not reached 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement. She said the bank has not asked her to return to work since she went on strike. Dale Beihoffer. attorney for Respondent since 1977, testi- fied that he has been involved in negotiations on behalf of Respondent with the Union which involved 13 or 14 nego- tiation sessions. He further testified that the unresolved is- sues outstanding are as follows: Yes, wage article, seniority, vacations, discipline and discharge question, that relates to the probation pe- riod, sick leave provision that's outstanding, non-dis- crimination clause, union security clause, an article with respect to technological change, there is a pro- posal with respect to maternity leave. I believe the union has made a proposal with respect to reinstate- ment of strikers. There may be another one but I don't recall it at the moment. Beihoffer further testified that the conditions set forth by the Union for ending the strike are as follows: reaching a full contract settlement on item roman numeral 1, presum- ably Respondent's proposal, and Respondent Exhibit 15 Biehoffer testified that the most difficult issue for resolv- ing the strike is the employees' demand for reinstatement of the striking employees. He continued to testify as follows: A. Yes, I was aware that the employees had been told that as set forth in the last paragraph, General Counsel's Exhibit No. I-J. Page 2, that the bank had now reached the point that they must seriously con- sider the possibility of hiring permanent replacement for the positions. That they were reluctant to take such a step, having serious implications, but that unless the employees returned to work in the immediate future, the bank would have no other alternative. Q. Now, on the letter dated January 13th. was there anything at all in that letter offering to reemploy em- ployees who had gone out on strike? A. No. Q. Did you at any time, after the strike began and after the letter of December 29, make an offer to rehire all of the employees? A. No. Leo Pirsch, president of Respondent, corroborated Peter- son's testimony with respect to Peterson's asking if he could have a picnic at his home. He confirmed the testimony, regarding Respondent Exhibit 15, that during a bargaining session the bank agreed not to sponsor any picnics. He cor- roborated prior testimony that Ruth Wintheiser was drive- up teller until after April, when she was moved into main teller line, because Respondent needed more experienced help and because she had been taking on the late shift so long she was tired of it. He acknowledged the new rotation system which was implemented in November 1977, and he admitted that he has not signed an agreement with the Union, but that the parties had agreed to certain items. He said when he held the meeting in which he changed the work schedules, he did not invite Erickson or any other employees. In the spring of 1977, he said. he was ap- proached by Taren Novotney and Sandy Treml, who asked him why their pay had not been increased after the expira- tion of their 90-day probationary period. He said that he told them he was advised by the attorney that Respondent could not give them any raise during negotiations with the Union, but he nevertheless paid them because his attorney told him Respondent should pay them. John Mack, attorney for the Union, testified that there was never any discussion about the change in working hours during the bargaining sessions except on November 29. 1977, at the mediation session in Minneapolis, when he advised Beihoffer of the change in hours. Glennis Andresen had told him about it the day after the change in the work schedule and she also told about the discriminatory invita- tion to the bank's picnic involving union and nonunion em- ployees. He acknowledged that he agreed to items in Re- spondent Exhibit 18 and that neither side has since withdrawn agreements to those items. He said that the bank's change in the working hours schedule occurred on or about ,November 23, 1977, and that he has not made a request that the hank reverse its change in working hours. However, Mack acknowledged that he received and had knowledge of Respondent's letter (Resp. Exh. 31) dated January 13, 1978. which contained the following para- graph: In any event it is clear that these relatively minor issues should not be permitted to complicate or prolong the resolution of the strike against the bank. Any question. with respect to the participation of employees and par- ties sponsored by the bank, appears to have been re- solved already by the tentative agreement reached on November 29. '77. with respect to the Section I-A (4). Recreational Activities and Parties. With respect to the alleged unilateral changes. the bank has today re- scinded both the rotation of tellers at the drive-up win- dow and the change in scheduling for Monday and Friday evenings. Although the bank continues to believe that these changes are justified by legitimate business reasons, the proposed implementation of these changes for the fu- ture will be deferred to afford the union the opportuni- ty to bargain over the changes. Mack further admitted that several bank officials and just about all union members received copies of the above letter (Resp. Exh. 31). He said that he did not reply to the letter or make any demand to bargain with respect to its contents, but that he made such a general demand in Employer Ex- hibit 38, "hours of work." Analysis and Conclusions Although the testimony in section C. above, is essentially free of conflict, it nevertheless raises a question as to whether the July 1977 picnic involving the bank employees was bank-sponsored, or individually and personally spon- sored. The evidence of record shows that a determination on this question cannot be made simply by evaluating the credibility of the respective witnesses. Rather, such a deter- mination can be made objectively only upon an examina- tion of the status of bank employees in 1975 and 1976, as compared with 1977, the past practice of the Respondent with regard to picnics, the relationship of each witness to the party on whose behalf he or she testified, as well as the conduct of the parties (Respondent and the Union) prior and subsequent to the 1977 picnic. 400 CITIZENS NATL. BANK 01: WII.LMAR First, it must he recalled that Respondent's employees were not organized in 1975 and 1976. but they organized on March 14 and obtained union certification on May 20. 1977; that for the years 1975 and 1976, an employee. Doris Boshart, offered her home as the site for the picnic and Respondent (through its managerial staff) invited all profes- sional employees of the bank and paid for all food. except beverages. The uncontroverted evidence of record further shows that after the employees became organized and the! observed an antiunion note written by a managerial official of Respondent in May 1977, relations between the bank (management) and the employees (primarily the chief orga- nizers of the Union) became somewhat alienated. This strained relationship between the Union and the bank is further manifested by evidence of Doris Boshart's failure to offer her home for the site of the July 1977 picnic, as she had in 1975 and 1976. The extent of the alienation is even further demonstrated by the evidence of the organized em- ployees having planned and held their own July 4. 1977. picnic, excluding other bank officials and nonunion em- ployees. The evidence clearly shows that Respondent (Vice Pres- ident Paul Peterson) was informed about the union emplo>- ees' planned picnic by employee Karen Hlolst, who also told him which employees were invited and which employees were not invited. Although Vice President Peterson did not say anything to the union employees, he did discuss their picnic plan with bank president, Pirsch. Hte testified that the substance of their discussion was as follows: I asked Mr. Pirsch if it was all right if I had a picnic. He said. "What are you asking me for?" "Well," I said, "I am going to invite some of the people from the bank but not all of them and I don't want any repercus- sions," and he said, "This is a free country and you can invite whoever you want but the bank isn't going to pay for it." I said, "Of course not. I know that." When Vice President Peterson was asked whether he had asked President Pirsch for reimbursement for the picnic. he said he did not. However, in view of the background of the relations between the Respondent and its employees, here- tofore discussed. I do not credit Vice President Peterson's limited account of his discussion with President Pirsch for the following reasons: (1) I cannot conceive of the president of the bank, being fully aware of the past practice of a July 4 picnic, not asking his vice president why was he hosting the picnic at his house and why was he inviting only some of the employees; (2) I find it difficult to conceive that Vice President Peterson neglected to inform President Pirsch of what he had learned about the union employees planning a picnic, and identifying the employees whom the Union ex- cluded from their plan; (3) if Vice President Peterson had in fact decided to host a personal picnic at his home, it seems strange that he would ask permission of President Pirsch: (4) in view of the past practice of a July 4 bank-sponsored picnic, I find it strikingly unusual for President Pirsch not to have offered to pay for the picnic: and (5) President Pirsch's failure to ask some of the above-enumerated questions as well as his failure to offer to defray the expenses of the picnic as the bank had done in the past, coupled with his comment to Vice President Peterson that "this is a free country and you can invite whoever you want. but the bank isn't going to pay for it," clearl N indiciated that he endorsed Peterson's hosting the picnic kith knowledge that the unionized employees would be excluded therefrom. Although Doris Boshart did not offer her home as the site tor the Jul 1977 picnic, she was not under anb obligation to do so. However, her failure to offer her home to the bank for a picnic when she in fact hosted a picnic for the union- ized emplobees indicates the breach in relations hbet. een the union employees on one side aind manlagemnt and the nonunion employees on the other. While I am not attemrpt- ing to condone or compliment [)oris Boshart or the union emploees for excluding the nonunion emplo ees and nman- agemenit from its private picnic. it should be particulairl noted that the union employees are not herein charged with discrimination in violation of the Act. On the contrary, the bank. which had a 2- or 3-year tradition oft sponsoring a July 4 picnic. or at least paying the expenses for such picnic, is alleged to have discriminated against its union emploNees by excluding them from a picnic of hank man- agement and nonunion employees. held at the home of Vice President Peterson. In support of the position that the hank did not sponsor or pay for the July 1977 picnic, Vice President Peterson produced his personal cancelled checks made to and cashed by a food store. as evidence that he, not the hank palid for the picnic foiod. In this regard, installment loan officer Jef- fery Berghuis testified that money from the pop machine was never used to pay the expenses for bank affairs such as picnics, although he corroborated prior testimon\ that the bank paid for prior July picnics in 1974. 1975. and 1976. 1o further support his position that the July 1977 picnic was not a bank picnic, Vice President Peterson sas he has a picnic every ear, and he thought he would invite the iour employees who were not invited to the union emploxees' picnic to his picnic in his home. However, if Vice President Peterson was hosting a personal picnic, it is particularl] noted that the guests he invited were all bank officials, ex- cept President Pirsch. who was out of towi.L and rliOnunion employees. He did invite a neighbor a Mr. Miller. who was the onl) nonbank employee at the picnic. Although it is possible to have an annual picnic with one guest (the nonbank employee). I find it difficult to believe Vice President Peterson's story that he was merelb inviting the employees who were not invited to the Union-spon- sored picnic to a personal picnic in his home. An examina- tion of the guestlist shows only bank personnel (employees and managerial). While it is also possible that Vice Pres- ident Peterson paid for the picnic, as evidenced by his can- celled checks, his cancelled checks alone do not necessaril establish that he paid for the picnic. It is possible that he could have advanced the money for the expense of the pic- nic and have been reimbursed by the bank in cash or hb check. In any event, when all the factors heretofore discussed are considered in conjunction with the fact that Vice Pres- ident Peterson is a part of management. and ias such. hosted a picnic in his home to which all bank officials (except the bank's president who was unavailable) and nonunion em- ployees were invited, with the exception of one nonhink employee, I am constrained to concluhide and find that the Jul: 1977 picnic was a hank picnic and not a personall? 4()1 I)tE(ISIO)NS OF NATIONA I.ABOR RELATIONS BOARI) sponsored picnic, Since the expense of the picnic w as not borne or shared hs the employees or other management pCrMnnel, but rther bh the ice president of the bank. such an arrangemelnt in view of the aoredescribed circull- stances. clearls indicates that the picnic was contrived b, Respondent In order to camoutfage the unlawful discrinli- nation alalinst its ullnionized employees. Such discriminator; conduct on the part of' the Respondent constituted a viola- tion of' Section 8(a)(31 of the Act. lellcr Svia E(ricksoin testified that she had had her waes docked hb the Respondent for attending collective- hargainilg sessions, while her wages were not so docked shen she lis off I week to see her physician and on an- other occasion whe\n she was out for personal reasons. Fol- lo wing Ilrickson's testimnonyl in this regard. the parties en- tered into a stipulation which was set forth as follows: MR. B llOlt I: R Your lonor, during an off the rec- ord discussion. it appears to he possible to solve this issue by stipulation. he stipulation would be to the effect that during the bargaining sessions held prior to the commencement of mediation on or about October 20,). 1977, the negotiating sessions were by mutual agreement held outside normal working hours in order to allosa employees to participate wilhout missing any ` ork. But at the lst bargaining session prior to the con nlencemnent of mediation. Mr. Mack and I had dis- cussed regarding the arrangement for such mediations sessions. particuakil where they were to he held in Minlneapolis. And we did work out an agreement. the substance of which w;is that employees would be ex- cused from their scheduled duties at the bank in order to permit them to participate in the medication sessions. And would be offered the options of either making up the time missed in order to attend mediation sessions or to have their compensation for that month reduced to reflect the hours spent which were not so made out. We would further stipulate that pursuant to such agreement, some employees made up all or a portion of the time which they missed to attend mediation ses- sions. while others did not so make up the time lost and s a result did suffer some reduction in wages pro- portiona;te to the hours which they missed. We so stipulate. MR. SYKIS: For the general counsel also. Although the record herein contains evidence of Respon- dent's animus towards its employees' concerted and union activity the unilateral change in the employees' working hours in November 1977 made by the Respondent while it was fulls aware that its employees were represented by the Union appears to have resulted only from Respondent's animus against the Union. As counsel for the General Counsel points out, such a unilateral change is so "inher- ently destructive of employee interest" that it is proscribed without need for proof of' an underlying illegal motive. '. 1. R.B. v. Brown. 380 U.S. 278 (1965): ,4rorican Ship Bitilding (Comrpan v. '.. R.B. 380 U.S. 300 (1965). As the Supreme ('ourt noted in Great Dane: . . some conduct carries with it "unavoidable conse- quences which the emnploer not only foresaw but which he must have intended" and thus bears "its own indicia ot intent." ... If the conduct in question alls within this "inherently destractive" category, the em- ploer has the burden of explaining away justifing or characterizing "his actions as something different than they appear on their Iace," and if he fails, "an unlair labor practice charge is made out." I. LN. R. B. v. (Greu Done ITrladers, Im.. 388 U.S. 26. 33 (1967).1 Ihe Respondent herein contends that in its letter dated January 13. 1978, which was received by the Union on January 17, 1978, Respondent informed the Union that its November unilateral changes in the employees' work hours were rescinded as of that date January 13, 1978). that the rescission included both the rotation of tellers at the drive- up window and the change in scheduling 'or Monday and Friday evenings: and that such changes, which the bank characterized as justified by legitimate business reasons. will remain rescinded and deferred to afford the Union an opportunity to bargain over the changes. Respondent also contends that since the change was not implemented until 2 weeks after its announcement and was rescinded on Januars 4, its effect in essence was minimal: that undisputedly the employees' hours of work were not increased beNond the 40 hours per week they are obligated to work, but wcre simply changed around in terms of sched- uling. tHowever, the record clearly establishes that the change in hours did cause some employees to work at least 2 nights a week and some of them to make a trip home and return to the bank, disrupting their family schedules, in- cluding emploees who live as far away as 20 miles. In this regard, the General Counsel appropriately cites a Supreme ('Courl decision in V.I. R. B v. Katz, 369 U.S. 736 (1962). wherein the Court stated that: Unilateral action bh an employer without prior discus- sion with the union does amount to a refusal to negoti- ate about the acted conditions of employment under negotiation, and must of necessity obstruct bargaining. contrary to the congressional policy. It will often dis- close an unwillingness to agree with the union. It will rarely be justified b any reason of substance. [369 US. at 747.) I find the above-quoted authority particularly applicable to conduct of the Respondent herein, carried out with ull knowledge of the certification of the employees' union and while it was engaged in several bargaining sessions prior to its decision and implementation of the change in November 1977. This was the last of' two occasions on which Respon- dent implemented such a change, the first being in June or July 1977. Aside from the unilateral changes in work sched- ules implemented by Respondent in November 1977, do not find that the evidence establishes that Respondent has further failed and refused to bargain in good faith. As to whether the employees' strike with commenced on December 16 1977. is an unfair labor practice strike, the following factors are substantiated by the record: The employees held a union meeting on or about Decem- ber 7. 1977. at which time various members in attendance expressed their dissatisfaction with the series of event which were herein found to indicate Respondent's animus against employees' concerted and/or union activities: Respondent sponsored a picnic in July of 1977. from which union mem- 1()02 (ITIZlFNS NAIL. BANK OF WIl.I. 1,XR her emploxees were discriminatoril excluded: Respon- dent's unilateral change in the working hours otf its employ- ees in November 1977, which adverselk' affected mostlx the union member employees: and Respondent's hard but (le- gal) bargaining on some items which, when considered along with some items on which the linion has engaged m hard bargaining, have thus far prevented the complete ne- gotiation of a collective-bargaining agreement. However, Respondent argues in its brief that although it did not notify the Union or the employees about the work hours change prior to its announcement, nor did it notify the Union subsequent to its implementation of the change 2 weeks later, the Union nevertheless learned about the change through one of its members and neglected to protest or demand that Respondent bargain on the change: and that by neglecting to protest or demand bargaining on the work hour change, the Union waived its right to retain the unilateral change in work hours as an issue for collective bargaining. In support of its position, Respondent cites Clarkwood Corporation, 233 NLRB 1172 (1977): Me.ci- center, Mid-South Hospital, 221 NLRB 670 (1975). and American Buslimns, Inc.. 164 NLRB 1055 (1967). It is observed that in the Clrk ood case, supra. the union, upon being notified about the employer's unilateral change by a member employee, contacted and protested to the employer, but without requesting the employer to har- gain about it. Here, unlike there, the Union did not contact the employer and protest its decision, nor did it request that Respondent negotiate the work hours change. The Board further held in the American Bus Line case. supra, that a union which receives timely notice of the change in condi- tions of employment must take advantage of that notice if it is to preserve its bargaining rights and not be contented with merely protesting an employer's contemplated action. Moreover, the Board held in the Clarkwood and Medicenter cases, supra, and more particularly, the Supreme Court held in U.S. Lingerie Corporation. 170 NLRB 750 (1968), and the Board held in Florida Steel Corporation 235 NLRB 941 (1978), that it is not necessary for the union to be given formal notice of the unilateral change but that actual notice is sufficient. In the instant case the Union received actual notice of Respondent's work hours change through employee union member Andresen within I or 2 days after Respondent an- nounced the change. The record further shows that the change was not implemented for 2 weeks and that during that period of time the Union did not contact Respondent or protest the announced change. Instead, the record shows that the work hours change was announced on or about November 14, 1977 and the Union commenced a discussion of the change with its members on or about December 7. 1977, at which time it also discussed the feasibility of filing unfair labor practice charges against Respondent. The Union ultimately filed such charges against Respondent on December 15, 1977: and after discussing the unilateral changes in a negotiation session with the Union on Decem- ber 29, 1977, Respondent, in a letter dated January 13, 1978 (received by the Union on January 17, 1978) informed the Union that its November unilateral change in the employ- ees' work hours was rescinded as of January 13. 1978. ('onsequenItl. pursuant to the abo c-clted and dic.ulu.cd autlhorit.lt I conclude and ind that attlioul1h RspondenIl instituted unilateral changes im tfie emliplo\cc,' \(Ok11 hour.s in November of 1977. and the L:nion learned ahout said unilateral changes a da'. or two subsequent to Respondlenlt' announcement thereof, as late as )ecmber 15. 177 the date on which the L'nion filed utilair labor prlaCtCCe halrgc against Respondent for instituting the chance, the lon dlid not contact Respondent or protest the unilateral action Under these circumstances. it is clear that the abohc-citcd authorit\ governs the U nion's failure to protest and request negotiation and. therefore. the Union wuaived its right to negotiate the unilateral change in ,ork hours. I do not find that the evidence establishes that Respon- dent has further ftailed and refused to bargail in g ood alth. In fact. Respondent presented undisputed evidence of a number of items on which the parties ha.e .Igreed oxecr a period of 13 or 14 collectie-hargamilng sessions. I oulId doubt that such measure of progress in collcctixe hargain- ing could have been made with the presence of aln degree of bad-faith bargaining on the part of RcspondCnl. Respon- dent has consistently stood fist against the incluslllon of a nondiscrimination clause in the contract. and the :'mon hais stood fast in demanding that such a clause be included that Respondent retain in its emplo\ all striking eimplo\es., and that a collective-bargaining agreement he reached before the Union terminates its strike against Respondent. tnrider these circumstances, the parties (Respondent and the Union) at most can be considered to have engaged in hard bargaining, rather than had-faith bargaining. During the December 7. 1977. union meeting, the em- ployees articulated (generally) their frustrations about the recent (November 1977) change in work hours alid the act that the parties had not been able to reach an aigreement on a collective-bargaining contract. The eidence is not clear as to what other dissatisfactions were expressed, and hb whom. Nevertheless. the eidence is clear froim the testi- mony of union employee witnesses that the members pre- sent agreed that if the next negotiations session (scheduled for December 14) ended in an impasse. the Union would strike Respondent. As Dale E. Beihoffer. negotiator and attorney for Re- spondent points out in his brief, the testimon\ of the union employees clearly stated that the ballot fol the strike ote taken by the Union on December 7 contained the language that the5 would strike "until an agreement approved b, the membership with the bank is reached." The testimon of Union President Sylvia Erickson and Secretar -Treasurer Glennis Andresen established that the' agreed to go on strike if negotiations failed. Their testimony in this regard s consistent with the testimony of the union negotiator John Mack. who undisputedly advised the bank's negotiating committee during the session on December 14 that the Union was going to strike the bank unless the bank agreed to one of the Union's alternatives on each of the outstanld- ing issues. I credit the undisputed testimony of hank nego- tiator Beihoffer in this regard. Hence, in determining the sole or principal motivating cause for the employees' striking the Respondent on )e- cember 16. 1977. it is observed that while the emplo ees had a general discussion about Respondent's antiunion 403 DE(CISIONS OF NATIONAL LABOR RELATIONS BOARD conduct in the past, as well as the change of working hours in November. they clearly based their striking the bank upon the ultimatum that the bank agree to certain out- standing issues during the bargaining session of December 14, 1977. A careful examination of the credited evidence of record does not reveal any definitive decision on the part of the Union to strike Respondent because of the discrimina- tion against the union employees in July or its unilateral change of the employees' work hours in November. While such acts of Respondent generated a discussion which reflected some frustration on the part of the emplox- ees, I am persuaded by the greater weight of the evidence of the record that the primary, if not the sole, purpose of their electing to strike Respondent was to compel Respondent to agree on the items articulated by the Union during the ne- gotiations session of December 14. When the parties failed to achieve agreement, the Union filed unfair labor practice charges on December 15 and went on strike against the Respondent on December 16, 1977. Since Respondent's November unilateral change of em- ployees' work hours did not constitute a violation of Section 8(a)(5) of the Act, the primary unfair labor practice com- mitted by Respondent was its discriminatory exclusion of the union employees from its July 1977 picnic. Although the employees might have discussed said unlawful July dis- crimination against them during their December 7 meeting. that unlawful incident was so remote from their December 7 meeting that it cannot reasonably be maintained that the employees agreed to strike the Respondent as a result of that 8(a)(3) violation. This conclusion is particularly true, when it is noted that the employees made it clear that theN would strike if the December 14 negotiating session ended in an impasse. Under these circumstances, I am constrained to conclude that the employees' strike against Respondent on December 16, 1977, was not caused by unfair labor practices of Respondent. Therefore the employees' strike against Respondent is not an unfair labor practice strike. Consequently, Respondent's alleged threat in its letter (December 29, 1977, G.C. Exh. Al(i)) to replace the strik- ing employees, cannot constitute an unfair labor practice which prolonged the economic strike because the strike was and is not an unfair labor practice strike. Counsel for Respondent argues that the burden of estab- lishing that a strike is an unfair labor practice strike is to be borne by counsel for the General Counsel in establishing a causal connection between an unfair labor practice which has been committed and the strike. In support of his posi- tion he cites Tufts Brothers Incorporated. 235 NLRB 808, 810 (1978). In that case the Board said: An unfair labor practice strike is one which is caused in whole or in part by an unfair labor practice. The requirement of a causal connection between the unfair labor practice and the strike is not satisfied merely be- cause the two coincide in time. It is necessary for the Board to find that Respondent's unlawful conduct in fact constituted a contributing cause to the strike that followed. In view of the fact that the Union did not protest or demand bargaining on Respondent's November unilateral change of the employees' work hours, the union's right to demand to bargain thereon is therefore deemed waived, and consequently Respondent's action was not a violation of Section 8(a)(5) of the Act. Hetce, the only unfair labor practices committed by Respondent occurred in late May or early June, and in July 1977. The Union's employees did not attribute any particular emphasis to those rather remote unfair labor practices, but instead placed great emphasis upon their ultimatum that Respondent reach an agreement with the Union during the bargaining session on December 14, 1977. It is clear that neither the General Counsel nor counsel for the Union discharged the burden of showing a causal connection between the remote June and JulN 1977 unfair labor practices and the employees' December 7 deci- sion to strike. Moreover, it is strikingly obvious from a reading of the entire record in this case that if Respondent committed sev- eral unfair labor practices during the year 1977, the Union was in great part untimely in taking any remedial action with the Board to rectilf such unfair labor practices. The record clearly shows that Board law governs the facts as they relate to the alleged actions of Respondent and the inaction of or untimely responses made by the Union. Assuming. arguendo. that Respondent's November uni- lateral change in work hours constituted a violation of 8(a)(5). the record clearly shows that when Respondent's action was brought to the attention of the negotiator for the Union, Respondent rescinded its action and deferred it for negotiation in future bargaining sessions. In reading the cases cited by counsel for the General Counsel and counsel for Respondent as to whether the employees' strike was an unfair labor practice strike, I did not find any case in which the employer took its unilateral action during the time the parties (Employer and the Union) were in the course of negotiations. However. assuming further that the latter fact would make a difference in determining whether the unilat- eral action was an unfair labor practice, it would appear that since the parties herein were engaged in negotiation sessions, it was all the more incumbent upon the Union to protest and demand that the change be made a subject of collective bargaining. As previously found herein. as soon as the Union notified the negotiator for Respondent that it took issue with Re- spondent's unilateral action of November 1977, Respon- dent immediately rescinded the work hour change. In all probability therein lies the Board's rationale for requiring the union to contact and make its protest known to the Employer. Here the Union failed to contact Respondent and make such protest or request to bargain until the bar- gaining session held on December 29, 1977: shortly there- after (January 13, 1978), Respondent rescinded the change and agreed for such change to become a subject of bargain- ing. In view of the above-cited case law and the circum- stances established by the evidence in this case, I cannot in good conscience find that the employees' strike on Decem- ber 16. 1977. was an unfair labor practice strike. iv. FFF('I OF rite UNFAIR ABOR PRA(II( ES UPON ( ()MMER( E The activities of Respondent set frth in section 1II. above, occurring in close connection with its operations de- scribed in section I. above. have a close, intimate, and sub- stantial relation to trade. traffic, and commerce among the 104 CITIZENS NAIL. BANK OF WII.LM4AR several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIMit R MEI)Y Having found that Respondent has engaged in unfair la- bor practices within the meaning of Section 8(a)( ) of the Act, I shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 protected rights, in violation of Section 8(a)( 1 ) of the Act, by telling its employees they need not join the Union because they could earn more money withot joining the Union, and by discriminatorily excluding the union em- ployees from the bank-sponsored picnic in violation of Sec- tion 8(a)(3) of the Act, the recommended Order will provide that Respondent cease and desist from engaging in such unlawful conduct and, as it has agreed to do, bargain in good faith with the Union, as the designated collective-bar- gaining representative of Respondent's unit employees, with respect to picnics or recreational activities sponsored by the bank. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Re- spondent cease and desist from in any other manner inter- fering with, restraining, or coercing employees in the exer- cise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Manufacturing Compar. 120 F.2d 532, 563 (4th Cir. 1941). CONCLUSIONS OF LAW 1. Citizens National Bank of Willmar, the Respondent. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Willmar Bank Employees Association is, and has been at all times material herein, a labor organization within the meaning of the Act. 3. By restraining and coercing its employees, by telling them they need not join the Union and that they would earn more money without the Union, Respondent violated Section 8(a)(1) of the Act. 4. By discriminatorily excluding union member employ- ees from its July 1977 bank-sponsored picnic, Respondent violated Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(t) and (7) of the Act. Upon the foregoing findings of fact, conclusions of lav. and upon the entire record. and pursuant to Section 10(c) ot the Act, I hereby make the following recommended: ORDER5 Respondent, Citizens National Bank of Willmar. its offi- cers. agents. successors, and assigns. shall: 1. Cease and desist from: (a) Restraining and coercing its employees about their union interest or affiliation. (b) Discouraging membership in the Union by discrimi- natorily excluding union employees from hank-sponsored picnics or social activities because of their interest in and support for the Union. 2. Take the following affirmative action necessar to effectuate the policies of the Act: (a) Post at its business office in Willmar, Minnesota. cop- ies of the attached notice marked "Appendix."' Copies of said notice, to be furnished bh the Regional Director tor Region 18. shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof. and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Rea- sonable steps shall be taken b Respondent to insure that said notices are not altered, defaced, or covered b any other material. (b) Notify the Regional Director For Region 18. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not herein found. 8 In the event no exceptions are filed as provided b) Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions. and recommended Order herein shall, as provided in Sec. 10248 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions. and Order. and all objections thereto shall be deemed waived for all purposes. 9 In the event that this Order is enforced b a Judgment of the United States Court of Appeals the words in the notice reading "Posted bs Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board" 405