Cubit Systems Corp.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cubit Systems Corporation and Office & Allied Workers Union Local 67, International Longshore- men's & Warehousemen's Union. Case 20-CA-6233 December 20, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On July 19, 1971, Trial Examiner George H. O'Brien issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and an answering 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 only to the extent consistent herewith. 1. In the absence of exceptions, we adopt the Trial Examiner's finding that Respondent bargained in good faith with the Union and that` the parties did not reach complete agreement on the terms of a collec- tive-bargaining contract, together with his recommen- dation that the 8(a)(5) allegation therefore be dis- missed. Further, we concur in the Trial Examiner's finding that Respondent did not induce or encourage its employees to sign a petition to decertify the Union and in his recommendation that this allegation also be dismissed. 2. The Trial Examiner concluded, and we agree, that Respondent's discharge of Cecilia Geeter, Ester Ekman, and Leora Van Winkle was not related to union activities and hence did not violate Section 8(a)(3) of the Act. However, we find, contrary to the Trial Examiner, that Respondent discharged Geeter and Ekman because of their concerted protected protest over selection of a new manager, thereby violating Section 8(a)(1) of the Act.' On May 1, 1970, Respondent, owner of a data processing facility in Burlingame, California, ac- quired a facility in San Francisco from the Burroughs Corporation. At the time, Burroughs' keypunch operation, the department concerned herein, included i As the Trial Examiner states, Van Winkle did not participate in the concerted effort of Geeter and Ekman regarding the selection of a new keypunch manager. In addition, we find, infra, that some discharges were dictated by the need to reduce the work force. Thus, although it is a close question as to whether Van Winkle was included for discharge because of 11 employees working two shifts. Sabanovich, Res- pondent's executive vice president, told the employees that Respondent was making the jobs of all employees available under the same terms as they had had with Burroughs and that Gilhooley, the keypunch manag- er, would remain on the job only temporarily. On May 30, Gilhooley left, and Sim Watson, Respondent's director of facilities and management, told Geeter, then day-shift supervisor, that she would be in charge until Respondent found a new keypunch manager. Geeter acted in this capacity from June 1 until June 17, the day Millie Hinchey took over as manager. On June 5, 1970, at the request of the keypunch staff, Geeter and Ester Ekman, assistant supervisor, approached Sim Watson to discuss the appointment of a new keypunch manager. They related the staff's concern over the rumor that Hinchey was to be their new manager, specifically because she would bring with her the employees who normally accompany her from job to job at the expense of those who were there, that she would change the operation of the office, and that raises might be slower in coming.2 Geeter emphasized that the staff did not have anything against Hinchey personally but wanted Respondent to consider the feelings of the staff in making its selection. Geeter and Ekman also told Watson that the other employees had asked them to talk to him because management never communicated anything to the keypunch staff and because they believed that something was going on about which they should be informed, inasmuch as Gilhooley had left and there was no immediate manager in the department. On Monday, June 8, the next workday, Watson told the keypunch staff that he had been informed that they would walk out if a certain person was hired as manager, that the Company would not be intimidated by a bunch of keypunch operators, and that he would discharge any employee who questioned this decision further. On June 17, the day Hinchey took over as manager, she made it known that she was aware of the discontent in the office and had learned that Geeter and Ekman were the ones who had spoken with Watson. On July 10, Respondent terminated the employment of Geeter, Ekman, and Van Winkle. It was not disputed that the amount of work processed by the San Francisco office decreased after Respondent acquired the facility and that economic considerations necessitated a reduction in the work force. The Trial Examiner concluded that Geeter and Ekman were discharged because they were the most expendable. The General Counsel contends, however, her association and alignment with Geeter and Ekman, the evidence is insufficient to establish that her discharge was violative of the Act. For this reason, we shall dismiss that allegation. 2 Many employees on the staff had worked under Hinchey at the same San Francisco location but in the employ of another company 194 NLRB No. 87 CUBIT SYSTEMS CORP. that they were unlawfully selected for discharge, instead of other less experienced and less senior employees, because of their above-described concert- ed activity regarding Hinchey's employment as keypunch manager. In our opinion, undisputed record testimony not discredited by the Trial Examiner reveals that Respondent harbored a resentment toward Geeter and Ekman. This antipathy arose because Geeter, during the first week in May, at the suggestion of Keypunch Manager Gilhooley, asked Sabanovich and Nishimura, Respondent's president, about the type of work Respondent had and its starting salaries and suggested that two employees (Leora Van Winkle and Karen Chan) should receive a raise as they were underpaid; and because Geeter and Ekman in June spoke out against Millie Hinchey. Respondent's attitude manifested itself during a conversation with Geeter and Ekman on July 10 when Sabanovich and Nishimura accused Geeter of being a "ringleader" and "troublemaker," and stated that the "whole trouble began in May and June when they [Geeter and Ekman] questioned everything management told them." Thus, although management included Geet- er's conversation with Watson in May as part of her objectionable conduct, there is no indication that Geeter and Ekman questioned any of management's decisions before the June 5 conversation, and hence Sabonovich's remarks to Geeter and Ekman could only have had reference to their activities on June 5 on behalf of the employees. Moreover, Sabanovich testified that Watson had reported to him several incidents in which Geeter and Ekman confronted Watson and had made him very uncomfortable but the only incident Sabanovich could recall or cite was the June 5 conversation regarding the appointment of a new manager. It is especially significant, however, that Nishimura, who personally approved the selec- tion of Geeter and Ekman for discharge, admitted on the record that the June 5 incident influenced him.3 3 In our opinion, there is no question that the keypunch employees had a legitimate concern in the appointment of a new keypunch manager and that Geeter and Ekman were engaged in protected concerted activity in discussing Hinchey's appointment with Watson. We find Respondent's contention to the contrary without merit. Respondent's assertion that the employees' interest was only in furthering the interests of Geeter is not borne out by the record. As stated, supra, there was concern by the employees that the selection of Miss Hmchey might adversely affect the working conditions and even the retention of jobs by the incumbent office employees. Concerted activity to further these legitimate employee concerns is clearly protected. See NLRB v. Phoenix Mutual Life Insurance Co., 167 F.2d 983 (C A. 7); N.L R B v. Guernsey-Muskingum Electric Cooperative, 285 F.2d 8 (C A. 6). The cases cited by Respondent are clearly distinguishable on their facts. 4 The Trial Examiner's failure to discuss this highly significant testimony may be explained by his findings that it was Hinchey who selected Geeter and Ekman for discharge and that Hinchey was not influenced by this concerted activity, so that it followed that no improper motive could be attributed to Respondent's discharge of the two employees. But, the record shows that it was not Hinchey who made the 623 The July 10 conversation and Sabanovich's admission clearly reveal Respondent's improper motives in selecting Geeter and Ekman for discharge.4 When, in addition, consideration is given to the fact that Geeter and Ekman were the most senior and experienced operators and that Respondent did not offer them employment on the second shift, although, as Hin- chey testified, the Respondent was interested in building up its force on that shift as work was increasing,-5 the conclusion is inescapable that the Respondent was unlawfully motivated in selecting Geeter and Ekman for discharge by their concerted activities. Respondent contends, however, that Geeter's and Ekman's concerted activities were not protected because they were supervisors. The Trial Examiner found, and we agree, that the record is devoid of evidence that Ekman was a supervisor. Although acknowledging that Geeter's status was much in doubt, the Trial Examiner concluded that at least between June 1 and June 16 Geeter was a supervisor.6 In our opinion, however, the record does not warrant a finding that Geeter possessed or exercised any supervisory authority at any time. As "day-shift supervisor," a title she apparently carried over from her employment with Burroughs, Geeter spent about 90 percent of her time preparing accounts for verification by the keypunch operators. To do this, she would prepare batch tickets, obtain the correct procedure card, and place the ticket and card with the bundles of materials. The bundles were then set on a table and each keypunch operator picked up the bundle on the top of the pile when she finished with the one she had. After the job was completed, Geeter refiled the procedure cards. The Trial Examiner noted that all day-shift opera- tors were experienced and competent, requiring practically no supervision. In the event a new job was to be punched with which Geeter had not worked previously, the keypunch manager or account manag- decision to discharge Geeter and Ekman, and apparently she did not even participate in making the decision. In that regard, the Trial Examiner specifically found that Sabanovich had told Watson that he [Watson] and Hinchey were to make the selection . But Hinchey testified that when she spoke to Watson about the reduction in staff it became apparent that Watson had already decided on Geeter and Ekman, that Watson asked her whether she needed the assistance of Geeter and Ekman since work was decreasing, and that, upon her giving Watson assurance that she could carry on without the two, Watson decided to discharge them 5 It is true that Geeter and Ekman had earlier declined positions on the second shift, but that was as an alternative simply reduced hours on the day shift. There is nothing in the record that would warrant a conclusion that Geeter and Ekman would have declined an offer of employment on the second shift as an alternative to discharge. 6 We note that the Trial Examiner was not required to reach this issue in view of his finding that Geeter and Ekman were discharged for economic reasons. As we have found they were engaged in concerted activities and discharged for that reason, their supervisory status must be determined 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er would write the precedure card and explain it to Geeter who, in turn, explained it to the keypunch operators. Geeter, at times, answered questions operators might have on procedure and helped them correct errors. If Geeter could not answer the question, she would ask the keypunch manager or account manager. About 10 percent of the work in the department consisted of "drop-in" clients. If the keypunch manager was not available, Geeter would wait on the customer, take the order, and prepare the batch ticket. She would then assign the work to a particular operator based on that operator's existing workload and experience, but the assignment was not accompa- nied with any instruction. The record shows that Geeter did not have authority to hire, fire, or make effective recommendations in that regard or for promotions or pay increases. Although on one occasion Hinchey asked Geeter about the quality of one operator's work and Geeter replied that "she's still slow," Hinchey did not ask Geeter for her recommendation nor did Geeter offer one as to the retention of that operator, even though shortly thereafter Hinchey fired the operator. The evidence disclosed that Hinchey had worked with the operator at another company and knew that she was a poor worker. We cannot consider this incident as establishing the fact that Geeter possessed the authority to make effective recommendations.? We are satisfied, on the record as a whole, that Geeter, as day-shift supervisor, did not possess supervisory authority but was more of a leadman for the office. Although Hinchey would at times leave Geeter in charge of the department, there is no evidence that Geeter exercised any supervisory authority during these periods. With respect to the 2- 1/2 weeks Geeter served as keypunch manager, it is clear that she performed no functions other than her normal duties. In fact, the record discloses that she would check with Watson as to how work was to be divided between the two shifts, although ordinarily that would be a decision made by the keypunch manager. The Trial Examiner also found that during this period work had diminished on the day shift to such an extent that operators were sent home by Watson on full pay, leaving only Geeter or on two occasions Van Winkle and one or two others as a skeleton crew, making the presence of a keypunch supervisor completely unnecessary. Also, it is signifi- cant that Watson made the decision to send the employees home, apparently without consulting Geeter. Thus, it appears that Geeter's designation as 4 The incident early in May, described above, occurred as a result of Gilhooley's instructing Geeter to raise the matters of work and wages, and the Respondent's reaction to her discussing the personnel questions acting keypunch manager did not carry with it any genuine delegation of supervisory authority. We conclude that the evidence is insufficient to support a finding that Geeter was a supervisor even during the period from June 1 to June 16. According- ly, her concerted activities on June 5 were protected. For all the foregoing reasons, we conclude that Respondent discharged Geeter and Ekman for engaging in protected concerted activities and thereby violated Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent has discriminated against Cecilia Geeter and Ester Ekman by discharging them in violation of Section 8(a)(1) of the Act. We are unable from the evidence in the record to determine the dates for which Geeter and Ekman are entitled to backpay since apparently' the San Francisco office was closed on December 31, 1970, for economic reasons. Nor can we determine at this time whether Geeter and Ekman are entitled to reinstatement at Respondent's Burlingame facility, although we note that Geeter was employed there at the close of the hearing in this proceeding. Accordingly, we leave the details of the remedy as to Geeter and Ekman to the compliance stage of this proceeding.8 Backpay, however, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cubit Systems Corporation, Burlingame, California, its officers, agents, successors, and assigns, shall take the action set forth below: 1. Cease and desist from: (a) Discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condition of employment because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. graphically demonstrates her lack of authority in this realm. 8 Russell Coal & Clay Co, 165 NLRB 978. CUBIT SYSTEMS CORP. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make whole Cecilia Geeter and Ester Ekman for any loss in job status they may have suffered by reason of their discriminatory discharge and pay them backpay with 6-percent interest thereon, all in a manner to be determined hereinafter at the compli- ance stage of this proceeding. (b) Notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, if entitled, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Burlingame, California, office copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS, FURTHER ORDERED that all allegations of the complaint not specifically found to be violations of the Act be, and they hereby are, dismissed. MEMBER KENNEDY, dissenting: I would affirm the Trial Examiner's Decision in this matter. 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall 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." 625 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge any of our employees or discriminate in regard to their hire, tenure of employment, or any term or condition of employ- ment because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act. WE WILL make whole Cecilia Geeter and Ester Ekman for any loss in job status they may have suffered by reason of their discriminatory dis- charge and pay them backpay with 6-percent interest thereon, all in the manner to be deter- mined hereinafter at the compliance stage of this proceeding. CUBIT SYSTEMS CORPORATION (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, if entitled, upon application after discharge from the Armed Forces, _ in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 13050 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: On March 17-24, 1971, a hearing was held in the above-entitled matter in San Francisco, California.' The complaint, issued November 23, 1970, is based on a charge filed July 22, 1970, by Office & Allied Workers Union Local 67, International Long- shoremen's and Warehousemen's Union, herein called the Union, and alleges violations of Sections 8(a)(1),(3), and (5) of the National Labor Relations Act by Cubit Systems Corporation, " herem called Respondent. Upon the entire record2 in this proceeding, including my observation of the witnesses and after due consideration of the postheanng briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a California corporation engaged in the sale of data processing services to various business firms located in the State of California. Purity Stores Inc., herein called Purity, is a Nevada corporation engaged at various locations throughout the State of California in the retail sale of groceries, fruits, vegetables, meats, and other items. The annual gross revenue of Purity's California stores exceeds $500,000 and it annually receives goods valued in excess of $10,000 shipped directly to said stores from suppliers located outside the State of California. During the calendar year 1970, Respondent sold to Purity services valued in excess of $50,000. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges in material substance that on June 30, 1969, the Union and the Respondent "reached complete agreement on all the terms of a collective bargaining contract" and, "Commencing on or about July 1, 1970.. . Respondent did refuse ... to sign a written collective bargaining contract embodying the terms of the collective bargaining contract reached by the Respondent and the Union [on July 30, 1969]," thereby refusing to bargain in violation of Section 8(a)(5) of the Act. The complaint further alleges that Respondent discharged three employees on July 10, 1970, "because of their activities on behalf of the Union," thereby discriminating against employees in violation of Section 8(a)(3) of the Act. At the opening of the hearing this paragraph of the complaint was amended by adding as an additional motive for the discharge of these 1 The hearing opened in San Francisco on February 11, 1971 The General Counsel rested, after 3 days of testimony, on February 13 and the hearing was adjourned to March 17, 1971. Under date of March 3, 1971, I was advised by the official reporter that stenomask disks of the hearing on February II and 13 had been "accidentally destroyed" and he was "therefore unable to make a record from them". The transcript of February three individuals, "and/or because of their protected concerted activities." Finally the complaint alleges that Respondent, through its keypunch supervisor, Karen O'Toole, "induced and encouraged [its] employees to sign a petition to decertify the Union," thereby violating Section 8(a)(1) of the Act. In his brief to me, Counsel for the General Counsel states that the three employees, Cecilia C. Geeter, Esther A. Ekman, and Leora Mae Van Winkle were discharged "because of their support for the Union and because of their protected concerted protest concerning the selection of a new manager." Respondent, through its counsel, answers that it did not reach a complete agreement with the Union on June 30, 1969, nor at any other time, that Geeter and Ekman were supervisors, that their concerted activity was unprotected, that it had no knowledge of their union activity, that the three employees were terminated for valid economic reasons, and that O'Toole took no part in any action to decertify the Union. B. The Bargaining 1. Creation of Respondent and the Union's Negotiations with Purity Purity is a large supermarket chain. On July 1, 1967, it entered into a 3-year contract with the Union covering all of its office employees in Burlingame, California, including junior accountants, secretaries, typists, clerks, computer operators, and keypunch operators. As of May 19, 1969, there were 37 employees in the unit. The contract made union membership a condition of employment and contained an automatic renewal clause. On April 16, 1969, the Union's business agent, Peggy Banks, wrote to Jack Niven, Sr., president of Purity: ... this will advise that we desire to open our contract for the purpose of revising and amending it. Enclosed'you will find a set of detailed proposals. On April 21, 1969, Purity, through its controller, Joseph Y. Nishimura, replied: We find that your proposal will amount to a pay increase in excess of 20% without considering the cost of living escalation clause. In order that we may negotiate intelligently, I am attaching hereto an analysis of your proposal on a cost basis. Clearly, a wage increase of better than 25% (which your proposal will be after escalation) is, unacceptable to us. This being the case, please call us as soon as possible so that we may arrange a meeting to negotiate this impasse. On May 16, 1969, Respondent was incorporated. On June 16, 1969, Respondent began operations by taking over the data processing department of Purity. Nishimura, Respondent's president,* retained his position as Purity's controller. Sam Sabanovich resigned his position as 11, 1971, recording the cross-examination of Peggy Banks and a portion of the direct examination of Esther Ekman was stricken on motion of the General Counsel and the trial proceded de novo on February 17, 1971. 2 The motion of counsel for Respondent to correct the stenographic transcript is granted, and the stipulation dated March 25, 1971, with attached timecards is received in evidence as TX Exh 2 (See tr page 819.) CUBIT SYSTEMS CORP. director of management information systems with Purity to assume the duties of executive vice president of Respon- dent. The lease of the computers, keypunch machines, and verifying machines owned by Burroughs Corporation was transferred by Purity to Respondent. All of Purity's employees in its data processing department, then compris- ing one programmer, two computer operators, seven keypunch operators, and the manager of the department, Joe Bruno, became employees of Respondent. Bruno's title was changed to operations manager .3 Under date of June 20, 1969, C. L. Pecchemno, executive vice president of Purity, wrote to Banks: As agreed at our meeting this morning, we are now in a position to respond to your original proposals, This response constitutes an offer and supersedes any verbal or written offer made to date. 1. Duration of agreement-We agree that the duration shall be three years: July 1, 1969 through June 30, 1972 2. Holidays-We agree that the day following Thanksgiving shall be a paid holiday, but that the number of paid holidays under the contract shall remain as under the present contract. 3. Hours-No change in present contract. 4. Sick Leave-We agree to nine days per year for employees with less than five years, twelve days for those employees with more than five years, with a cumulative maximum of 30 days. No cash payoff upon termination. 5. We agree that personnel designated to replace higher rated employees for one week or more shall be paid the higher rate during the period of the higher rated employee's absence. 6. Promotions-We agree that when an employee is raised in classification, he shall receive an increase to the step in his new classification immediately above his former rate of pay. 7. Wages-We offer the members of the bargaining unit pay increases based on their present rates of pay as follows: July 1, 1969 5% July 1, 1970 5% July 1, 1971 5% (Without any further escalation) 8. We propose further that the wage schedules appended to our letter of May 19, 1969 be incorporated in the contract to be applicable to any new employee joining the bargaining unit, except that keypunch 3 As of June 16, 1970, and for an indeterminate time thereafter, Purity was Respondent's only customer. 4 The findings in this section are based on the testimony of Banks and Nishimura. Valter was dead Pecchenino, though called for limited cross- examination by the General Counsel, was not questioned about the June 30 meeting Dosch did not testify, nor did Pias nor did Giol I have studied the conflicts in the testimony of the two witnesses, have given careful consideration to the arguments of their respective counsel, and have concluded that on balance, the recollection of Nishimura is the more 627 operators and computer operators should be deleted as none are presently employed by Purity Stores. Under date of June 26, 1969 the following bulletin was distributed: TO: ALL MEMBERS OF LOCAL #67 EMPLOYED BY PURITY STORES INC. FROM: JOE NISHIMURA SUBJECT: YOUR REJECTION OF OFFER MADE BY MANAGEMENT It has, come to my attention that you have rejected management's latest contract proposal. I would like to go on record at the present time with an explanation of our position in these negotiations before either you or we harden our positions to the extent that we reach a non-negotiable impasse on June 30. This is my opinion of the current situation:. 1. The pay scale in this office at the present time is competitive with any of the offices (union or non-union) in the entire area. 2. The offer made by management was generous and gives recognition to rising costs of living. 3. For any of you who may be interested, I have a file of publications with complete wage scale tables for the area on which our offer was based. (I will turn this file over to Louise so that you may obtain it from her upon request.) I do not know how far apart we are at present, but I would hope that you have considered our proposals seriously. Since your bargaining agents have not scheduled a new meeting until 1:00 p.m. on June 30, 1969 I would hope that they will have a bona fide counter offer at that time since there will not be much time left. 2. The meeting, June 20, 1969 Representatives of Purity and the Union met in Purity's conference room in Burlingame at 1 p.m. on June 30, 1969. Purity was represented by C. L. (Len) Pecchenino, executive vice president, Joe Nishimura, controller, and Don Dosch, assistant controller. The Union was represent- ed by Peggy Banks, business agent, Louise Pias, union steward, employed by Purity as an accounting technician, Mary Giol, employed by Purity as a secretary, and by George Valter, an official of Local 6, I.L.W.U.4 Vaster opened the meeting by inquiring whether the company representatives were there to negotiate for Purity only, or whether they were also prepared to negotiate for the "I.B.M. department." When Pecchenino answered, "Just Purity," Valter replied: "If you are not going to negotiate for the IBM department, I will just walk out and reliable The General Counsel has cogently observed, "Both witnesses who testified concerning what transpired at this meeting had difficulty recalling precisely what was said and frequently lapsed into conclusionary summaries." Under cross-examination, however, Nishimura appeared to be making a sincere effort to understand and to give honest answers to all questions . His uncertainty and memory lapses are understandable in view of the fact that the instant charge was not filed until almost 13 months after June 30, 1969. Unlike Nishimura, Banks under cross-examination was defensive, argumentative, and evasive. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there will be no further negotiations." The Purity represent- atives asked for a brief recess and, after conferring in Pecchenino's office, returned and announced that they were speaking for both Purity and Respondent. Valter then obtained from Banks a copy of the Union's April 16 proposals, and each was discussed in order. 1. Duration of agreement: The parties agreed on 3 years, July 1, 1969 through June 30, 1972. 2. Holidays: Tentative agreement was reached on exchanging Veterans day for the day after Thanksgiving with no increase in the total number of holidays. 3. Hours: The Union proposal was a 7-1/2 hour day and 37-1/2 hour week. The company representatives stood firm on the 8 hour day and 40 hour week, and Banks said, "We will drop it." 4. Sick leave: Agreement was reached. 5. Temporary Replacements: The Union's proposal was rejected by the Company negotiators. There was no agreement expressed. 6. Promotions: The Union's proposal was rejected by the company negotiators. There was no agreement expressed. 7. Wages: The Union's proposal was an increase of $12 per week on each of the following dates: July 1 of 1969, 1970 and 1971. Purity had countered with an offer of 5% of the employee's June, 1969 wage on July 1 of 1969, 1970 and 1971, and had also proposed specific starting rates for new employees, with specific automatic increases after six months, after one year and after two years, Banks stated that the specific rates set forth in Purity's proposal were "ridiculous." Valter told her to "shut up" and she complied. There followed discussion of increases for present employ- ees, with Pecchenmo increasing his offer to 5% July 1, 1969, 6% July 1, 1970 and 7% July 1, 1971, and Valter reducing his demand to 8% on each of these dates. When neither side would give any further Valter asked for a private conference with his committee and the company negotia- tors withdrew to Pecchenino's office. After about 10 minutes Valter joined the company negotiators and announced "I think I can sell the girls on 6, 7 and 8." Pecchenino answered, "I think I might be able to sell that to Jack Niven." Valter then returned to the conference room, and closed the door. After a long time the door to the conference room opened, Valter emerged, and Nishimura walked up to him. Valter said, "Looks OK. The girls can take it from here" and Valter left the building. Nishimura told Banks that she could have a union meeting in the accounting department, and he waited in the conference room, where he was joined by Sabanovich. After meeting with the employees Banks and Pias returned to the conference room. Banks announced, "It looks OK with us." Sabanovich said, "Fine, we will type something up and get it back to you." Banks said, "That's great, I don't have any typing help." 3. Nishimura's contract draft, August 1969 Nishimura made a Xerox copy of the recently expired printed contract, wrote out changes and additions in longhand, and had the resulting compilation typed in the form of a single contract document. In early August he handed a copy to the union steward, Louise Pias, with the instruction: I told her that this was our proposal, that there were new things in here, and that she should read it very carefully. I also said that she should send it to Miss Banks. On August 15, 1969, Nishimura hand delivered to Banks a second copy of the document, stating: "there are new things in here" and that she should read it carefully. Although Nishimura had underlined some of the new matter in red, no specifics were mentioned in either conversation. Nishimura's draft incorporated his understanding of the agreements reached at the June 30 meeting, a reiteration of the companies' offers on matters where there had been no final agreement, a few minor matters which had not been the subject of discussion, and a revised recognition clause which incorporated in a single bargaining unit employees of Purity and employees of Respondent. The General Counsel in his brief to me states, "the document in substance embodies the June 30 agreement on every issue except for the means of computing the percentage increase in the wage package." 5 The August 1969 document contains the following clause: Section 11. Wages Wages and classifications are set forth in the Wage Schedule, (Appendix A) except that persons employed by the Company on June 30, 1969 will be entitled to the higher of the Wage Schedule or the amount computed as follows: Wages Wage Plus Earned Per Prior Contract Schedule at June 30, 1969 July 1, 1969 through June 30, 1970 6% July 1, 1970 through June 30, 1971 13% July 1, 1971 through June 30, 1972 21% 5 Banks had testified that after their private conference, Nishimura, Pecchenmo, and Valter all returned to the conference room and that Nishimura stated to all present that the companies' wage offer was cumulative and that he approved the following illustrative computation which she worked out at the conference table 100 plus 6% equals 106-1969; 106 plus 7% equals 113.42-1970; 113 42 plus 8% equals 1224936-1971, and that she agreed to take this offer back to her membership with the recommendation that it be approved I have credited Nishimura's testimony that neither he nor Pecchenmo was present when Valter reported to the committee the result of his private conference in part for reasons heretofore stated and in part because of the confusion and self- contradiction in the testimony of Banks in this area . I conclude this was Banks' personal interpretation of the Companies' offer as communicated to her by Valter CUBIT SYSTEMS CORP. 629 Between September 1969 and May 1970 Nishimura addressed several inquiries to Banks concerning the August document. Banks testified that the inquiry was "Did you sign the agreement?" Nishimura testified that the inquiry was "How are you coming with our proposal?" Banks testified that her uniform reply was, "No. There are too many typographical errors and I can't get anyone in my office to sit down and proof it with me." Nishimura testified that her uniform response was, "that it was filled with typographical errors and that she had other problems with it." Both witnesses agree that Banks did not, prior to June 1970, voice any specific objection to the August document. Under date of May 26, 1970, Nishimura notified Banks in two separate letters that he had severed his connection with Purity that William Rankine, controller, would handle "all labor relations for persons in the Purity bargaining unit" and that "all dealings concerning labor relations affecting the employees of Cubit Systems will be handled exclusively by Cubit personnel." The letter on Respondent's letterhead concluded: In this connection, Sam Sabanovich and I will represent Cubit Systems. Please feel free to call on us regarding any union matters of mutual concern. A few days thereafter Banks voiced to Nishimura her first specific objection to the August document. Nishimura testified: Q. (By Mr. Tichy) What did she say? A. She said that the wages that were in the contract weren't what had been negotiated. Q. What did you say to her? A. I told her that's what we had proposed to them; that was, as far as I was concerned, our last proposal. And that at that time there was no contract between Cubit Systems and Local 67 Banks testified that on June 29, 1970: I went to Mr. Nishimura's office and told him that I had just spoken to Mr. Rankine, the Controller of Purity Stores, and we had gotten all the typographical errors, and et cetera, ironed out, and asked him if he was ready to sign the contract. He, at that time, Mr. Nishimura, because Mr. Sabanovich had not entered the office as of yet, Mr. Nishimura stated that there was no contract with Cubit Systems, that whatever Purity wished to do, whatever they did was Purity's business. But there was no contract with Cubit Systems. I stated to Mr. Nishimura, "You were in on the negotiations of June, 1969, and you stated you were negotiating for Cubit Systems, as well as Purity Stores. There has never been any question as to whether or not there was an agreement between Purity or between Cubit Systems and Local 67. We have been living under this agreement and abiding by it, and following it for a year." Nishimura, describing the June 29 conversation testified: Peggy Banks came into my office and she said, "Will you sign the contract?" And I said, "What contract? We have no contract with you." And she said, "Come on, now, you remember that we negotiated a contract." And I said, "No, I had submitted to you a proposal and you didn't act on it. And as far as I'm concerned, there was never any contract between Cubit Systems and Local 67 ... . And I told her that I had no objection whatsoever to signing a contract with Local 67, but we had to conclude negotiations before we would sign such a contract And she kept insisting that I sign a contract which she didn't present me with. And so I didn't know specifically what she was talking about, but I presumed it was the contract that she had just concluded or - * I specifically stated to Peggy Banks that we would be perfectly willing to sign a contract, but that we wanted a contract which would be more suitable to our present state of operation, that we were not in the grocery business. We were in data processing service business, and we needed a contract that would more adequately reflect the nature of our business . . . what we needed was more flexibility in the area of personnel administra- tion because we were selling the services of our employees; that we had to have more authority and discretion in the area of personnel, and their retention .. I stated that we wanted a six-month probationary period, either that, or an abolition of any kind of seniority provision. And we discussed those matters And this conversation went around many times and came back to the same subjects. It was Peggy's basic position that there was a contract in existence and I should sign. And it was our position that there was no contract in existence but we were perfectly willing to negotiate for one. On July 15 Banks called on Nishimura accompanied by the three women who had been discharged by Respondent the previous week. The employees waited in an anteroom while Nishimura and Banks had a long discussion, with nothing resolved. On July 29 Nishimura and Banks met for the last time. Banks announced that she had obtained a contract from Purity stores and asked Nishimura to sign its When Nishimura again denied the existence of a contract, they got into a discussion of seniority and efficient operations, wages, and composition of bargaining unit, and Nishimura 6 She did not then, nor at any other time, present any document to Nishimura for his signature. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to draft a clause on "efficient operations" and to send it to Banks. Under date of August 4, 1970, Nishimura wrote to Banks: I called you this morning but you were out of the office. To keep negotiations moving, I am enclosing my draft proposal of the efficient operations clause. Agreement on this clause will be a major step forward toward reaching final agreement on a contract. After you have had a chance to review this draft, we should meet again to continue our negotiations on other open issues, namely the seniority clause, probationary period and the location of the bargaining unit. I will be available Thursday if this is convenient. When Banks received the above letter she telephoned Nishimura and they agreed to meet on August 12. Shortly thereafter Nishimura found on his desk a sheet of paper with the following typewritten heading: We the undersigned, employees of Cubit Systems Corporation no longer wish to participate in the Union Local ILWU #67. bearing the signatures of nine of Respondent 's nonsuper- visory employees, a clear majority. On the morning of August 12, Nishimura telephoned Banks' office and cancelled the meeting , and Respondent's counsel, George Tichy, filed in the Board's regional office a petition for an election, duly docketed as Case 20-RM-1302. C. The Discharges On May 1, 1970, Respondent took over from Burroughs Corporation a data processing center at 447 Battery Street in San Francisco. A few days before the change in management, Sabanovich, Nishimura, and Sim Watson, Respondent's director of facilities and management, met with the Burroughs management and staff. Those present were Jim Lowe, Burroughs' manager, Dorothy Gilhooley, Burroughs' keypunch manager, programmers, computer operators, account managers, and keypunch people. Sabanovich announced that Lowe would no longer be manager, that Gilhooley would remain temporarily as keypunch manager, and that Respondent was making the jobs of all employees available under the same terms as they were then working for Burroughs . Respondent would honor vacation rights, accrued sick leave, wage reviews, and any promised pay increases. As of May 1, 1970, there were about 11 people in the keypunch department which was then working two shifts. During the first week in May, at the suggestion of Gilhooley, Cecilia Geeter, day-shift supervisor of the keypunch department, conferred with Sabanovich and Nishimura. Geeter inquired about what type of work Respondent had. Sabanovich read off a list of clients, stated that they were adding one client every month and growing. Geeter asked about starting salaries and Sabanovich replied that they did not have a pay scale. Geeter said that two women, Leora Van Winkle and Karen Chan, were underpaid and should receive a raise. Sabanovich replied that he would think about it. On May 30 Gilhooley left. Watson told Geeter that until they found a new keypunch manager she would be in charge. Sabanovich told Geeter that he was sure that she could handle everything. In answer to Geeter's inquiry as to whether there was to be a new keypunch manager, Sabanovich replied that she should speak to Mr. Watson, since that would be his decision. On Friday, June 5, Geeter and her assistant supervisor, Esther Ekman, met with Sim Watson. Geeter asked if Millie Hmchey was to be the new manager . Watson replied that this was a management decision and no concern of hers. Watson asked who they got the information from. Ekman stated that the girls were uneasy and upset because Hinchey had her own supervisor and four or five girls who went with her from job to job, at the expense of other employees who were already-employed. Geeter asked if the feelings of the present employees would be considered . Watson replied that their feelings would not be considered and that she should not ask such questions. Ekman stated that some of the present employees had grievances against some of Hinchey's girls, and would not work with them, and if it became uncomfortable for the present employees they would quit. Watson thanked them for the information and said that it would be kept in the strictest confidence. On Monday, June 8, Watson entered the keypunch room and announced that he had been told "that you girls are going to get up and walk out if a certain person is hired as manager. Cubit is not going to be threatened by a bunch of keypunch operators ." Watson added that any question on the subject of manager could result in immediate termina- tion. On Wednesday, June -17, when the day shift reported for work, Millie Hinchey was in the keypunch manager's office. Wednesday was payday and it was part of the manager's duty to distribute paychecks. Just before noon, Hinchey called the operators to the back of the room, handed to each a paycheck and a termination letter in blank and announced: I have been told that all you girls were going to get up and walk out when I took over as manager. If anyone is dissatisfied with the arrangement she can fill out this termination letter and put it on my desk by four o'clock and it will mean immediate termination without notice for that person. Ekman answered: Millie, that's a g.d. baldfaced lie .... Sim Watson lied to you about saying that the keypunch staff was going to get up and walk out . Cecilia and I had a talk with him, and in that conversation nothing had been insinuated or said or directed to him on that subject, and we had never said we were going to get up and walk out . . . the conversation was two weeks before you came in and we knew you had been hired a week before you came in to the office. If anyone had any intention of walking out they would have done so then . You have been here all morning and nobody got up and walked out. Obviously, it's untrue. When Hinchey stated that she had received this informa- tion from five or six people , Geeter added a few words in support of Ekman, and ... Van Winkle said that she felt that they had lied about more than just our conversation with Mr. Watson. That they kept lying since they had started. CUBIT SYSTEMS CORP. 631 And that Hinchey would find out sooner or later what kind of people they were. On either June 22 or 23 Hinchey met with the day-shift operators, reminded them that there was not enough work to keep all busy, and inquired whether they would prefer to have two of them permanently laid off or all go on short hours. All voted for short hours. Hinchey then said that they should decide who would go home without pay. Geeter said that during the preceding weeks when there was not enough work, girls were permitted to go home but were paid just as if they were working, and asked why that practice could not be continued. Hinchey said that work was building up on the night shift, and anyone who wished to transfer to nights could have steady work. There were no volunteers. Geeter asked whether any girls had been laid off in Burlingame. Hinchey said she did not know. Geeter asked why she did not know, "since she was supposed to be manager." Geeter added that they could not do this in Burlingame, since the Union would not let them, and it was unfair to San Francisco, when the employees had been told that the offices would be run as one. On Monday, June 29, Watson reported to Nishimura that he had conferred with Hinchey and it was their joint recommendation that the day shift be reduced to two keypunch operators. Sabanovich approved the reduction and said that Hinchey and Watson should make the selection. On either June 30 or July 1 Watson reported to Nishimura and Sabanovich that Geeter and Ekman should be terminated because they were the highest paid employees, and Hinchey was capable of carrying out their supervisory duties. Adele Shimota and Karen Chan should be retained because they were the most capable of the nonsupervisory operators and Van Winkle should be released because she was the lowest employee. Nishimura approved the selection but directed that execution be postponed until after the computers were moved from San Francisco to Burlingame over the July 4 weekend, in the event that records should be damaged or misplaced in the course of the move. On Wednesday, July 8, Geeter, Ekman, and Van Winkle visited the union office and signed authorization cards. On Thursday, July 9, after work they drove to Burlingame. (The day shift in San Francisco ended at 4 p.m. Burlingame employees worked until 5 p.m.) Geeter entered Respon- dent's office, assisted O'Toole in moving some records, and went with O'Toole to the ladies' room. There they were joined by Ekman, and a brief conversation ensued. Van Winkle remained in their automobile in the parking lot. On Friday, July 10, Sabanovich and Nishimura went to San Francisco to settle accounts with Burroughs' manager, Jim Lowe. Sabanovich told Hinchey that she could go ahead with the terminations. Shortly before 4 p.m. on Friday, July 10, Hinchey called Geeter, Ekman, and Van Winkle to her office, told them that they were "being terminated for lack of work," and that they should see Sabanovich in Lowe's office down- stairs for the answers to any questions. Nishimura and Sabanovich left Lowe's office and invited the three women to join them in a vacant office. Geeter 7 Nishimura testified that as keypunch supervisor in Burlingame, O'Toole was directly responsible to director of facilities and management, opened the conversation by asking whether they were terminated. Upon receiving Sabanovich's affirmative answer, Geeter asked for the reason and was told, "economic reasons and lack of work." Geeter then asked, "are we being terminated or laid off? There is a difference you know." Sabanovich, irritated by the tone of the question, let his irritation show in replying that they were being terminated because they were the most expendable people in the department. Ekman accused Sabanovich and Nishimura of dishonesty, stating "practically everything you have told us has been a lie from the day you took over." Nishimura, in an angry tone, defended himself, saying that he had been fair and honest, that their troubles had been inherited and not created by Respondent. The discussion became very heated, with four people talking at once, and at one point Sabanovich charged Geeter with being a troublemaker. Van Winkle, who retained her calm throughout, finally said, "let's get up and go" and the women left. Banks first learned of the discharges on July 15 and she took the that she was in bad company and later, when they were discussing contract terms, told her that the injection of the San Francisco problem would make it more three women with her to Burlingame to call Nishimura. Nishimura told Banks difficult to reach agreement. Burroughs, when it was operating the center, had 20 to 25 regular accounts. When Respondent took over, the number of regular accounts dropped to 10 or 15, "if that." As of May 1, 1970, Respondent took over from Burroughs seven keypunch operators on the day shift and four on the night shift. Between June 1 and 17 there was so little work on the day shift that operators were authorized by Watson to go home, on full pay, leaving only Geeter or on two occasions Van Winkle and one or two others, as a skeleton crew. As of June 17 there were two operators on the night shift, and seven on days. Between June 17 and 26, night-shift operator Margaret McFall was discharged and day-shift operators Donna Lane and Diane Lasine resigned. Between June 17 and 26, Hinchey offered to Geeter a transfer to the night shift. She said she would have to consult with her husband. She did not give Hinchey an answer and the offer was not repeated. When Judy Evans, night-shift supervisor an- ndunced that she was resigning, the position was offered by Hinchey to Ekman, who declined. Van Winkle also refused Hinchey's offer of night work. From July 10, 1970, through November 3, 1970, when Hinchey resigned, all day-shift work was performed by two operators under the supervi- sion of Hinchey. During the same period Hinchey succeeded in obtaining work which was received in the afternoon and had to be completed by midnight. During the period from July through October 1970 there were on occasion seven or eight keypunch operators on the night shift. When Respondent's lease expired, December 31, 1970, the San Francisco operation was closed. D. The Decertification Petition Karen O'Toole 7 was first employed as a keypunch Sim Watson, that she had the power to discipline employees and that Watson followed her recommendations as to hire and termination without (Continued) 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operator by Purity about May 1, 1969. On February 9, 1970, Nishimura notified Banks on a Purity letterhead: This is to inform you that Karen O'Toole has been promoted to the position of Keypunch Supervisor, an exempt position effective February 3, 1970. The vacancy was the result of the resignation of Harriet Fracchia. Shortly prior thereto the Union had sent O'Toole a notice of delinquency and she had paid up 6 months back dues with one check. Between June I and 17, 1970, O'Toole had two private conversations with Geeter in the keypunch manager's office in San Francisco . In the first of these conversations Geeter , told O'Toole "that she was responsible for the operations, as far as the keypunch department was concerned, in that office . . . that she was more or less taking over the responsibilities of the manager." In the second conversa- tion, just before Hinchey assumed her duties, [Geeter ] said that she was very unhappy with Millie coming and she thought that she should get the position, and that she was going to get a petition up, or have the girls sign a letter and present it to someone ; that they didn't want Millie-they would leave if Millie came in as manager . . . that she felt all the girls would agree with this. On Thursday, July 9, 1970, Hinchey told Geeter that three girls had been laid off in Burlingame. That evening, after work, Geeter, Ekman, and Van Winkle drove to Burlingame and parked in the Purity lot about 4:45 p.m. Geeter entered the building alone, encountered Bruno, and according to the testimony of Geeter, whom I credit in full: He said, I think, "Karen is still here; come on in. I will take you back where she is." When they entered the keypunch room, First she said, "Help me carry this back to the tab"-I think it was the tab room. This is Karen speaking . . . . I helped her carry the work back to the tab room. * Q. (By Mr. Barton) What did you do after that? After going to the tab room. A. I believe then I must have told her I had to go to the ladies' room, so we went into the ladies' room. Karen and myself. Q. All right, And did you have any conversation with her in the rest room? A. Well, when we walked in, she asked me, you know, "What are you doing down here?" I told her that we had heard that they had laid off three people, or were going to lay them off. About that time Esther walked into the ladies' room. She says, "Well, they told me to lay off three people, and then they changed their minds, because it was summertime." And she said, "People were taking vacations, and they had a lot of work, so they were going to wait until after vacations were through." Well, she mentioned that they told her what people to lay off, and then they changed their minds, and they told her she could decide, and back and forth. And then I guess she mentioned about her helping the girls get a petition up to get out of the Union. I believe it was then, anyway. Q. What do you recall her saying? A. Well, she says-she either said that she had typed, or she was helping him write a petition, to get out of the union. And she said, "Well, I probably shouldn't tell you this . . . because you weren't supposed to know about the union." And I said, "Well, we knew already. We knew ever since the get-together dinner they had. Some of the girls went and told us about the union." And then I believe Esther stated at that time that we had contacted someone about the union already, so it was no secret to us. And something else could have been said, I really don't remember .. . Someone else came into the ladies ' room and we stopped talking. And then when we were leaving, Karen said, "Well you know, they are going to call me in and ask me everything you asked me, and everything I told you," and et cetera. * Q. (By Mr. Tichy) Did Karen O'Toole ever tell you what was on a petition? A. She merely stated that she was helping-she either said she was helping them write, or type a petition for the girls to get out of the union. In the course of their discussions on July 15, 1970, Banks told Nishimura that she had heard that a decertification petition had been drafted and was being circulated by Karen O'Toole. Nishimura replied that he knew nothing about it. Nishimura, immediately thereafter, "told Karen O'Toole that if she, in fact, participated in the preparation of any petition to de-certify the union, or anything to that effect, that it would be grounds for termination." In mid-July 1970 Joseph McLaughlin, a computer operator, typed the following words at the head of a blank sheet of paper: We the undersigned, employees of Cubit Systems Corporation no longer wish to participate in the Union Local ILWU #67. McLaughlin, between July 20 and 22, 1970, obtained `the signatures of nine of Respondent's keypunch and comput- er operators, a clear majority. McLaughlin did not confer with O'Toole, and she did not sign, nor did she participate in any way. Toward the end of the first week in August, McLaughlin placed the petition in a folder and left it on Mr. Nishimura's desk. Meanwhile, about a week after her July 15 meeting with Nishimura, Banks in a telephone conversation accused O'Toole of sponsoring the petition. O'Toole told Banks that she had overheard comments about a petition, but denied any connection therewith. independent investigation O'Toole was clearly a supervisor within the meaning of the Act CUBIT SYSTEMS CORP. 633 E. Supervisory Status of Geeter and Ekman Cecilia Geeter was hired as a keypunch operator by Millie Hinchey in 1964, when Hinchey was keypunch manager for R & S at the Battery Street location in San Francisco. Esther Ekman was hired by Hinchey about 1 year later. Hinchey resigned in April 1968 after the operation had been taken over by Univac . Before resigning, Hinchey recommended to the operations manager of Univac that Geeter be promoted to supervisor. Ninety percent of the work of the center was repetitive routine for regular accounts. Geeter would divide the work into batches, attach a procedure card to each batch, and place it on a desk beside her machine. The keypunch operator, when she finished a batch, would return it to Geeter. The punched cards were then run through a verifying machine, when the machine detected an error, the verifier would destroy the defective card, and punch a correct card on a keypunch machine. The verified cards were then delivered to the account manager, downstairs, and Geeter would return the procedure card to its proper place in the file. During Respondent's administration, all day-shift operators were experienced and competent and required practically no supervision. Over 90 percent of the time of Geeter and Van Winkle was spent in verifying. All the other operators were capable of running the verifying machine and did so upon occasion. About 10 percent of the work of the center consisted of "drop in jobs" usually left by architects, and usually emergency work. Geeter testified, Q. (By Mr. Tichy) Isn't it correct that some of these jobs were more difficult than others? A. Yes. Q. And when you received what you considered to be a difficult job, you would give it to the better operators, is that right? A. Yes. Q. In determining which ones were the better operators, what sort of factors did you consider? A. The ones that made the least errors, the most accurate operator. Q. Did you consider the experience which these people had? A. Well, sometimes, with keypunch operators, experienced operators aren't always as good as maybe ones with one year's experience. Q. Did you consider speed? A. Yes. Q. What other factors would you consider in determining the quality of a keypunch operator? A. Just the accuracy and the time it would take her to do the job, I would say. Q. You did exercise yourjudgment in making these decisions, didn't you? A. Yes. Q. And having exercised your judgment, then, you would distribute the work to the better operator, instead of to one of the other operators, is that light? A. Yes. Q. One of your responsibilities as keypunch supervisor was to transfer employees from one machine to the next, isn't that right? A. Yes, more or less. Q. Did you find that there was ever an occasion where a keypunch operator did what you considered to be a poor job? A. Sometimes. Q. What did you do when you discovered that an operator had done what you considered to be a poor job? A. Well, we would show her her errors, so that this wouldn't happen again, hopefully. Q. Would you actually sit down with the girl and explain to her why you thought she was making the error, and she would correct her problem? A. I would. Either myself or whoever verified the job would give her the errors and maybe the document, if it was something we didn't feel was really her fault, you know. Maybe it was something on the document, the reason why-or the procedure she didn't under- stand possibly. Q. I would like to ask what you would do when you found that somebody had done a poor job. How would you handle that? A. I would take her the errors and say, "You made all these errors out of so many cards that you punched." You know, maybe she punched 150 cards and she had 50 errors. Well, that's very bad. So she would know this; you know, out of 150 cards you have 50 errors, so- Q. And would you explain to her what you think could have been done to correct the problem? Perhaps you might advise her to slow down, look at the keys, or- A. Yes. If I figured she evidently had done it because she was punching too fast, I would tell her to slow down. But usually she would know what the problem was. In mid-May, O'Toole invited Geeter and Ekman to lunch with her in Burlingame, and they spent the entire afternoon meeting with the Burlingame employees observing Respon- dent's operation in the Purity building. During the period from June 1 to 16, 1970, Geeter in addition to her regular duties used the manager's office, a glass enclosure in the keypunch room. She estimated and reported to Watson the amount of work anticipated for each day and received instructions from Watson to either, let some of the operators go home, or to hold them in the keypunch room in the hope that additional work would come in. Geeter, using the timecards, and Watson's specific authorization to pay operators for time when they were absent from the office, made out the cards from which the operators were paid. Geeter distributed pay checks on 2 Wednesdays. It was seldom necessary for Geeter to consult any keypunch manager concerning any detail of the work because, "Any questions that I couldn't answer, I would go to the account manager, because usually the keypunch manager could not answer it either." From and after June 17 Hinchey spent 60 percent of her time catching up with the paperwork which had accumulat- ed since the 1st of June, and 40 percent of her time away from the office attempting to develop new business. Each time she left, she told Geeter to answer the phone. Hinchey had complete confidence in Geeter's ability to get the work 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out on time and gave no direct instruction to any operator. Hinchey's office was open to the keypunch room and she could personally observe the work and conduct of the day- shift operators. On one occasion she asked Geeter about a night-shift operator, Margaret McFall. Geeter testified: She just asked me about Margaret's work . . . she said "I want to know if Margaret is the same way as she was before." And I assumed that that meant when Millie worked there before. If she was still the same type of keypunch operator. I said, "Yes, she is. She's still slow".... I think she asked me about her coming to work also, because she was out quite frequently. And I think Millie asked me . . . if she had been out a lot like she did before. Q. What did you say to that? A. I said, "yes." Hinchey did not ask for, nor did Geeter tender, any recommendation as to the retention of McFall. Geeter's salary was $640 per month. O'Toole's salary was $600 per month. While the issue is close, I find, on the testimony above and particularly in view of the fact that the keypunch operators between June 1 and 16 had no direct supervision other than that exercised by Geeter that Geeter was, at least between June 1, 1970, and June 16, 1970, a "supervisor" within the meaning of the Act and was not an "employee" within the meaning of Section 2(3) of the Act. There is no credible evidence on this record from which I can infer that Ekman was a supervisor. There were at most two occasions between June 1 and 16, 1970, when Ekman acted as supervisor in Geeter's absence. This alone is not enough to deprive Ekman of the rights guaranteed to employees. F. Concluding Findings 1. Respondent and the Union did not, on June 30, 1969, nor on any other date, reach complete agreement on the terms of a collective-bargaining agreement. In order to get to the heart of the dispute, i.e., the amount of raises for current employees, Valter had forbidden Banks to talk about the subject of starting rates and had rushed over the subjects of temporary replacements and promo- tions. While a single unit of office employees of Purity and all employees of Respondent was implied by Pecchenino's statement that he was speaking for both companies, there was no discussion, much less agreement as to whether there should be one or two units, or one or two contracts. While Banks, due to her inexperience, may have believed that she had a complete agreement, Nishimura, faced with the task of drawing contract language was under no such illusion. Nishimura, in drawing the recognition clause, included Purity's and Respondent's employees in a single unit and, since he anticipated having a stockroom and inaugurating a delivery service, omitted from the exclusion- ary clause, the classifications of truckdriver and warehouse- man. In addition to his caution to Banks to read the August proposal carefully, he enclosed in red brackets, and underlined portions of the wage agreement that he and Pecchenino had reached with Valter. The August 1969 document was a fair, honest, and complete proposal to the Union. 2. Respondent did not, on July 1, 1970, nor at any time prior to August 12, 1970, refuse to bargain in good faith with the Union. Banks' failure to take any action on the Companies' proposal of August 1969, and her repeated evasive answers to Nishimura's repeated inquiries were tantamount to a rejection of the Companies' offer. After Nishimura had severed his connection with Purity, Banks made this rejection explicit by falsely charging that Nishimura and Sabanovich had specifically agreed on June 30, 1969, to cumulative increases, and that the August 1969 document, placing each annual increase on the 1969 base, was not in accord with the agreement. Nishimura bargained in good faith with the Union, from the time of Banks' specific rejection of the August 1969 proposal until after he found on his desk a paper signed by a majority of his employees, stating that they no longer desired union representation. This paper, combined with the fact that the data processing department of Purity had not, as a separate unit, ever selected the Union, not only permitted, but required Respondent to suspend bargaining until the question concerning recognition could be resolved. Respondent's good faith is further evidenced by its prompt filing with the Board of a petition for an election. 3. Respondent did not, through Karen O'Toole or in any other manner, induce or encourage its employees to sign a petition to decertify the Union. The paper bearing a list of signatures which Nishimura found on his desk was entirely the work of a bargaining unit employee, Joseph McLaughlin. I credit in full McLaughlin's testimony that he did not confer with either O'Toole or any other member of management. McLaughlin testified that he had never been a member of and had never paid dues to the Union. This testimony appeared highly improbable in view of the fact that the Purity contract required membership as a condition of employment, that the Union had been notified by a communication dated May 19, 1969, that McLaughlin occupied a unit position, and that the Union had, on March 11, 1970, demanded the discharge of an employee for nonpayment of dues. The failure, of the General Counsel to tender union records in refutation of this improbable testimony- compels the conclusion that it is true and supports the veracity of the material portions of McLaugh- lin's testimony. I have found that O'Toole did state to Geeter on July 9, 1970, that "she had typed or she was helping him write a petition to get out of the Union." This statement does not, however, support the complaint. Some person, who was not McLaughlin, had conferred with O'Toole concerning the wording of a petition, which she may have typed, but the matter went no further. Geeter's testimony "I guess she mentioned about her helping the girls get a petition up to get out of the Union," clearly is Geeter's personal interpretation of words vaguely remembered. I specifically discredit Banks' testimony that O'Toole, almost 2 weeks thereafter, admitted on the telephone, "Yes, I typed a petition." It is most unlikely that O'Toole would make such an admission after she had been warned by Nishimura that any participation in such an activity would result in her discharge. This threat also explains, if it does not excuse, her denial on the witness stand of the statements attributed CUBIT SYSTEMS CORP. 635 to her by Geeter. I also reject the embellishment of O'Toole's remarks contained in the testimony of Ekman, as representing her state of mind, rather than her actual recollection of any words spoken by O'Toole. 4. Day work in May and June 1970 diminished in San Francisco, necessitating a drastic reduction in the key- punch staff. 5. Geeter, Ekman, and Van Winkle were all offered night work and each refused the offer of night work. 6. The selection of Geeter, Ekman, and Van Winkle to be discharged was made by Hinchey prior to July 3, 1970, before any had signed an authorization card or evinced interest in the Union. 7. Hinchey was not influenced in whole nor in part by the concerted activity of Geeter and Ekman to prevent her appointment as manager. After becoming manager, and being assured by Ekman that threats of strike were unfounded, Hinchey reposed her entire confidence in Geeter, left the running of the keypunch department entirely with Geeter, and left Geeter in complete charge during her extended absences from the office. 8. Van Winkle did not participate in any way in the concerted effort of Geeter and Ekman to prevent the appointment of Hinchey as manager. 9. There is no credible evidence on this record that Respondent entertained any animus toward the Union. 10. Keypunch operators Adele Shimota and Karen Chan were retained as employees on the day shift, because they were competent to handle all the work of the shift without supervision other than that of Hinchey. Van Winkle was released because, in the view of Hinchey, she was less competent than either of the other two. Geeter and Ekman were released because all the work of the day shift could be completely performed by employees receiving a much lower rate of pay, and because Hinchey was fully competent to supply the expert knowledge and advice required by any unusual problems which might arise. 11. Neither Geeter nor Ekman nor Van Winkle was discharged because of her activities on behalf of the Union. 12. Neither Geeter nor Ekman nor Van Winkle was discharged because of her concerted protest concerning the selection of a new manager. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and the volume of its business exceeds the indirect outflow standard of the Board for the assertion of jurisdiction. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not, on this record, engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), or (5) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety.