First Data Resources, Inc.

FIRST DATA RESOURCES. INC. First Data Resources, Inc. and Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO. Cases 20-CA- 13830 and 20-RC-14585 April 3, 1979 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On January 19, 1979, Administrative Law Judge Timothy D. Nelson issued the attached Decision in this proceeding. Thereafter, General Counsel and Re- spondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby or- ders that the Respondent, First Data Resources, Inc., San Mateo, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election held on May 4, 1978, in Case 20-RC-14585 be, and it hereby is, set aside and that the Regional Director for Region 20 be, and she hereby is, directed to conduct a new election pursuant to the following: [Direction of Second Election and Excelsior foot- note omitted from publication.] I Respondent and General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his find- ings. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge: These consolidated cases were heard by me at San Francisco, California, on October 3 and 4, 1978.' i All dates are in 1978, unless otherwise noted. Pursuant to initial and first amended charges filed, re- spectively, on May 9 and June 29 by Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO (hereinafter called the Union), the Regional Director for Region 20 issued a complaint on June 30 against First Data Resources, Inc. (hereinafter called Respondent), alleging, in substance, that Respondent had violated Section 8(a)(1) and 8(a)(3) of the National La- bor Relations Act, as amended (hereinafter called the Act), by certain coercive oral statements made to Respondent's employees in the period before a representation election and by discharging employee Susan M. Bake because she engaged in union and/or protected concerted activities. Pursuant to the Union's petition for representation elec- tion filed on March 23 in Case 20-RC- 14585 and a Stipula- tion for Certification Upon Consent Election executed by the parties, a secret-ballot election was conducted on May 4 in a unit of all full-time and regular part-time operators, clerks, balancers, couriers, and statisticians employed by Respondent at its San Mateo, California, facility. The Union lost that election 102 to 57, with challenged and void ballots insufficient to affect the results of the election. Timely objections were thereafter filed by the Union to the conduct of the election. On July 6, the Regional Director for Region 20 issued her Report on Objections, in which she recommended that one of the Union's objections be over- ruled and noted that the remaining objections dealt with substantially the same conduct which was the subject of the complaint in Case 20-CA-13830. On August 15, the Director issued an order consolidating cases and a notice of hearing in the above-captioned cases, her earlier recom- mendation to overrule one of the Union's objections having become final. All parties were afforded full opportunity to appear and introduce evidence at the hearing, to examine witnesses, and to file briefs.' Issues As narrowed by hearing developments,' the issues in both the objections case and the unfair labor practice case are as follows: 1. Whether, on or about March 27, Respondent's Gen- eral Manager Thomas Hunter and/or its Home Office Per- sonnel Agent Judith Willms instructed employees at Re- spondent's San Mateo facility to engage in surveillance of the union activities of their fellow employees, in violation of Section 8(a)(1) of the Act. 2. Whether, on a date in April, Respondent's manager of administration, Robert J. Obermeyer, told employee Susan Bake that she had been terminated because of her union and/or protected concerted activities, in violation of Sec- tion 8(a)(1) of the Act. 2 The Union did not enter an appearance at the hearing, nor did it file a brief. Briefs were timely received from Respondent and from the General Counsel and received due consideration. I At the close of the presentation of his case in chief, I granted the General Counsel's motion to delete the allegations of complaint par. 6(a) pertaining to an alleged threat to close Respondent's San Mateo facility occurring on or about March 23. No evidence was introduced which would tend to support that allegation and, accordingly, it is not in issue in either the objections case or the unfair labor practice case. 241 NLRB No. 114 713 DEFCISIONS OF NATIONAL LABOR RLATIONS BOARID 3. Whether, during the month of April, Respondent transferred work from its San Mateo facility to its head- quarters facility in Omaha, Nebraska, in order to discour- age its employees from voting for the Union, in violation of Section 8(a)( I) of' the Act. 4. Whether, in mid-April. Thomas Hunter solicited grievances from employees at Respondent's San Mateo fa- cility and promised to remedy said grievances in order to discourage employees from voting for the Union, in viola- tion of Section 8(a)(1) of the Act. 5. Whether, on or about May 1, Thomas Hunter threat- ened to transfer work from the San Mateo facility to the Omaha facility in order to discourage employees from vot- ing for the Union. in violation of Section 8(a)(1). 6. Whether Respondent terminated employee Susan M. Bake on March 30 because of her union activities and/or because she engaged in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8(a)(3) and (I) of the Act. 7. If any of the foregoing conduct occurred, whether such conduct requires the setting aside of the May 4 elec- tion and the direction of a second election. Upon the entire record herein, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FA(IT I. JURISI)I(II()ON Respondent is a Delaware corporation engaged in pro- viding data processing services for various banks through- out the United States, with headquarters offices and a data processing facility at Omaha, Nebraska, and other data processing facilities elsewhere, including at San Mateo, California. the facility involved herein. In the year preced- ing the issuance of the complaint, a representative period, Respondent purchased and received at its San Mateo facil- ity goods valued in excess of $50,000 directly from suppliers located outside the State of California. Accordingly, I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2). (6). and (7) of the Act. II. IHE LABOR ORG;ANIZATION INVOLVED The Union is a labor organization within the meaning of' Section 2(5) of the Act. IIl. 'IIE ALLEGED UNFAIR I.ABOR PRAC(IIES Introduction Respondent's primary business "product" is the perform- ance of computer data processing, records keeping, and billing and mailing for various commercial bank customers in connection with the latter's retail credit card businesses, including Master Charge and Visa. In this regard, Respon- dent receives from its customer banks copies of retail charge slips made out in connection with credit card trans- actions and enters said charges and related account data onto computer tapes. Using computer technology, Respon- dent prints monthly billing statements and mails them to individual credit card holders. At its San Mateo facility, Respondent employs over 150 persons engaged in the mis- cellaneous "data capture," entry. and billing processes. The bargaining unit in which the election was conducted in Case 20R(' 14585 consisted of such employees. In addi- tion to that data processing clerical group, Respondent also employs a number of customer service representatives, in- cluding alleged discriminatee Susan Bake, whose principal function was to serve as liaison between Respondent and its various bank customers. T[he customer service representa- tives were expressly excluded from the bargaining unit in the representation case.4 A. lThe March 27 Meeling In anticipation of' the election, Respondent held one meeting on March 27, attended not only by its supervisors and managers but also by the customer service representa- tives, including Bake, for he purpose of issuing instructions regarding appropriate conduct during the preelection cam- paign period. Respondent's general manager. Thomas Hunter, opened the meeting by advising those present that there was an attempt to organize the "clerical" workers, mentioning in passing that the organizational attempt had come as a sur- prise to him. He also stated that he wasn't personally op- posed to unions, that his parents had been union members, but that union representation of the data processing cleri- cals was not "in the best interest of the Company," Hunter then introduced and turned the meeting over to Judith Willms, a representative from Respondent's headquarters personnel office in Omaha.' Willms began by passing out a typewritten pamphlet consisting of seven pages, 3-1/2 pages of which contained istructions under the general heading "What You Can Do" and the balance of which contained instructions under the general heading "What You Cannot Do." Willms then spent the better part of an hour reading each instruction in turn and making clarifying or supple- mentary comments in connection with each such item. Al- though, as noted, the first section of that pamphlet was captioned "What You Can Do, " Bake credibly testified, without contradiction, that persons present were affirma- tively instructed to engage in the conduct described under that general heading. In that regard, the complaint alleges with respect to the March 27 meeting that Respondent "... instructed its employees to engage in surveillance of union activities of their fellow employees." Somewhat more gener- 4 Respondent's counsel expresily conceded at the trial and on brief that Bake was an employee within the meaning of the Act and that the class of customer service representatives were not supervisors within the meaning of the Act. Contrary to the suggestion of Respondent's counsel made at the hearing I find that all customer service representatives were nonmanagerial and were, in fact. employees within the meaning of the Act. 'Although Respondent did not expressly concede this point, and although the record would not permit a finding that Willms had regular supervisory authority over any of Respondent's employees, it is clear, and I find, that Willms was an agent of Respondent for purposes of addressing and issuing instructions to the assembled group on March 27. Accordingly, to the extent that Willms' remarks discussed infra may have interfered with, restrained, or coerced employees in the exercise of their rights under Sec. 7 of the Act, Respondent was bound thereby. 714 FIRST DATA RESOURCES. INC. ally, the objections allege that during the March 27 meeting Respondent "... ordered nonmanagement employees to initiate contacts with bargaining unit employees for the purpose of campaigning against the Union .... " With respect to the complaint allegation pertaining to instructions that employees engage in surveillance of their fellow employees' activities, there is substantial and undis- puted evidence. First. although the seven-page instruction sheet generally advises that employees may not be ques- tioned about their union activities or be spied upon while engaging in the same, some of the instructions clearly en- courage the gathering of information about employees' union activities through lawful means. For example, item 21 in the instruction sheets states: You cannot ask employees about the internal affairs of the union such as when they are going to meet, where they are meeting, or how many employees attended their meetings. (Some employees may. of their own will, walk up and tell you about these things. It is not an unfair labor practice to listen. However, you must not ask questions to obtain additional information.) In addition, item 23 states: While you can approach employees to bring up the subject of the union, you should not start out the con- versation with a question such as "What do you think about the union?" This may be misunderstood. Instead say, "This union nonsense will soon be over .... " or "Joe, I think you know this union would not be to your advantage ... ." Finally, item 26 states: You cannot ask an employee for an expression of thought about the union or its officers, however, you can say rhetorically, "I sure don't know why people think they will be better off with the union?" More specifically, Bake credibly testified that Willms had told those present at the meeting that they should ... try and find out what the employees in the bargain- ing unit were saying and thinking. And we were sup- posed to try to indirectly get into conversations with them. They told us that's why they called the customer service people in, because they felt we had a lot of contact, which we did, with all the employees in the bargaining unit. And they wanted us to listen. And if we heard anything, we were supposed to come to Tom Hunter . . . right away and tell them [sic] what we heard and. . ... who was involved in the conversation, who was for the Union. Although Hunter testified in only summary and conclu- sionary terms regarding the events of the March 27 meet- ing, he substantially acknowledged the truthfulness of Bake's testimony when he stated: Well, most of the time, as I said, we spent very specif- ically going through the do's and don'ts. In that sense. thev were told what to do and what not to do, the things on the list. In a more general nature, they were told to, you know, just keep their eyes and ears open, and if they had some information that would be of value to share it with me. Regarding the more general assertion in the Union's ob- jections-that "nonmanagement" employees were ordered to initiate contacts with employees in the bargaining unit and to participate in Respondent's antiunion campaign the record is also clear that such indeed occurred. At least the first 31/2 pages of the "do's and don'ts" pamphlet issued to Bake, among others, amount to a series of instructions regarding how to initiate conversations with unit employees and what to say to them for the purpose of discouraging them from voting for the Union. That pamphlet is in evi- dence and its contents speak for themselves. By way of il- lustration, however, the following representative quotes will suffice: [3] Tell the employees we do not want a union and we do not need a union. You may tell employees that it is our honest opinion that if a union gets into our Com- pany, it will not work to their best interest, but could work to their disadvantage. [9J Tell employees of the disadvantages of belonging to a union, such as loss of income due to strikes, require- ments to serve on a picket line, union dues, union fines, and possible union assessments. [1 I] Tell employees that no union and no law requires our Company to agree to anything it doesn't want to agree to. * . . . 9 [121 Tell employees about any "bad" or unhappy expe- riences you may have had or may have heard about with unions in the past. [131 Tell employees anything you know about the Union or its officers even of a critical nature such as jury tampering, theft of employee pension funds, and high salaries for union officers. You may want to talk about strikes in your area that were hard on union families. Bake also credibly testified, without material contradic- tion from other witnesses, that after Willms had concluded her reading of the seven-page pamphlet to the group, she invited questions. The only question raised swas from Bake, who asked, "Is it necessary that we take this position against the Union or can we remain neutral in this issue?" According to Bake, Willms replied "[i]n no uncertain terms" that those present ". .. absolutely had to take the Company's side: it was considered part of [their] job to do that." Hunter's version of this exchange was not materially dif- ferent. His version of Wiilms' reply to Bake's question was that "... this was a very important matter and could greatly affect the Company one way or another, and that's basically why everybody had to understand this and be in- volved." Hunter further testified without contradiction. and I find, that after the exchange between Willms and Bake, he 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made the "... comment that the managers and supervisors in that room had to see me, if they had any problems at all with following the Company policy in this regard." No evidence was introduced to show that Respondent made any subsequent efforts to involve customer service representatives in its campaign activities or to use them to gather information concerning union activities of the em- ployees in the data processing clerical unit. Nor is there any evidence that employees in the data processing clerical unit were made aware of Respondent's plans, as detailed above, for the gathering of information regarding union activities among that group. Concluding Findings Regarding the March 27 Meeting To the extent that Bake, and other customer service rep- resentatives present at the March 27 meeting, were "em- ployees." it follows that Respondent's instructions to the assembled group to assist Respondent in its antiunion cam- paigning and related activities violated Section 8(a)( ) of the Act. Such instructions to employees plainly interfere with their rights under Section 7 of the Act to, inter alia, "... assist labor organizations...." It is no defense that Respondent may have intended its instructions to be followed only by its supervisory staff or that Respondent may have mistakenly assumed that cus- tomer service representatives were "managerial" or "super- visory" personnel. While Respondent's intentions may have been pristine, the effect of the instructions was no less coer- cive on employees such as Bake, who had every right to assist their fellow employees in the data processing clerical unit in achieving union representation, if they so chose, and every right to avoid "getting involved" entirely, if they so chose. Accordingly, I shall include in my recommended Or- der that Respondent cease and desist from instructing em- ployees within or without the data processing clerical unit to assist it in its antiunion campaign or surveillance activi- ties. I also conclude that Respondent's "instructions" in the March 27 meeting, standing alone, had no impact on the free exercise of choice by voters in the data processing cleri- cal bargaining unit. There was no evidence that such unit employees ever learned of the existence of those instruc- tions. Accordingly, the events of the March 27 meeting do not provide a basis for setting aside the May 4 election, and I shall so recommend to the Board. B. The March 30 Discharge of Susan Bake Bake had been employed in the nominal6 capacity of cus- tomer service representative for approximately 4 months before she was discharged on March 30. Respondent main- tains that Bake was discharged solely because she was caught making an unauthorized examination of the person- nel file of Robert James Obermeyer, Respondent's then mnanager of administration. The General counsel contends that Respondent's reasons were pretextual and that Bake was really fired because she had engaged in certain pro- tected activities. In this regard, the General Counsel adverts to two separate incidents: First, "approximately a week" 6 Bake was still in training, however, and had not been assigned to service any particular customer account at the time she was discharged. before her discharge, she had discussed with fellow cus- tomer service representatives the possibility of engaging in a concerted "sick-out" in order to protest their dissatisfaction with their wages and working conditions: and, second, she had conspicuously presented herself at the March 27 meet- ing as being opposed to being required to participate in Respondent's preelection campaign against the Union. Respondent's managers and supervisors' each denied knowing, at any time befo)re her discharge, that Bake had been involved in any "sick-out" discussions with fellow cus- tomer service representatives. It is undenied, however, as noted above, that they were aware of Bake's exchange with Willms during the March 27 meeting. The "sick-out" discussion occurred as follows, according to Bake's credited testimony: Approximately a week before she was fired, Bake was talking with fellow customer service representatives Elaine Zajchowski, Tim Conway, and Dave Hanlon in a small office which Zajchowski and Conway shared. Their discussions centered around mutual com- plaints that they were "underpaid and overworked" and were being required to work weekends and late hours with- out compensation. Bake eventually proposed, "Instead of sitting around griping about it, why don't we do something about it? And I suggested that we call in sick for 2 weeks and have a sick-in at the Company ... so we talked about that for quite a while. And I remember Tim Conway saying that we would all get fired the minute they caught on to what was happening. It wouldn't work. And people wouldn't agree to do it anyway. So it was pointless. But we talked about it for an hour. And after that, we all went to lunch, without really resolving anything." The discussion concerning a possible "sick-out" was never revived there- after. On or about March 28, in the early afternoon, Bake was called into the office of Charles Fote, Respondent's cus- tomer operations manager at the San Mateo facility. She was met there by Fote, General Manager Hunter, and Omaha Personnel Representative Willms. Upon her arrival, Hunter asked Bake to photocopy all the personnel files of all the employees who were in the data processing clerical bargaining unit, pursuant to a request from Omaha. Bake testified, and I find, that Hunter told her that she was being asked to perform this task ". . . because they needed some- body that they could trust; and they would have had Cheryl Orr' do it, but she was very busy and she was going to help ... some .... " Bake then accompanied Willms and Orr to the room where Respondent maintained all of its personnel files and where the photocopy machine was located. According to Bake, either Willms or Orr then specified that Bake was to copy the files of only those persons who were in the bar- gaining unit and one or the other asked Bake whether she knew which people were in the bargaining unit and which weren't, since she was not supposed to photocopy files for any non-bargaining-unit persons. Bake indicated some un- certainty as to which persons should be considered in the bargaining unit, and she, Willms, and Orr, mutually pre- 7Specifically Hunter, Fote, Placzek, Orr, and Obermeyer. a Orr was Obermeyer's assistant at the time and was alternately referred to as "personnel coordinator" and "personnel clerk." 716 FIRST DATA RESOURCES. INC. pared a list of names of all persons whose files Bake was not to remove, since that list was smaller than the list of all the persons who were in the bargaining unit. After issuing these instructions to Bake and assisting her in preparation of the list, Orr and Willms left Bake alone in the photocopy room. Bake and Orr gave somewhat different accounts of what transpired thereafter. Bake initially testified in a very sum- mary form on direct examination that for the balance of the afternoon, she performed her assigned task of pulling files belonging to bargaining-unit employees from the two large drawers in which all of Respondent's personnel files were contained and photocopying them. She stated that the pro- cess was time-consuming and required frequent reference to the list of persons whose files she wasn't supposed to be copying. She acknowledged that Orr came in and helped her "occasionally" during this process because Bake was "going too slow." Her testimony on direct examination to- tally omitted reference to the fact, which she later readily conceded on cross-examination, that, while she was alone in the room, she had removed Obermeyer's personnel file and had opened it and was studying it when detected in that latter activity by Orr. She acknowledged further that Ober- meyer's name was one of those on the list of persons whose file she was not to inspect or remove. She denied that Orr had come into the room earlier to warn her that she should not be looking at personnel files other than the ones she was instructed to photocopy. Her denials were somewhat half- hearted and unconvincing in this regard, couched as they were in terms of a lack of recollection. She acknowledged, however, that, when Orr saw her looking at Obermeyer's file and asked her what she was doing, Bake replied, "I told her that I could be fired for that." Because of Bake's lack of candor regarding the events in question, because she exhibited markedly evasive demeanor during this stage of her testimony, and because of other internal inconsistencies in her testimony regarding those events which it is unnecessary to detail herein, I credit Orr's version of the events. Orr testified in substance as follows: Bake began the photocopying task at approximately 2 p.m. It was hoped that the photocopying would be completed by a 4 p.m. mail-out deadline. Shortly before 3 p.m., Orr came into Bake's work area and noticed that the pile of work which Bake had completed by then was quite small. Bake had not yet completed copying in the first of the two file drawers which are arranged alphabetically. She then no- ticed that Bake was nevertheless "leafing through the fold- ers" in the second of the two file drawers ". . . as though for a certain name." When Orr asked Bake what she was doing, Bake stuttered and said, "Nothing." Her suspicions aroused, Orr pressed Bake, and Bake replied that she was looking for salary information regarding one or more per- sons whose files were in the second of the two drawers be- cause there had been "rumors" in her department and she wanted to know what the actual salary figures were. Orr then admonished Bake and instructed her not to do that, noting that salaries were "confidential information" and that Bake's review for that purpose would be a "violation of confidentiality." Orr then reminded Bake that they were operating under a 4 p.m. deadline, although it did not ap- pear that Bake would be able to accomplish the task by then because of the small amount of work which she had already completed. Orr then stayed with Bake for a while and assisted her with the copying. Orr then left the room to attend to another project and returned about 15 minutes later and saw Bake with Obermeyer's personnel file opened and laid out on top of other files contained in the file drawer. Seeing that Bake was "reading through the pages" of Obermeyer's file, Orr again remonstrated with Bake, tell- ing her that she was engaged in "a breach of confidential- ity" and that she should not be doing that. At this point Bake said, "Well, I really don't want to do this. It's hot in here. Can I leave?" Somewhat piqued, Orr told Bake to leave, but continued working on the photocopying project herself, stopping in time to mail out as many photocopied files as she could by the 4 p.m. deadline. Orr was required to continue the photocopying project the following morn- ing, Bake having called in sick on that morning. In the meantime, shortly after Bake had been permitted to abandon the photocopying project on the afternoon of March 28, Orr encountered Willms. Noting that Orr ap- peared to be upset, Willms asked what had happened, and Orr related the events to Willms as just described. Thereafter, according to the credited, uncontradicted, and mutually corroborative accounts of General Manager Hunter, Customer Operations Manager Charles Fote, and Customer Service Manager Timothy Placzek, who was Bake's immediate supervisor, the following events oc- curred: At approximately 5:30 p.m. on March 28, Orr and Willms approached Hunter in quick succession and each related the earlier episode involving Bake's perusal of Ober- meyer's personnel file. Hunter, who was about to leave town on a business trip, met briefly with Fote, who had also heard about the incident. and Hunter told Fote to "look into the matter." Hunter did not dictate any specific course of action to Fote, nor was he subsequently consulted in any fashion before Bake was discharged. On either that same day or the following morning, Fote spoke with Bake's su- pervisor, Placzek, and told him to discharge Bake, specifi- cally refering to Bake's breach of"confidentiality." As noted above, Bake stayed away from work on March 29, claiming illness. She returned on March 30 and worked a full day before being called into Placzek's office, where- upon she was discharged, after first declining an option of- fered by Placzek that she submit a voluntary resignation. Bake and Placzek offer somewhat conflicting versions of the discharge conversation in Placzek's office. They both agree that Placzek told Bake that she was being fired be- cause of her breach of confidentiality in the Obermeyer file incident. They agreed that this was the main subject of dis- cussion in the discharge conversation. Bake claims and Placzek denies, however, that Placzek also mentioned Bake's "attitude" as an additional reason for her discharge. I credit Placzek's denial for reasons discussed earlier. Bake was least persuasive in those portions of her testimony deal- ing with the facts surrounding her discharge. Although never specifically referred to in any of the cir- cumstances leading up to Bake's discharge, the following instructions are contained within Respondent's employee handbook, which each new employee received and which was in effect at the time of Bake's discharge: Confidentiality in Your Daily Work It is possible you may acquire information pertaining to a fellow employee, friend, neighbor, public figure, 717 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD etc. Under no circumstances are you to reveal or dis- cuss such information with anyone, other than in a discussion pertinent to Company operations. Violation of this rule is grounds for immediate dismissal. Respondent's executive vice president for operations, Craig Hoenshell, credibly testified, in substance, that the confidentiality of data maintained by Respondent regard- ing financial transactions and related information concern- ing their customer banks and the individual credit card holders ". . . is basically a contracted portion of the services that we provide to our customers." Respondent also typi- cally employs a detailed screening process for employees who will work in positions which would give them access to information or materials which might enable them to intro- duce fraudulent credit cards into the marketplace. The screening process may include background investigations of prospective employees, as well as psychological interviews and testing to determine suitability for this type of work. The results of such investigation, interviews, and tests are maintained in the personnel files stored in the drawers to which Bake was given access for a limited purpose in con- nection with the photocopying assignment on March 28. Hoenshell acknowledged, however, that Obermeyer's par- ticular file did not contain such sensitive background and psychological information, since he had been hired specifi- cally because of prior experience he had in the industry and because he possessed skills which Respondent needed. San Mateo Customs Operations Manager Fote credibly testified that in addition to Bake, two other persons had been discharged at the San Mateo facility since its opening in January 1977 for having breached Respondent's "confi- dentiality" rules. Each case involved employees who had obtained access to information pertaining to customer ac- counts for which they had no direct responsibility. Respondent's Knowledge of Bake's Protected Activities: Postdischarge Conversation Between Bake and Obermeyer Obermeyer admitted that he learned about Bake's sug- gestions for a "sick-out" about a week after Bake was dis- charged. The subject came up in a casual conversation be- tween Obermeyer and Tim Conway 9 in Obermeyer's office. The two were personal friends and had frequent discus- sions, both in the office and during off-hours social meet- ings. In fact, Obermeyer testified that he was told by Con- way that Bake had suggested a "walkout"--not a "sick- out." The General Counsel maintains, however, that Respon- dent's knowledge of Bake's "sick-out" discussions must have been acquired before Bake was discharged, since ober- meyer allegedly alluded to that activity in a postdischarge telephone conversation with Bake during which he assert- edly cited the "sick-out" discussion as one of several "rea- sons" why Bake was discharged. Although they both agree that Obermeyer telephoned Bake "about a week" after she was discharged, the contents of that telephone conversation are disputed by the two participants. Bake's version was somewhat summary in character. She testified that Obermeyer began by saying that he had heard 9 Conway had been one of the customer service representatives involved in the discussion when Bake had proposed a "sick-out," that she was "really upset" about having been fired because she thought she had been "set up." According to Bake, Obermeyer then said that ". .. there were a lot of reasons that [she] was fired, other than the ones [she] had been told." Bake's version continued: Hie told me that-he accused me of trying to start this sick-in among the customer service reps. He said: Didn't you-Isn't it true that you tried to do this? * * * * * And he said that was one of the reasons that I was fired. And he said a few other things about my conduct around the office... he said that I had done something which wasn't appropriate ... and that there were a lot of reasons I was fired. And he kind he irritated me. I mean, it--he was kind of hostile, so I got mad and I hung up the phone.... Obermeyer's version was that he had been induced to call Bake by Bake's fellow employee, Zajchowski, who had told him that Bake was upset that none of her fellow employees had called to console her since her discharge and because she felt that she had been "set up" by having been given the photocopying assignment which ostensibly led to her dis- charge. Obermeyer then called Bake and told her he was calling her for "two reasons": First, to tell her that she had not been "set up" by management-that she had made an "honest mistake" by looking at his personnel file, but there had been no effort to "frame" her or "any kind of special deal to get her fired." The second point which Obermeyer testified he raised with Bake was that he believed that there were "other reasons" why she "could have been fired" specifically for her "bad attitude." Obermeyer claims that the only specific example which he cited to Bake concern- ing her "attitude" was an incident when he had observed Bake sitting on a couch in the executive area and had jok- ingly commented: "Some folks have it easy around here." Obermeyer reminded Bake that Bake had "flipped [him] a bird"' 0 in reply. According to Obermeyer, Bake refused to accept his efforts to persuade her that she had not been "set up" and began cursing Respondent, whereupon Obermeyer interrupted her, saying, "Hey, I'm not sticking up for any- body here. I'm just letting you know the real facts." Bake then began crying and hung up the phone, Obermeyer testi- fied. He specifically denied even having raised the "sick- out" incident with her. For reasons set forth below, I am unable to credit either version entirely. I find, preliminarily, that Obermeyer had learned of Bake's "sick-out" discussions from Conway be- fore he called Bake and that he raised the matter with her probably when citing examples of her "bad attitude." As to whether he had knowledge concerning the "sick-out" mat- ter before he called her, Obermeyer was both evasive and equivocal in his testimony." As to whether or not he raised that matter with Bake, in agreement with the General O0 A possible regional collotquialism for the familiar insulting gesture in- volving extension of the middle digit of either hand. 1 Based on his seeming admission of pre-telephone-call knowledge, along with his later claimed lack of recollection, and his evasive responses as he testified. 718 FIRS1 DATA RESOURCES. INC. Counsel's point, I find it unlikely that Bake would manu- flcture a story which identified only Obermeyer as knowl- edgeable regarding her "sick-out" discussions unless Ober- meyer had, indeed, raised the matter with her. To credit Obermever's denial would be to assume that Bake had merely made a "lucky guess" in identifying Obermever as the management representative with knowledge under cir- cumstances where the evidence eventually revealed that Obermeyer was, in fact, the only management agent to have such knowledge at the time. Moreover, since Ober- meyer seemed bent on convincing Bake that she had no basis for feeling aggrieved over having been discharged. it is unlikely that he would withhold reference to his knowledge of her "sick-out" discussions in reminding her that she had not been possessed of a good "attitude" even before her discharge. Accordingly, the probabilities favor Bake's ver- sion on this point. Having resorted to "probabilities" in this analysis. it must also be observed that it would be highly improbable for Obermeyer to have raised these subjects with Bake t'or the purpose of revealing that her discharge was pretextual. It is on this basis that I do not credit Bake's assertion that Obermeyer told her that her "sick-out" discussion was one of the supposed "other reasons" for her discharge. In this regard, I find that Bake was upset during the conversation and that her ability to faithfully relate its nuances was thereby seriously impaired. I further find that Obermeyer was telling the truth when he testified that he was not pur- porting to reveal to Bake any "inside" knowledge he had as to "reasons" why Bake was discharged other than her un- authorized snooping in his personnel file. Rather, I find that Obermeyer, in the context of an attempt to disabuse Bake of the notion that she had been wronged, ventured his per- sonal opinion to Bake that she "could have been fired" (but was not) because of other failings which Obermeyer (alone among Respondent's agents) knew about. Accordingly, I do not interpret Obermeyer's remarks as in any sense an "ad- mission" by an agent of Respondent that ulterior motives influenced the decision to terminate Bake. I further credit Obermeyer's claims that he did not learn of Bake's "sick- out" discussions until after Bake had been terminated and that he was personally unaware of any "other reasons" which might have influenced the decision to terminate her. Concluding Findings Regarding Bake's Discharge and Her Conversation With Obermeyer I conclude that the evidence is insufficient to establish that Bake's discharge was motivated in whole or in part by either her implicit resistance to participation in Respon- dent's antiunion campaign. as reflected in her exchange with Willms during the March 27 meeting. or by her sug- gestion to fellow customer service representatives that they engage in a "sick-out" to protest working conditions. I as- sume, without deciding, that Bake was engaged in activities protected by Section 7 of the Act in each incident.? I con- 2 In view olf m ultimate recommended disposition as to Bake, it is unnec- essary to engage in a detailed and wholly academic study) of he question whether an attempt to induce a "sick-oul" as opposed to a concerted "walkout" to protest working conditions is protected by Sec. 7 of the Act The possible legal distinction hetween the to t pes of activilies is insignifi- cant in the peculiar context of this case. Whatever knowledge hat Respon- clude. nevertheless. that Bake was discharged only because she willfully violated express instructions not to look at per- sonnel files other than the files which she was assigned to photocopy. I further conclude that this breach on Bake's part was sufficient to cause Respondent to decide that she was unreliable and therefore not suited for the customer service job for which she was training. In short. Respon- dent's asserted reasons for terminating her do not appear to be pretextual. The General Counsel does not directly argue that Bake's photocopying assignment 'was an attempt to entrap her into violating express instructions regarding the inviolability of non bargaining unit personnel files. Nor does anything in the record suggest that Respondent had ulterior motives in giving Bake that assignment. To the contrary. the record strongly suggests that she was given the assignment because Respondent's personnel clerks were busy on other assign- ments and the job had to be done by someone other than a member of the bargaining unit. The choice of Bake specifi- cally is rendered plausible by virtue of the fact that she admittedly had not yet been given a customer account to service at the time she was asked to help with the "rush" photocopying assignment. She further admitted that she did not have any specific "assignment" but rather "just sort of did odd jobs for everybody" in the 4-month period between her hire and her discharge. Nor was her misconduct in perusing Obermey'er's person- nel file a trivial or minor breach. The General Counsel has implied that, absent discriminatory reasons. Respondent would not ordinarily terminate someone simply for looking at a manager's personnel file. The record affords no basis for such speculation. In this regard, it is immaterial that Bake's misconduct may not literally have been encom- passed by the specific "confidentiality" rule contained in Respondent's employee handbook. There is substantial and unrebutted evidence that Respondent took confidentiality of records seriously not only to protect the privacy of per- sons about whom the records of were maintained but also out of concern that any employee who engaged in unautho- rized perusal of records would not be suited for work in an industry which is pecull rly vulnerable to fraud or embez- zlement. Perhaps most telling in connection with the ques- tion whether Bake's breach was sufficiently serious to ne- gate any inference that Respondent's decision to discharge her was pretextual was Bake's own spontaneous reaction when she was detected by Orr. As she admitted, "I told [Orr] that I could be fired for that," when Orr found her and asked what she was doing. It therefore came as no surprise to Bake that she was, in fact, discharged. Bake's only suspicion was that she had been "set up" to commit an act for which the normal penalty. as she knew. was dis- charge. The General Counsel further notes that Bake had been offered a "supervisory rosition" shortly before her dis- dent had was knowledge of Bake's plans for a "walkout" --not a "sickout," as Obermeer stressed in descnring the information about the plans as he received it from (onway. Bake', suggestion to other employees that the) withhold their services to protest conditions of employment was at least presumptively protected concerted activity See. e.g. McGa Laboraurtories. a Division f Amerincan HoTpital Suppl Corporatrrons, 206 NlRB 602. 603 (1973): ' i R B v Empire Gas, nc. 566 F.2d 6h1 10th Cir 1977) See also Ing Beach Youth (enter. Inc. ,s A qa/ Long Beach outh lome. etc.. 230 NIRB 648. 649 650 1977). 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge, implying that Bake was held in high regard and that her breach of "confidentiality" would have been over- looked but for a discriminatory ulterior motive. In fact, ap- parently because Respondent had not yet given Bake a spe- cific customer account to service and because she was just doing "odd jobs," she was offered a wholly different assign- ment as a "supervisor" in the retrievals department, a "small department," as Bake characterized it, in Respon- dent's production area. Bake considered the offer for a few days and then declined it. Asked by Respondent's attorney whether she considered such an assignment to be a "promo- tion," Bake replied: "No, not really." In summary, the preponderance of the credible record evidence shows that Bake was regarded by Respondent un- til the photocopying incident as a trustworthy employee who had not yet had an opportunity to perform as a cus- tomer service representative. Respondent's knowledge of her resistance to participating in management's antiunion campaign was not attended by any evidence of hostility toward her. She was given the photocopying assignment because she was deemed reliable and trustworthy and be- cause she was available. She violated specific instructions not to review personnel files of employees other than those which she was instructed to copy. Her violation was willful. It is entirely plausible that Respondent would determine to discharge her for that reason alone. It is now unexception- able to observe that even had Respondent resented her for any of her protected activities and desired to get rid of her for that reason, Respondent owed Bake no special duty of forbearance when she was detected in a serious breach of an important policy. Her discharge was not discriminatory. I have heretofore found, in substance, that although he did not cite it as a reason for her having been discharged, Obermeyer did tell Bake, in substance, that she could have been fired because of her "attitude" as exemplified by, inter alia, her (presumptively protected) "sick-out" discussions with fellow customer service representatives. The message inherent in such a comment is that employees who engage in such protected discussions looking toward a concerted work stoppage to protest working conditions are vulnerable to discharge. Such a message is inherently coercive and vio- lates Section 8(a)(1) when communicated to employees. I find that Bake was an employee within the meaning of Sec- tion 2(3) of the Act even though no longer employed by Respondent at the time the remark was communicated and even though I have found that she was lawfully discharged. Little Rock Crate & Basket Co., 227 NLRB 1406 (1977), and cases cited therein at footnote 4. It follows that Ober- meyer's remarks violated Section 8(a)(1). Accordingly, I shall recommend that Respondent be ordered to cease and desist from communicating such messages to present or for- mer employees and to post a notice containing appropriate reassurances in that regard. I further find and shall so recommend that the foregoing violation did not have an adverse impact upon the exercise of free employee choice in the May 4 election, there being no evidence that employees in the voting unit knew that such remarks had been communicated to Bake. C. Alleged Violations of Section 8(a)(1) Involving the Prospective Bargaining Unit Introduction Respondent held preelection campaign meetings at- tended by bargaining unit employees during three different periods.' Separate meetings for each shift (and in some cases for each department in each shift) were held during each period. Although General Manager Hunter testified that his remarks were essentially the same for each group during a given period, the evidence focused on Hunter's remarks made to swing shift employees in the data entry department. It is alleged that Hunter's remarks in those meetings included the unlawful solicitation of employee grievances and promises to remedy same (during Meetings I and 2) and a threat to transfer work from the San Mateo facility to the Omaha facility in order to discourage support for the Union (in Meeting 3). In addition, it is alleged that Respondent transferred work from San Mateo to Omaha shortly before the election in order to discourage support for the Union. By way of further introduction, reference is made to a campaign letter mailed to all prospective bargaining-unit employees by General Manager Hunter around April 6. Respondent unsuccessfully sought to offer that letter (Res. Exh. 3) as a form of corroboration of Hunter's testimony as to what he had said in the meetings, since he claimed not to have varied from the positions taken in that letter in any of his campaign speeches. I rejected Respondent's proffer in that regard, but subsequently received the letter into evi- dence for the limited value it might have in understanding the total context in which certain preelection remarks were made. With that latter purpose in mind," it is noted that the letter included the following text:" Everyone should contact his or her supervisor if there is any question as to how the election will work and what the result would be if the union were success- ful. I again suggest to you that there is a substantial risk to all of us from this involvement with the union. It is a very serious thing and can have a very negative effect on your future as well as the future of First Data Re- sources San Mateo. Make no mistake. I am not saying that if the union wins the election we would close the operation the next day. Nothing of the kind. However, as I have indicated previously, the most important resource we have is the ability to provide quick and uninterrupted service to our customers. I am i" The first series of similar meetings occurred in "late March or early April," the record permitting no more specific finding as to the timing. Simi- larly, the second series was "about ten days before the [May 41 election" (i.e., on or about Monday, April 24). Although all witnesses were also somewhat vague about the timing of the third series of meetings, context permits me to find that the one specifically in question involving data entry clerks on the swing shift occurred on Monday, May .These shall be referred to as "Meet- ing ," "Meeting 2," and "Meeting 3," respectively. ,4 The contents of the letter were not alleged as violative of Sec. 8(aX 1) nor as objectionable conduct affecting the election. " The text below omits only the first five paragraphs, which deal solely with information about the timing of, and other procedures associated with, the election. 720 FIRST DATA RESOURCES, INC. very concerned about the possibility of work stoppages and interruptions which would be possible if a union represented our employees. Again, don't be afraid to talk about the situation. You want to be informed; we want you to be informed. Meeting I The only witnesses who testified regarding the "late March early April" meeting involving swing shift data en- try employees were former employee Patricia Detrinidad and General Manager Hunter.' The meeting was attended by more than 16 persons. The complaint alleges, in substance, that at this meeting Hunter "solicited employee grievances and promised to remedy them" to discourage support for the Union." For contextual purposes, and because other aspects of the meet- ing arguably relate to later conduct of Respondent chal- lenged by the complaint, the findings below are not con- fined simply to the "grievance solicitation" aspects of the meeting. Hunter admittedly opened this meeting by telling em- ployees that he had nothing against unions and that his parents had been union members but that having been pre- sented with the Union's election petition was like having divorce papers "slapped on" him by his wife, without hav- ing had any prior indication that there were any complaints about the relationship. He also said that, based on allega- tions contained in the petition as to the size of the bargain- ing unit, he had some doubt whether the Union's showing of interest had been adequate (i.e., the unit was alleged to have consisted of fewer persons than Hunter believed were in it, hence the possibility that a bare 30 percent interest showing in the alleged unit might not be sufficient). Hunter quickly dismissed this concern, however, by admittedly say- ing that it didn't matter to him "whether a sufficient num- ber of people had signed the petition . . .. that if we had problems or anything that people were unhappy with in the company, then certainly we wanted to be aware of it." Hunter also admittedly voiced his concern for the conse- quences of union representation of his clerical work force, particularly in the event of a strike. Emphasizing that Re- spondent's bank customers might be lost if the Union got in, Hunter asked the assembled group what would be their guess as to the "first word" Respondent's customers would think of when they heard the word "union" associated with Respondent's business. Several employees replied in cho- rus: "Strike." Hunter said "Yes."i " Whatever other substantive "campaign" remarks Hunter may have made during this portion of his speech are not 1t Their testimony is only marginally in conflict on material points, as is true of respective witness' accounts of the other meetings discussed below. Many of the findings below are based on a composite of the credited testi- mony of each witness, since neither one offered anything approaching a systematic "start-to-finish" account. This resulted in a murky and disjointed record, which is a problem by no means unique to this case. '' Complaint par. Vl(c) alleged that this occurred "on an unknown date during the middle of April." The proof revealed that activity arguably of this type occurred in both Meeting I and Meeting 2. although pnmarily in Meet- ing 1. The contents of both meetings were fully litigated, and the variance between pleading and proof as to the timing is deemed insignificant. 1s Based on Detinnidad's credited specific recollection. which Hunter did not specifically deny. reflected in the record with any clarity, except that Hunter testified generally that in all of his speeches during this pe- riod he spoke of the possibility of the bank customers either taking their business elsewhere, or of Respondent's sending work to one of its other data processing centers in the event of a work stoppage at San Mateo. After concluding this portion of his speech, Hunter in- vited "questions"' 9 from the group. A substantial portion of the meeting was then devoted to complaints from the audi- ence and responses from Hunter. At least three different areas of employees' dissatisfaction emerged from the series of questions that followed. Thus, both witnesses agree that one such complaint was that ". . everybody was scared of Bart Jackson, who was ... our boss ... he used to intimi- date us. So people didn't really feel free to talk to him about our problems. And we didn't feel that our supervisor had any power as to the rights we had . . . like our wages and stuff."20 In this context, an employee named "Grace" raised the possibility of having a company-paid person to "repre- sent" the employees, referring to some such arrangement in existence when she had worked for Greyhound Corpora- tion. Both Hunter and Detrinidad agree, and I find, that Hunter replied (as Hunter put it in his testimony): And I had never heard of anything like that, I said, but it was certainly a possibility and something we could look into. Another complaint from several employees had to do with assertedly unfair production quotas, particularly as applied to persons who did "balancing" of accounts each of which required varying amounts of time and involved vary- ing degrees of difficulty. According to Detrinidad's credited testimony, Hunter replied that it was a "possibility . . . to get balancers off production."2 ' Many other complaints were voiced by employees related to the perceived unfairness of Respondent's "probation" system, although the record fails to reflect what, if any- thing, Hunter said specifically on that issue, other than his concession that his replies were generally the same for all of the complaints raised. Hunter also recalled a complaint having been raised about the uncleanliness of the women's restroom, to which he replied that he hadn't been aware of the condition of the restroom. After at least 15 or 16 employees had been heard from, Hunter concluded the meeting by saying that he had been unaware of employees' concerns in many of the areas which had been brought up, specifically referring to the com- 1' Hunter's term. Detrinidad repeatedly characterized Hunter's invitation at this point as calling for "grievances," although she refrained from insisting that this was the specific term actually employed by Hunter. Her character- ization was accurate insofar as it applied to the nature of the "questions" which emerged from the assembled employees, and the conflict on this point need not be resolved. 20 Credited testimony of Detrinidad. 21 Hunter testified to the effect that his reply was that he was personally unfamiliar with the production quota system as it might apply to balancers and that he told employees that he "... would try to learn more about that." Detnnidad's version is credited, because Hunter elsewhere stated that his answer to each complaint was generally the same and, as noted, he specifi- cally recalled promising to "look into the possibility" of hiring a company- paid representative for the employees. Accordingly, it is doubtful that his answer on the question of production quotas for balancers was as neutral and noncommittal as his above-discussed version would imply. 721 DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD plaints about Bart Jackson as being intimidating and unap- proachable. He also admitted expressing "suprise" at this point that employees had not raised these matters with their supervisor, reminding employees of the existence of a two- or three-tiered "standard procedure" for dealing with com- plaints and encouraging them to resort to the same in the future. In this latter regard, Respondent's employee handbook, which had been in existence prior to the organizational at- tempt, contains the following provision: Problems and complaints. If you have a personal work related problem or feel you have a reasonable com- plaint, please discuss it with someone in authority. Complaints of a personal nature are often the result of misinformation or misinterpretation of the facts. You should feel free to discuss any complaints or criticisms which disturb you with your supervisor, who is obli- gated to make a sincere effort to assist in solving the problem. If you do not feel the supervisor's decision or explanation is satisfactory, you should make an ap- pointment with the department or division manager, who will investigate the entire matter and either sup- port, modify. or overrule the supervisor's previous po- sition with an appropriate explanation to each of you. As Hunter testified, the term "supervisor," as used in the quoted text, referred to the immediate, first-level shift su- pervisor; the "department manager," in the case of data entry employees, would be Bart Jackson; and the "division manager" would be Hunter, as general manager. While the quoted text implies that the next level of appeal above "su- pervisor" could be either Jackson or himself, Hunter stated that he preferred to be involved only after Jackson had had an opportunity to resolve the matter hence the frequent reference in his testimony to a "three-stage" procedure. Meeting 2 In connection with Respondent's second series of cam- paign addresses, Hunter and Bart Jackson met with ap- proximately 30 swing shift data entry employees around April 24. From all of the testimony on the subject, it is evident that Hunter's role in the meeting was primarily to make certain introductory and closing remarks discussed below. Jackson responded to questions about the manner in which Respondent applied and calculated its productivity quota system, particularly as to balancers doing the "final edit" work, which had been a subject of concern in Meeting I. Former employee Detrinidad and management witnesses Hunter and Jackson each testified about the meeting, albeit in a somewhat haphazard manner which makes it difficult to determine precisely how and when certain remarks were made. From a synthesis of the credited testimony of all the witnesses, I find as follows concerning that meeting: Hunter opened the meeting with some remarks to the effect that he was going to have Bart Jackson respond to questions they had raised. Hunter and Jackson both testi- fied that Hunter also mentioned at that point that a person- nel representative from Omaha would be coming to San Mateo in the near future and that employees would be able to address any additional questions to that representative. Detrinidad states, evidently referring to the same remarks, that Hunter said that he was ". .. looking into the repre- sentative to settle the grievances between employees and management that would be hired by the management." I credit Hunter's and Jackson's version on this point, since Detrinidad seemed to be characterizing and relating her personal conclusions rather than faithfully reporting Hunt- er's words. Detrinidad also changed her version somewhat when she next recounted the same incident. 21 find that Hunter's remarks on this subject in Meeting 2 were unre- lated to his statement in Meeting 1 about "looking into the possibility" of a company-paid employee representative. Jackson then took the floor. Detrinidad credibly testified without contradiction that Jackson opened his remarks by saying that he knew that he was known as "Black Bart" and then in a "very friendly" way stated that he "wanted to hear [employees'] grievances and he wanted to talk things out and find out what was happening." Certain complaints were then heard from employees, mainly relating to perceived unfairness in the pay rate sys- tem for various increments of work. One employee ques- tioned why her recent pay increase had apparently taken only her production into account and why she had not been given additional credit for her work attitude and attend- ance. Hunter interjected, according to Detrinidad's credited and uncontroverted testimony, that that ". . . didn't sound right and [I] would have to look into it. Because people were supposed to be getting paid based not only on the production, but also on their attitude towards work and their attendance." Jackson took up most of the meeting in responding to specific questions and giving purely factual answers as to the manner in which Respondent computed productivity and the weight given to certain increments of work. At some point in the meeting, according to the text of a pre- trial affidavit given by Hunter, which he did not contradict and which has the character of an admission: One of the employees said that it was really nice of me and Jackson to come down and talk with them. One of the employees said that this kind of meeting is good, that she knew of another company that did this on a regular basis. I agreed with her that it was a good idea. I informed the group that we would have our director of personnel out here for three days to basically do the same thing, that [sic] to answer any questions that they had. Concluding Findings Regarding the Alleged Solicitation of Grievances For reasons discussed below, I conclude that Hunter's actions in Meetings I and 2 involved impermissible solicita- tion of employee grievances, together with implicit assur- ances that some or all of them would be resolved, in viola- tion of Section 8(a)( ). It is undisputed that Hunter announced in Meeting 1, in effect, that the existence of union organizational activities 21 This time, Detrinidad reported that Hunter said that he was "... look- ing into the representative that-- to come and talk to us and see how we felt about having that person represent us [emphasis supplied.l" The phrase fol- lowing the underscored portion appears particularly to reflect an unconvinc- ing effort to tie together the remarks in Meeting I and Meeting 2. 722 FIRST DATA RESOURCES. INC. among the data processing clericals was evidence of em- ployee dissatisfaction and that Respondent "wanted to be aware of" any employee "problems or anything that people were unhappy with in the company." These opening re- marks, coupled with Hunter's use of the analogy to having been served with divorce papers without prior notice that there was anything amiss in the marriage relationship, pre- dictably and clearly had the effect of encouraging employ- ees to air their grievances over the employment relation- ship. Thus, when Hunter called for "questions" from the third shift data entry group, the responses were virtually all in the form of complaints or grievances about employment conditions. It is further admitted that Hunter either expressly or im- pliedly promised employees that he would "look into" sev- eral of the complaints and suggestions raised in Meetings I and 2, as in the case of, for example, the suggestion regard- ing a "company-paid" employee representative. Moreover, Meeting 2 was in a very real sense itself a type of "remedy" for the "grievance" expressed in Meeting I about the inac- cessibility and intimidating presence of Manager Bart Jack- son. Thus, Jackson was presented to the employees in Meeting 2 as a sympathetic and responsive manager, quite obviously in an effort to patch up the impaired relationship between him and his subordinates which had manifested itself in Meeting . Finally, Hunter encouraged employees in the overall belief that Respondent's management would be more sensitive and responsive in the future to employee dissatisfaction when he stated his agreement with the re- marks of an employee in Meeting 2 who had praised him and Jackson for being "really nice" and who had suggested that meetings of this type on a "regular basis" would be "a good idea." The Board has regularly held that, absent an established practice of doing so, the holding of meetings during a union organizing campaign at which employees are encouraged to air their grievances necessarily implies a promise to remedy them, thereby constituting a form of impermissible promise of benefit to discourage union support. E.g., Reliance Elec- tric Company, Madison Plant Mechanical Drives Division, 191 NLRB 44, 46 (1971); York Division, Borg-Warner Cor- poration, 229 NLRB 1149, 1152 53 (1977); Raley's, Inc., 236 NLRB 971, 972 (1978): cf. Uarco, Incorporated, 216 NLRB 1, 2 (1974). Hunter's conduct in Meetings I and 2 fits the classic mold. Not only did Hunter's solicitation of grievances in itself give rise to the inference that Respondent would seek to remedy them, but Hunter's responses as detailed above served to reinforce that inference. For this reason, the facts of this case are in marked contrast to those in Uarco, Incor- porated, supra, in which the Board held (Member Jenkins in dissent) that the "inference" of promising to remedy griev- ances raised by an employer's meetings with employees had been "rebutted" by express "no promises" remarks made concurrent with the soliciting and airing of employee com- plaints. Nor does the preexistence of a form of "grievance proce- dure" as contained in Respondent's employee handbook re- quire a different conclusion. Contrary to the assertion of Respondent's attorney on brief, the meetings involved far more than a mere explanation of"existing procedures." In- deed, the fact that meetings were held by top management officials in which employee complaints were solicited and the fact that Jackson was "produced" for the benefit of employees who had previously found him to be unap- proachable prove that the existing written "procedure" had been ineffective and that Respondent felt obliged to go to unprecedented and extraordinary lengths in order to per- suade employees that they could obtain satisfaction on their complaints without the need for union representation. The Stride Rite Corporation, 228 NLRB 224, 225 (1977). Accordingly, I shall include in my recommended Order a provision that Respondent cease and desist from soliciting employee grievances in order to discourage support for the Union. Events Associated With the Transfer of Work to Omaha Three arguably interrelated events occurred on May I. First, admittedly due in part to a management decision made a few days earlier to divert a substantial amount of data entry and balancing work from the San Mateo facility to the Omaha facility, prospective bargaining-unit employ- ees on the swing shift were left with nothing to do through- out their work shift. All affected employees were paid their normal hourly rates for that shift, however. Second, Hunter held Meeting 3 with swing shift employees, during which he adverted to that diversion of work. Finally, Jackson had an impromptu meeting with a group of swing shift employees, during which he explained why work had been diverted to Omaha and also spoke about the likelihood that work would be diverted in the future as a management counter- measure in the event of a strike or work stoppage by em- ployees. With respect to the timing of and motivation for the di- version of work to Omaha, resulting in the lack of work for swing shift employees on May 1, I find as follows: One of Respondent's major bank customers, Wells Fargo Bank, had signaled its intention months earlier to phase into the performance of much of the data capture, entry, and bal- ancing work previously done by Respondent, using one of its own recently acquired computers. In anticipation of the reduced demand from Wells Fargo, Respondent had been in the process of reducing its own work force by attrition since mid-March. A problem was created when Wells Far- go repeatedly postponed the predicted date of making the conversion. Thus, as of March 28, the date on which Wells Fargo had originally intended to convert to its own system, Respondent found itself with fewer employees than were necessary to keep up with the still-arriving work from Wells Fargo. Thereafter, there occurred a process of almost weekly postponement of the conversion date. This began to result in "holdovers" at the end of each week, i.e., uncom- pleted data processing and entry work due to "short" staff- ing. This, according to Jackson's credited testimony, "cost the banks money." After several postponements of the conversion date, with the attendant problem for Respondent of increased "hold- overs," Jackson recommended by memorandum dated April 26 that some of the anticipated workload" for the 13 Jackson credibly testified that Respondent expected about 50.000 mer- chant sales slips (or "tickets") from Wells Fargo to arrive on the weekend preceding Monda). May 1. His April 26 memo (Resp. Exh. 4(b)) corrobo- rates this testimony Evidently, this was in addition to holdovers which would also have to be done on the following Monday, unless the holdovers were sent elsewhere. 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following Monday (May I) be rerouted to Omaha by means of the "emergency punching procedure"24 which had been developed as a backstop means of dealing with holdovers. Although details were not presented on this point, Respon- dent's plan was evidently to reroute as much of the antici- pated work to Omaha as was necessary to leave San Mateo with a manageable workload for Monday, May 1. Jackson further credibly testified, however, that Wells Fargo ended up sending far fewer "tickets" on Saturday than had been anticipated (in fact only about 16,000). In the meantime, the work which would otherwise have been held over for San Mateo employees on Monday had been transferred to Omaha, leaving an unusually small amount of work to be performed by San Mateo employees on that Monday. Thus, according to Hunter and Jackson's mutually corroborative testimony, first shift employees were able to accomplish all of the incoming work that day, but there was none left for the swing shift employees. With respect to Hunter's conduct in Meeting 3, which occurred later on May , I find as follows: Hunter narrated a "slide show," one of which slides depicted in cartoon form a large piece of construction machinery adjacent to a fright- ened woman seated at a small computer terminal. Hunter added that the Union was not "appropriate" for the cleri- cals since it "didn't have anything to do with [the clericals'] work." Continuing with his use of slide-projected visual aids, Hunter displayed a map of the United States showing the locations of Respondent's various computer centers, in- cluding Omaha. At this point, based on a synthesis of the credible, albeit disjointed, testimony of employees Detrini- dad and Jackie Bulnes, Hunter commented that when there were too many holdovers work could be transferred to Omaha "as we could see today. by a flick of a switch." Hunter also used this opportunity to again remind employ- ees that if there were a strike, work would be lost from the San Mateo facility-either because bank customers would take their business elsewhere, or because a strike would force Respondent to get its work done elsewhere. Any additional remarks which Hunter may have made during Meeting 3 are not evident from the record. When Meeting 3 concluded, 12 to 15 data processing em- ployees met informally with their supervisor, Cheryl Holms, and the discussion turned to the lack of work for swing shift employees due to the rerouting of substantial amounts to Omaha. Jackson joined the group and was questioned as to why there was no work. He explained, in substance (the witnesses found his remarks too confusing and detailed to recall), that the existence of too many holdovers had forced the rerouting of work to Omaha. At least one employee voiced the suspicion that the rerouting was a scare tactic related to the upcoming election. Bulnes acknowledged, however, and I find, that Jackson denied that any scare tactic was involved and said that the reason for the work transfer had been related to the holdover problem. At some point during this impromptu meeting, Jackson again re- minded employees that a work stoppage at San Mateo 24 The technical details of this procedure were not made a matter of rec- ord, but the San Mateo facility was "tied into" the network of computer terminals maintained at Respondent's other facilities, including Omaha. And, as found below, Hunter referred in Meeting 3 to Respondent's ability to reroute work to other computer centers "at the flick of a switch." 25 Credited testimony of Detrinidad, not contradicted by Hunter. would result in a loss of work at the San Mateo facility because Respondent's bank customers would have to have their data processing work done promptly and either Re- spondent would have to transfer work elsewhere or the bank customers would have to find another way of having their work accomplished. 6 Concluding Findings Relating to the Alleged Discriminatory Work Transfer and the Alleged Threats To Transfer Work For reasons set forth hereinafter, I conclude that Respon- dent's transfer of work to Omaha affecting swing shift em- ployees on May I was not discriminatory and was not influ- enced by union considerations and that Hunter did not, in his May I speech in Meeting 3, "threaten" to transfer work from San Mateo in order to discourage employees from voting for union representation. As to the question of Respondent's motivation for having transferred substantial work to Omaha around May 1, the only specific evidence was that outlined earlier. In sum- mary, the evidence shows, and I conclude, that the transfer of work was due to the coincident factors of an ongoing "holdover" problem deriving from Wells Fargo's vacilla- tion on the timing of its cessation of use of Respondent's services and the specific problem occasioned by Wells Far- go's furnishing substantially fewer tickets for processing than it had earlier predicted would be sent to Respondent for handling on May . Accordingly, I conclude that Re- spondent did not engage in objectionable conduct or violate Section 8(a)(I) by such transfer of work. As to the issue of Hunter's alleged "threat" to transfer work made during Meeting 3, the evidence failed to reveal that such a threat was made. Rather, it is clear that Hunter did no more than to repeat earlier remarks which he had made, to the effect that a work stoppage would necessarily involve loss of work for San Mateo employees, either be- cause bank customers would take their business elsewhere or because Respondent would have to send the work to another data processing center in order to serve whatever customers continued to use Respondent during a San Ma- teo work stoppage. In my opinion, Hunter's remarks were privileged by Section 8(c) of the Act in that they constituted "predictions" which were reasonably based on specifically articulated facts. Under such circumstances, Respondent's employees were able to recognize that Hunter was not merely threatening them with retaliation for selecting a union, nor for going on strike, for that matter, but was merely stating his opinion, based on the nature of Respon- dent's business and the existence of its computer link-ups with other data processing centers, that if such a strike were to occur it would be likely that business would be lost and be handled either by a business rival or by another of Re- spondent's centers. 26 The initial testimony of employee Bulnes during direct examination on this subject was somewhat vague and summary in character, but it would clearly invite the interpretation that Jackson had predicted loss of work opportunities for San Mateo employees simply as a result of the Union's "getting in." Bulnes eventually conceded on cross-examination, however. that Jackson's remarks in this regard were made "in reference to what would happen if there was a strike or work stoppage." I so find. 724 FIRST DATA RESOURCES. INC. Although neither the complaint nor the objections specif- ically raise the question, I have considered the fact that Respondent frequently referred to the possibility, of loss of work in the event of strikes as an integral part of its overall campaign "pitch" to employees. I am mindful of the fact that under some circumstances an employer violates Sec- tion 8(a)(1) and, in an election context, engages in objec- tionable conduct, by emphasizing the specter of strikes and their inevitability in the event employees select a bargaining representative. I have reviewed Board cases in this area with the possibility in mind that Respondent's pattern of conduct in this regard might, in its totality, have amounted to a violation of Section 8(a)(l) or to objectionable conduct affecting the election. I have nevertheless concluded that Respondent's conduct in this area was free from such taint. Of paramount importance in this analysis was the fact that while Respondent's agents regularly reminded employees of the possibility of loss of work in the event of a strike, there was a distinct lack of any parallel message that strikes themselves would necessarily occur as a consequence of union representation. Thus, if the "free speech" guarantees in Section 8(c) are to be given any substance, in order for an employer to vio- late the Act by an antiunion campaign involving emphasis on the adverse consequences of strikes, there must be some concomitant suggestion by the employer that strikes would be inevitable in the event employees were to select a union representative. See, e.g. Wex-Tex of Headland, Inc., 236 NLRB 1001 (1978): Four Winds Industries, Inc., 211 NLRB 542 (1974); Tommrv's Spanish Foods, Inc.. 187 NLRB 235 (1970). Unlike the cited cases, there was no indication by Re- spondent herein that it would be obdurate or unyielding in any efforts by the Union to achieve changes from the status quo, should it become the employees' representative. Nor did Respondent in any other manner suggest that employ- ees would have to resort to a strike in order to obtain any' benefit from union representation. In summary, therefore, I conclude that Respondent did not, by the totality of its preelection conduct, unlawfully threaten employees that the selection of a bargaining representative would virtually in- sure that strikes, with their potential adverse consequences, would occur. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By including customer service representatives in its March 27 meeting in its general instructions issued there to engage in the gathering of information about the union ac- tivities of employees in the data processing clerical unit and to engage in antiunion campaign activities on behalf of management, Respondent violated Section 8(a)(l) of the Act. 4. By Obermeyer's having told Bake during her postdis- charge telephone conversation that her protected concerted activities (i.e., her "sick-out" plans) could have been grounds for discharging her, Respondent violated Section 8(a)(1) of the Act. 5. By' soliciting and impliedly promising to remedy some or all of its employees' grievances during the preelection period, Respondent violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as specifically found above, Respondent did not violate the Act in any other respects. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices affecting commerce, I find it neces- sary to order that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including the posting of appropriate remedial notices to employees at its San Mateo, California, facility. I shall also recommend, in view of my finding that the aforesaid violations included one directed at, and affecting the rights of; bargaining unit employees, that the results of the May 4 election be set aside and a new election be held.' Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2" The Respondent, First Data Resources, Inc.. San Mateo, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Instructing employees to gather information about the union activities of fellow employees or otherwise in- structing employees to participate in management anti- union campaign activities (b) Telling employees that they' are vulnerable to dis- charge for engaging in discussions about, or advocating. conduct protected by Section 7 of the Act. (c) Soliciting employee grievances and impliedly or ex- pressly promising to remedy some or all of them in order to discourage employees from seeking union representation. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post at its San Mateo, California, facility copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- 27 Having earlier found that. of the three violations of Sec. 8(aXI) noted above, only one (i.e., number 5, above) directly affected employees in the bargaining and voting unit, this recommendation is linked to said violation only. Zn In the event no exceptions are filed as provided by 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. 102.48 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. 19 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board " 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gion 20, after being duly signed by an authorized represent- ative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all loca- tions where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ITr IS FURTHER RECOMMENDED that the Union's objections which were addressed to Respondent's solicitation of and promises to remedy employees' grievances be sustained, that the results of the May 4 election be set aside, and that a new election be directed. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TIHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence and arguments, it has been decided that we violated the law, and we have been ordered to post this notice. We intend to carry out the order of the Board and to abide by the following: The National Labor Relations Act gives employees the following rights: To organize themselves To form, join, or assist unions To bargain with their employers regarding wages and other working conditions through a representa- tive which they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of the above activities, except to the extent that the employees' bargaining representative and employer have a contract which imposes a lawful requirement that employees be- come members of the employees' bargaining organi- zation. In recognition of these rights, we hereby notify you that: WE WILL NOT instruct or require employees to keep track of or gather information about the union activi- ties of fellow employees or to report those activities to members of management. WE WILL NOT instruct employees to engage in cam- paign activities against Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO, or any other union seeking to represent our employees. WE WILL NOT tell employees that they could be fired or otherwise treated adversely because they discuss, plan, or engage in activities protected by the National Labor Relations Act, such as the concerted withhold- ing of services to protest wages or other terms or condi- tions of employment. WE WILL NOT promise employees benefits to dis- courage them from choosing Operating Engineers Lo- cal Union No. 3 or any other labor union as their col- lective-bargaining representative, such as by asking them what their grievances are and promising to rem- edy those grievances. WE WILL NOI in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. FIRST DATA RESOURCES, INC. 726