Bank of California

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bank of California, National Association and Division of Professional Office and Industrial Union (MEBA). Case 19-CA-4706 February 24, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On September 30, 1970, Trial Examiner Henry S. Sahm issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's De- cision and a supporting brief, and the General Coun- sel filed an answering brief. 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exmainer made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found, as charged by the only allegation of violation in the complaint, that Respon- dent discriminatorily discharged Frank Shubert be- cause of his activities on behalf of the Banking Guild. In so doing, the Trial Examiner found that Schubert was the sole instigator of the Union, who solicited five persons, three of them supervisors, and that shortly thereafter, Schubert was summarily discharged.' These facts led the Trial Examiner to infer unlawful motivation for the discharge, which inference was fur- ther bolstered, in the Trial Examiner's view, by his conclusions that Respondent's complaints against Schubert were "trivial" and "irrelevant," that Respondent's action was "not natural," that, accord- ing to his interpretation of the record, there was no substantive basis for Respondent's alleged dissatisfac- tion with Schubert, and that, therefore, Respondent's grounds for discharge were pretextuous. We find mer- it in Respondent's exceptions to the Trial Examiner's findings and conclusions. 1 The solicitations occurred on or about March 10 and 11, 1970, and the discharge occurred on March 13 There is no evidence that Schubert engaged in any union or concerted activity prior to March 6, 1970 Assuming that Respondent had knowledge of Schubert's union activities through its supervisory personnel whom Schubert solicited, there is nothing else, except the timing of Schubert's discharge, from which it can be inferred that his discharge was moti- vated by union activity. Thus, there is not one iota of evidence of union hostility or animus; nor is there evidence of interference or other 8(a)(1) conduct. Fur- thermore, the record does not support the bases for the Trial Examiner's conclusions that Respondent's asserted reasons for Schubert's discharge were mere pretext. The record shows that Schubert was hired in Feb- ruary 1969, at a salary of $575 a month, to assist Robert Henshaw in the business development depart- ment. Less than 2 months after Schubert was hired, he approached Henshaw for a raise, saying that his ex- employer had offered him a job at a higher salary. At that time, Schubert received an additional $125 a month, his only raise while with Respondent? There- after, numerous complaints regarding Schubert came to the attention of Vice President Comer and Assist- ant Vice President Claycomb, which included his ab- sences, tardiness, "socializing," reading newspapers and AIB books while others were working, calling longtime employees "stupid," interfering with the manner of work in other departments, leaving large checks on his desk unattended, not performing sur- veys to Claycomb's satisfaction, attempting to pres- sure employees to join the AIB classes, and an inability to conduct the business development portion of the officers' meetings. As a result of those complaints, Henshaw spoke to Schubert about his absences and tardiness, and Schu- bert did improve in this respect. To alleviate Schubert's interference with a constantly busy depart- ment immediately adjacent to his, Respondent had a set of file cabinets placed between the departments. Also, Vice President Comer took it upon himself to check personally on Schubert and found him reading AIB books at his desk. Finally, as a result of the complaints of the way Schubert conducted meetings, Respondent had Schubert removed and directed Henshaw to conduct the meetings in the future. During Schubert's first 8 months of employment, there were two complaints of a serious nature, of which Comer and Claycomb were both aware. One instance involved a "kiting" operation by a customer whose large checks were found on Shubert's desk af- ter the time they were due in another area of the bank. Had they not been recovered by Claycomb and re- turned in time to the Federal Reserve Bank, Respon- dent would have been responsible to honor and cover 2 Although the Trial Examiner states Schubert received two raises dung his short tenure, there is no evidence of any other raise reflected in the record. 188 NLRB No. 109 BANK OF CALIF., NATIONAL ASSN. $500,000 in bad checks. Another major complaint in- volved two incidents where Schubert held, for an ex- tra day, a customer's large deposit check which was to be transferred to the customer's employees' ac- counts. By holding this check an extra day, it was not deposited to the employees' accounts, which caused some employee customers to be overdrawn for a day. In October 1969, when Claycomb took over the personnel duties at the bank, he reviewed all person- nel files. In reviewing Schubert's file, Claycomb found that Schubert had received a pay raise in April. Clay- comb was of the opinion that Schubert was receiving more money than he should. As a result of his person- al knowledge and the numerous complaints regarding Schubert, Claycomb consulted Comer and they de- termined to recommend Schubert's discharge. When Schubert's personnel review was discussed with Campbell, Respondent's manager, both Claycomb and Comer urged Schubert's termination. Campbell at that time agreed, and directed Claycomb to seek a replacement. Claycomb eventually offered the job at a lower salary to someone else, who turned it down. Later, Claycomb was told to quit soliciting for the job, as Henshaw had talked Campbell into giving Schu- bert more time. After Henshaw talked to Campbell, Henshaw told Schubert that he "would have to get him out more .... Mr. Campbell felt that perhaps we weren't doing quite the job we should." In January 1970, Schubert again discussed the sala- ry with Henshaw, who advised him he could make no commitments. Later, Schubert told Henshaw that he had another job offer at a higher salary and Henshaw stated that Respondent could not be pressured into giving him more money and advised him to take the other job, if he were so inclined. Henshaw informed personnel of this conversation. Claycomb also talked to Schubert in January about this job offer and ad- vised him to take it "if it were more inviting."3 In February, Schubert's personnel file again came up for review. Claycomb inserted a recommendation that no salary increase be given as a pattern was de- veloping that Schubert "was definitely dissatisfied with his salary" and advancements, although he was receiving as much as some supervisors. Henshaw agreed with this review, and, as a result, no salary increase was given. On March 12, a few days, after talking to some of Respondent's supervisors about a union, Schubert again approached Henshaw about an increase in sala- ry. Henshaw told Schubert there would not be a raise and directed him to stay away from personnel. Con- trary to Henshaw's directions, Schubert contacted 3 Contrary to the Trial Examiner's finding that Claycomb did not have conversations with Schubert from September 1969 until his discharge on March 13 , 1970, the record shows that Schubert advised Claycomb about his job offer in January 1970. 683 personnel and requested a raise in salary or a transfer. This request came to the attention of Claycomb, who, at that time, was considering another recommenda- tion for Schubert's termination. The next day, Hen- shaw advised Claycomb that Schubert had talked to him about a raise, but that Schubert probably would not come down to personnel. Claycomb informed Henshaw that Schubert had come to personnel, and that Respondent "could not continue this way." Clay- comb immediately thereafter related all these facts to Comer, who agreed with Claycomb's recommenda- tion to terminate Schubert. Both Comer and Clay- comb were disturbed about Schubert's salary, which they believed was too high, and they were further upset about his continuous attempts to receive more money, particularly by using the ploy that he had another job offer-a tactic that had been successful previously and of which Claycomb and Comer were aware at this time. Comer and Claycomb attempted to reach Hen- shaw, who was not available at that time, but then decided to go ahead and terminate Schubert. Very candidly, Comer and Claycomb both admitted that they seized this moment, with Henshaw and Camp- bell absent from the bank, to get rid of Schubert, so that Henshaw would not have another opportunity of talking Campbell into retaining Schubert, as he had done previously. The termination interview, as related by Schubert, Claycomb, and Comer, contained no reference to un- ion or concerted activities. The reference to "dissatis- faction" was the same dissatisfaction exhibited prior to Schubert's becoming involved in union activities, as evidenced by Claycomb's reference to dissatisfac- tion on Schubert's February personnel review. Even Schubert recognized that Respondent's officials were annoyed because of his concern with salary increases, when he stated, "It became apparent it was because of the fact the previous day I had gone down to per- sonnel and had asked about my status ... the only reason they gave me, that I was unhappy and dissat- isfied....." To support his conclusion that the Respondent's reliance on the foregoing sequence of events as reason for its discharge of Schubert was pretextual, the Trial Examiner, as noted, characterized such events as "trivial," "irrelevant," "not natural," and "indefinite, vague and general." The Trial Examiner did not, how- ever, discredit the record evidence that the events in issue did in fact occur. Consequently, the touchstone for determining the real reason for Schubert's dis- charge is not how we or the Trial Examiner would have regarded such events, had we been responsible officials of the Respondent, but rather how such offi- cials themselves regarded the events at the time they occurred. In this respect, the record shows, as set forth 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, that, in response to Schubert's derelictions and prior to his union activity, Respondent took the fol- lowing steps: had file cabinets placed between depart- ment to isolate Schubert; had meetings conducted by Henshaw rather than Schubert; had personal checks by officials to verify Schubert's idleness; initiated ac- tion to effect his termination, which was rescinded only because at the last minute Schubert's supervisor was able to persuade Respondent's manager to give Schubert another chance; looked for a replacement; advised Schubert regarding his unsatisfactory work and did not discourage him from accepting another job offer; and noted on his performance review only a few weeks prior to his union activity and his dis- charge, that no raise was recommended because of "lack of proper attitude" and that his activities (non- union at that time) "point toward dissatisfaction." Furthermore, Schubert's discharge occurred on a Fri- day at the end of a pay period and the two officials who were all along most anxious to terminate Schu- bert took advantage of an opportunity to do so, when those who had prevented the earlier discharge attempt were temporarily absent. On the basis of the foregoing, we are satisfied that Respondent's officials who effected Schubert's termi- nation regarded his conduct and attitude with respect to his work as a matter of serious concern, warranting his termination. Although the timing of Schubert's discharge, shortly after Respondent's supervisors ac- quired knowledge of his union activity, is a suspicious circumstance, it is in our opinion insufficient, partic- ularly in the absence of any evidence of union animus, to overcome the positive evidence of dissatisfaction and efforts to effect his termination, long antedating his union activities, by the officials actually respon- sible for his termination. We find, therefore, that the General Counsel has not established by a preponder- ance of the evidence that Schubert was discharged for his union activities. Accordingly, we shall dismiss the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed. MEMBER BROWN , dissenting: I agree with the Trial Examiner that Schubert was unlawfully discharged, and I would therefore issue the appropriate remedial order. TRIAL EXAMINER'S DECISION ISSUE HENRY S. SAHM, Trial Examiner: The issue in this proceed- mg involves a charge by the General Counsel, which the Respondent Bank denies, that an employee of the Bank was discharged when he attempted to interest some of the Bank's employees to join the-Banking Guild, a labor organi- zation. STATEMENT OF THE CASE This proceeding, under Section 10(b) of the National La- bor Relations Act, was heard in Seattle, Washington, before Henry S. Salim, the Trial Examiner, on June 2 and 3, 1970. The complaint which issued on April 22, 1970, on a charge filed by the Banking Guild, the Charging Party, dated March 19, 1970, alleges in substance that the Respondent, in violation of Section 8(a)(3) of the Act, discharged Frank Schubert because he had engaged in union activity by at- tempting to organize a union at Respondent 's Seattle Bank. The Respondent Bank of California, hereinafter the Bank, filed a general denial, disclaiming the commission of any unfair labor practices. Following the hearing, briefs were filed by the General Counsel and the Respondent on July 8, 1970, and have been fully considered. At the close of the General Counsel's case in chief, Respondent moved to dismiss the complaint and this motion was renewed at the close of the hearing. The motion is disposed of in accordance with the findings below. Upon the entire record in this case , including the briefs, and from observation of the demeanor of the witnesses while testifying, there are hereby made the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a California corporation, is engaged at van- ous locations in the operation of full-service banks , includ- ing the branch bank at Seattle, Washington, which gave rise to this proceeding. During calendar year 1969 , at its Seattle bank, Res ondent did a gross volume of business in excess of $500,000 which included the transmission to out-of-state banks for collection purposes checks in an amount exceed- ing $500,000. It is admitted and found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is admitted that the Banking Guild , the Union herein, is a labor organization within the meaning of Section 2(5) of the Act. The Banking Guild was established in January 1970 for the purpose of organizing the employees of banks. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background Frank Schubert, the alleged discriminatee, was hired by the Bank of California, the Respondent, on Februar 19, 1969, and discharged on March 13, 1970. As an employee in the business development department of the Bank, he received three personnel appraisals and a superior perform- ance rating during the 13 months he was employed. Schu- bert also received a letter of commendation from the San Francisco main office of the Respondent Bank for the excel- lent work he performed on a check cashing survey. Begin- ning in December 1969, he became interested in organizing the employees of the Seattle branch of the Respondent Bank 0 I California. On March 6, 1970, he had lunch with BANK OF CALIF., NATIONAL ASSN. Wilbur Gates, an officer of the Banking Guild, and they discussed the possibility of organizing the employees of the Bank of California's Seattle branch. On March 10 and 11, Schubert contacted various employees of the Bank of Cali- fornia, among them several supervisors, and told them of his interest in organizing a union for the employees of the Bank and whether they would be interested in joining. On March 13, 2 to 3 days after he had talked to these employees about organizing a union, he was called down to the personnel office and terminated by the Respondent, effective immediately, and without the knowledge of his immediate supervisor. The reason given him by Respondent was "poor attitude." After his termination by the Bank, Schubert has been employed by the Charging Party, the Banking Guild, since March 16, 1970, in the capactiy of organizing professional and clerical employees in the Seattle area, including Re- spondent Bank's employees. B. The Testimony Frank L. Schubert; the alleged discriminatee, was em- ployed on February 19, 1969, by the Respondent in the business development department of its Seattle bank at a monthly salary of $575. His duties involved public relations, marketing surveys, and programming new business. He was under the direct supervision of Robert F. Henshaw , assist- ant vice president, who is in charge of the business develop- ment department of the Bank, which consisted of Henshaw, Schubert, and two secretaries. In the first part of April 1969, 2 months after his employ- ment by Respondent, Schubert was contacted by his former employer, Northwest Orient Airlines, and offered his for- mer position at an increase in salary over the $700 he was earnin g when he left the employ of Northwest Airlines. He notified Henshaw, his supervisor, of this offer who there- upon obtained for Schubert a monthly pay raise of $125 as of April 15, 1969. On January 10, 1970, about 9 months later, Schubert notified both Curtis Claycomb, vice president in charge of personnel, and his supervisor, Henshaw, that a Seattle com- pany, Sales Training, Incorporated, had contacted him and offered him a position as their national credit manager. Henshaw advised Schubert that the Bank was unable to give him a wage increase and it was for him to decide what he proposed to do. Schubert testified he turned down the job as he considered the salary of $800 a month offered him by this company not sufficient. He then notified Henshaw that he had decided to remain with the Bank. On March 6, 1970, Schubert met with Wilbur Gates, di- rector of the Banking Guild, the labor organization herein, and executive secretary for the Employees Association of the Seattle First National Bank since 1966. Schubert told Gates of his interest in organizing the employees of the Respondent Bank of California whereupon it was agreed that he would begin soliciting the Respondent Bank's em- ployees the following week to ascertain their interest in organizing a union. On or about March 10, he spoke to Candi Allinder, whom Schubert in his testimony described as a "supervisor" in the Mastercharge department of the Bank. His testimony con- tinues as follows: I asked [her] if she were interested, what her feelings were on the union because her husband was a member of the Federal Mediators. She said she couldn't give me any statement at that time because of the fact she was 685 did, this was authority given her by San Francisco, that she was classified as a supervisor. The following day Schubert spoke to Richard Vincet, whom he testified was "a supervisor in the area trust" sec- tion of the Bank's real estate department. His testimony continues: Basically I asked [him] what he thought of the union, what his feelings were, and he said he didn't really know. I asked him if he would be interested in helping me to organize the employees of the Bank of California in Seattle. [He] said that he couldn't actively partake in the organization because of the fact that he was classi- fied as a supervisor. The same day Schubert spoke to Roger Schmidt whom he described as "supervisor of the real estate contract section of the Bank of California." His testimony reads as follows: I just asked Mr. Schmidt also if he would be interested in helping in or anizing the union, the employees at the bank. I was informed by [him], because of the fact he was a supervisor, that he couldn't help actively solict membership. I asked him how he knew he was a super- visor, I asked him if he had the right to hire and fire personnel as a matter of policy, and he said he did. The other employees of the Bank that Schubert spoke to about the union were Barry Flanders of the trust depart- ment and Carol Fannin, a secretary, both of whom he asked "if they would be interested in a union, . . . and their re- ssibly helping organize a union at the Bank of actions to California.' While at work on Friday, March 13, 1970, 3 days after he had commenced his union organizational activities, at ap- proximately 10:30 a.m., a secretary, Carol Fannin, asked Schubert if he had seen his supervisor, Henshaw, as some of the bank officials were looking for him.t A half hour later, Schubert was summoned to the conference room in the personnel department by Curtis Claycomb, vice president in charge of personnel, and Thomas E. Comer, also a vice president, who ranked second in the Seattle Bank's hier- archy. Schubert's testimony as to the conduct of the meeting reads as follows: . a few moments after I was in the door and seated, Mr. Comer said that I had been called there, they felt that I was a little unhappy with my present status at the bank, and that to the best interests of both myself and the bank, they requested I resign.... At the time, they said they just felt I was unhappy and dissatisfied. After asking a just questions, it became apparent it was be- cause of the fact the previous day I had gone down to personnel and had asked about my status with the bank, what my future was, what I could expect in re- gard to my future at the bank.... This was the only reason they gave me, that I was unhappy and dissat- isfied-they felt I was unhappy and dissatisfied at the bank.... As I remember, they said that they weren't especially displeased with my work. I don't remem- ber it [the quality of my work] actually being men- tioned.... towards the end of the meeting, [I asked] if Mr. Henshaw was aware of my being dismissed. Mr. Comer and Mr. Claycomb said yes, he was, and I then asked if I could see Mr. Campbell [manager of the Bank]. Mr. Comer replied that Mr. Campbell was aware of the situation to some degree, that he had talked to him approximately, he wasn't sure, maybe six weeks before ... about my status at the bank, and at the time, I thought this was in regard to my review which had been approximately the same time, so I was a supervisor.... I questioned her on this, asked her if she had the right to hire and fire, and she said yes, she Henshaw was out of the Bank for a few hours at the time 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unaware that a conversation between Mr. Comer and Mr. Campbell other than what I was told then. Schubert concluded his testimony by stating that his dis- charge was effective immediately , with two weeks pay in lieu of notice and that he was given no warning prior to March 13, the day he was fired, that his job was in jeopardy. Later the same day, Schubert testified he spoke to Renshaw, his immediate superior , and " . . . I asked him at that time if he were aware of the situation as to my being fired, and he said no, he had not known previous to his leaving the bank" that morning on business. Robert F. Henshaw: assistant vice president in charge of the business development department of the bank, was Schubert's immediate superior . Other than two secretaries, Schubert was the only employee in this department over whom Henshaw had direct supervision. Henshaw testified that when Schubert "first started with us, he had an at- tendance problem which I discussed with him , and it did improve." Henshaw stated that Schubert's absences when first he was employed by the Bank were "above average," namely, absent nine times, seven unexcused and two ex- cused and that he spoke to him about his absences. "On occasion," testified Renshaw, "there was some tardiness" on Schubert's part when reporting for work in the morning and this tardiness varied anywhere from 2 to 3 minutes to 10 to 15 minutes. Henshaw continued : "I told [Schubert] that he was expected to be there on, time together with the girls, and it did improve." In November 1969, Henshaw testified that he: had a conversation with Mr . Campbell [manager of the Bank ... [who] felt that Frank Schubert was not doing, perhaps,s, the job he was hired for, and he was being well paid for what he was doing, and he felt consideration at that time to termination.... I backed Mr. Schubert and asked that he be given some more time. We did have a brief discussion afterwards, and I felt that I should have hun out on the street more , I should get him out. I think that was the general conversation Mr. Campbell said to keep an eye on Frank Schubert and to see how he does in the future.... Mr. Comer [vice president] felt the same as Mr. Campbell at that time.... [Mr. Cornier] felt he should be termi- nated at this time. Henshaw's testimony continues : Claycomb and Ren- shaw discussed Schubert's first review after he was em- ployed by the Bank for six months and it was decided to see: what took place within the next six months . Yes, we did discuss salary, and he gave no indication what it would be or would not be at that time.... [With respect to the salary that Schubert was receiving] we both felt he was at the limit that he could go to rit at that time, that he was making more than some of the supervisors. ... I just indicated to him that I would have to get him out more and we would have to demonstrate to get the department moving a little bit. Mr . Campbell felt that perhaps we weren't doing quite the job we should do. Henshaw testified that about the first of the year, 1970, Schubert did discuss salary with him. He asked me a time or two how I felt about his next review, if I thought he would get any more money, and I said, "Well, I can't promise you anything at this time. You will have to wait until this time comes." ... He asked me on several occasions how I felt about it, and I wasn't able to give him any definite answer.... In January he did come to me to indicate he had another job offer that would pay more money . He wanted to know what I felt the bank would do, and I said , "I can't promise you anything. If you have a better job offer, and if you seriously think that is what you want to do and you have thought about it, go ahead and take it. I can't give you any more money, at least right now." . Well, he said he would think about it and let me know. At a later time he said he had changed his mind and decided not to go.... He did indicate, yes, I think his remarks were, "Well, when I first came to work at the bank, I indicated to you I could get more money somewhere else. I'm telling you that again ." I said, "Well, Frank, we can't be pressured anyway into giving you more money. If you ve got more money offered some place else, I'm sorry, you'd better take it." . . . I advised the personnel department of our conversation ... [that isiMr. Claycomb. Some time later, several weeks perhaps, we did have another discussion when review time came u . [Schubert] had his review and had been passed throu the appraisal committee for raises. [Schubert] wante to know what I had heard. The first time he asked me I hadn't heard, so I went and checked and found out there was no raise . Of course, at this time, [Schubert] indicated that he would have to termi- nate because he had to have more money to live on.... This would have been on March 12th [the day before Schubert's discharge]. . I just indicated, "Frank, it's been turned down as far as any raises are concerned, and there just won't be any ." He indicated that he had been assured of a raise . I said, "Well, I'm sorry, therejust isn't going to be one ." . . . He was quite upset. He expressed disappointment , I think he was perhaps a little angry. I said, "Frank, just cool down. If you decide to go some place , just let me know. Just take it easy and don't run down to the personnel de- partment and talk to those people down there," I said, `just take it easy and think this over a little bit." He said he would.... Well, I believe his words were that he was going to have to leave. Henshaw concluded his direct examination by testifying that at the bank officers' daily meeting, he advised Clay- comb (vice president in charge of personnel) of his conver- sation with Schubert. On cross-examination Henshaw acknowledged there was "considerable improvement" in Schubert's absentee record beginning from January 1, 1970, until his discharge on March 13 , and in his 23 years at the Bank, he admitted he has never supervised any employee who was terminated for excessive tardiness or absences . Henshaw also acknowl- edged that the letter of commendation which Schubert re- ceived from the Respondent's main office in San Francisco was unusual, stating : "We don't see too many letters" such as the one Schubert received. Henshaw conceded that Schubert's precipitous discharge by Comer and Claycomb while he was away from his office for a few hours, came as a complete surprise to him when he learned of it an hour after it occurred as he was never advised by the bank offi- cials that Schubert's discharge was contemplated. When he was asked if it is unusual that the immediate supervisor of an employee who is going to be fired by the Rank is not consulted first, he answered : "It might be considered so." When Henshaw was asked on his cross-examination if any bank official told him the reasons for Schubert being discharged, he answered: They [Comer and Claycomb] just felt dissatisfaction; also that he was somewhat dissatisfied.... I don't believe we went into detail in particular. Henshaw continued that Comer, in November 1969, more than 3 months before Schubert was fired , expressed dissatis- faction with Schubert, in that he: wasn't going out and bringing in new business.... It BANK OF CALIF., NATIONAL ASSN. had been indicated that he was doing some book work of some sort, reading some books on an occasion.... These were AIB [American Institute of Banking] books which I again discussed with Frank and suggested he try to do this after banking hours. Henshaw clarified this by explaining that some of this read- ing was done dung Schubert's lunch hour. Katherine McEvoy: who testified on behalf of the Respon- dent, has been employed by the Bank for 17 years in the money market department. In 1969, the Bank instituted a program, referred to as the "3-2-1" account program, the purpose of which was to attract additional customers by not making a service charge for those depositors who main- tained a $300 balance in their checking accounts. McEvoy testified that in June 1969 "a party" telephoned her at the Bank and said: "Well, a Mr. Schubert called me and said that the bank is going to eliminate the economy account, and you are going to have to go into the 3-2-1 account so you might as well switch now.... I mentioned it to Mr. Claycomb . about a year ago [before the hearing] .... On cross-examination, McEvoy testified that when "cus- tomers" phoned, she asked them: "Well, what makes you think the bank is suggesting that you have to change to this new account? Then would say, "Well, somebody at the bank called me. ' Finally, I kept asking and one day this woman said to me, "Well, Mr. Schubert told me." When McEvoy was asked br the General Counsel's repre- sentative if it was "possible' that someone other than C. Schubert could have talked to these customers and gotten them upset," she answered : "It is possible." Peggy Nault: who was first employed by Respondent in 1941, is a "supervisor" in the Bank s money market. Her desk is located so as to afford her a view of Schubert's desk. She testified that: The first thing [she] would observe would be [Schubert] com[mp] into the office and there would be a period of socializing.... Usually he was talking and discussing things with the two girls that were already in the bus- iness development department.... [The discussions] were quite varied. Most generally it would be the cur- rent events, what had happened the previous night on TV, what was going on. it was not a business discus- sion. ... It would last a better part of an hour. One morning it was an hour and 40 minutes very definitely. . I checked it.... [Also] I would say that he might possibly read the morning paper.... Fifteen minutes maybe.... I knew very definitely that he was studying and reading AIB books,2 I could see that. They were definitely AIB testbooks.... He spent a goodly portion of his time doing this. Now, you understand this was from February [1969] 3 up until I went on vacation that year sometime in late July. All this would be the period from February on up until late May or early June [1969] 4 Nault continued that the two girls who worked for her "complained" to her about Schubert. An employee named Susan Bartow, testified Nault, came to her in September 1969 and: told me that Mr. Schubert came to her-and these are Susan's words-threatened her that if she did not sign up for AIB [American Institute of Banking classes] it 2 American Institute of Banking testbooks. 3 Schubert went to work for the Bank on February 19, 1969, and was fired on March 13, 1970. 4 Nault was on sick leave from November 1, 1969 to May 14, 1970. 687 would definitely reflect on her evaluation report. I as- sured her that this was an absolute fallacy. I imme- diately reported it to Mrs. Shuver [of the personnel department] who agreed with me this was not the poli- cy of the bank. Nault testified that another employee, Erika Townsend, who did not work for her, made the same complaint about Shubert. Nault explained that Schubert was appointed by the Bank its "AIB Counsel." Schubert was given the respon- sibility by the Bank, in Nault's words, "for getting as many people in the bank to attend classes [conducted by AIB after banking hours]. These are definitely outside your working time or your work area. They have classes once a week or twice a week." Nault testified that from February to June 1969, Susan Bartow "complained" to her as did: the other girls, about the excessive idleness and the constant conversations that would go on [in Shubert's department]. Our departments are very, very close to- gether. That particular area is a very high pressure area. All the work is done by phone. Well, not all of it. I would say 95 per cent of it is done by phone. Five per cent of it is done by contact with the customer. It is done in a very short length of time. We have definite time schedules to meet to tie in with the Exchange back East so consequently everything in there is moving fast. It is moving loudly and noisily. All three of these girls that I previously mentioned, all four, one had terminat- ed and one had taken her place, all four of them came to me on numerous occasions with the exact same com- plaint, that they just could not concentrate on their work because of this visiting that was going on all the time.... The first complaint -I made was directly to Mr. Pen Robe who at that time was in personnel. Shortly thereafter I went to Mr. Comer, Mr. Claycomb, Mr. Grubbs, [trust officer] at least a half a dozen times. I went to Mr. Pen Robe specifically the very first time and requested that either my department be moved or some type of a barrier put up, just something that would cut down on the observation of the idleness or try and cut down on the conversations. He, in turn, had a set of files put in. They were put on the wrong side, but at least they did help somewhat. When Nault was asked to specify what complaints she made to Comer, Respondent's vice president, she replied: "The excessive conversations, the constant daily irritations to my people as well as the idleness of Mr. Schubert. There was so much pressure in one department and not in an- other." With respect to Schubert allegedly "harassing" customers to change their economy checking accounts to a 3-2-1 ac- count (see page 8, above), Nault testified that she heard Schubert in late May or early June speaking on the telephone explaining to a customer in a manner that she: would immediately take exception to. What I heard him say was-now, these aren't the exact words-"You will have to do it at one time or another. You may as well do it now." . . . In the conversation, I heard him say 3-2-1 offers thus and so as opposed to what you have, but you will have to-the phrase that I heard specifically. From this complaint, Nault passed on to an alleged "check" incident in which she claimed Schubert was both involved and to blame. Her testimony reads as follows: ... We have what we call large checks in the banking system. They are always referred to an officer. At the time I was handling them, it would be over $5,000. It may have changed now. These large amount checks 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were stacked so high (indicating) and I took exception to the fact that these would be sitting on Mr. Schubert's desk unattended, left there for anyone to see. I took exception to the length of time that they were on that desk. In banking procedures they must be returned in order to get them into the system. If there is any prob- lem, they have got to be back. I went to Mr. Comer on this particular area and asked why they should be up there. Continuing with this alleged incident involving unattend- ed checks on Schubert's desk, Nault testified that Clay- comb, one of the Bank's vice presidents, came to her desk late in the summer of 1969: . Mr. Claycomb came up in high agitation into the department, rushed over to Mr. Schubert's desk, grab- bed a stack of these large checks. I went over and said, "Mr. Claycomb, what is the problem? Can I help you with anything?" He said, "I have got to get these checks. I want to know how much they are." It was an excessive amount, what we refer to as a "kite" that is going on between the different banks. A banker lost a good deal of money .... I actually saw the checks, I saw the amounts of the checks. We ran them on a tape, on a machine in the department. I stood by while Mr. Claycomb called the Federal Reserve and said we would, by some means or another, het them up to the Federal Reserve within the time limit that is allowed to us. Otherwise we would be left holding these checks. They were just insufficient, NSF.... It is NSF, they are dust simply a "kite." There wasn't any money.... They have a small amount of money. They start out with, say, $5,000 or $10,000. The checks that would be deposited in another bank might be $15,000. They would take that $5,000 and rush down to the other bank and put it in. It is quite an involved situation. This involved a goodly sum of money. Concluding the unattended check incident, Nault next testified with respect to Schubert's attitude toward other bank employees. It appears that she took umbrage at Schu- bert because he spoke disparagingly of another employee. Her testimony was that she overheard Schubert refer to an unnamed employee who had been with the Bank for over thirty years as "essentially stupid" and complain that Schu- bert "could get absolutely no cooperation from this partic- ular person as well as the rest of the department." She also described Schubert's "attitude" in dealing with Respondent's "oldtime bank employees" as "a superior atti- tude." It was evident," explained Nault: that the older [bank employees], were not progressive enough for him. They were not progressive enough in their thinking to suit him.... he did not seem to respect their views as far as the policies that we had had all of these years. He seemed to feel that he was a step ahead in getting things done and the system per se was archaic and there was a better way. Nault's testimony continued about another incident which occurred in October 1969: When I was out of the office, we had a customer come in, a very wealthy woman that we had been trying to get her account. She was being handled by Mrs. Jack- son, [employee] she was doing all the necessary things to complete this transaction. The transaction was com- pleted to the customer's satisfaction and certainly to our satisfaction. We were able to do what we wanted to do without pressing it too much further. Mrs. Jack- son came to me highly upset afterwards. She said Mr. Schubert came over to her and said to her that she See fn 8 have offered this customer-and he did not know who the customer was-she should have offered this cus- tomer the benefit of our overdraft program and our Mastercharge, which on the face of it, I would say, was interfering very definitely. This service would have no availability to her at all. It just didn't come into it at all. We simply could never bring this up to such a woman.... I immediately went down to Mr. Comer and I went immediately down to Mr. Grubbs. It was a very touchy subject . -We could have lost the account. Nault claims to have complained to Comer about Schubert's conduct and deportment "at least six times." It was elicited on cross-examination that Nault never brought these many complaints about Schubert's misconduct, work habits, and personal mannerisms to Henshaw, Schubert's immediate supervisor , whose department was located next to Nault's desk. Curtis Claycomb: assistant vice president in charge of operations and personnel, had his "first contact" with Schu- bert in April 1969, in connection with a survey to determine how many customers mailed their deposits to the Bank and how many personally came to the Bank to make their de- posits. His next contact with Schubert was the following month with respect to the "3-2- 1 accounts," detailed above. Then, in July 1969, a program was initiated to have more companies deposit their withholding taxes in the Respon- dent Bank. Claycomb testified that Schubert was partly instrumental in devising a system to effectuate this program which was superior to the system that had heretofore been used. Claycomb continued : "It was later related to me that Mr. Schubert developed this program entirely on his own, but it was a combination of efforts."5 Then Claycomb testified that at a time when a "check kiting operation" was being investigated by the Bank about September 21, 1969, they were looking for some checks which they eventually located on Schubert 's desk. Clay- comb also testified about Schubert's mornin g discussions in the business development department "which [he] had knowledge of," and which were not related to banking bus- iness. Claycomb testified Comer told him that Schubert, in conducting the business development meetings which were held every two weeks that "Schubert was not conducting himself properly along with the other officers at this meet- ing." Claycomb then testified that he had heard about Schubert's alleged tardiness and absentee problem. His tes- timony continues that in late October or early November, Comer and he decided to recommend to Campbell, the manager of the Bank , that Schubert be terminated. They then met with Campbell and recommended that Schubert be terminated but Campbell told them that Henshaw, who was Schubert's supervisor, had interceded and had request- ed that Schubert be retained and that Campbell had decided to give Schubert additional time to work into the job.6 Claycomb, it appears from his testimony , was resentful of the fact that Schubert had asked for pay raises, indicating that if he did not receive them he would accept the positions that were offered him by other companies . It appears also that Claycomb was annoyed with Schubert because he had approached his supervisor, Henshaw, and asked him what his future possibilities and opportunities for advancement were with the Bank, at the same time that he disclosed that he had had another job offer . Claycomb believed Schubert "had used this approach to obtain his first salary review in April" when he told the bank officials he had had a job should have handled it in a different way, she should 6 Schubert was hired on February 19, 1969 BANK OF CALIF., NATIONAL ASSN. offer. Claycomb continued that he did not have any further conversations with Schubert from the latter part of Septem- ber 1969, until March 13 , 1970, when he was fired. He states that he did write on the back of Schubert 's performance review that he thought: there seemed to be developing ... a pattern that Mr. Schubert was definitely dissatisfied with his salary at that time and was not receiving the benefit of being properly informed of what his next steps at the bank would be. Claycomb testified that on the morning of March 12, 1970, he received a call from Mrs . Shuver in the personnel department that Schubert wished to discuss his present posi- tion with the Bank . Claycomb authorized Shuver to discuss the matter with Schubert . Later that day, Shuver reported to Claycomb that Schubert had again: asked about his present position and his line of progres- sion within the bank and he felt the increase of $125 a month [which he received on April 15 , 1969], was not sufficient to carry him over a period of time . He felt that he should receive an increase at that time. Claycomb testified that he came to the conclusion that Schubert was goin : to be continually unhappy in his position at the bank even if an adjustment in salary was made or job assign- ment was made.... and this would reflect on the other employees as well as the prospective customers of the bank. His testimony reads: I then formed the opinion that maybe we should again discuss the matter with Mr. Campbell about possible termination of Mr . Schubert.... The following morn- in [March 13] immediately after the officers ' meeting, Mr. Henshaw came up to me and mentioned that Mr. Schubert had approached him the day before dissat- isfied about his salary, having found out at that time or shortly before that he was not goin g to receive an in- crease and he was seriously considering leaving the bank. Mr. Henshaw stated that he talked to him and apparently talked him out of it and things would be all n t after that.... I felt like this was probably what I felt to be the determining factor in terminating Mr. Schubert from the bank.... I mentioned to Mr.l3en- shaw that we could certainly not continue this way. I did not mention the possible termination to Mr. Ren- shaw at that time . T then related these facts to Mr. Comer shortly before 10 o'clock [March 13] and Mr. Comer agreed at that time that we should terminate Mr. Schubert and do it then. Claycomb and Comer decided to fire Schubert imme- diately on Thursday morning, March 13, even though Ren- shaw, who supervised Schubert's work, was temporarily out of his office and Campbell , the manager of the bank, was out of town until the following Monday. Schubert was sum- moned to the personnel conference room sometime between 10 and 10 :30 that morning. Claycomb's testimony reads as follows: I don't remember exactly how we started the interview out, but I mentioned to Mr . Schubert that I felt he was dissatisfied at that time with his salary and his position and his dissatisfaction would continue even though a salary adjustment would be made at a later date or a change of assignments made at a later date . I felt like at that time no matter what we would do for him noth- ing would satisfy him. Of course at that time there was nothing that we could do for him anyway in the way 689 would certainly show throughout the bank and affect other employees. As I previously mentioned, I felt it would affect our customers. I felt he could not properly represent the bank with this type of an attitude. Q. Was the matter of using job offers mentioned? A. I believe we did mention that he had discussed on at least two occasions with me and other occasions with Mr. Henshaw that he had had previous job offers. This was another reason that I felt we really could not count of his being with us any length or period of time. We felt that he would be searching for other jobs and would be leaving us at any time. Q. How did the meeting end? A. I believe that Mr. Schubert then asked if he could be considered for a transfer to another location of the Bank of California. I believe we responded that we felt that would not improve the situation. He asked us if he could file a grievance with Mr. Campbell. We said that he could make an appointment with Mrs. Merrick, Mr. Campbell's secretary, to see him. We also brow t out that in any discussion he had with Mr. Campbe , oral discussion or a letter, that a copy of this should be sent to Mr. True, the vice president in charge of personnel divisions for the entire Bank of California system. Q. Did Mr. Schubert mention supervision at all? A. He felt that he was not receiving proper guidelines or supervision from his immediate supervisor, who would have been Mr. Henshaw, which was somewhat strange to me. This was not mentioned to Mr. Schubert, but Mr. Henshaw was the only one that was helping Mr. Schubert keep his job at the bank. s Q. What was the reason in your mind why Mr. Schu- bert was being terminated? A. The prime reason at that time , I felt, as I previous- ly mentioned, that the pattern was developing that Mr. Schubert would continue to be dissatisfied with his position and with his employment with the Bank of California. This assessment was made on a previous experience dealing with this type of, ... dealing with other employees in the past. I felt that he continually would be dissatisfied, especially knowing at this time that his next review, performance review , would be approximately one year later in March of 1971. There would be no adjustment to that time . With this knowl- edge, he certainly would not perform to our expecta- tions at the bank nor would present himself to our customers in any good way. I just felt that there was no way that he would be happy in any aspect of his em- ployment with us. I thought it would be the best for both Mr. Schubert and the bank that the termination was made.7 On cross-examination it was elicited that the incidents Claycomb testified to occurred 6 to 8 months prior to the termination of Schubert on March 13 , 1970. Claycomb ad- mitted that he had a conversation with Henshaw about 9:00 a.m., after the officers' morning meeting on March 13, and that he did not indicate to Henshaw at that time that he was thinking of terminating Schubert an hour later. He admitted also that while Comer and he were discussing Schubert and then decided to terminate him that they did not get in touch first with Campbell, their superior. He was asked by counsel of salary adjustment or promotion. I felt that knowing 7 For Schubert's version of his termination see Sec. III By Frank L. Schu- this that he would be dissatisfied and his dissatisfaction bert 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if this was not strange in view of the fact that when he and Comer recommended that Schubert be discharged back in November of 1969, Campbell would not go along with their recommendation. Claycomb testified the reason they did not wait for Henshaw to return to the Bank before terminat- mg Schubert was because: ... we felt Mr. Schubert would have to be terminated at that moment because we felt that if we waiting for Mr. Henshaw to return there may be a possibility that he would again ask to wait for Mr. Campbell to come back and again talk Mr . Campbell into keeping Mr. Schubert in the bank. We felt that we must terminate him at that time so that this would not occur. Q. So, it never crossed your mind to wait until the afternoon or perhaps the following day when Mr. Campbell could be present and Mr . Renshaw could be present to discuss this matter? A. That's right. s s s TRIAL EXAMINER Did I understand your examination correctly, and if I didn't, correct me, when you were asked why you didn't wait for Henshaw to return, did you testify it was because you felt Henshaw would try to talk Campbell into retaining Schubert? THE WITNESS That is right, sir. Mr. Henshaw on previ- ous occasions was the only one that was able or did, in fact, enable Mr. Schubert to retain his job. TRIAL EXAMINER When was this previous occasion? THE WITNESS. That was around October or early No- vember when we had previously recommended his ter- mination. TRIAL EXAMINER What was your reason at that time for recommending Schubert's termination? THE WITNESS On my part, information that I had covered in the file plus the remarks that had been made to me by other employees and, in conjunction with Mr Comer, remarks that had been made to him by other employees. TRIAL EXAMINER What remarks? THE WITNESS Mr. Comer-remarks made to him by Mrs. Nault in regard to the way she felt the Business Development Department was performing his normal duties and the conversation that Mr. Schubert had had with some of her employees. On my art, it was based on the surveys which he conductedpwhich were not done to my satisfaction s plus at that time I had learned that he had approached the bank with the suggestion that he had another job offer to enable his salary in- crease at the time in April of 1969. R k # i TRIAL EXAMINER Could you refresh my recollection as to the incident leading up to the incident itself? If I correctly understood your testimony, and correct me if I am wrong, the time and what occurred when Hen- shaw talked Campbell out of firing Schubert. THE WITNESS. This took place about the time Mr. Comer and I recommended the initial termination, which was in late October or early November. Mr. Campbell related to both of us that he wanted to talk to Mr. Henshaw about the termination. However, he 8 See fn. 5 where Claycomb's testimony appears to be self -contradictory instructed me to go over the applications to see if there was some possibility of hiring somebody who could fit into the Business Development Department. I left the conversation at that time. I was not present when he talked to Mr. Henshaw. We did locate a girl, as I mentioned, and interviewed her and offered her the job, which she turned down. We then related this to Mr. Campbell. This girl had been a previous employee at the Bank of California and had all of these qualifications, but we offered her considera- bly less than what she was making and she turned the job down. At that time Mr. Campbell related that he had talked to Mr. Henshaw and a decision was made not to termi- nate Mr. Schubert at that time and to discontinue inter- viewing for that position, which I did. When Claycomb was asked on recross-examination whether it was not Respondent's "standard policy" to con- sult the employee's immediate supervisor before terminat- ing the employee, Claycomb answered: "Normally, but this is not true in all cases." Thomas E. Comer: vice president and assistant to Camp- bell, the bank manager, testified that there are approximate- ly 262 regular employees and 15 part-time employees in the Seattle Bank. During the period of time that Schubert worked for the Bank from February 19, 1969, until March 13, 1970, Comer was in charge of the commercial loan de- partment and he also assisted the personnel manager and the operations officer from July 1969 until March 1970. Comer described various meetings of the business develop- ment department which were presided over by Schubert. His testimony reads: My observation of the meeting was, because of Mr. Schubert's lack of banking experience and back- ground, that I did not feel that he was in a position to instruct officers that had been in the bank from 10 to 30 years on these programs.... In my opinion, I felt there were certain programs at the bank such as officers going out and making calls-each officer is assigned three calls a week. During periods of time over the past year and a half, it hasn't been possible for the calling officers to be out in the field. They have had other duties. On one occasion I felt that Mr. Schubert came on rather strong in telling the officers what they should do in accomplishing these calls. It appeared to me that we were more concerned about the reports that were to be returned in to our senior management than we were in getting the ob done at the bank.... I also discussed it with Mr. Renshaw and made the recommendation that Mr. Henshaw conduct the meetings. That, at a later date, was accomplished. Shortly after October 1969, when Claycomb became the personnel officer, Comer testified that Schubert's personnel Pile was reviewed, at which time Claycomb informed Comer that Schubert had received a "special increase" of $125 a month, effective as of April 15, 1969. Comer's testimony reads as follows: At that point in time I didn't feel that Mr. Schubert was earning the salary that he presently had. I could see no basis for this special increase and, after a few minutes discussion with Mr. Claycomb, I recommended that we discuss the situation with Mr. Campbell.... there also was a tardiness problem [with respect to Schubert]. ... Immediately I recommended to Mr. Claycomb that we discuss the situation with Mr. Campbell and at that time I told Curt [Claycomb] that I was going to recom- mend to Mr. Campbell that Mr. Schubert be terminat- ed.... This was early in November or late October. BANK OF CALIF., NATIONAL ASSN. [Both Comer and Claycomb then discussed this matter with Campbell.] ... I advised him [Campbell] what Mrs. Nault had told me. So, when I approached Mr. Campbell on this subject, I made a recommendation that we terminate Mr. Schubert at that time because of his tardiness and his absence from the bank, the fact that I didn't feel that he deserved the salary that he was receiving prior to the increase in salary, the fact that I didn't feel Mr. Schubert was developing any new bus- iness into the bank, the fact that, over-all, his work was unsatisfactory.... Mr. Campbell, being appraised of these things earlier agreed with my remarks.... Prior to our leaving his office, Mr. Campbell instructed Mr. Claycomb to start looking for a clerk at a salary much less than what Mr. Schubert was making and to keep him informed on what progress he was making.... Mr. Campbell was not at all satisfied with the results of the Business Development Department and he aired this frequently.... I talked to Mr. Campbell the following Monday or Tuesday after he talked to Mr. Henshaw. Mr. Campbell advised me at that time that Mr. Ren- shaw wanted to keep Mr. Schubert. He felt that in working with him that he would be able to bring him around and help him in business development. Mr. Campbell at that point told him he was going to allow him not to terminate Mr. Schubert at that time but give him another extended period of time to watch him closely to see what was accomplished by then.... This occurred in late October or early November. Comer then related a conversation that he had with Clay- comb on the morning of Thursday, March 13, 1970, at a time when Campbell was out of town until the following Monday: I told Mr. Claycomb that morning that I felt very definitely that Mr. Schubert should have been termi- nated back in November. He should have been termi- nated in January again when I felt he was backing his supervisor into a corner on certain demands, that he felt that he had originally received a raise by using the possibility of another job opportunity. I didn't feel that he would become a very dependable employee. Comer then testified with respect to the exit interview on March 13, when he and Claycomb notified Schubert that he was fired. His testimony reads as follows: I believe I opened the meeting by telling Mr. Schubert that we had called him in to review his job perform- ance, or something to that effect.... His salary was mentioned, I believe, and he mentioned then the possi- bility of being transferred into another area of the bank as a trainee , but to transfer him into another area of the bank as a trainee at the salary he was receiving I didn't think was justified.... During the course of the conver- sation Mr. Schubert, I believe, indicated that he wanted to stay at the bank. He wanted to know if there was another area at the bank in which he could be transfer- red. I believe he mentioned the credit department. I believe it was Mr. Claycomb who advised him that for us to transfer him to another area of the bank at the salary he was receiving at that time as a trainee was impossible. He was just out of the salary structure. I believe Mr. Claycomb covered the fact of depend- ability from the standpoint that on a couple of occa- sions he had brought to the attention of his supervisor and also Mr. Claycomb that he had otherjob offers and I believe Mr. Claycomb expressed the opinion that in a situation such as this the bank couldn't count on Mr. Schubert being an employee from day to day... . Before the end of the meeting Mr. Schubert asked-I 691 don't recall his exact words, but he asked to the effect that "Is this the end or what are m7 alternatives as far as explaining my side of the story?' He asked me if he could see Mr. Campbell. I explained to him that Mr. Campbell was out of the city and would return on Monday, and after we completed our meeting there, I suggested that he talk to Mrs. Merrick, Mr. Campbell's secretary, and establish a time that was convenient both for Mr. Schubert and Mr. Campbell. It was also indicated that he could write a letter either to Mr. True or to Mr. Claycomb and ask that a copy of the letter be sent to me. When Comer was asked his reasons for deciding to termi- nate Schubert, he testified as follows: The reasons I made the decision I made on March 13th was the fact I felt very strongly that Mr. Schubert should have been terminated back in November, the fact that he should have been terminated in January when I felt he was backing a supervisor into a corner who had no way of getting out. I felt very strongly that Mr. Schubert was unhappy with his salary at the bank. He was in the department of the Business Development Department where he has to be out selling the bank to the public, both customers and perspective customers, and if [he] was unhappy with something, he wasn't going to do a very goo job with selling. I very strongly felt that Mr. Schubert was not earning his salary that he presently was receiving. Comer and all the other bank officers who testified stated that the first time they knew Schubert was engaged in union activities was when the bank received a complaint from the National Labor Relations Board about a week after Schu- bert was fired. On cross-examination, it was elicited that during all the months that Comer testified these alleged acts of miscon- duct were occurnn , he never contacted Schubert's supervi- sor, Henshaw, to forewarn him of his dissatisfaction with the quality of Schubert's work performance. When Comer was asked by the representative of the Gen- eral Counsel what urgency necessitated the haste with which Schubert was terminated on Thursday without the knowl- edge of his supervisor, Henshaw, who was temporarily out of his office, or not waiting until Campbell, the bank man- ager, returned the following Monday, his answer was: The great urgency was the fact that I made my mind up back in October, late October or early November, and Mr. Campbell concurred with my thoughts at that time, that I felt it was something that had to be done. I felt that there was no better time to do it than at that particular time.... [Campbell] made the decision back in November to retain him at Mr. Henshaw's request, but he also told me that he agreed with my original recommendation that Mr. Schubert should have been terminated at that point.... The reason he agreed to retain Frank Schubert, he was trying to give somebody another chance to improve his situation. TRIAL EXAMINER Now, in these various things that you testified to that you found him to be delinquent in, you might say, tardiness and not devoting full-time attention to his duties, did you ever personally admon- ish Schubert? THE WITNESS No, sir, I did not. On rebuttal, Schubert, the alleged discriminatee, testified that shortly after he was employed by the Bank he became 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in the American Insittute of Banking [AIB) and so informed Mr. Pen Robe, then head of the personnel department. Approximately 3 to 4 months later , Schubert was asked by the Bank to serve as its AIB employee repre- sentative. These AIB representatives, of whom there were 12 at the Bank, were assigned a specific area of the Bank with authority to contact employees of that area in order to apprise them of the various educational programs which AIB offered, and the various social activities that were held, including dances, dinners and sports activities . Schubert denied that he ever told employees that they had to join AIB, and failure to join would reflect poorly on their per- sonnel rating. See Section III. By Peggy Nault, above. Schubert's testimony with respect to the 3-2-1 accounts reads as follows: Well, I believe the last part of June 1969 , the Bus- iness Development Department was taking charge of a survey to attempt take out of the statements of the special checking account customers those people who were writing a high number of checks who kept a very high average balance, which was left to the discretion of our department, which shows a figure, I believe, of $450, and so people whose average balance or monthly balance never went below $450 and who wrote a high number of checks, we were going to call them, which we did, and inform the people that in the very near future we would be converting over to a new type of special checking account where there would not be a monthly service charge but that the cost of the check written was going to go up and because of the fact we were a service organization, that we were there to serve the people, that we felt that we should make it known to them that the 3-2-1 very possibly would be cheaper and more beneficial to the people .... Basically that I would average out the number of checks they had writ- ten over a specific period of time and inform them that to continue that number of checks would be a cost of a certain number, whatever the amount might be, based on a 15 cent per charge for each check written, so it might be convenient for them and in their best interest to convert to the 3-2-1 . In the future if they should find the 3-2- 1 was, in fact, a disadvantage, that the bank would be more than happy to revert back and put them back into their special account. Schubert denied that he ever told any of the Bank's cus- tomers they had to switch over from a thrift account to a 3-2-1 account. See Section III, B , Katherine McEvoy and Peggy Nault, supra. When he was asked on rebuttal whether one of his duties as an employee of the business development department was the reading of daily newspapers, Schubert replied as follows: One of the functions of the Business Development Department was the marketing aspect. It was the duty of the Business Development Department , and a par- ticular part of my duties along with others , to scan the daily newspapers to cut out the ads of our competitors and. other commercial banks or mutual banks in the area and savings and loan associations. These were, in some instances, forwarded down to our marketing de- partment in San Francisco , the head office, so as to keep the marketing department there informed of what was going on in the marketing area here. Also, I was to scan the business section of the newspaper and the Wall Street Journal for articles pertaining to customers. The Business Development Department keeps a very extensive file on customers of the bank and prospects of the bank . I would cut the articles out and put them in folders so that the officer in charge of that account would have it at his fingertips. It was a very precise, up-to-date record of what was going on. Schubert concluded his rebuttal testimony by stating that he was given instructions by his superior, Henshaw, to read the newspapers in order to keep informed what the Respondent's competitors were advertising and to so notify the bank's marketing department in San Francisco. C. Credibility Resolutions This is a case where the testimony of the General Counsel's sole witness, Schubert, the alleged discriminatee, is contradicted on the salient issues by the witnesses for the Respondent. However, it is concluded that Schubert's testi- mony is reliable because it is consistent with certain undis- puted and demonstrable facts in this case , hereinafter explicated. This conclusion is based also on my observation of the witnesses with respect to the accuracy of their memo- ries, their comprehension and their general demeanor on the stand in answering the questions put to them. In crediting the testimony of Schubert and discrediting some of the testimony of the Respondent's witnesses, giving weight to certain evidence as against other evidence, draw- ing inferences from circumstantial and conflicting evidence, and coming to certain conclusions, the trier of these facts has necessarily had to detect and appraise various "potent imponderables" permeating the record.9 One of these " o- tent onderables" is the demeanor of the witnesses. The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving issues of credibility,"10 and that "Credibility findings may rest entirely upon evi- dence through observation which words do not, and could not, either preserve or describe." [Emphasis supplied] 11 Credibility findings rest to varying degrees upon the evalua- tion placed by the trier of the facts upon the demeanor of witnesses. This type of evidence which does not appear in the record and is comprised of elusive intangibles and "po- tent imponderables" which are difficult to capture and to describe by written words, often makes it difficult for the trier of the facts to convey and to describe the impression which a particular witness makes upon him .l Judge Learned Hand describes it as: [findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any rational choice ... nothing is more difficult than to disentangle the motives of another's conduct-motives frequently un- known even to the actor himself. But for that very reason those parts of the evidence which are lost in print become especially pregnant ... By this discussion of the evaluation placed upon the de- meanor of the witnesses in testifying , it is not intended to convey the impression that consideration was given exclu- sively to this type of evidence. Concomitant consideration was given equally to the surrounding circumstances, and the consistency or inconsistency of the individual witness's tes- timony with uncontroverted evidence and demonstrable 9 IA. of M v Labor Board 311 U.S 72, 79 10 Hadley Manufacturing Corporation, 108 NLRB 1641 ; Roxboro Cotton Mills, 97 NLRB 1359 at 1368 11 Roadway Express Inc, 108 NLRB 874. 12 N L R B v James Thompson & Co, Inc, 208 F.2d 743, (C.A 2) 13 N L R B v Universal Camera Corp., 190 F. 2d 429, 430, 431 (C A 2). BANK OF CALIF., NATIONAL ASSN. facts in determining which version should be credited.14 Moreover, in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witness's testimony on direct examination with what he testified to on his cross-examination. Belief rather than knowledge is, of course, the basis upon which every trier of facts must reach his conclusion. The Trial Examiner has been acutely aware of the foregoing observations because in the type of issues disputed in this proceeding where the witnesses of the General Counsel and Respondent are in sharp conflict as to what actually oc- curred, the process of hearing can produce only a belief concerning what the facts are , rather than a disclosure of the facts themselves. The trier of the facts must, therefore, be content to have a belief concerning the facts, rather than knowledge of them. D. Discussion and Conclusions We have here then a situation in which the General Coun- sel claims that Schubert was discharged for his union activi- ty, whereas the Respondent's version, as testified to by its witnesses, is that Schubert was terminated because of his attitude towards his job and fellow employees , his ineffi- ciency, idleness, absenteeism, tardiness, excessive nonbusi- ness discussions with other employees , disturbing other employees with his loud-voiced conversations, reading books and papers on bank time , threatening fellow employ- ees if they did not join AIB, harassing customers (3-2-1 accounts), negligently leaving checks on his desk , criticizing old-time employees, his repeated requests for pay raises by using the possibility of another job opportunity , dissatisfac- tion with his job and rate of pay, and the unsatisfactory quality of his work as evidenced by his failure to bring new business into the Bank . Moreover, Respondent alleges that as early as November 1969, it took steps to terminate Schu- bert. Finally, Respondent categorically disavows any knowledge of Schubert's union activities prior to the time that he was discharged. Nevertheless , after observing the witnesses, analyzing the record and inferences to be drawn therefrom , and carefully considering all countervailing evidence, it is concluded that Schubert was discharged in violation of Section 8(a)(3) be- cause of his union activity on behalf of the Banking Guild, the Charging Party herein . Schubert appeared to be a sin- cere and truthful witness and the events described by him were narrated in a straightforward manner which followed a logical sequence, and are consistent with the attendant circumstances in this case. This is in contrast to Claycomb's and Comer's vague, inconsistent, and generalized version of their reasons for firing Schubert which in some of its aspects was not only implausible but also incredible and patently fictitious. Moreover, it stretches credulity too far to believe that there was only a coincidental , temporal connection in the close proximity between Schubert s meeting with Wilbur Gates, director of the Banking Guild , on March 6, 1970, followed by Schubert's beginning on March 10 , to solicit five employees to organize a union which culminated in his summary and precipitous discharge 3 days later .15 In short, the timing , suddenness, and summary nature of the dis- charge, coupled with the fact that Schubert was the instiga- tor and sole advocate in attempting to or nize the union in the Bank, leads to an inference of unlawful motivation for his discharge.16 14 N L.R B v. Willes, 188 F.2d 917, 925 (C.A 6); Victor Mfg. & Gasket Co v. NL. R.B., 174 F.2d 867, 868 (C.A. 7). 15 Angwell Curtain Co v. N L.R B, 192 F 2d 899, 903 (C A. 7). 693 Argumentatively assuming the unlikely premise that Re- spondent may have had some cause for dissatisfaction with Schubert's attitude and quality of his work prior to the termination of his employment, yet, as the Court of Appeals for the Third Circuit observed in a somewhat similar case his "work apparent became intolerable only after he had joined the union."1 Then too, account must be taken of the manner in which Schubert was discharged in that it was made without even consulting Henshaw, Schubert's supervisor , who was in im- mediate contact with him and the quality of his work.18 Equally, if not most, significant are Comer's and Claycomb's failure to wait 2 days until Campbell 's return in order to obtain his approval to fire Schubert which was necessary when they recommended Schubert's discharge in November 1969, and which Campbell rejected . Morover, McEvoy and Nault were profusely critical of Schubert, tes- tifying as to the most trivial and in some instances irrelevant incidents in which he was purportedly to blame , yet neither of them voiced any of their many complaints to Schubert nor to his immediate supervisor, Henshaw. This is partic- ularly strange in the case of Nault , a supervisor, whose witness-stand deportment marked her as aggressively asser- tive, that she would not have told Schubert in no uncertain terms that his constant and noisy socializing with other employees distracted her from her work . Also, Comer and Claycomb never admonished Schubert for his many alleged shortcomings which they testified to at the hearing in con- siderable detail. They gave him no such warning before discharging him. Such action on their part was not natural. If they had really been disturbed by the circumstances they have assigned as reasons for his discharge, and had no other circumstances in mind , some caution that the offending derelictions of duty be not repeated, or some opportunity for correction of these alleged objectional work practices would have been inevitable. 9 Thus firing Schubert without warning and without discussing his alleged faults with him prior to Makin the decision to discharge him further indi- cates that the discharge was illegally motivated.20 Such arbi- trary action would seem more consistent with antipathy for his overt union activity than concern with vague and gener- alized complaints alleged for Schubert's termination. 21 The fact that the record in this case discloses that there was no substantive basis whatsoever for Respondent's alleged dis- satisfaction with Schubert as an employee is persuasive that the decision to discharge him was made because of his union activities. This permissible inference of illegal motiva- tion, moreover, is further augmented by the fact that the Respondent's asserted nondiscriminatory reasons for the abrupt discharge simply do not withstand scrutiny. In sum, the asserted grounds for discharge put forth by Respondent are patently pretextuous and support rather than detract from the General Counsel's prima facie case. This fact in itself strengthens the conclusions that the immediate cause of Schubert's discharge was his union activity. Respondent contends, however, that it did not know of Schubert's union activities at the time his employment was terminated. It is true that in order to find that a discharge of an employee was motivated by discriminatory purposes, it must be shown that the employer knew or believed that the employee had participated- pin union or concerted activi- 16 See N.L.R.B. v. Camco, incorporated, 369 F 2d 125, 127 (C.A. 5), N.L.R.B. v. Davidson Rubber Company, 305 F 2d 166, 169 (C.A l). 17 N. L. R.B. v. Electric City Dyeing Co, 178 F.2d 980, 983 (C.A. 3). 18 See Sec. III. B, Curtis Claycomb. 19 E Anthony & Sons, Inc v. N.L.R B , 163 F.2d 22, 26-27 (C.A.D.C.). 20 N.L R.B v. Lone Star Textiles, Inc, 386 F.2d 535, 536 (C .A. 5); Elias Brothers Big Boy, Inc v N LR B., 325 F.2d 360, 366 (C.A. 6) 21 See N L.R B v . Booker, 180 F.2d 727, 730 (C.A. 5) 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties. In this connection it will be recalled that for some fatuous reason, Schubert, in soliciting employees to organ- ize a union, spoke to three "supervisors." The first of these was Candi Allender whom he described as a "supervisor." He also spoke to Richard Vincet whom he described as a "supervisor," and Roger Schmidt, another "supervisor," whom he also asked if he were interested in helping organize a union at the Bank. See Section III. B, Frank L. Schubert, above. It would seem, therefore, under such circumstances, that these supervisory personnel's knowledge of such activi- ty would normally be imputed to the Respondent. Inas- much as direct evidence of such knowledge is rarely obtainable in cases of this type, especially as employers acquire some sophistication about the rights of their em- ployees under the Act, it would seem to be a permissible inference that such knowledge may be established by cir- cumstantial evidence. 22 Thus, Schubert worked in a small department in the Bank comprised of Henshaw and 3 employees, including himself, and the entire Bank had 262 full-time employees. It is not too unreasonable an inference that in a department of the Bank of this size, it is highly unlikely that information as to Schubert's union activities would have escaped the Respondent's attention when it is considered he approached "supervisors" to join the union and worked in a department of three employers 23 Moreover, Schubert was the sole in- stigator in attempting to organize a union at the Bank. His solicitation activities in this regard were openly conducted and with dubious discretion as manifested by the fact that of the five employees he solicited, three of them were, as he testified, supervisors. No evidence was introduced to rebut his characterization of them as supervisors. It is inconceiva- ble Respondent did not learn from one or more of these employees about Schubert's union activities. Under such blatant circumstances, it is not too unreasonable to infer that Schubert's involvement in this organizational effort is unlikely to have escaped the Respondent's attention and knowledge.24 But Respondent argues that in order to show knowledge of Schubert's union activities on its part prior to his dis- charge, direct evidence of such knowledge must be proved. Contrary to this contention is the well-established principle that direct evidence is not necessary to support a finding of knowledge of union activity, but that such knowledge may be inferred from the record as a whole. The Supreme Court rejected such a contention in another case, stating that: The Board was justified in relying on circumstantial evidence of discrimination and was not required to deny relief because there was no direct evidence that the employer knew [these discnminatees] had joined [the union] and was displeased or wanted to make an example of them.25 22 Shattuck Denn Mining Corporation v N L R B, 362 F 2d 466, 470 (C A 9 ) 23 Wiese Plow Welding Co, Inc, 123 NLRB 616, 618 ; New French Benzol Cleaners and Laundry, Inc, 139 NLRB 1176, 1179, fn 10, Brezner Tanning Co, 50 NLRB 894 See also N L R B v. Melrose Processing Co, 351 F 2d 693, 697-698 (C.A 8), Champion Paper, Inc v N L R B , 393 F 2d 388, 394 (C A 6), N L.R B v Joseph Ante!!, Inc, 358 F.2d 880, 882 (C A 1), N.L R B v Lawson Printers, Inc, 408 F 2d 1004 (C A 6) Cf Wyco Metal Products, 183 NLRB No 93, p 3 24 See N L R B v Schill Steel Products, Inc, 340 F 2d 568, 572 (C A 5), Northern Virginia Steel Corporation v N L R B, 300 F 2d 168, 173 (C A 4) 25 N L R B v Link-Belt Co, 311 U S 584, 602, The Circle K Corporation, 173 NLRB No 107 For an interesting discussion on "direct evidence," see Pacific Lumber Company, 49 NLRB 1145. Cf Air Associates, Inc, 20 NLRB 356, 375 and enfd as modified 121 F 2d 586 (C A. 2) It has the following remarkable language The respondent contends that it had no knowledge of the union Since the issue is one of subjective intent, direct evidence is rarely attainable and the difficult task of determining actual motive depends principally on drawing inferences from circumstantial evidence. As the Court of Appeals for the Ninth Circuit said in Shattuck Denn Mining Corporation v. N.L.R.B., supra at 470: Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also serif-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Accordingly, it is found, based upon the entire record and the inferences drawn therefrom, that Respondent was aware of Schubert's union activities at the time he was termi- nated 26 Against this fact pattern, Respondent's efforts to exoner- ate itself from a finding of unfair labor practices are singu- larly unimpressive. The reasons advanced by the Respondent for Schubert's discharge are unconvincing. In fact, the only reason given to Schubert's supervisor, Ren- shaw, and by Claycomb and Comer for his termination was Schubert's `dissatisfaction" with his job. Like this reason, the faults testified to by these two bank officials as occasion- ing Schubert's discharge are not only indefinite, vague and general accusations but they find no support in the record. In the rather generalized complaints about his work, the incidents testified to were remarkable in their triviality, lacking in their specificity, and doubtful in their verity when subjected to the searching glare of inquiry. Claycomb's and Comer's reasons for firing Schubert were not related to any specific incidents. Rather, they are broad, subjective char- acterizations and were, therefore, quite impossible to refute and difficult to impugn through cross-examination. An ob- scurely nebulous and puzzling reason beyond comprehen- sion alleged by them for Schubert's discharge was "dissatisfaction" which "would affect other employees" and "our customers" so that "he certainly would not perform to our expectations." Such unconvincing testimony leads to the conclusion that the Respondent's dissatisfaction with Schubert was more fictitious than real and played no part in the decision to discharge him. However, the existence of some justifiable cause for dis- charge is no defense, if it is not the moving cause27 The co-existence of a separate, valid, and justifiable cause for discharge does not eliminate the unlawful aspect of the employer's action where motivated by a cause proscribed by the Act28 Moreover, even if a discharge is only partially motivated by the employee's union activities, it is neverthe- less unlawful29 membership of [the alleged discrimmatees], and that, therefore, the allegation that these employees were discnmmatonly discharged must fall However, the prohibition of the Act extends to any discharge which is intended, or has as its purpose and effect, to discourage membership in a labor organization, a discharge for that purpose having been found, knowledge by the respondent of the union mem- bership of the employee for that reason discharged becomes immateri- al 26 N L R B v Pembeck Oil Corporation, 404 F 2d 105, 110 (C.A 2) 27 N L R B v Security Plating Company, 356 F 2d 725, 728 (C.A 9); Aeronca Manufacturing Company v N L R B, 385 F 2d 724, 727 (C.A 9). 28 Wells, Inc v. N L R B, 162 F 2d 457, 460 (C A. 9), NLRB v Swiner- ton, et a! , 202 F 2d 511, 515-516 (C A. 9) 29 N L R B v Pembeck Oil Corporation, 404 F 2d 105, 109 (C A. 2), N L R B v American Manufacturing Company of Texas, 351 F 2d 74, 79 (C A. 5) Cf. N L R B v. Tonkin Corporation of California, 352 F 2d 509, 511 (C A 9), Virginia Metalcrafters, 158 NLRB 958, Winn-Dixie Granville, 157 NLRB 657 BANK OF CALIF., NATIONAL ASSN. Significant also is the fact that Schubert never received any warnings or discipline about his work or attitude, and there is no credible evidence that he was anything other than an able and willing employee . Significant also is the condoning by the Respondent of Schubert's numerous al- leged inadequacies which occurred prior to the advent of the union and a number of months before his discharge, so that it strains credulity to believe they could have been the reasons for his discharge . Furthermore, Respondent's un- specific claim that Schubert's discharge was motivated, in part, by his failure to bring in the business which they ex- pected of him was not corroborated by the production of the relevant documentary evidence in its possession to F rove its oral contention. The Respondent's unexplained failure to support this charge by the production of such documentary records , or at least producing a witness who would testify as to a specific single instance of Schubert not bringing in enough new business in order to prove this crucial fact, warrants drawing an inference that if adduced it would not have been favorable to the Respondent 30 Inasmuch as the record is devoid of any substantial evi- dence that lack of qualifications or any other valid reason played any role whatsoever in motivating Respondent to discharge Schubert, it seems evident that the real reason for his discharge was his union activity , a violation of Section 8(a)(3) and (1) of the Act. It is found, furthermore , that the multiple explanations and unspecific and unconvincing reasons given for the discharge of Schubert create a suspi- cion that they were offered to conceal an unlawful antiun- ion motive, which in the situation was an attempt to forestall union activity and thus remove a potential nucleus for an incipient union movement at the Seattle bank by demon- strating to the other employees there and in its other banks, the threat of like action if they had any notions which were sympathetic towards the union movement or Schubert, the discharged union proponent. "Obviously the discharge of a leading union advocate is a most effective method of under- mining a union organizational effort 31 The multiple and shifting reasons for explaining the Respondent's decision to fire Schubert are more consistent with the building of a defense than a good-faith discharge for cause.32 Moreover, the Board and courts have held in other cases, that such reasons are often indicative of a dis- criminatory antiunion intent .33 Furthermore, Schubert's work record belies these multiple , shifting and unconvinc- ing reasons advanced by Respondent to justify Schubert's discharge. It is uncontradicted that Schubert received a let- ter of commendation from Respondent's main office in San Francisco, which was unusual , as evidenced by Henshaw's comment that "We don't see too many [such] letters." Then, too, there is the uncontroverted fact that Schubert received two increases in salary and favorable reports by the Bank on the quality of his work, which is cogent proof that he was a satisfactory employee. Moreover, Henshaw admitted that Schubert's precipitous discharge while he was away from his office came as a complete surprise to him and when asked if it was "unusual," answered : "It might be considered so." Then too, it will be recalled that Henshaw "backed" Schu- 30 Interstate Circuit, Inc v U S, 306 U S 208, 225-226, N L R B v A P W Products Co, 316 F 2d 899, 903 (C A. 2), N L.R B v Wallick, et a!, 198 F 2d, 477, 483 (C A 3), Concord Supplies & Equipment Corp, 110 NLRB 1873. 31 N L R B v Longhorn Transfer Service, Inc, 346 F 2d 1003, 1006 (C A 5) 32 Santa Fe Drilling Company v. N L R B, 416 F.2d 725, 729 (C A 9) 33 Dant & Russell, Lid, 92 NLRB 307, 320, Intertown Corporation, 90 NLRB 1145, 1188 A J Krajewski Manufacturing Co v NLRB, 413 F 2d 673, 675-676 (C A 1) 695 bert when Claycomb and Comer recommended in Novem- ber 1969 that he be fired. Also, Henshaw acknowledged that there was "considerable improvement" in Schubert's absen- tee and tardiness record which occurred a considerable length of time before he was fired. In fact, most of the complaints with respect to the quality of his work occurred almost exclusively 4 to 12 months before his discharge. It will be recalled that Claycomb testified about unat- tended checks being found on Schubert's desk during the latter's absence from the office on September 21, 1969, 6 months before his discharge, yet the Bank failed to prove by reliable evidence that it was Schubert who was guilty of having left these checks there . The complaint that Schubert read in the office turned out to be nothing more than Amen- can Institute of Banking books and as for the newspapers which he read, it stands uncontradicted in the record that Henshaw required him to scan the daily papers in order to keep abreast of what the Bank's competitors were advertis- ing. The hyperbolic accusation that Schubert "harassed" customers in endeavoring to get them to shift to "3-2-1" accounts, appears to have been nothing more than a Mun- chausenism, or a stretch of the imagination. Even those of Schubert's detractors who voiced com- plaints about him, grudgingly admitted he had some virtues. Claycomb conceded that the withholding tax program Schubert helped to devise was superior to the existing sys- tem. Moreover, when Comer and Claycomb recommended to Campbell in November 1969 that Schubert be fired, Hen- shaw interceded and Campbell refused to go along with their recommendation, which significantly indicates that Campbell was either doubtful or ascribed insufficient va- lidity to their reasons for recommending his termination. Furthermore , at no time during Schubert's terminal inter- view did Comer or Claycomb confront him with the many delinquencies which they charged him with when the'testi- fied at the hearing. It seems that both Claycomb s and Comer's complaints centered about their being irked at Schubert inquiring of the bank officials as to what his future prospects were with the Bank and their annoyance at his receiving more pay than some "supervisors ." Finally, the record evidence demonstrates that most of the reasons as- serted by the Bank at the hearing were apparently after- thoughts dredged up to support the Bank's unlawful action. Accordingly, when every other plausible motive has been eliminated and the reasons advanced are not persuasive, the union activity may well disclose the real motive behind the employer's action."34 For these reasons, it is found that Respondent violated Section 8(a)(3) and (1) of the Act when it discriminatorily discharged Frank Schubert on March 13, 1970. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 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 unlawfully discharging Frank Schubert on March 13, 1970, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent was at least partially mo- 34 N L R B v Melrose Processing Co, supra at 699 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivated in its discriminatory treatment of the above-named individual by his activities on behalf of the Union 35 and thereby engaged in unfair labor practices as above set forth, it will be recommended that it cease and desist therefrom and take affirmative action, set forth below, found neces- sary and designed to effectuate the policies of the Act. Having found that Respondent discriminatorily termi- nated and discharged Frank Schubert, it will be recom- mended that it offer to him immediate , full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights, privileges, or working conditions , dismissing, if necessary, anyone hired in such job on and after March 13, 1970, and make him whole for any loss of earnings suffered by reason of the discrimination against him , by pa 'ng to him a sum of money equal to the amount he would have earned from the date of the discrimination against him until such discrimination has been fully eradicated, less his net earnings during the period of such discrimination. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as the discharge of employees for reasons of union affiliation or concerted activity has been regarded by the Board as one of the most effective methods of defeating the exercise by employees of their rights to self-organiza- tion, the Trial Examiner recommends , therefore, that Re- spondent be required to cease and desist from in any man- ner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act.36 RECOMMENDATIONS Accordingly, upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is recommended pursuant to Section 10(c) of the National Labor Relations Act, as amended , issuance of the following recommended: ORDER Respondent Bank of California, National Association, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a)Discouraging membership in the Banking Guild, Divi- sion of Professional Office and Industrial Union (MEBA), or any other labor organization by discriminatorily dis- charging any of its employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment. (b)In any other manner interfermg with, restraining or coercing its employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Banking Guild, Division of Professional Office and Indus- trial Union (MEBA), or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities with the pur- pose of collective bargaining or other mutual aid or protec- tion, or refrain from any and all such activities. 2. Take the following affirmative action which will effec- tuate the policies of the Act: (a) Offer Frank Leo Schubert immediate and full rein- statement to his former job or , if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay that he may have suffered by reason of the Respondent's discrimination against him in accordance with the recommendations set forth in this De- cision in the section entitled "The Remedy." (b) Make Frank Leo Schubert whole for any loss of pal that he may have suffered by reason of the Respondent s discrimination against him in accordance with the rec- ommendations set forth in the section of this Decision enti- tled "The Remedy." (c) Notify Frank Leo Schubert if presently serving in the Armed Forces of the United States of his right to full rein- statement, upon application, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , person- nel records and reports, and all other records necessary to analyze the amount of backpay due and rights of employ- ment under the terms of this Decision. (e) Post at its premises in Seattle, Washington, copies of attached notice marked "Appendix. "37 Copies of said no- tice, to be furnished by the Regional Director for Region 19 of the Board, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days there- after in conspicuous places including all places where no- tices 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. (f) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Decision what steps it has taken to comply herewith .38 3s NL.R.B v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7) 36 N.L.R.B. v. Entwistle Mfg Co., 120 F.2d 532, 536 (C.A. 4). 77 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 . In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 38 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Re- gion 14, in wasting, within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency Of The United States Government After a trial at which both sides had the opportunity to present their evidence, a decision has been issued finding that we violated the law and ordering us to post this notice and actually do what we say in this notice. WE WILL reinstate Frank Leo Schubert to his former position without loss of seniority or other rights and privileges and will pay him for any loss of wages he suffered as a result ofthe discrimination which it has been found that we practiced against him. BANK OF CALIF., NATIONAL ASSN. WE WILL NOT discharge or otherwise discriminate against employees because they join or assist the Bank- ing Guild or any other labor organization. WE WILL respect your rights to self-organization, to form, join, and assist any labor organization, and to bargain collectively about terms and conditions of em- ployment through Banking Guild or any other repre- sentative of your own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, and WE WILL NOT inter- fere with, restrain, or coerce, you in the exercise of these rights. BANK OF CALIFORNIA, NATIONAL ASSOCIATION (Employer) Dated By 697 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Re- public Building, Tenth Floor, 1511 Third Avenue , Seattle, Washington 98101, Telephone 583-4532. (Representative) (Title)