First National Bank & Trust Co.

FIRST NATIONAL BANK & TRUST CO. First National Bank & Trust Co. and Darlene M. Snyder. Case 6-CA-6472 February 19, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 26, 1973, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to Lhe 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. We do not agree with the Administrative Law Judge's finding that it was unnecessary to consider the independent 8(a)(1) allegation regarding Snyder's discharge for engaging in protected concerted activi- ties, while at the same time finding that Respondent did not discharge Snyder in part because of engaging in such activit;es. As found by the Administrative Law Judge, Snyder was responsible for, and participated in, employee objections to Respondent's lunch policy and the discharge of Sam Harris. The evening before Sny- der's discharge, Respondent's Branch Manager Cherry was told that Snyder was going to the Labor Board with respect to both the discharge of Harris and Respondent's lunch policy. On the next day, December 13, the discharge interview took place. Cherry. Vice President McCon- nell, and Snyder were present. According to Cherry, she told Snyder that she knew that Snyder did not like her job, and that she was going to have to let her (Snyder) go. Snyder asked if it was because of Harris, and Cherry responded that that was not the only reason. Cherry admitted on cross-examination that one of the reasons she fired Snyder was because Snyder was causing "unrest among the girls." i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Admmistiative Law Judge's resolutions with respect to credibility unless the cleai preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F2d 362 (CA 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 The supervisory status of Sam Harris is unclear, and therefore we make no finding as to the protected status of Snyder's activities with respect to his 95 According to McConnell on cross-examination when shown his pretrial affidavit, he claimed that he alone was responsible for the discharge of Snyder, and that, immediately after hearing about Snyder's complaints about the lunches and her attempts to aid Sam Harris, he became angry at Snyder, declared that he wouldn't "put up with that kind of stuff," and then discharged Snyder. Without attempting to resolve the conflict between the testimony of Cherry and that of McConnell as to which bore sole responsibility for the decision to fire Snyder, we find that in either case Snyder's participation in the employee objections to Respondent's lunch policy was a reason for the discharge of Snyder. Respondent's lunch policy clearly is a condition of employment, and the employees' objections to that policy, including Snyder's participation therein, are concerted activity for the purpose of mutual aid or protection within the meaning of Section 7 of the Act.2 Therefore, we conclude that Respondent, in addition to violating Section 8(a)(4) by discharging Snyder because of its belief that she had filed, or was about to file, charges against Respondent with the Board, also interfered with, restrained, and coerced Snyder in the exercise of her Section 7 rights in violation of Section 8(a)(l), by discharging her in part for exercising those rights.3 We also disagree with the Administrative Law Judge's conclusion that Respondent Branch Manag- er Cherry's threat to see to it that Snyder would "never got [sic] another job in the whole area," was too remote from any activity protected by the Act to be considered as constituting an unfair labor prac- tice. This conclusion was based on the finding that Cherry made this statement so as to alleviate the "disturbance" caused by the refusal of Snyder and her father to leave the premises. The record discloses, however, that when, on December 18, shortly after her discharge, Snyder and her father went to the bank and asked Cherry for an employment reference for Snyder, Cherry's first response was that she would give Snyder a recom- mendation which stated that Snyder had gone to the Board. Snyder denied that she had done so, and it was during the ensuing conversation that Cherry uttered the threat to blacklist Snyder with other employers. Clearly, then, Cherry's threat was made in the reinstatement 3 .Southwest Latex Corporation, 175 NLRB 358; The Office Towel Supply Company, Incorporated. 97 NLRB 449 Chairman Miller concurs in this finding, and would support the order herein on this 8(a)(1) basis He is of the view that the Administrative Law Judge and the majority have stretched the language of Section 8(a)(4) beyond its reasonable scope. and he therefore respectfully dissents from the 8(aX4) finding But since the 8(a)( I) findings would, in his view, fully support the entire order and notice herein, he concurs in the remedy adopted by his colleagues. 209 NLRB No. 14 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD context of a conversation between Snyder and her father on the one hand, and Cherry on the other, which concerned one of the reasons for Snyder's unlawful discharge; namely, Respondent's belief that Snyder had filed charges with the Board. Moreover, there is in this record no evidence of any "disturb- ance" which would excuse a blacklist threat. Indeed, the record shows only a strong disagreement between Snyder and her father with Respondent regarding Respondent's stated intention of seriously qualifying Snyder's employment reference, of which Snyder would have had no need had Respondent not illegally discharged her. For these reasons, we find that Cherry's threat to blacklist Snyder was intended to force Snyder to cease exercising her protected rights, including filing charges and giving testimony under the Act, in violation of Section 8(a)(1) of the Act `t 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 Administrative Law Judge. as modified below, and hereby orders that Respondent, First National Bank & Trust Co., North Hills, Pittsburgh, Pennsylvania, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order, as so modified. 1. Substitute the following for paragraph I (c) and reletter paragraph (d) as (e): "(c) Threatening to prevent its employees from obtaining employment elsewhere by blacklisting them with other employers because its employees have exercised their rights. protected by the Act, including'the right to file charges and give testimony under the Act. "(d) Discouraging employees from filing charges under the Act, or restraining employees from engaging in concerted activities with respect to their working conditions, by discharging or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment." 2. Substitute the attached notice for that of the Administrative Law Judge. 4 Chairman -tiller finds no basis in the record for reversing the Administrative Law judge's plainly sensible interpretation of the circum- stances surrounding the remark made by Cherry. and accordingly does not join in this additional 8(a)(1) finding or in the change in the Order which his colleagues have made in thi. connection APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Darlene M. Snyder her former job or, if that job no longer exists, a substantially equivalent job, with backpay. WE WILL Nor discharge, or otherwise discrimi- nate against, employees because they intend to file unfair labor practice charges with the Nation- al Labor Relations Board, or because they engage in protected activities concerning their working conditions. WI: WILL NOT coercively question employees or create the impression that we are engaging in surveillance of them concerning their exercise of rights guaranteed by the Act. WI- WILL NO r threaten to prevent our employ- ees from obtaining other jobs in the area because our employees have exercised their rights guaran- teed by the Act, including the right to file charges and give testimony under the Act. WE WILL NOl in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights protected by the Act. FIRS! NATIONAL BANK & TRUST CO. (Employer) Dated By (Representative) (Title) This is an offical notice and must not he 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 compli- ance with its provisions may he directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION S 1 A rEMI NT OF 111E CASE Joci. A. HARMATZ, Administrative Law Judge: Based on a charge filed by Darlene M. Snyder on December 19, 1972, and an amended charge filed on February 12, 1973. a complaint was issued on February 21. 1973, which alleges essentially that First National Bank & Trust Co., herein called the Respondent. engaged in unfair labor practices within the meaning of Section 8(a)(1) and (4) of the National Labor Relations Act, as amended. A trial was conducted before me on March 8 and 9, FIRST NATIONAL BANK & TRUST CO. 1973, at Pittsburgh, Pennsylvania. Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. JLRISDICTION Respondent, a national banking association , with its principal office in Washington, Pennsylvania, is engaged in consumer and commercial banking at several locations, including Pittsburgh, Pennsylvania. During the 12-month period immediately preceding the issuance of the com- plaint, Respondent's gross volume of business exceeded $500,000, including the transmittal of checks to out -of-state banks for collection purposes of a value exceeding $50,000. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background There is no labor organization involved in this proceed- ing. The issues turn on the credibility of witnesses, and the main question concerns the lawfulness or unlawfulness of the discharge, on December 13, 1972, of the Charging Party, Darlene Snyder.' This discharge, according to the allegations in the complaint, occurred against a back- ground of alleged independent 8(a)(1) violations including coercive interrogation , creating the impression of surveil- lance, and a threat to blacklist an employee unless she refrained from engaging in concerted activity and filing charges under the Act. Respondent's branch bank in North Hills, Pittsburgh, Pennsylvania, is a small facility , serving an essentially residential community . It is staffed by three tellers, a head teller, a bank manager or head cashier , an assistant manager, and a bookkeeper-proof operator,2 constituting the entire permanently assigned work force. Darlene Snyder was hired on September 19, 1972, as one i The complaint was amended to further allege that Darlene Snyder was denied severance pay by virtue of her protected activity and Respondent's suspicion or knowledgc that she was involved in a proceeding before the National Labor Relations Board in violation of Sec 8 (a)(1) and (4) of the Act The General Counsel conceded at the hearing that, if the discharge were found unlawful, the usual cease -and-desist remedy would be appropriate to fully redress this alleged violation 2 The complaint alleges, the answer admits, and I find that J Knox McConnell, a vice president of Respondent . Billie J Cherry , the branch manager, Barbara Fisher, the head teller , and John R Rossi, the assistant manager, were at all times material supervisors and agents of Respondent within the meaning of the Act 9 Unless otherwise indicated all dates refer to 1972 4 The testimony is in dispute as to whether Snyder, in her initial employment interview, was told by Cherry, the branch manager, that she would have a daily lunchbrcak of one-half hour I do not regard resolution of this issue as necessary to a disposition of this case. I do note, however, that all employees affected by the lunch policy acknowledged griping about it and since Cherry herself admitted, in essence, that the lunch situation was less than ideal, I do not regard the employee discussions as frivolous nor in any sense without legitimate foundation These discussions bear directly upon their conditions of work . and were protected by See 7 irrespective of 97 of three tellers, and she occupied that position until her discharge on December 13, 1972.3 B. The Events Preceding the Discharge Prior to her discharge , Snyder participated in discussions with other nonsupervisory tellers, namely, Dorothy Trim- mer and Rita Hollis, relative to the Respondent 's lunch policy. In this regard , undisputed testimony shows that by virtue of the press of business during the normal lunch hours, coupled with the size of the available work force, the tellers were not allowed a half-hour lunchbreak as such.4 Instead, the tellers did not leave the premises, but their lunch was ordered from outside services after menu requests were solicited among them . They ate in a backroom. The break had no fixed duration, but upon completion of lunch, each teller was expected to return to her cage to enable another to eat.' The record does not show specifically the number of employee discussions concerning the lunch policy , but its clear import is that there were several. Although Hollis and Trimmer, as Respondent's witnesses, on direct examination attempted to mitigate their concern for the lunch question, both, on cross-examination , admitted that they complained or griped about management's practice in this regard. It is clear, however, that prior to December 10 no protest concerning the lunches was ever addressed to any agent of Respondent. In addition to her participation in the above discussions, Snyder was the protagonist of a brief and abortive expression on behalf of Samuel J. Harris. Harris was hired on October 2, 1972, and assigned to the North Hills branch . He was to be trained as branch manager and to replace Mrs. Cherry, who at the end of 1972 was to be transferred to another location .6 On December 7, 1972, Harris was terminated by Vice President J. Knox McCon- nell.7 During his tenure with the bank , Harris was regarded highly by tellers Snyder and Hollis. On December 8, when these tellers learned of Hams' termination both felt bad, with Snyder taking it the hardest. That day, at Snyder's insistence, Hollis and Snyder called Harris from the home of Hollis' niece .8 Both , in turn , expressed their surprise and dismay to Harris. Hollis then got off the phone while the degree to which employees were dissatisfied Hence I need not consider conflicts in testimony as to the degree to which employees found this practice objectionable Certain aspects of the practice including whether or not a teller was at times required to eat at the cage or teller 's window are in dispute Without resolving this dispute, which I deem immaterial (see In 4, supra ) I have based the above findings on a composite of the testimony adduced on behalf of Respondent , Harris also functioned as loan manager for the branch during his training period 7 Respondent's explanation for this discharge is undisputed and evidences that Harris was legitimately terminated when a replacement with a more extensive background in banking was hired 4 Hollis admits that she felt had about Harris' discharge , but that she really viewed the whole matter as none of her business 7 hough the phone call in question was made from the home of her niece, her testimony is generally to the effect that Snyder, a very young lady, who impressed me as highly impressionable and hardly overpowering , had influenced her to do things in connection with the Harris incident of which Hollis wanted no part For these and other reasons, including significant contradictions in her testimony , and her general demeanor , I discredit Hollis' intimations along these lines, and find that, at least initially , she willingly expressed her (( ontinued) 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snyder resumed the conversation. Snyder testified that Harris told her that one of the others would be next to go, because that is the way Cherry is .9 At some point, thereafter, Snyder related to Hollis that Harris had said that "one of the two of us was going to get fired." It further appears that Snyder was somehow struck with the idea of going to the Labor Board with respect to both the Harris discharge and the lunch situation. After the above-mentioned phone call, Snyder had dinner with Hollis and Trimmer, the other rank-and-file tellers. They discussed the possibility of going to the Labor Board concerning these issues, and Snyder stated that she wanted both Trimmer and Hollis to get behind her and go to the Labor Board. The record does not disclose precisely what Trimmer and Hollis told Snyder in response to this suggestion. However, Hollis testified that, following the dinner conversation, Snyder continued to push the Harris matter and called her frequently about this. Hollis' husband grew disturbed, and the calls ceased, as did all other discussions with Hollis, when her husband answered one of Snyder's calls and told Snyder to stop bothering his wife. This basically is what transpired between the tellers prior to Snyder's discharge. As a result of the foregoing, Hollis became increasingly concerned about her job. On Tuesday evening, December 12, Hollis telephoned Barbara Fisher, the head teller.10 Hollis told Fisher that Snyder was harassing her by calling at her home and trying to get Sam back to the bank. Hollis expressed concern for her job, indicating to Fisher that Snyder had told her that Harris had indicated that Hollis' job was in jeopardy. Hollis also informed Fisher that Snyder was going to the Labor Board concerning the lunches and Harris. Fisher reassured Hollis that the latter need not be concerned about her job.11 Following this conversation, and that same evening, Fisher called Cherry, the branch manager, and related what Hollis had told her, including the assertion that Snyder was going to the Labor Board with respect to both the discharge of Harris and Respondent's lunch policy. C. The Events of December 13; the Discharge On the morning of December 13, a Wednesday, Cherry, concern for the discharge both after learning thereof and in the phone conversation with Harris 9 Harris' account of the conversation is at variance with that of Snyder in this regard. Harris makes no reference to the above statement, but testified that he told both girls "to do what Cherry tells them and they won't have trouble " I find that this difference is attributable to a failure of communication, and I accept Snyder's account, since it is probably in accord with her understanding and logically consistent with certain of her subsequent actions is Although certain testimony indicates that this occurred either on the Monday or Tuesday before the discharge, since the discharge occurred on Wednesday, December 13, and all witnesses agree that the phone call was placed the evening prior thereto, I place this incident on Tuesday, December 12 ii This represents the substance of the phone conversation as related by Fisher and Hollis, whose testimony, as to this incident, I find believable i2 I accept her testimony as to what transpired in this conversation I do note, however, that it has no probative value with respect to the question of whether or not Snyder had, in fact, communicated with the Board Hollis was not examined on this point i3 Fisher was not examined as to this conversation, and hence Snyder's testimony in this regard was not subject to a denial or specific contradiction obviously as a result of her conversation with Fisher, sought out Hollis to inform her that she need not be concerned about her job. However, in this conversation, they also discussed the fact that Snyder wanted Hollis to go with her to the Labor Board and that this was mentioned in the sense that this "was one way of getting him back." Cherry, after a shift in her testimony, finally acknowledged that Hollis informed her "that the Labor Board informed Darlene [Snyder] that she would have to have more than one person to complain about a condition in her place of business." 12 Sometime that same day, probably during the morning hours, Snyder approached Fisher and asked if she was going to be fired. Fisher informed Snyder that she couldn't tell her at that time. Fisher went onto ask why Snyder had gone to Harris with her problems, and Snyder explained that Harris was to be the new manager and that she felt she could talk to him. According to the testimony of Snyder, Fisher then asked, "Why did you go to the Labor Board?" This Snyder denied, whereupon Fisher admonished Snyder about lying, stating "the man from the Labor Board could tell me who it was." Snyder further testified that Fisher stated that if she was fired she could thank Sam Harris for it.13 The discharge interview was held at the close of the day and was attended by Snyder, Cherry, and McConnell. According to Cherry, she and Fisher did not discuss Snyder on December 13.14 During the discharge interview Cherry told Snyder that she knew that Snyder did not like her job, and that Cherry was going to have to let her go. Snyder then asked if it was because of Harris, and Cherry said that that was not the only reason. McConnell then spoke up and said that this was his office and he was going to get someone with more experience and make a few other changes. McConnell also stated that the bank would not hold Snyder back in any way in securing a job or as far as unemployment compensation was concerned.15 According to Snyder, McConnell stated that she would be paid until the end of the month of December. McConnell denied this stating that he merely told Snyder that she would be paid through her pay period, meaning December 15.16 Snyder's account of this conversation is, nonetheless, inconsistent with the general tenor of Fisher's testimony, but because of my general suspicion of Respondent's witnesses, including Fisher as discussed in depth infra, I credit Snyder is Fisher testified and I find that sometime prior to the discharge, not necessarily on that day, she and Cherry had discussed Snyder and agreed that they did not think that she was loyal According to Fisher "That put the icing on the cake, when she was trying to get Sam Harris back He was no longer employed at the bank She had no reason to be concerned about him. Her concern was with First National Bank & Trust Company." i', Based on a composite of the testimony of Cherry, McConnell, and Snyder, which, at least as to the foregoing, is basically consistent However, McConnell did contradict Snyder as to the reference to Harris , Cherry's testimony is silent on this point McConnell testified that he, and not Cherry, in absolute terms denied that the Harris incident had anything to do with the discharge However, because I find McConnell's testimony unworthy of belief, for reasons stated below, and since Respondent's other supervisors admitted that Snyder's effort on behalf of Harris was a reason for the discharge, I credit Snyder i6 This conflict is disposed of, infra, in the section entitled "The alleged discrimination " FIRST NATIONAL BANK & TRUST CO. 99 D. Concluding Findings 1. Discrimination - The discharge and alleged denial of severance pay a. The discharge The General Counsel contends that the Respondent independently violated Section 8(a)(1) and (4) as well by discharging Snyder because she engaged in protected concerted activity, and/or because Respondent believed she had filed charges with the Board. Respondent, by way of defense, asserts that the dis- charge was predicated on legitimate considerations; namely, Snyder's poor work record and incompetence. In addition, the failure to terminate Snyder at an earlier date, according to Respondent, was attributable to a difficulty in securing a replacement, which at the time of discharge was allegedly available. The timing of the discharge is further explained as necessitated by the discovery of her disloyalty and that her efforts to involve another employee (Hollis) in her activities had "upset" the latter. Respondent also points to the fact that no other employee actually supported Snyder in her activities with respect to the lunches and Harris' discharge.17 For the reasons stated below, i find that Respondent's position is not supported by credible evidence. In Respondent's behalf testimony was adduced from Fisher, Cherry, McConnell, and fellow employees Hollis and Trimmer to the effect that Snyder was slow in performing her work, that she had a poor manner in relating to customers, and that she had bad work habits and a poor appearance, including an improper physical posture within the teller's cage and an offensive body odor. According to Snyder, prior to her discharge, she was never told her work was unsatisfactory, although her slowness in balancing her window18 was called to her attention by Fisher and other employees in a "joking" manner. Snyder's testimony also concedes that when she had problems with balancing she would seek out Harris for assistance . This testimony tends to support Respondent's claim concerning her slowness in balancing, and I am satisfied that Snyder did encounter some difficulty with this aspect of her job. However, as is true of Respondent's criticism of Snyder's work performance in other respects, I find that Respondent's expressed concern over the slow- ness in balancing was highly exaggerated and not a significant factor contributing to her discharge. My 17 An issue exists as to the supervisory status of Harris, with Respondent arguing that he was and the General Counsel claiming he was not a supervisor. In the view I take of the case, I need not resolve this issue iA The balancing of the window is a daily bookkeeping task of each teller, in order to determine the cash position as against their transactions on a particular day Although tellers normally performed this function at their cage, Snyder, because she smoked, was permitted to balance her window in a backroom 14 I note at this point that, as the General Counsel observes. Respondent's witnesses , particularly Vice President McConnell and Branch Manager Cherry, offered contradictory testimony as to highly material matters which clearly were within their direct knowledge Overall, the testimony adduced in behalf of Respondent was marked by hedging, frequent retraction , corrected half-truths, and contradiction The character of this testimony, as well as the demeanor of the witnesses involved, render highly suspect the entirety of Respondent's factual case conclusion in this regard is based not only on a mistrust of Respondent's witnesses generally, 19 but also my difficulty in comprehending why, if Snyder's balancing had been marked by "daydreaming" and a slowness that had a critical bearing on teller operations, Respondent continued to permit her to balance alone in isolation in a backroom, rather than withdraw this privilege, granted solely to allow Snyder to smoke while so engaged.xu With respect to all other matters going to the defense I regard Respondent's testimony as totally incredible. I believe that the criticism- of Snyder's appearance, her manner of handling customers, and other alleged indiscre- tions are at best highly exaggerated and, at the least, conjured. In my opinion, the key witnesses to her work performance and its bearing upon the discharge contained serious contradictions21 inexplicable except to the extent that they implicitly support the General Counsel's claim that the true reason for the action taken against Snyder was one which, in the mind of these witnesses, ought to be concealed. For example, a key focal point to analysis of Respon- dent's defense is the testimony of Vice President McCon- nell and Branch Manager Cherry. Neither is what I would regard as a low-level supervisor. Both occupy positions of responsibility in Respondent's operations and cannot he regarded as inexperienced in handling personnel matters. Both attended and were the sole management representa- tives at the discharge interview which resulted in Snyder's dismissal. Their testimony constitutes the only direct evidence of the state of mind held by the agents of Respondent who could have made the discharge decision. Yet, the testimony of McConnell and Cherry as to the circumstances surrounding the discharge clashed in signifi- cant respects and was related by each in a manner which precludes any assumption that the differences were attributable to a mere lapse in recollection. Thus, McCon- nell testified that he arrived at the branch about 2 or 2:30 p.m., December 13, and noticed that Snyder's posture at the cage was poor. He called Cherry into the office and told her that he wanted Snyder dismissed. Cherry, according to McConnell, seemed very surprised, and she stated, "We're very short of help .... It really comes at a had time." McConnell states that he then informed Cherry, "I want her out and I want her out now. Either 1 will dismiss her or you dismiss her According to McConnell, he assuaged Cherry, by informing her that the bank had a replacement for Snyder. It is apparent from McConnell's version that he claimed 20 Head Teller Fisher did testify that, with respect to Snyder's privileged use of the backroom , "nothing was ever said about this," but that she would require Snyder to reopen her window when Snyder was seen daydreaming in the backroom though her balancing had been completed As related above, if this was regarded as a serious problem, i am certain that Snyder's right to use the backroom would have been eliminated 21 One example of the attempt to overstate Snydet's work deficiency was heard through the testimony of Cherry Cherry. initially, and other of Respondent's witnesses insisted that all tellers have the same duties and no special tasks are assigned to them On cross-examination . however, she conceded that Snyder alone was responsible for the tallying of welfare checks, food stamps, and the vacation club Although Cherry offered an explanation for this discrepancy in her testimony . I find it unpersuasive, and, in any event , its mere offering reflects her penchant for shading the truth to build a case against Snyder. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive responsibility for the decision to terminate Snyder. The significance of this phase of McConnell's testimony takes on special meaning when coupled with his denial, on direct examination, that, prior to the discharge, he had any knowledge that Snyder said she had gone o. was going to the Labor Board, and where he further indicated that prior to the discharge he had not discussed Snyder with anyone.22 I find it highly significant that under McConnell's version of the discharge, by ascribing the discharge decision to himself alone and then denying knowledge of Snyder's extra work activities, Respondent would enjoy a clear defense to the 8(a)(1) and (4) allegations of the complaint. Cherry's account is almost completely at odds with that of McConnell. According to Cherry, when she learned on December 13 that Snyder was trying to get the other girls to "get something to get him [Harris] back," this "finalized" Cherry's opinion that Snyder was not a loyal employee, and she decided "to let Snyder go." Cherry states that when McConnell presented himself to her that day, mentioning something about Snyder's posture,23 Cherry stated, "Don't mention that because I'm finished with her. I'm finished with her right now." According to Cherry, it was she who informed McConnell that a replacement had been contacted and was available.24 Cherry testified that McConnell had misstated the facts, insofar as he testified both that he made the decision to fire Snyder and that Cherry had opposed the discharge on grounds that there was a shortage of tellers. These differences in my opinion are highly material to analysis of the allegation that Snyder was unlawfully discharged. On the basis thereof, I find incredible the testimony concerning the availability of a replacement and find Respondent's defense, in this regard, to be after- thought. In addition, McConnell's attempt to establish an ironclad defense through testimony which I find unbelieva- ble is consistent with, and inferentially lends direct support to, General Counsel's claim that the various legitimate considerations asserted in justification of the discharge were pretextual. Indeed, the effort to conceal the true reason for the discharge was not limited to McConnell. Thus, Head Teller Fisher, when questioned as to whether Hollis informed her on December 12 that Snyder was going to the Labor Board concerning Harris, initially denied this, but then conceded that Hollis had done so. Subsequently, on two occasions, Fisher testified that Hollis' references to the Labor Board did not "sink in." It is clear, however, from the overall testimony of Fisher and Cherry, as well, that this fact did sink in and was of sufficient importance for Fisher to immediately report it to Cherry.25 A similar abortive attempt to dimin sh the significance of the threatened Labor Board action was made by Cherry, 22 On cross-examination, when confronted by his pretrial affidavit, McConnell admitted that prior to the discharge he heard that Snyder was complaining about lunches and trying to get help for Sam Harris That when McConnell heard this he blew up at Cherry and stated, "I won't put up with that kind of stuff," and then proceeded to discharge Snyder 23 Cherry states that McConnell entered the bank about 3 20 p in , rather than between 2 and 2 30 p in as he testified Since the bank closes its doors to customers at 3 p in on Wednesdays, McConnell could hardly have seen Snyder in poor posture while customers were in the bank that day who at first testified that she was certain that Hollis had not mentioned the Labor Board in their conversation on the morning of December 13. When confronted with her pretrial affidavit, she reacted by attempting to excuse its content on the ground that the affidavit was given "when we had no counsel." She then conceded that she had in fact discussed with Hollis that Snyder wanted to go to the Labor Board. Cherry also testified that in a discussion with Fisher she learned that Hollis told the latter that Snyder had said they had to have more than one employee to go to the Labor Board.26 Consistent with this pattern, employees called by Respondent also gave testimony indicating an attempt to shade the importance of Snyder's expressed intention of going to the Labor Board. Thus, Hollis, in testifying as to her conversation on December 12 with Fisher, stated that she did not tell Fisher that Snyder wanted her to go to the Labor Board. As was true of Cherry, Hollis, on reviewing her pretrial affidavit, corrected her testimony by admitting that this, in fact, had been related to Fisher. Trimmer, the other teller, testified initially that Snyder had not suggested that Trimmer, Hollis, and Snyder should go to the Labor Board, but on reviewing her affidavit she admitted that Snyder said "we ought to go." In my opinion, the foregoing more than limits the trustworthiness of Respondent's witnesses, for the com- monality displayed in their testimony concerning the Labor Board negates any assumption that the faulty recall, on essentially the same point, by all these witnesses was attributable to mere coincidence. I see a deliberate, though unsuccessful, attempt to suppress the truth; namely, that the intentions of Snyder concerning the Labor Board were within the knowledge of Respondent's agents and that it was an important consideration leading to Snyder's discharge. Upon careful consideration of the entire record, I am satisfied and find that Snyder was discharged because Respondent believed that she had or was going to file charges with the Board concerning the lunch policy and/or the Harris discharge. It is apparent from this record that, through Hollis and Trimmer, Respondent's supervisors, Cherry and Fisher, were led to believe that Snyder had filed charges concerning certain matters. These supervisors admitted that Snyder's activities on behalf of Harris exhibited the type of disloyalty that required her termina- tion . Fisher, on the morning of the discharge , interrogated Snyder concerning this matter and accused her of filing charges with the Board in behalf of Harris. Snyder was subsequently discharged, in midweek on the first working day after Fisher and Cherry acquired knowledge of Snyder's intention to fi:e a charge. I have heretofore discredited Respondent's testimony that a history of incompetence was a factor contributing to the discharge. 24 Her testimony in this regard conflicts with McConnell 's insofar as he claims that Cherry opposed the discharge for lack of an available replacement 25 Fisher's expressed disinterest in the discovery of Snyder's intentions with respect to the Labor Board is not only dubious in the light of the probabilities, but is inconsistent with her subsequent action of reporting this fact to Cherry 26 Cherry stated that this was one of the reasons she was not concerned with the Labor Board FIRST NATIONAL BANK & TRUST CO. 101 On the other hand, I have found from Respondent's own witnesses that there was a deliberate, though unsuccessful, effort to create the impression that the possibility of Labor Board charges had nothing to do with the discharge. From the foiegoing, and the entire record, I infer to the contrary and find that Snyder was discharged solely because management believed that she was going to invoke the processes of the Board.27 As heretofore indicated, Snyder had not in fact filed charges prior to her discharge, but had only expressed her interest in doing so. Nonetheless, in my opinion, Respon- dent was precluded by virtue of Section 8(a)(4) from discriminating against her. The Board has held that the "contemplation" by employees of recourse to its remedies "is . . . the necessary first step in instituting Board proceedings and, as such, must come under the safeguards for such proceedings "28 The Board went on to state: 29 Thus, the discharge of an employee because he made known a decision to seek Board assistance on behalf of himself or for himself and others is an independent violation of Section 8(a)(4). It is true, as Respondent argues, that the Board's 8(a)(4) order in Hoover Design was not enforced by the U.S. Court of Appeals for the Sixth Circuit.30 However, in view of subsequent precedent, in all due respect to that court, I do not regard its decision as presently constituting persuasive authority. That holding predated the Supreme Court's decision in N.L.R.B. v. Scrrvener,11 and was based on a strict construction of Section 8(a)(4) as previously en- dorsed by the Eighth Circuit Court of Appeals in N. L. R. B. v. Richie Manufacturing Company, 354 F.2d 90 (C.A. 8, 1965). Scrivener also arose in the Eighth Circuit: the latter had held therein that Section 8(a)(4) does not "encompass discharges of employees for giving written sworn state- ments to Board field examiners." There, too, the circuit court relied on the decision in Ritchie. But the Supreme Court reversed and, in the process, held that Section 8(a)(4) is not to be limited to its literal terms, but is to be construed liberally "in order to effectuate the Section's remedial purpose." In my opinion, the Supreme Court's decision in Scrivener preserves the continuing viability of the Board's view in Hoover Design. If Section 8(a)(4) applies during the prehearing investigative stages to protect employees who have neither filed a charge nor testified at a Yr 1 do not agree with the General Counsel that Respondent would have discharged Snyder had her conduct been limited to participation in employee discussions concerning the lunch policy or the Harris discharge. Therefore, and because I believe Snyder's suggested method of seeking recourse as to these matters supplied the motivation for Respondent's action against her, I shall consider all remaining issues from the standpoint of the 8(a)(4) allegation and deem it unnecessary to consider those issues which are only relevant to an independent 8(a)(1) allegation based on dtscnmina- tion for engaging in protected concerted activities Finally, I note that my analysis of the evidence does not include the conflict to testimony between McConnell and Harris as to what was said between them in conversations on December 12 and 13 This credibility issue in my opinion is cumulative to the result reached 28 Hoover Design Corporation, 167 s LRB 461, 462 =' Ibid so Hoover Design Corporation v 'v LR B, 402 F.2d 987 (('.A 6, 1968) Si 405 U S 1 17 (1972). 32 See N L R B v Industrial Union of Marine & Shipbuilding Workers, 391 U S 418, 424 (1968) hearing, it follows that employees who express an intention to file a charge are similarly protected. To hold otherwise would condone restraints upon employee access to Board procedures,32 and thereby reach a result inconsistent with the congressional objective "to prevent the Board's channels of information from being dried up by employer intimidation of prospective complainants. . . . [Emphasis supplied.]"33 I therefore find, contrary to Respondent, that Snyder's contemplated action of filing a charge with the Board was within the protective ambit of Section 8(a)(4).34 Having found that Snyder was discharged because Re- spondent believed that she had filed a charge, I find that Respondent thereby violated Section 8(a)(4) and (1) of the Act. b. The withholding of severance pay According to the testimony of Snyder, as partially corroborated by her father, McConnell on December 13 and Cherry on December 18 promised to continue her pay through the end of that month. The General Counsel argues that this benefit was later denied for discriminatory reasons. I find that the General Counsel has not sustained his burden of proving that Snyder was entitled to or promised this benefit, and for that reason I shall dismiss the 8(a)(1) and (4) allegations of the complaint related thereto. The General Counsel adduced no evidence that Respon- dent had any form of practice whereby severance pay was granted to tellers upon their termination. Furthermore, in view of her short tenure with the bank, I deem it highly unlikely that, if such a practice existed, Snyder would have met even the most liberal of eligibility requirements for any such benefit. Finally, considering the circumstances sur- rounding her discharge, I consider it highly improbable that Respondent's agents would have manifested such generosity to Snyder.35 Accordingly, I shall dismiss this portion of the complaint. 2. Interference, restraint, and coercion a. Interrogation I have found that, on December 13, when Snyder inquired of Fisher as to herjob status, Fisher asked Snyder why she had filed a charge. In addition, Cherry admitted to 11 See N L R.B v Scrivener. supra at 122 sa it seems clear enough to me that Sec 8(a)(4)'s objective of maintaining unimpeded access to Board processes precludes from consideration, as a defense to such an allegation , issues going to the meritorious or frivolous nature of the employees threat to file a charge No risk of success should be borne to prospective complaints as a precondition for the protection of Sec. 8(a)(4), nor should employers be licensed to visit reprisals on employees simply because grievances addressed to the Board ultimately are rejected by that agency Accordingly , I deem immaterial , and need not consider, the questions raised as to whether other employees supported Snyder's desire to file a charge, and whether Harris was a supervisor I-, Although I do not give weight to testimony supportive of the General Counsel in this regard, I do not believe that Snyder and Werner were deliberately stating falsehoods I deem their testimony as consistent with their understanding, though actually at odds with what was said by Cherry and McConnell Considering the overall testimony of Snyder and Werner, I regard them as truthful witnesses and I attribute this conflict to variant perspectives, rather than fabrication or mistruth 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seeking out Hollis, on that same day, to discuss the latter's expressed concern for her job. During this conversation, Cherry admitted to questioning Hollis as to Snyder's complaints concerning the lunch policy. I find that, in the overall context of this case, Respondent, on these occa- sions, engaged in coercive interrogation and thereby violated Section 8(a)(1) of the Act. b. The impression of surveillance I have credited Snyder's testimony that, on the morning of the discharge, Fisher, after questioning her as to why she had filed a charge, responded to Snyder's denial thereof by stating that it was known that Snyder had gone to the Board, that she was lying about it. and that the truth could be discovered through a Board agent. In the context of Respondent's other unfair labor practices, I find on the basis of Fisher's statements that Respondent further violated Section 8(a)(1). c. The threatened blacklisting It is true that on December 18, when Snyder and Werner appeared at the bank seeking, inter aha, an employment reference, Cherry, at one point, stated that if Snyder and her father didn't leave the premises , Cherry would see to it that Snyder would "never got [sic] another job in the whole area."36 The General Counsel, in support of this 8(a)(1) allegation, construes this as a threat of blacklisting "unless she [Snyder] and her father dropped the whole matter." I do not agree that the record admits of such an interpreta- tion. This statement was made at a time when Werner was insisting upon a favorable reference letter, and after tempers had become heated , and after Werner had been requested by Cherry to leave. My impression from the record is that Cherry's threat was limited to alleviating the disturbance and that it was too remote from any activity protected by the Act to be considered as constituting an unfair labor practice. Accordingly, I shall dismiss the 8(a)(1) allegation based on this incident. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. By coercively interrogating employees as to activities protected by Section 7 of the Act, and by creating the impression that such activities were subject to surveillance, Respondent has violated Section 8(a)(1) of the Act. 3. By discharging Darlene M. Snyder because Respon- dent believed that she had filed charges with the National Labor Relations Board, the Respondent has engaged in discrimination in violation of Section 8(a)(4) and (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 Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it shall take certain affirmative actions designed to effectuate the policies of the Act. It has been found that Respondent violated Section 8(a)(4) and (1) of the Act by discriminatorily discharging Darlene M. Snyder. I shall therefore recommend that Respondent offer her immediate and full reinstatement to her former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. I shall further recommend that Respondent make her whole for any loss of earnings she may have suffered as a result of her discharge by payment of a sum of money equal to that she normally would have earned from the date of discharge to the date of Respondent's offer of reinstatement, less net earnings, with backpay and interest thereon to be comput- ed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant io Section 10(c) of the Act, I hereby issue the following recommended: ORDER37 Respondent, First National Bank & Trust Co., Pitts- burgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their activities protected by the Act. (b) Creating the impression that employee activity protected by the Act is subject to surveillance. (c) Discouraging employees from filing charges under the Act, by discharging or in any other manner discrimi- nating against them in regard to their hire or tenure of employment or any term or condition of employment. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Darlene M. Snyder, immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, in the manner set forth in the section of this Decision entitled "The Remedy." (h) 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 or useful in analyzing the amount of backpay Based on the testimony of Snyder and Cherry provided in Sec 102 48 of the Rules and Regulations, be adopted by the 17 In the event no exceptions are filed as provided by Sec 102 46 of the Board and become its findings, conclusions, and Order, and all objections Rules and Regulations of the National Labor Relations Board, the findings, thereto shall he deemed waived for all purposes conclusions, recommendations, and recommended Order herein shall, as FIRST NATIONAL BANK & TRUST CO. due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its bank in North Hills, Pittsburgh, Pennsylva- nia, the attached notice marked "Appendix."38 Copies of said notice , on forms provided by the Regional Director for Region 6, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. •{K In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant 103 Reasonable steps shall he taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6. in writing, within 20 days from the receipt of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegation of the complaint that the Respondent violated Section 8(a)(1) of the Act by threatening an employee with blacklisting be, and it hereby is, dismissed. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."