Ross Valley Savings & Loan Association

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ross Valley Savings & Loan Association and Sharon Louise Pincus. Case 20-CA-6451 November 22, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 10, 1971, Trial Examiner Herman Marx issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Ross Valley Savings & Loan Associ- ation, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3) We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN MARx, Trial Examiner: The complaint alleges that Ross Valley Savings & Loan Association (herein the Company or Respondent) has violated Section 8(a)(1) of the National Labor Relations Act i (herein the Act) by discharging an employee, Sharon Louise Pincus, because she had engaged in "concerted activities" protected by Section 7 of the Act.2 The Respondent has filed an answer which, in material substance, denies the commission of the unfair labor practices imputed to it. 1 29 U.S.C Sec. 158(a)(1). 2 The complaint was issued on March 3, 1971, and is based on a charge filed by Sharon Louise Pincus on November 27, 1970. Copies of the charge and complaint have been duly served on the Respondent Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (herein the Board) upon all other parties, a hearing on the issues was held before me, as duly designated Trial Examiner, on May 25, 1971, at San, Francisco, California. The General Counsel and the Respondent appeared through respective counsel, and all parties were afforded a full opportunity to adduce evidence, examine and cross-examine witnesses, and submit oral argument and briefs. Upon the entire record, and my observation of the demeanor of the witnesses, and having read and considered the briefs filed with me since close of the hearing, I make the following findings of fact: FINDINGS OF FACT I. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD Ross Valley Savings & Loan Association is a California corporation; maintains its principal office and place of business in San Anselmo, California, where it is engaged in business "as a savings and loan association"; and is, and has been at all material times , an employer within the meaning of Section 2(2) of the Act. During the year immediately preceding the issuance of the complaint, the Company derived gross revenue in excess of $3 million from loans and investments ; purchased United States Government bonds in an amount in excess of $50,000; received at its said place of business deposits in excess of $5,000 from persons located outside the State of California; and paid interest on deposits to persons located outside the said State in an amount in excess of $5,000. By reason of its said bond purchases , deposits, and interest payments, the Company is, and has been at all material times, engaged in interstate commerce, and operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the subject matter of this proceeding. H. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company has a work force of some 19 employees, including several tellers, all of them subject to supervision by its vice president, Claudia Goldthwaite, who is subject, in turn, to direction by its president, E. Michael Young, Jr. Sharon Louise Pincus has been employed by the Company as a teller in two periods, first entering its employ in March 1969. That employment ended about 4 weeks later when she had to leave suddenly to look after her mother who resided in San Diego and had met with an accident. Failing in an effort to reach Mrs. Goldthwaite, Mrs. Pincus left a note for her, informing her of the impending departure.3 Shortly thereafter, Mrs. Goldth- waite telephoned Mrs. Pincus, and asked her when she would return. Mrs. Pincus expressed uncertainty, and Mrs. 3 The contents of the note are not spelled out in the record, but it is evident from a subsequent telephone conversation between the two women, that the note gave notice of Mrs. Pincus' impending departure. 194 NLRB No. 40 ROSS VALLEY SAVINGS & LOAN ASSN. Goldthwaite said that she could not hold Mrs. Pincus' job for her, but invited her to call upon her return. Mrs. Pincus did so following her return about a month later; Mrs. Goldthwaite offered her reemployment as a teller; and Mrs. Pincus accepted and resumed her position in April 1969, working in that capacity until November 13, 1970, when she was discharged under circumstances to be described later. About 2 months after her return, she was given an increase of $25 in her monthly pay in accordance with the management's policy of giving new employees an "automatic" increase after 3 months of employment. Informing Mrs. Pincus of the increase, Mrs. Goldthwaite told her not to mention it to the other employees. As Mrs. Goldthwaite testified, she "usually told them (employees) when they received an increase to keep it to themselves." Thereafter, Mrs. Pincus asked Mrs . Goldthwaite for a wage increase on two occasions , the first in April 1970, and the other in the first or second week in September.4 In support of the latter request , Mrs. Pincus told Mrs. Goldthwaite that a recently hired teller was receiving as much as she, although she was the "best" of the Company's tellers. Mrs. Goldthwaite concurred in that appraisal, and said that there "shouldn't be any problem about a raise," but that she would have to submit the request to the Company's executive committee (which consists of herself, Young, and a third management official). The next day, Mrs. Goldthwaite informed Mrs. Pincus that the committee had rejected the request , because Mrs. Pincus had received an increase in April, and would have to wait a couple of months for another. Mrs. Pincus reiterated that she was the "best" of the tellers, and Mrs. Goldthwaite agreed, stating that she would discuss the request again with the other officers. On the same day (but whether on the occasion when Mrs. Pincus was informed of the rejection does not appear), Mrs. Pincus complained to Mrs. Goldthwaite that the latter did not "realize how hard it is for all of us girls to have to come in and sii here and beg you for a raise, because you won't pay any of us what we should get and it's not fair that you should do this to us."5 According to Mrs. Pincus, she discussed the subject of wages that day with some of the other employees, suggesting to them that they seek increases, but they indicated fear of dismissal, whereupon she told them, "If you're too afraid and if I do it for myself I will do it for you, too." Approaching this self-serving testimony by an interested witness with appropriate caution, I am nevertheless persuaded of its credibility . It is not inherently implausible; Mrs. Pincus appeared to me to be credible on the other material aspects of her testimony; and it is of some moment that although she named the employees to whom she spoke-five in all, four of them still in the Company's employ, so far as appears-the Respondent neither called' 4 Unless otherwise indicated , all dates mentioned herein occurred in 1970 5 Findings as to the conversations between Mrs Pincus and Mrs. Goldthwaite relating to wages, as described above, are based on Mrs Pincus' testimony. Mrs. Goldthwaite's testimony, it may be noted, contains no denial that Mrs. Pincus complained to her that the Company "won't pay any of us what we should get ," or that she concurred in Mrs. Pincus' self-appraisal as the best of its tellers. The plausibility of such a 271 any of them, nor explained its omission to do so. This is not to say that the Respondent had a duty to call these employees, but only that their identification afforded an opportunity to call them in refutation of Mrs. Pmcus' claim, and that the fact that it did not do so may properly be taken into account in evaluating her credibility. Moreover, Young, the Company's chief executive, testified that prior to Mrs. Pincus' dismissal he had heard "rumors" that she had been discussing the denial of her request for an increase with other employees, "letting everybody know" that she was "dissatisfied" with the rejection. This lends support at least to her claim that she discussed the subject of wage increases with other employees. Taking all factors into account, I credit her testimony regarding her discussion of wages with other employees.6 Within a period of a few days following rejection of her request, Mrs. Pincus gave some thought to quitting because of denial of the increase and informed one or more of the other employees of the possibility, and that her departure might occur "the first of the year" because savings and loan organizations are busy then and have greater requirements for help ; but she said nothing to the management about resigning until October 20. On that date, having learned the day before that she was pregnant, Mrs. Pincus informed Mrs. Goldthwaite of the anticipated event by composing and handing her a poem of the "Roses are red, violets are blue" genre, closing with the lines that "I must leave this job for another, because I'm going to be a mother." The evidence of what followed is disputed . Mrs. Pincus claims that after reading the poem, Mrs. Goldthwaite asked her when she was leaving; that she gave December 31 as the date; and that Mrs. Goldthwaite then expressed apprecia- tion for "all of the notice," since "the first of the year" is a busy period and the notice would give the management time to train a replacement . Mrs. Goldthwaite, in contrast, simply quotes herself as expressing pleasure at the news of the pregnancy, and claims that Mrs. Pincus "did not say when she intended to leave." The material credibility issue will be resolved at a later point. Two or three weeks after Mrs. Pincus' announcement, she heard that the Company's switchboard operator, Gloria del Santo, then temporarily substituting for a regular operator who was on an extended indefinite leave of absence, intended to leave "the first of the year." Believing that the operator's work, which was performed in a seated position, was within her physical capacity during her pregnancy, Mrs. Pincus talked to Miss del Santo about the matter one morning early in November, before the start of the workday, and both agreed that it would be a good idea for Mrs. Pincus to seek the job. She did so on or about November 8, applying to Mrs. Goldthwaite, pointing out that she knew how to operate the board, and was acquainted with every member of the concurrence is enhanced by the fact that Mrs. Pincus had never been reprimanded by the management, and had received a merit increase several months earlier. 6 It does not appear ' whether Mrs. Pincus' complaint to Mrs Goldthwaite that the employees were not paid "fair" wages came before or after Mrs . Pincus' discussion with the other employees , and it is thus not established that the complaint was a product of that discussion. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's staff. Mrs. Goldthwaite replied that the proposed assignment "sounded like a good idea," and that she would discuss the matter with the other officers (members of the executive committee, apparently) and inform Mrs. Pincus of the outcome.? Mrs. Goldthwaite did not mention the matter again to Mrs. Pincus until November 13, doing so in circumstances that will presently appear. B. The Discharge; Concluding Findings Toward the end of the workday on November 13, Mrs. Goldthwaite summoned Mrs. Pincus, and discharged her. Mrs. Pincus asked for an explanation, and Mrs. Goldth- waite gave her two reasons: (1) that the management had heard a rumor that Mrs. Pincus intended to leave the day she received her Christmas bonus (such bonuses are given by the Company to employees annually between December I 1 and 15); and (2) that Mrs. Pincus had been "heckling" Miss del Santo "for her job. " 8 Mrs. Pincus suffered a miscarriage toward the end of November, and by letter dated December 21, 1970, received by Young a day or two thereafter, she informed the Company of her miscarriage, and that she was "available for work with no time limitation." The Company has not replied. The General Counsel maintains, in substance, that the reasons given Mrs. Pincus were pretexts, and that she was discharged because she had engaged in "concerted activities" protected by Section 7 of the Act, or because the Respondent "believed" that she had engaged in them. The Respondent replies, in effect, that it discharged Mrs. Pincus for lawful cause, relying on testimony by Mrs. Goldthwaite and Young to spell out its justification for the discharge. There is much in the record to support a conclusion that the Company has resorted to pretexts to justify the dismissal. According to Mrs. Goldthwaite, Mrs. Pincus was discharged by decision of the executive committee because the management had heard that Mrs. Pincus intended to leave, without prior notice, about the end of the year (1970), thus leaving the Company "in a very precarious position." Expanding on this, Mrs. Goldthwaite offered the explana- tion that Mrs. Pincus had previously "left us in a spot" (by her prior departure), and that the early part of January is a busy period, and it "takes quite a long time to train a teller." The committee, so Mrs. Goldthwaite testified, learning of Mrs. Pincus' intention late in September or the early part of October, decided in the latter month to replace her, but did not carry out the decision before Mrs. Goldthwaite heard of Mrs. Pincus' pregnancy, and then decided against the 7 Mrs. Pincus' account of the conversation is not in material dispute. Mrs Goldthwaite in effect concedes that Mrs. Pincus applied for the operator's job about November 8, but says that she does not remember saying that she thought the proposal "a good idea " 8 Findings as to the reasons given Mrs. Pincus are based on her account of the conversation Mrs. Goldthwaite quotes herself as telling Mrs. Pincus that the reason for the discharge was that she had heard that Mrs Pincus "was going to leave the first of the year without notice, because she hadn't given notice before and it had left us in a bad spot and it was a very, very busy time of the year." This is not greatly removed from the first of the reasons quoted by Mrs. Pincus, but, in any case, I find Mrs. Pincus' version of the explanation given her to be the more reliable of the two accounts. Mrs. Goldthwaite herself pictures the executive committee as deciding early in October to discharge Mrs Pincus because information had come latter's dismissal because of her condition. However, according to Mrs. Goldthwaite, the decision was revived following a conversation with Mrs. Pincus on or about November 12 or 13 regarding the switchboard job .9 Mrs. Goldthwaite testified that on the occasion in question Mrs. Pincus told her that she, her husband (Loren Pincus), and an employee named Mary Wilkinson "had decided that she [Mrs. Pincus] should take the switchboard job because her legs were beginning to bother her," and that she replied that Mrs. Pincus was not to "tell us what to do." This, according to Mrs. Goldthwaite, led the executive committee to discuss again the question of discharging Mrs. Pincus, with the result that the committee "decided we had better let her go because she wasn't very happy," her "attitude" having "changed" after rejection of her request for a wage increase. It seems implausible that in seeking the switchboard position, in effect asking for a managerial indulgence, Mrs. Pincus would take so demanding a stance as to say that she, her husband, and Mary Wilkinson "had decided" on the disposition of the opening, but the shortcomings in Mrs. Goldthwaite's testimony, as well as in that of Young, run far deeper, reflecting evasiveness, ambiguity, and shifts of position. Vagueness and shift appear in Mrs. Goldthwaite's claim that, following denial of the wage increase, Mrs. Pincus "wasn't very happy," and that this change in attitude was a factor in the discharge decision. This is a departure from the reasons given Mrs. Pincus and the claim that the latter "wasn't very happy" is so ambiguous as to leave one in doubt as to its meaning. There is no demonstration that the alleged attitudinal change had any impact on Mrs. Pincus' work, nor any evidence of dissatisfaction with her by any of the Company's customers whom she served or otherwise met. She had never been reprimanded for any deficiency in her work performance, and, on the occasion of her last request for an increase, Mrs. Goldthwaite had agreed that she was the Company's "best teller." In other words, if Mrs. Goldthwaite's meaning is that some shortcoming in Mrs. Pincus' performance entered into the discharge decision, the claim has the earmarks of an afterthought and I place no credence in it. On the other hand, there is evidence, to be discussed later, that the management believed that, after denial of an increase, Mrs. Pincus expressed criticism of the adequacy of their salaries to other employees, and endeavored to induce them to seek increases, and it may well be that Mrs. Goldthwaite's characterization of Mrs. Pincus as not "very happy" is a euphemistic allusion to such activity by Mrs. Pincus. In any case, I am unable to to the management that she had expressed an intention "to leave as soon as she got her Christmas bonus"; and this lends support to Mrs. Pincus' version of the first of the two reasons she says were given to her. As for the second, Mrs. Goldthwaite conceded that she "could have" given "heckling" of the switchboard operator as a reason, and Young testified that such "heckling" by Mrs. Pincus was a factor in her discharge 9 The transcript quotes Mrs. Goldthwaite as testifying that the conversation took place on "October the 13th or the 12th or something like that." Whether the transcript is, inaccurate or Mrs. Goldthwaite nusspoke herself, it is evident from other parts of the record that she intended to refer to "November" rather than "October" as the month in which Mrs. Pincus sought the switchboard position . In any case, as stated earlier, Mrs. Pincus applied for the job on or about November 8. ROSS VALLEY SAVINGS & LOAN ASSN. 273 accept the characterization as a reliable basis for determin- ing the motivation for the discharge. Moreover, although Mrs. Pincus was told that a reason for her dismissal was that she had "heckled" the switchboard operator, Mrs. Goldthwaite's testimony on the subject is elusive, reflecting a disposition to fence with interrogation about the matter, as the following exerpts from the record attest: Q. (By Mr. Wright) Did you [Mrs. Goldthwaite] talk about or tell her that she was being discharged for another reason? A. I think I did mention to her, I'm not sure, about trying to get the position of telephone operator. Trial examiner: Well, what did you say about that as nearly as you recall? The witness: On November the 13th? Trial examiner: Yes. The witness: I don't recall that I mentioned that, because I did mention to her that day that she said she wanted that position. Trial examiner: And what day was that? Was that on her last day or before? The witness: On, no, this was before. A couple of days before, I believe. I don't recall. Trial examiner: Well, at the time she was discharged, did you say anything at all about the telephone position that you remember? The witness: I may have but I don't recall. Trial examiner: You don't recall? The witness: No. Q. (By Mr. Schmier) Mrs. Goldthwaite, wasn't one of the reasons that Sharon was discharged was that she was heckling the switchboard operator? Wasn't that one of the reasons given? A. No, that wasn't the main reason. Q. Well, wasn't that one of the reasons? A. It could have been. Q. And, so, it could have been one of the reasons, is that correct? A. (The witness moved her head in the affirmative.) Trial examiner: You said, yes. The witness: Yes. Young's testimony regarding the alleged "heckling" also has an evasive cast, shifting about from one position to another. Testifying at one point that at the time of the discharge he "thought" that the "heckling" was "one of the material factors" in the dismissal, he also stated that he "subsequently found out" that the "heckling" was "not as much of a factor as I had thought at first," and that "it [meaning, presumably, Mrs. Pincus' discussion of the prospective job opening with the operator] was not a heckling." And it may be noted, too, that a few days after the dismissal, in response to an inquiry by Loren Pincus as 10 Pincus' account of this aspect of his conversation with Young is uncontradicted 11 The finding that Mrs. Pincus told Mrs. Goldthwaite on October 20 that she would leave on December 31 is not inconsistent with the fact that Mrs Pincus applied for the switchboard operator's job several weeks after the notification. That position, which would impose less of a physical to the justification for it, he told Pincus that he had looked into the reasons for the discharge and that Mrs. Pincus had not "heckled" the switchboard operator.10 The "heckling" allegation is a bare generalization, and in view of the shortcomings in the testimony of both Mrs. Goldthwaite and Young on the subject, I am convinced that the "heckling" reason given Mrs. Pincus for her discharge had no basis in fact and was a mere pretext for the dismissal. There is also good reason to deny credence to Mrs. Goldthwaite's testimony to the effect that Mrs. Pincus was discharged because the management had heard that she intended to leave about the end of the year without prior notice. Mrs. Pincus admittedly told others about September 10, following rejection of her request for a wage increase, that she might leave with the arrival of the new year, and it is credible that the expression of this possibility was relayed to Mrs. Goldthwaite (or was interpreted by her) as the existence of an actual intention by Mrs. Pincus to leave at or about the start of the coming year (or, to quote Mrs. Goldthwaite at one point, "as soon as she got her Christmas bonus"), but according to Mrs. Goldthwaite herself, the information reached her late in September or early in October, some 5 or 6 weeks before the discharge, and it is an objective fact that Mrs. Pincus informed Mrs. Goldth- waite during the third week in October that she "must leave this job for another, because I'm going to be a mother" or, in short, gave notice of her intention to resign because of her pregnancy. To be sure, Mrs. Goldthwaite denies that Mrs. Pincus specified any resignation date, but especially in view of the approaching busy season, then little more than 2 months off, and of the "long time" needed to train a replacement-a necessity emphasized by Mrs. Goldthwaite in her testimony-it seems only natural that Mrs. Goldthwaite, upon receiving the news from Mrs. Pincus that she intended to resign because of her pregnancy, would ask Mrs. Pincus, as the latter testified, "When are you leaving?" And it is correlatively plausible that Mrs. Pincus would make a responsive reply such as "December 31. " Taking all factors into account, including the substantial infirmities in Mrs. Goldthwaite's testimony on other material matters, I credit Mrs. Pincus' version of the conversation, finding that on October 20, she informed Mrs. Goldthwaite, in substance, that because of her pregnancy she planned to quit as of December 31.11 The fact of this notification is plainly at odds with Mrs. Goldthwaite's explanation that the Company discharged Mrs. Pincus because it had heard that she intended to quit about the end of the year without prior notice, thus leaving the Company short of trained teller personnel, and I find that the explanation, as well as the similar one given Mrs. Pincus at the time of her dismissal, was, like the "heckling" allegation, a pretext. The Respondent's resort to pretexts bolsters, but does not of itself establish, the General Counsel's case. The evidence of Mrs. Pincus' "concerted activities" has a skeletal cast, burden on Mrs. Pincus in her pregnant condition, was due to become open about the start of the new year, and one may fairly view Mrs Pincus' application for it as an effort to modify a prior understanding with the management as to the date of her resignation, in order to enable her to continue her employment beyond that date in work within her physical capacity. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consisting substantially of her testimony that on the day in September when her request for an increase was rejected she suggested to other employees that they seek increases, and offered to do it for them in the event she sought an increase for herself. It does not appear, with clarity at least, whether she made the .suggestion and, offer to one or more employees on separate occasions, or on a single occasion to a group (although at one point she singles out Mary Wilkinson as one with whom she discussed the subject of wages "at great length"), -nor is there any indication of any response by the employees to the offer, nor is it established that her offer was relayed to the management . But that does not mean that the Company did not learn at some point prior to the discharge decision that she had talked to other employees about their salary levels, and on that score, the record warrants a conclusion that the management received information from some source to the effect that she had sought to induce the others to seek wage increases; and that she was discharged for that reason. Evidence of that motivation surfaced in the second of two conversations between Loren Pincus and Young after the discharge. A summary of the first, which is not in material dispute, is appropriate background for the second. Mrs. Pincus had come home following her discharge in a state of emotional upset, and had informed her husband of her dismissal, relating the two reasons given her, and on November 17, he telephoned Young, with whom he was acquainted, and told Young that he was surprised that Young would permit Mrs. Goldthwaite to terminate Mrs. Pincus on such grounds . Young replied that "his supervi- sors acted with his blessings," and Pincus termed the dismissal "unfair" and the purported reasons "childish"; stated that his wife had never previously been discharged and had been doing "a good job," that they had been counting on her employment to the end of the year and on her Christmas bonus, and that the dismissal would prevent her from getting other employment; and requested that Young "reconsider" and give Mrs. Pincus the bonus and a letter of recommendation that she could use in seeking other employment. Young said he would have to discuss the request with other management officials. On the following day, Pincus, calling from his place of business, telephoned Young again. At Pincus' direction, his secretary listened, without Young's knowledge, on an extension telephone in another office. There is no dispute that Young told Pincus that the Company would not give Mrs. Pincus the bonus and a letter of recommendation, but there is conflict as to what was said on the subject of reasons for the discharge. Pincus testified that he expressed disbelief of the two dismissal reasons given his wife, and that Young replied that, since talking to Pincus the previous day, he had looked into the claim that the switchboard operator had been "heckled" and had found that that was not the case. According to Pincus, he termed the other reason "ridiculous" pointing out that his wife had given notice of her intention to quit as of December 31 on the day she informed Mrs. Goldthwaite of her pregnancy; and Young replied that Mrs. Goldthwaite had told him that "this notice was never given." Then, Pincus testified, in substance, he reiterated disbelief that Mrs. Pincus could be discharged for such "a ridiculous reason" as a "rumor" that she intended to leave without notice, "especially since it's not true," and at that, Young conceded that that "was not the reason," and after some added inquiry by Pincus, said that the reason was that "her attitude had changed considerably" since rejection of her request for a wage increase in September. According to Pincus, he then asked Young to explain what he meant, and the latter replied that "ever since" the rejection, Mrs. Pincus "had been discussing with the other girls the fact that they were all making inadequate salaries and this was causing a lot of dissension with most of the girls and this dissension and trouble had gotten back to management, and they decided about that time to replace her." Pincus' secretary, stating that she did not listen to the entire conversation because she had to take an incoming call on another line, testified that she heard Young say that one of the reasons for the discharge was that Mrs. Pincus had discussed "wages and conditions " with other employ- ees of the Company. Denying that he gave such discussion as a reason for the discharge, Young's version on direct examination is that Pincus threatened to file a charge with the Board unless the Company met the request for the bonus and letter of recommendation ; that Young said that the Company would adhere to its position , believing that its "reasons were justified"; that Pincus then "wanted further informa- tion as to why he had discharged her"; and that he replied that the management had received "grapevine " information that Mrs. Pincus intended to leave without notice at the end of the year, and that an additional reason for the dismissal was that following rejection of her request for a wage increase "her attitude had changed and we felt she was a disturbing influence on the other employees, because of her attitude and . . . not being happy, cheerful, . . . and we felt this would evolve with the public when she was there meeting the public . And when we have somebody that's not happy and saying things about the employer in an unfavorable manner, this is not the person that you can afford to be your public relationsperson." The material question regarding the second conversation is whether Young told Pincus that Mrs. Pincus was discharged because she had been discussing the subject of wage inadequacies with other employees, thereby causing "a lot of dissension" among them. There is good reason to question Pincus' credibility in that regard . His interest is obvious; on the surface, at least, it does not seem quite plausible that Young would make such a turnabout as to make the admission imputed to him, and Pincus ' conduct in having his secretary eavesdrop on the conversation is, in my view, of such questionable propriety as to reflect on his quality as a witness. The secretary's testimony contributes little to a resolution of the material issue . Her account has a fragmentary cast, explained, perhaps, by her testimony that she heard only a portion of the conversation; and in view of her employment by Pincus, I am unable to regard her as a disinterested witness. On the other hand, Young's testimony reflects shifting positions as to the motivation for the discharge, and this characteristic appears markedly in his version of the second conversation with Pincus . He makes no reference there to ROSS VALLEY SAVINGS & LOAN ASSN. the claim that Mrs. Pincus "heckled" the switchboard operator, although that allegation was one of the two reasons given her for the discharge, and he advances an additional reason, not given to her, to the effect that following denial of her request for an increase "her attitude had changed," making her "a disturbing influence on the other employees," and unsuitable for "meeting the public." Nevertheless, Young's testimony, some of it not previous- ly mentioned, provides important clues to the discharge motivation, giving support, in fact, to some features of Pincus' version of the second conversation. For one thing, Young not only does not contradict Pincus' claim that Young told him that he had looked into the "heckling" allegation and found it to be untrue, but gives it some corroborative support under cross-examination. There he all but withdraws the allegation as a reason for the discharge, testifying that he had made "a little investiga- tion" into the matter; that although he cannot "recall exactly" whether this occurred between the two conversa- tions, his "investigation" was "somewhere in that interval"; and that he had "found out it [the heckling allegation] was not as much of a factor [in the discharge] as I had thought at first," and that Mrs. Pincus had not "heckled" the switchboard operator. For another matter-and more to the point-there are indications in Young's testimony that, contrary to his denial, he did, in effect, tell Pincus that Mrs. Pincus was discharged because of her discussion of wages with other employees. Young implied as much when he testified that he told Pincus that an added reason for the discharge was "the fact that after she had not received the raise her attitude had changed and we felt she was a disturbing influence on the other employees"; and that she had been "saying things about the employer in an unfavorable manner" (emphasis supplied). In the context of Young's reference to rejection of Mrs. Pincus' request for an increase, and the alleged resulting change in attitude, his allusion to "disturbing influence" and "unfavorable" statements by Mrs. Pincus regarding the Company, reasonably convey the meaning that she had expressed criticism of the Company on the subject of wages to other employees, thereby "disturbing" them. With this interpretation, there is basic accord between Pincus' version and that of Young at least to the extent that both in effect depict Young as admitting that Mrs. Pincus' discussion of wages with other employees was a causative factor in her discharge. It becomes a question, then, of the terms in which the admission was couched, and on that score it is worth noting that under cross-examination Young conceded that he "might have" told Pincus that Mrs. Pincus had caused "dissension" (a term attributed to Young by Pincus) among the other employees, but put his own gloss on the admission by adding, unresponsively, that what he had meant was "an irritating or bugging of employees because of her attitude, but not because of wages of other people." Subsequent interrogation of Young whether he had told Pincus that the latter's wife "had caused dissension among the employees regarding wages" yielded an admission that he had used the term "dissension" in his conversation with Pincus, but the 12 According to Young, he formed his conclusion that Mrs. Pincus was a "disturbing influence" on the other employees about the end of 275 concession took the form of an unresponsive explanation that "[i It's a word perhaps which wasn't the best word, because it had been used at a time because it more or less related to their [employees'] reaction. It was having someone in your midst who was not happy with her own situation and let everyone know about it." As is evident from its context, the thrust of Young's admission is that he told Pincus that Mrs. Pincus had caused "dissension" among the employees on the subject of wages. This adds weight to Pincus' version of the conversation. Pincus' credibility survives the reasons to question it. His account of the first conversation is not in dispute, and much of his version of the second is either uncontradicted or supported by Young. This is the case with his testimony that Young admitted that Mrs. Pincus had not "heckled" the switchboard operator. And, as previously indicated, his claim that Young told him that Mrs. Pincus was discharged because she caused "dissension" among the employees by discussing the "inadequate salaries" paid them is support- ed, in part by Young's testimony. On that score, I accord no weight to the interpretative gloss Young now gives his admission that he told Pincus that Mrs. Pincus had caused "dissension" among the employees on the subject of wages. Nor is there any hard evidence to support Young's generalizations that Mrs. Pincus had been "irritating" or "bugging" other employees, and this is also true of his characterizations of Mrs. Pincus' conduct as "unfavorable manner," "not being happy, cheerful and this type of thing," and "disturbing influence." Lacking such evidence, one may fairly view these terms, in the light of the total record, as uncandid, pejorative generalities, which, in combination, have the underlying meaning that Mrs. Pincus had expressed criticism to other employees of the wages paid them ("saying things about the employer in an unfavorable manner"), and instigating them to seek wage increases (acting as "a disturbing influence on the other employees" and causing "dissension" among them). In that connection, I find unconvincing a claim by Young to the effect that "rumors" of discussion of wages by Mrs. Pincus that reached him were that she had talked to other employees about her own wage situation, and not that of others. In short, Young's version of his second conversation with Pincus is not a dependable basis for findings. Crediting Pincus' version, I find that Young told him, in substance, that following rejection of her request for an increase, Mrs. Pincus had discussed with other employees "the fact that they were all making inadequate salaries," that this had caused "dissension" among them, and that the management discharged her for that reason. Although the record does not disclose the source of the Respondent's information regarding Mrs. Pincus' activity, it is evident from what Young said about it to Pincus that the management had learned prior to the discharge that Mrs. Pincus had sought to induce other employees to seek increased wages.12 There is no evidence that Mrs. Pincus in fact caused "dissension," as that term is commonly understood, and there is good reason to conclude that Young used it in September or early in October, basing it on information given him at that time by Mrs. Goldthwaite. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another sense. The Respondent is sensitive to discussion of wage increases among its employees, as evidenced by Mrs. Goldthwaite's practice of admonishing recipients of increases not to disclose them to other employees, and it is evident that the purpose of this practice is to discourage requests for increases. In the light of this policy, and of Young's repeated use of pejorative ambiguities to describe Mrs. Pincus' discussion of wages with other employees, it appears to me to be wholly plausible that he would regard a proposal to employees that they seek increases as causing "dissension" among them. The sum of the matter is that I interpret what Young said to Pincus on the subject of Mrs. Pincus' discussion of wages, and her discharge for causing "dissension," as an admission that the reason for the discharge was that it had come to the attention of the management that she had expressed the view to other employees that their salaries were "inadequate," and had sought to induce such employees to seek wage increases. I find that that was the reason.13 The lack of clarity in the record whether Mrs. Pincus spoke to the employees individually or in a group, and the absence of any evidence that they authorized her to act for them, do not control the, issue of the legality of the discharge. A conversation involving "only a speaker and a listener," among employees is "concerted activity," protect- ed by Section 7 of the Act, if it appears that the speaker's object is to induce "group action" by employees for their mutual benefit.14 Fairly interpreted, Mrs. Pincus' proposal to other employees that they seek wage increases was a threshold activity aimed at securing the strength of numbers for the "mutual aid" and benefit of those in the group. Thus, irrespective of the attitude of her listeners, her effort to secure their "mutual aid" was protected by Section 7 from reprisal at the hands of her employer.15 I find, for the reasons stated, that, by discharging Mrs. Pincus, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. Finally, it is reasonable to conclude, and I find, that Mrs. Pincus, in view of her miscarriage, would have abandoned her intention to quit on December 31, and, but for her discharge, would have continued to work beyond that date. Therefore, I shall make provision in the Recommended Order, below, for a suitable offer of reinstatement and a backpay period extending to such an offer. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, 13 In reaching that conclusion, I have given consideration to the fact that a period of some 6 weeks elapsed between the time, about the end of September or the beginning of October, when Young, according to his account, learned from Mrs. Goldthwaite that Mrs. Pincus was a "disturbing influence" on other employees and the date of the discharge. The Respondent knows best why it discharged Mrs. Pincus, and can best explain the timing of its action Yet its witnesses, Mrs. Goldthwaite and Young, have given much uncandid testimony regarding the discharge motivation, resorting to vague and evasive euphemisms , shifting positions, and pretexts to justify the discharge In that setting, although Mrs Goldthwarte testified that the discharge decision was made in mid-October and offered an explanation of the delay in its execution, it would be but an idle venture to try to pin down the reason for the timing of the dismissal. above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following conclusions of law: 1. Ross Valley Savings & Loan Association is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Sharon Louise Pincus is, and has been at all material times, an employee within the meaning of Section 2(3) of the Act. 3. By discharging Sharon Louise Pincus, and thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, as found above, the said Respondent is engaging, and has engaged, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend below that it cease and desist from such conduct and take certain affirmative actions designed to effectuate the policies of the Act. , Having found that the Company discharged Sharon Louise Pincus in violation of Section 8(a)(1) of the Act, I shall recommend below that the Company offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the said discharge from the date of the dismissal to the date on which she is offered reinstatement as aforesaid, together with interest thereon as provided below; and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F. W Woolworth Company, 90 NLRB 289, and include interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Suffice it to say that a total view of the record warrants a conclusion that the discharge, as Young in effect admitted to Pincus, was rooted in the Company's disapproval of Mrs. Pincus' effort to induce other employees to seek wage increases. 14 Mushroom Transportation Co v. N L RB., 330 F.2d 683, 685 (CA. 3); Owens-Corning Fiberglas Corporation v. NL.R.B, 407 F.2d 1357, 1365 (C.A. 4). 15 The aim of group action is particularly evident in Mrs. Pincus' offer to serve as a conduit for transmission to the management of the others' requests for increases , together with her own, but I hold that in the context of circumstances, her proposal to the others that they seek increases was protected concerted activity, without regard to the offer, and whether or not word of the offer reached the management. ROSS VALLEY SAVINGS & LOAN ASSN. 277 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following Recommended Order: 16 Ross Valley Savings & Loan Association, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discharging any employee, or otherwise discriminating or taking any reprisal against any employee, because such employee has exercised any right guaranteed by Section 7 of the Act. 2. Take the following affirmative actions which, I find, will effectuate the policies of the Act: (a) Offer Sharon Louise Pincus immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority and other rights and privileges, as provided in the section 5 entitled "The Remedy," and make her whole according to the formula and method provided in said section. (b) Preserve until compliance with any order for reinstatement or backpay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board and its agents, for examination and copying, all payroll records, social security records, timecards, and any other personnel records which may be relevant to a determination of the amount of backpay due and the reinstatement and related rights provided by such order. (c) Notify the said Sharon Louise Pincus, in the event that she is now serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after her discharge from the Armed Forces. (d) Post in conspicuous places at the Company's place of business in San Anselmo, California, including all places there where notices to employees are customarily posted, copies of the notice attached hereto as an appendix. Copies of the said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notice is not covered, altered, or defaced by any other material.17 (e) Notify the said Regional Director, in writing, within 20 days from the date of receipt of a copy of this Decision, what steps the Respondent has taken to comply therewith.18 16 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. 11' In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 18 In the event that this Recommended Order is adopted by the National Labor Relations Board after exceptions have been filed, Paragraph 2(e) thereof should be modified to read: "Notify the said Regional Director, in writing, within 20 days from the date of this order what steps the Respondent has taken to comply therewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TEE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT by means of discharge of any employee, or by any other discrimination or reprisal against any employee, interfere with, restrain, or coerce employees in the exercise of any of the rights set forth above. The National Labor Relations Board has found that we discharged" Sharon Louise Pincus because she had exercised a right guaranteed her by the National Labor Relations Act, and that the said discharge violated the Act; and has ordered us to offer the said Sharon Louise Pincus full reinstatement to her former job or, if such job no longer exists, to a substantially equivalent job, and to reimburse her for any loss of pay she may have suffered as a result of her discharge. WE WILL offer Sharon Louise Pincus such reinstate- ment, and reimburse her for her loss of pay, together with interest thereon, in accordance with the Board's Order. Ross VALLEY SAVINGS & LOAN ASSOCIATION (Employer) Dated By (Representative) (Title) WE WILL immediately notify the said Sharon Louise Pincus, in the event she is now serving in the Armed Forces of the United States, of her right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of posting and must not be altered , defaced, its provisions, may be directed to the Board's Office, 13050 or covered by any other matenal. Federal Building, 450 Golden Gate Avenue, Box 36047, Any questions concerning this notice or compliance with San Francisco, California 94102, Telephone 556-0335.