Exchange Bank, The

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Exchange Bank and Exchange Bank Collective Bargaining Group and International Association of Machinists and Aerospace Workers, AFL- CIO. Cases 9-CA-13566 and 9-CA-14187 September 30, 1982 DECISION AND ORDER On March 13, 1981, Administrative Law Judge Robert C. Baison issued the attached Decision in this proceeding.' Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's ex- ceptions. 2 The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ' On April 6, 1981, the Administrative Law Judge issued an Erratum correcting par. 2(b) of his recommended Order and the corresponding paragraph in the notice to reflect that the employees' unconditional offer to return to work was made on March 19, and not April 19, 1979, and that any backpay due and owing said employees should be computed from 5 days after the March 19 date. While we agree that the employees' unconditional offer to return to work was made on March 19, we do not agree that any backpay due and owing should be computed from 5 days hence. Rather, the record clearly establishes that on March 19 Respond- ent unlawfully rejected the strikers' unconditional offer to return to work. Under these circumstances, the 5-day period, which is usually granted to respondents in situations where no unconditional offer has been made, is inapplicable. See N.Vewport News Shipbuilding and Drydock Company, 236 NLRB 1637, 1638 (1978); Drug Package Company, Inc., 228 NLRB 108, 114 (1977), Accordingly, the Administrative Law Judge's recommended Order shall be modified to require that any backpay due and owing said employees shall be computed from March 19, the date on which the unconditional offer to return to work was made. a Respondent has also submitted to the Board a letter dated April 21, 1981, purportedly showing that Respondent has had a change in manage- ment atid that some of the alleged discriminatees have been reinstated or offered reinstatement. Additionally, on September 30, 1981, and on Sep- tember 8, 1982, Respondent filed motions to reopen the record so that it could introduce into the record essentially the same evidence which was set forth in its April 21 letter and evidence relating to its possible merger with another bank. In his brief to the Board, the General Counsel moves to have the Board reject the letter as being untimely submitted and as containing evidentiary matter which cannot properly be submitted to the Board in this manner. Having considered the matter, we agree with the General Counsel that the April 21 letter is untimely and cannot constitute part ot the record herein. Accordingly, we grant the General Counsel's motion by striking the untimely submitted evidence and disregarding it in our deliberations John Grissom, Mikos Doka-Suna, David Springer, and Richard Baker a General Partnership d/b/a Narural Ifeating Systrems, 252 NLRB 1082 at fn I (1980). Further, Respondent's motions to reopen the record are also denied since the evidence sought to be introduced, even if considered, would not alter our decision since the issues of reinstatement raised therein or its possible nierger with another bank have no bearing on its commission of the unfair labor practices, but pertain to matters of compliance. Our denial of the motions and rejection of the letter, howev- er, do not preclude Respondent from submitting the evidence concerning the reinstatement of the discriminatees at the compliance stage of the pro- ceedinp, when the raising of such matters will, as noted, be appropriate I Rc:.,,ondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. The Administrative Law Judge found that, upon discharging employ- ees Pat Nance and Nedra Nolan, Respondent's chairman of the board, James McKelvey, in response to the employees' comment that their 264 NLRB No. 111 ings,3 and conclusions4 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 1. The Administrative Law Judge found, inter alia, that on April 10, 1979,5 the Exchange Bank Collective Bargaining Group (hereinafter the Group), a labor organization formed by Respond- ent's employees, had affiliated with Local Lodge 2507, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter the IAM); and that, consequently, a bargaining order, which he deemed necessary and appropriate in light of Respondent's numerous and serious unfair labor practices, should issue on behalf of the IAM and should be made effective as of February 26, the date on which the Group made its demand for recognition on Respondent, rather than April 25, when the IAM made its demand for recognition. While we agree with the Administrative Law Judge that the IAM has become the collective-bar- gaining representative of Respondent's employees in an appropriate unit,6 we do so for reasons other than those stated by him inasmuch as we find that no affiliation occurred between the Group and the IAM. The relevant facts reveal that, during the latter part of February, Respondent's employees, first in- dividually and then as a group, began expressing to Respondent their dissatisfaction with their wages and other working conditions. Because of Respond- ent's failure to meet their demands for improved wages and working conditions, the employees began an organizational drive which, on February 25, led to the formation of the Group. On that day, 9 of Respondent's 12 unit employees signed author- ization cards authorizing the Group to represent them for collective-bargaining purposes with Re- spondent. 7 The following day, February 26, the Group requested that Respondent recognize and rights were being violated, stated that "they did not have any rights." According to the employees' credited testimony, McKelvey's actual re- sponse was that "he knew" that their rights were being violated. The Ad- ministrative Law Judge's mischaracterization of their testimony, howev- er, does not affect the results herein. 4 We agree with the Administrative Law Judge that Respondent, inter alia, violated Sec 8(a)(1) of the Act by insisting that employees meet with it individually, rather than collectively, as they had previously done, since such conduct was designed to prevent employees front acting col- lectively for their mutual aid and protection 5 All dates hereinafter are in 1979 unless otherwise indicated 6 The Administrative Law Judge found, and we agree, that the appro- priate unit consists of all clerical employees, including teller and book- keeping employees, employed by Respondent at its Mayfield, Kentucky, bank, but excluding all officers, professional employees, guards, and su- pervisors as defined in the Act. 7 Another employee, Andrea Wertz, was hired by Respondent on Feb- ruary 26 bringing the total number of employees in the unit to 13 Addi- tionally, the record reveals that employee Joyce Kelton, who was unable to attend the meeting during which the authorization cards were signed, authorized employee Nance to sign a card on her behalf by a telephone conversation that same day. 822 THE EXCHANGE BANK bargain with it but Respondent, by letter dated March 7, declined to do so, choosing instead to continue on a course of unlawful conduct which began on February 22 and continued into late June. Because of the Group's inability to obtain recog- nition and to adequately represent their interests, Respondent's employees found it necessary to fur- ther pursue their organizational drive in an effort to obtain more effective representation. In this regard, they contacted the IAM and, after discus- sions with IAM officials, became convinced that the IAM would be more successful in representing them than the Group had been. At a meeting held on April 10, which all mem- bers were invited to attend, eight of the Group members passed a resolution effectively dissolving the Group as a labor organization and which pur- portedly caused the Group to affiliate with the IAM.8 Immediately thereafter, these 8 employees signed authorization cards on behalf of the IAM which consequently gave the IAM the clear and uncoerced support of the majority of the 13 em- ployees in the unit. Having obtained the support of a majority of Respondent's employees, the IAM, on April 25, requested that Respondent recognize and bargain with it but Respondent, on April 30, refused to do so, persisting instead on its previously charted course of unlawful conduct. On the basis of the above facts we find, contrary to the Administrative Law Judge, that no affili- ation occurred here. Rather, the evidence estab- lishes that, when the Group failed to obtain recog- nition from Respondent, the employees who had supported it sought more effective representation, and thereafter disbanded and dissolved the Group upon determining that the IAM could better serve their representational needs. In this regard, these employees approached the IAM and, after conclud- ing that it could provide representation that the Group could not provide, held a meeting during which they passed a resolution explicitly dissolving the Group. As of that moment, the Group effec- tively ceased to exist as a labor organization. That the resolution also went on to state a desire to "af- filiate" with the IAM is of no consequence in light of the Group's dissolution and the employees' ex- ecuting authorization cards on behalf of the IAM. By virtue of these two acts, it is apparent that what actually occurred here, regardless of the expression of affiliation contained in the resolution, was not an affiliation of one union with another but rather the repudiation by the unit employees of the labor or- ganization they had created for a more established 8 Nance and Nolan, who had served as the Group's president and vice president, respectively, became committee-persons within the IAM. Ad- ditionally, all of the membership fees and dues in the Group's treasury were transferred to the IAM. and experienced one; i.e., the IAM. Under these circumstances, we find that the IAM became the collective-bargaining representative of Respond- ent's employees in the appropriate unit when, on April 10, 8 of the 13 unit employees, 9 a clear ma- jority, designated it as such by signing valid au- thorization cards for it, and not, as found by the Administrative Law Judge, by virtue of an affili- ation which we have found did not occur.'0 2. In agreement with the Administrative Law Judge, we find that Respondent's unfair labor prac- tices were so egregious and pervasive that their co- ercive effects cannot easily be eliminated by use of the Board's traditional remedies nor can a fair elec- tion be held among Respondent's employees. Thus, the evidence clearly establishes that, in a deter- mined effort to restrain employees in the exercise of their Section 7 rights and in an attempt to quash any union activity in its inception, Respondent, on February 22, embarked on a course of unlawful conduct which extended throughout the employ- ees' organizational campaign into late June. During that period, Respondent, in violation of Section 8(a)(1) of the Act, threatened its employees with discharge, made unlawful promises of benefits, un- lawfully interrogated employees concerning their 9 The record reveals that subsequent thereto employees Linda Foy, Patti Hopwood, and Julie Sassen signed authorization cards for the IAM on May 4, May 6, and July 16, respectively. 'o The Board has defined an affiliation as "the alignment or association of a new organization, nor does it result in the dissolution of an already existing organization." (Emphasis supplied.) See Amoco Production Compa- ny, 239 NLRB 1195, 1197 (1979). As noted, the Group had been effec- tively dissolved prior to the IAM's having received the support of a ma- jority of the unit employees and, consequently, no affiliation could have occurred. Further, the fact that Nance and Nolan became committe-per- sons with the IAM or'that the unit employees purportedly maintained a limited semblance of autonomy does not, in our view, warrant a contrary finding. Further, the instant case is unlike cases involving affiliation. In those cases, the union seeking affiliation had previously been recognized by the employer or certified by the Board and, after the affiliation, the employer had refused to recognize and bargain with the newly affiliated union on the ground that the affiliation created a change in the employee's bar- gaining representative or a new labor organization which, inter alia, was disruptive of an established bargaining relationship. Here, the Group, prior to becoming defunct, had never been recognized by Respondent or certified by the Board and Respondent's refusal to recognize the Group was based solely on its unsupported claim that the Group lacked majority support. Further, Respondent's subsequent refusal to also recognize and bargain with the IAM was based on the same unfounded claim and was not based on any purported disruption of a previously established bar- gaining relationship through an alleged affiliation. To the contrary, be- cause of its unlawful conduct, no bargaining relationship had ever been established either with the Group or thereafter with the IAM. Indeed, it is clear that Respondent had no intention of granting recognition to or bargaining with any labor organization selected by its employees as their collective-bargaining representative. In finding that the "affiliation" vote of the Group members complied with Board standards, the Administrative Law Judge relied on Amoco Production Company, supra. We note, however, that the holding in that case recently was reconsidered and reversed by the Board in Amoco Pro- duction Company, 262 NLRB 1240 (1982) However, given our conclu- sion that the circumstances here, in fact, do not present an affiliation, no further discussion of the holding of the most recent Amoco decision is necessary for the resolution of the instant case 823 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union or protected activities, created the impres- sion that it employees' activities were being kept under surveillance, tried to force employees into quitting and stated to them that it would be diffi- cult to obtain employment elsewhere because of their activities, refused to meet with them in a group, and warned them against discussing among themselves the substance of meetings held with in- dividual employees. In addition, Respondent, in violation of Section 8(a)(3) and (1) of the Act, discharged the chief leading union adherents, Nance and Nolan, imme- diately upon learning of the Group's formation and upon discovering that they had been chosen as president and vice president of the Group. Such conduct was clearly designed to convey to its em- ployees the message that a similar fate awaited 'those who engaged in union activities or lent their support to such activities. That this was Respond- ent's intent and purpose is clear from the fact that it refused to reinstate six employees who walked off their jobs in protest over the discharge of Nance and Nolan, despite their unconditional offers to return to work, in further violation of Section 8(a)(3) and (1) of the Act. Finally, in furtherance of its design to defeat the employees' organizational efforts, Respondent, in violation of Section 8(a)(5) and (1) of the Act, re- fused to recognize and bargain with the Group at a time when it knew that the Group had the support of a majority of its employees." Respondent's effort in this regard proved to be successful as evi- denced by the fact that, as a direct result of the Respondent's actions, the employees abandoned their support for the Group and consequently gave their support to the IAM in hopes of obtaining more effective representation. Having been success- ful in undermining support for the Group, Re- spondent then sought to undermine and dissipate employee support for the IAM by refusing, in vio- lation of Section 8(a)(5) and (1) of the Act, to rec- ognize and bargain with the IAM at a time when it knew or should have known that that labor organi- zation had the support of a majority of its employ- ees. Instead, Respondent chose to continue engag- ing in unfair labor practices, which conduct, as noted, above, continued into late June. II Having found that Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Group, the Adminis- trative Law Judge also recommended that Respondent be required to bargain with the Group and its successors as of February 26, when the Group made its demand for recognition. While we agree that Respond- ent's refusal to recognize and bargain with the Group violated Sec. 8(a)(5) and (1) of the Act, we nevertheless find that a bargaining order would be inappropriate inasmuch as the Group has ceased to exist as a labor organization and, therefore, no longer represents Respondent's em- ployees. In light of Respondent's numerous and serious unfair labor practices, as described above, we are convinced that the inhibiting effects of such unlaw- ful conduct will continue to linger on and will pre- vent the holding of a fair election in this case. Rather, under the circumstances herein, we find that a bargaining order, requiring Respondent to recognize and bargain with the IAM, would better serve to protect employee sentiment expressed through authorization cards. In so doing, we are not unmindful of the fact that, as pointed out by Respondent in its motions to reopen the record, almost 3 years have passed since it first engaged in the conduct found unlawful herein. However, when we consider the serious nature of Respond- ent's unlawful conduct which, as noted above, con- sisted, inter alia, of threats of discharge and the dis- charge of the two leading union adherents,12 and which resulted in the dissolution of one labor orga- nization and the attempted destruction of majority support for another, we are convinced that the last- ing effects of such conduct cannot easily be eradi- cated by the mere passage of time.' 3 As stated by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 612 (1969), "a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct. If an employer has succeeded in undermining a union's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to violate the cease-and-desist order by further unlaw- ful activity. The damage will have been done, and perhaps the only fair way to effectuate employee rights is to re-establish the conditions as they exist- ed before the employer's unlawful campaign." In view of the above, we find that the best method for remedying Respondent's unfair labor practices and for deterring any future misconduct would be through the issuance of a bargaining order. 4 l2 Threats of discharge and the discharge of union adherents have long been considered by the Board and the courts as "hallmark" violations jus- tifying the issuance of bargaining orders. See Ighland Plastics Inc., 256 NLRB 146 (1981); NLR.B. v. Jamaica Towing, Inc., 602 F.2d 1100 (2d Cir. 1979), which recognized the above-type conduct as "hallmark viola- tions" justifying the need for a bargaining order which, for other reasons, denied enforcement of the Board's bargaining order. iJ The mere passage of time alone has been found not to constitute a sufficient basis for denying a bargaining order. See Jamaica lowing, Inc., 247 NLRB 353, 355 (1980); N.L.R.B. v. Pacific Southwest Airlines, 550 F.2d 1148 (9th Cir. 1977). " Although we have rejected Respondent's offer of evidence concern- ing the alleged subsequent reinstatement of some of the discriminatees, even were we to accept and consider such evidence, we would find that a bargaining order is warranted. It is reasonable to assume that these em- ployees, once having been discharged for their union activities, would be painfully aware that future support of a union could lead to the same end. In such circumstances, as the Supreme Court has so aptly phrased it, Re- spondent "may see no need to [engage in] further unlawful activity. The damage will have been done ... ." 824 THE EXCHANGE BANK Accordingly, Respondent shall be ordered to recognize and bargain with the IAM as the em- ployees' exclusive collective-bargaining representa- tive. However, having found that no affiliation oc- curred between the Group and the IAM, we shall, contrary to the Administrative Law Judge's find- ing, require Respondent to bargain with the IAM as of April 25, the date on which the IAM made its demand for recognition. The Administrative Law Judge's recommended remedy is hereby modified to conform to our findings herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, The Exchange Bank, Mayfield, Kentucky, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete the last full sentence of paragraph 2(b) and, in place thereof, insert the following sentence: "The above-described backpay due the six unfair labor practice strikers shall be computed as of March 19, 1979, the date on which they made an unconditional offer to return to work." 2. Insert the following as paragraphs 2(c) and (d) and reletter the subsequent paragraphs accordingly: "(c) Expunge from its files any references to the unlawful discharges of and/or failure and refusal to reinstate the above-named employees, and notify them in writing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel actions against them. "(d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT coercively interrogate our employees concerning their protected concert- ed or union activity or such activity by other employees. WE WILL NOT threaten our employees with discharge or other reprisals for engaging in protected concerted or union activity. WE WILL NOT warn or instruct our employ- ees not to discuss conversations concerning wages and other terms and conditions of em- ployment with each other. WE WILL NOT insist that our employees meet with management on an individual basis for the purposes of discussing wages and other working conditions. WE WILL NOT promise our employees better economic benefits or jobs to induce them to abandon engaging in protected concerted or union activity. WE WILL NOT create the impression that we have our employees' protected concerted or union activity under surveillance. WE WILL NOT attempt to force our employ- ees to quit because they engage in protected concerted or union activity. WE WILL NOT tell our employees it would be more difficult to obtain a job elsewhere be- cause they have engaged in protected concert- ed or union activity. WE WILL NOT discharge our employees be- cause they engaged in protected concerted or union activity in order to discourage other em- ployees from engaging in such activity. WE WILL NOT refuse to bargain collectively with respect to wages, hours, and other terms and conditions of employment with Locdal Lodge 2507, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of our employees in the appropriate unit. WE WILL NOT fail and refuse to immediately reinstate our unfair labor practice strikers upon their unconditional offers to return to work. 825 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. WE WILL immediately recognize and bar- gain collectively with the above-named Union as the exclusive representative of all the em- ployees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody such agreement in a signed contract. WE WILL offer Pat Nance, Nedra Nolan, Martha Beasley, Susan Janes, Joyce Kelton, Peggy Morgan, Linda Reid, and Janis Strong immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights and privileges previously en- joyed; and make them whole for any loss of earnings they may have suffered due to the discrimination practiced against them by paying them the sums they would have earned, less net interim earnings, with interest thereon. The above-described backpay due the six unfair labor practice strikers shall be com- puted as of March 19, 1979, the date on which their unconditional offer to return to work was made. WE WiI.L expunge from our files any refer- ences to the unlawful discharges of and/or failure or refusal to reinstate the above-named employees, and WE WILL notify them in writ- ing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel actions against them. THE EXCHANGE BANK DECISION STATEMENT OF THE CASE ROBERT C. BATSON, Administrative Law Judge: This consolidated proceeding under the National Labor Rela- tions Act, as amended, 29 U.S.C. 151, et seq. (herein the Act), was heard before me on various dates in October and November 1979,1 in Mayfield, Kentucky, based upon an amended consolidated complaint, as further amended at the hearing, issued by the Regional Director for Region 9 (Cincinnati, Ohio) on September 25 (the only operative complaint in this proceeding) arising out of a charge filed on February 27 in Case 9-CA-13566 by Exchange Bank Collective Bargaining Group (hereafter usually referred to as the Bargaining Group), and a I All relevant events in this case occurred during the calendar year 1979 and unless otherwise indicated all months and dates referred to hereinafter are 1979. charge filed on August 8 in Case 9-CA-14187 by Inter- national Association of Machinists and Aerospace Work- ers, AFL-CIO (herein called the Union or IAM), alleg- ing that The Exchange Bank (herein called the Respond- ent or the Employer), had violated Section 8(a)(1), (3), and (5) of the Act. In substance, the amended complaint alleges that the Respondent by its manager and vice president, Cecil Day, violated Section 8(a)(1) of the Act in eight separate particulars, occurring mostly on February 23, and that Respondent's chairman of the board, James McKelvey, violated Section 8(a)(1) of the Act in three separate par- ticulars on June 28. It is also alleged that on February 26, the Respondent discharged its employees Nedra Nolan and Pat Nance and thereafter failed and refused to reinstate them, in violation of Section 8(a)(3) and (1) of the Act, and the work stoppage and strike on February 26 was caused and prolonged by these unfair labor prac- tices and, thus, was an unfair labor practice strike. It is alleged that, on March 19, the striking employees uncon- ditionally offered to return to work and on the same date the Respondent refused to reinstate them, also in viola- tion of Section 8(a)(3) and (I) of the Act. Other issues raised by the complaint are whether, on February 25, a majority of the employees in an appropri- ate unit, hereinafter set forth, designated the Exchange Bank Collective Bargaining Group as their exclusive col- lective-bargaining representative and whether that group was the exclusive representative of the employees at all times, until April 10, when the members of the Exchange Bank Collective Bargaining Group merged with Local Lodge 2507 of the International Association of Machin- ists and Aerospace Workers, AFL-CIO, which then became, and has remained, the exclusive bargaining rep- resentative of all the employees in the unit. The com- plaint alleges that, on February 26, the Bargaining Group requested the Respondent to recognize and bar- gain with it, and that, on April 25, and continuing there- after, the Union requested the Respondent to recognize and bargain with it as the exclusive representative of the employees in the unit, and that at all times since those dates the Respondent has failed and refused to recognize and bargain with either the Bargaining Group or the Union. The refusal to grant recognition and bargain with the Bargaining Group and/or the Union is alleged to violate Section 8(a)(5) and (1) of the Act, and the Gener- al Counsel contends that an order requiring the Respond- ent to recognize and bargain with the Union should issue since the Respondent's unfair labor practices have made uncertain the possibility of conducting a free and fair election. The Respondent's duly filed answer admits the filing and service of the charges; the commerce data; that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that the Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act; that James McKelvey, Cecil Day, Judy Mohler, and Malcolm Boaz are supervisors or managerial officials of the bank as alleged in the com- plaint. It further admits that it discharged Nedra Nolan 826 THE EXCHANGE BANK and Pat Nance on February 26, but contends that the discharges were for cause and not in violation of any section of the Act. It denies that the strike which com- menced on February 26 was an unfair labor practice strike, and further denies the commission of any unfair labor practices and that the Exchange Bank Collective Bargaining Group is a labor organization within the meaning of Section 2(5) of the Act. Preliminary issues raised, which must be dealt with here, include a description of the appropriate unit 2 and whether or not two individuals should be included in the unit. Contrary to the General Counsel and the Charging Party, the Respondent would include Anna Lee Hamlet, its officer and assistant cashier, in the unit based upon the contention that her titles are merely honorary and she exercises no managerial or supervisory functions. Also contrary to the General Counsel and the Charging Party, the Respondent would exclude Janis Strong, its head bookkeeper, as a supervisor. This is based upon the contention that she has been granted and exercises at least some of the indicia of supervisory authority set forth in Section 2(11) of the Act. Upon the entire record in this case, including consider- ation of able briefs and oral arguments by the parties, and my observations of the testimonial demeanor of the numerous witnesses testifying under oath, and upon sub- stantial reliable evidence, I make the following: FINDING OF FACTS I. THE BUSINESS OF THE RESPONDENT The Respondent is a Kentucky corporation engaged in the commercial and general banking business in the city of Mayfield, Kentucky. During the 12 months preceding the issuance of the amended complaint herein, in the course and conduct of its business operations, it received gross income in excess of $500,000 from investments valued in excess of $1-1/2 million. During the same period of time the Respondent transferred funds in excess of $50,000 directly to banks located outside the Com- monwealth of Kentucky. The complaint alleges, the answer admits, and I find that the Respondent was, and is, an employer as defined in Section 2(2) of the Act, and engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that International Association of Machinists and Aero- space Workers, AFL-CIO, is, and has been at all times I The complaint alleges the appropriate unit to be: "All nonexempt employees employed by Respondent at its Mayfield, Kentucky, bank, ex- cluding all other employees and all professional employees, guards and supervisors as defined in the Act." This unit description does not com- port with the language generally used by the Board in defining an appro- priate unit and was apparently taken from the unit described by the Bar- gaining Group in its demand for recognition on February 26. At the hearing the General Counsel contended that "all nonexempt employees" simply meant that all officers of the bank would be excluded. The Re- spondent professed not to understand the unit sought by the demand. In his brief, counsel for the General Counsel proposed several different units which would apparently include the same employees. material herein, a labor organization within the meaning of Section 2(5) of the Act. The Respondent's denial of the labor organization status of the Bargaining Group is apparently based upon its contention that Janis Strong, whom the Respondent contends to be a Section 2(11) supervisor, was active in the formation of the group and that activity fatally taint- ed the status of the group as a labor organization. In view of my findings hereinafter that Strong was at no relevant time a Section 2(11) supervisor, assuming that supervisory participation in the organization of the group would have been fatal, the Respondent's defense must fall. The undisputed testimony of Patsy Nance, Nedra Nolan, and others establishes that the sole purpose of the employees meeting on February 25 was to form a bar- gaining group for the exclusive purpose of dealing with the employer (The Exchange Bank) concerning labor disputes, wages, rates of pay, hours of work, and other conditions of employment.3 Accordingly, it is clear that the Bargaining Group formed by the employees of The Exchange Bank on February 25 was at all times material herein a labor or- ganization within the meaning of Section 2(5) of the Act. Ill. FINDING 01 FACTS A. Preliminary Statement Prior to addressing the facts out of which the unfair labor practices here arose, it may be helpful to set forth, by way of background, certain pertinent events preced- ing the alleged unfair labor practices, and a cast of char- acters involved in this case. In this section I shall also make a finding as to the appropriate unit and the compo- sition of that unit at all relevant times. Although the tes- timony and documentary evidence in this case is rather voluminous, there is no significant testimonial or eviden- tiary dispute as to the facts here, with the exception of some of the independently alleged 8(a)(l) violations. At times relevant herein, mid-February to late June 1979, the bank's board of directors were: J. S. McKel- vey, chairman; R. E. Andrus, president; Malcolm Boaz, corporate attorney; and W. B. Driver. The bank's offi- cers, in addition to its president Andrus, were Cecil Day, vice president and bank manager; Jimmy Lee Prince, vice president and cashier; Judy Mohler, assistant vice president; and Anna Lee Hamlet, assistant cashier. 4 Prior to early February, Eugene L. Hamby had also been a member of the board of directors and the bank's chief executive officer. On or about that date Hamby was relieved of all his duties at the bank on the recom- mendation of the Kentucky Banking Commission who 3 Sec 2(5) of the Act reads as follows: The term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose. in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or condi- tions of work. 4 As noted, the Respondent takes the position that Anna Lee Hamlet, although listed on its comparative statement of condition as an officer and assistant cashier, is de facto not an officer of the bank and should be included in the unit 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asserted that it had discovered a number of banking irre- gularities attributable to Hamby. Cecil Day, who was then a vice president, and apparently the bank's assistant manager, was promoted to bank manager and was re- sponsible for the day-to-day operations of the bank. However, according to the Respondent, Day was never granted all the authority Hamby had enjoyed including the authority to hire and fire employees, or apparently to grant wage increases without the consent of the board of directors. Thus, according to the Respondent, the trium- virate of McKelvey, Boaz, and Driver formed a commit- tee to operate the bank. B. The Appropriate Unit As heretofore noted, the unit alleged as appropriate in paragraph 10 of the complaint is somewhat ambiguous and does not comport with language used by the Board in unit determinations. However, there does not appear to be any ambiguity in the classifications of employees sought to be represented by the Bargaining Group and the Union. It is clear that all parties viewed the unit as including all tellers and bookkeeping department employ- ees, some of whom performed other duties such as tele- phone operator and proof operator. Accordingly, I find that: All clerical employees, including tellers and book- keeping employees employed by the employer at its Mayfield, Kentucky bank, excluding all officers, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. C. Disputed Unit Employees The parties agree that on February 25, the date rele- vant to the majority status of the Bargaining Group, there were 12 employees in the unit. As heretofore noted, they differ as to the inclusion of two such em- ployees. Contrary to the General Counsel, the Bargain- ing Group, and the Union, the Respondent would in- clude in the unit its officer and assistant cashier, Anna Lee Hamlet. The Respondent contends that Hamlet was given these titles some years ago at her own request be- cause she was a long-term and valued employee, and it wanted to honor her in that manner. It insists her duties are essentially those of the other tellers and that she does not exercise any supervisory authority over any other employee. There is nothing in the record to suggest that Hamlet has any authority to hire or fire employees or to effectively recommend such, but the same is true of Day. It is admitted that Hamlet has cashier check and money order signing authority, which is possessed only by other officers; that she handles the night depository which other clerical employees do not; that she can open the Respondent's safety deposit boxes in the presence of one clerical employee (two clerical employees cannot). Her name appears as an officer and assistant cashier on all of the comparative statement of condition reports issued quarterly by the bank, at least some of which are pub- lished in local newspapers and others made available to the bank's customers. In my view, even though there is no evidence that Hamlet exercises, or has been granted, any supervisory authority per se over any employee, it is clear that her interest lies more with that of her fellow officers than with the unit employees.5 Accordingly, I find that Anna Lee Hamlet is excluded from the appropriate unit. Contrary to the General Counsel, the Bargaining Group, and the Union, the Respondent would exclude its head bookkeeper, Janis Strong, as a supervisor. At times relevant here, the Respondent's bookkeeping department was located on the second floor of the bank building and employed four to five employees, including Strong. Strong testified that at the time Hamby promoted her to head bookkeeper he advised her that it was her responsi- bility to see that the work got out of her department and sent to the computer processing center located at Padu- cah, Kentucky, and to review the work done by other employees and correct any mistakes that she discovered. There is no contention that Strong had the authority to hire or fire employees and she testified that she spent in excess of 80 percent of her time performing the routine bookkeeping duties the other bookkeeping employees performed. She testified that on one occasion, when a question of her authority to discipline an employee arose, Hamby told her that she did not have such authority but to bring any matter of that nature to his attention and he would take care of it. The Respondent contends that on one occasion Hamby fired a bookkeeping department employee after Strong had complained to him that the employee was in- efficient. However, the record does not disclose whether or not Hamby made an independent investigation prior to taking this action or even whether or not Strong made any recommendation in that regard to Hamby. The Re- spondent also argues that if Strong is not a supervisor then there is no supervisor in its bookkeeping department which is located on the second floor away from the rest of its operations. However, the record discloses that the work performed in the bookkeeping department is rou- tine in nature and that each bookkeeping department em- ployee is familiar with the routine work she performs each day. Consequently, there is little, if any, need for the exercise of independent judgment on the part of Strong or anyone else in making assignments to the em- ployees there. In my opinion, I have concluded that the position oc- cupied by Strong is similar to that of a "leadperson," and that she has never been granted or exercised any indicia of supervisory authority as set forth in Section 2(11) of the Act. Accordingly, Strong is included in the appropri- ate unit. Hydro. Conduit Corporation, 254 NLRB 433 (1981); Upshur-Rural Electric Cooperative Corporation, 254 NLRB 709 (1981). 6 Contrary to the other officers, who are salaried and paid biweekly, Hamlet is paid hourly, punches a timeclock, and receives her pay on a weekly basis as do the unit employees. However, in my view this does not alter the conclusion that her interest lies more with management than that of unit employees. 828 THE EXCHANGE BANK D. The Employees' Concerted Activities and the Formation of the Exchange Bank Collective Bargaining Group The first part of February, shortly after Cecil Day was placed in charge of the day-to-day operations of the bank, Patsy Nance and apparently a number of other em- ployees approached Day on an individual basis and re- quested a wage increase. It appears that the employees of the bank were paid minimum wage or slightly (not more than 40 cents an hour) above. Day's response to the em- ployees was negative, indicating that raises did not appear feasible in the foreseeable future and apparently alluded to the "turmoil" in the bank which had been caused by the dismissal of Hamby and the banking irre- gularities that had been discovered. The bank's business hours on Fridays are 9 a.m. to 2 p.m., and 4 to 6 p.m. Thus, between 2 and 4 p.m. the bank is closed for business. The record establishes that, during that period of time after employees have complet- ed any work accumulated from the morning business, they are free to do whatever they wish so long as they are back at the bank by its 4 p.m. opening time. On Friday, February 16, during the time the bank was closed for business, between 2 and 4 p.m., eight or nine or the unit employees congregated in the bookkeeping department where a discussion arose concerning their dissatisfaction with their wages and other working condi- tions. After some discussion the group selected Susan Janes, a loan teller, to go to Day's office and, as their representative, express to him their dissatisfaction with their wages and working conditions. According to Janes, she also told Day when she went to his office that it ap- peared that some of the employees were about ready to walk out. Day's response to Janes' expression of the em- ployees' dissatisfaction with their wages and working conditions, as reported back to the employees by Janes, was clearly not satisfactory to them. Day was called by them on the intercom and requested to come to the bookkeeping department. In response to the request Day went to the bookkeeping department and, according to Patsy Nance, Assistant Vice President Judy Mohler and Assistant Cashier Anna Lee Hamlet were also present in the bookkeeping department from time to time during their discussion with Day. It is undenied by Day or anyone else that the employ- ees expressed their dissatisfaction with their wages and working conditions and they requested that Day arrange for them to meet with the board of directors so that they could present their problems directly to them. According to Day, and some other employees, Day agreed that their wages were too low but persuaded the employees that it would be better if he spoke with the board of di- rectors on their behalf with respect to obtaining more money for them. He advised them that there would be a board of directors' meeting on February 20, and he would present their complaints at that time and see what could be accomplished. The employees agreed to this and there was apparent- ly very little discussion among them concerning their dissatisfaction until after Day reported back to most of them individually on February 22 the amount of wage increase he had been able to obtain for them. During the interim, i.e., between February 16 and 22, Day approached Patsy Nance, who appeared to be one of the leaders of the group of employees complaining of their wages and working conditions, and asked her to "hang loose" and "sit tight" and he assured her that she would be pleased with her forthcoming wage increase. It appears that Day may have approached other employees in the same vein. According to the undisputed testimony of Day, McKelvey, and Boaz, at the February 20 board of direc- tors' meeting, Day advised the board of the employees' dissatisfaction with their wages and perhaps some other conditions of employment, and the board decided to dis- tribute merit wage increases to the unit employees, with the exception of one who did not receive a raise in view of her work performance. The raises ranged from 10 cents per hour to 30 cents per hour. Finally, on February 22, a Thursday, Day called most, if not all, of the unit employees into his office individual- ly and advised them of their respective wage increases. It appears that he commiserated with them by telling them that he knew it was not sufficient but it was as -much as he could obtain at that time. It appears, from the testimony of the employees, that most of them ex- pressed dissatisfaction with the wage increase at this time. During the separate conversations that Day had with Nedra Nolan and Patsy Nance that day, he told them they were good employees and would be difficult to re- place and that their raises would be 20 cents per hour. 6 He also advised them that a new employee, Andra Wertz, would be reporting for work on Monday, Febru- ary 26, to relieve Nolan, Nance, and Assistant Vice President Judy Mohler of some of their respective duties. Nolan expressed the view that she would rather be given a better raise than a cut in her job duties. She contends that this is the first that she had heard of the new em- ployee coming to work on February 26. Nance, when in- formed of the new employee and that she would be re- lieved of part of her duties, raised no objections to being relieved of some duties. According to both Nance and Nolan this is the first they had heard of the new employ- ee coming to work on Monday. According to the credited testimony of Nance, during the course of her conversation with Day he told her that he knew the individuals who were behind all the wage demands and that he should "go out there and fire them." 7 Accordingly, as alleged in the amended complaint, I find that Day's telling Nance that he knew who was behind the demand for more wages and he should go out and fire them constitutes a threat to discharge employees for engaging in protected concerted activity and present- ing grievances, as alleged in paragraph 5(a)(vii). 6 Nance received a 30-cent-per-hour pay increase 7 Day was not an impressive witness. His testimony was at times eva- sive and at odds with otherwise uncontroverted facts established by the record. On the other hand, Nance's testimony was direct and forceful, and totally uncontrovenrted or disputed except with respect to the inde- pendent 8(aXI) allegations against Cecil Day. Accordingly, I credit Nance's version of this conversation 829 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friday, February 23, was almost a repeat performance of the activities of the employees and of Day, as had oc- curred on Friday, February 16. Testimony was elicited from eight or nine employee witnesses, as well as from Cecil Day concerning the events occurring between 2 and 4 p.m. that day and there is no significant material conflict in the testimony of any of the employees or Day. That is not to say, of course, that each employee and Day used the same words in describing the events. The record establishes that, again during the 2 to 4 p.m. break, eight or nine of the unit employees met again in the bookkeeping department and discussed their dissatis- faction with the wage increase which they had received as well as other working conditions. Although Nance had been told on Thursday, February 22, that her pay in- crease would be 20 cents per hour, when she received her paycheck on February 23 it reflected a 30-cent-per- hour wage increase. After some further discussion the entire group of employees went to Day's office and, through Patsy Nance apparently designated as their spokesperson, advised Day that the raises they had re- ceived were insufficient. Day inquired as to how long they would give him to get them an answer as to wheth- er or not the Respondent would commit itself to provide future wage increases for them. Nance informed Day that they wanted his answer by 6 p.m. that day. There was evidently some further discussion, during which Nance and Nolan testified that Day looked direct- ly at them and stated that he thought there were a couple of employees who would not be satisfied with anything. According to employee Peggy Morgan, Day made a similar remark to her during a private conversa- tion that same day, stating that two of the employees would not be pleased no matter what management did. According to both Day and McKelvey, shortly after this encounter with the employees on February 23 Day telephoned McKelvey and advised him of the substance of the meeting and of the employees' continued dissatis- faction with their wages and working conditions. He also advised McKelvey that he had heard some employees were considering walking out or not reporting to work on Monday, February 26.8 In any event, Day informed McKelvey that he was meeting with the employees at 6 p.m. and McKelvey instructed him to ascertain from each employee if they would be at work on Monday and any employee who would not agree to report to work on Monday should be relieved of her keys to the bank. It appears that, after the first meeting with Day on February 23, the employees again had a conference and agreed that, regardless of the outcome of the discussion with Day at 6 p.m. that day, they would have a meeting on Saturday at 10 a.m. at Pappa G's restaurant located in Mayfield, Kentucky. As soon after the 6 p.m. closing hour as the individual employee could complete her work for the day, each re- ported to Day's office. Apparently four to six employees 8 It is unclear whether Day's "rumor" or information concerning the possibility that some employees may not report for work on February 26 was based upon the statement of Susan Janes to him at the February 16 meeting that some employees were ready to walk out, or whether or not anything had been said to Day on that day concerning the possibility of employees not reporting to work. arrived there at or about the same time, shortly after 6 p.m., and attempted to enter Day's office as a group. Day informed them that he would not talk with them as a group but only with them one at a time on an individu- al basis. Nedra Nolan specifically requested Day to speak with them as a group but he refused to do so." The em- ployees acquiesced in Day's demand and met with him individually. Janis Strong went first and was followed by the other seven employees present for that meeting. The General Counsel alleges that Day's refusal to meet with the employees as a group and his insistence upon talking with them on an individual basis only, if they wished to learn anything about their wage demands, violates Section 8(a)(1) of the Act. Stephens Produce Co., Inc., 214 NLRB 131, 138 (1974). Under the circum- stances here, the employees were clearly engaged in Sec- tion 9(a) activity which is protected by Section 7 of the Act, and Day's refusal to meet with them as a group vio- lates Section 8(a)(1) of the Act as alleged in paragraph 5(a)(iii). In addition to the unfair labor practice committed by Day by refusing, without acceptable reason, to meet with the employees as a group, the General Counsel con- tends that during the individual interviews with the em- ployees on February 23 Day committeed a number of other 8(a)(1) violations. First, the General Counsel al- leges that Day's interrogation of each of the employees as to whether they would report to work on Monday, February 26, in the absence of the safeguards for interro- gating employees promulated by the Board in Johnnies Poultry Co., 146 NLRB 770, 774 (1964), enforcement denied 344 F.2d 617 (8th Cir. 1965), and Struknes Con- struction Co., Inc., 165 NLRB 1062, 1063 (1967), consti- tutes coercive interrogation, and, in conjunction with his requirement that they commit themselves to work for 2 weeks or turn in their keys, which he explained to at least one employee meant being fired, further violated Section 8(a)(1) of the Act, as a threat to discharge for engaging in protected concerted activity. The Respondent contends that Day's inquiry of the employees as to whether they would work on Monday was privileged because of Janes' report to Day on Feb- ruary 16, that there was talk of a walkout, in view of the Kentucky statutes KRS 287.195 and 287.197 which re- quired the bank to remain open on all regular business days, as was February 26, and it had to know that it had the employee complement to comply with the statute. The cases cited by the Respondent l ° are inapposite on the facts here. ' Day testified to the effect that the employees arrived at his office and elected to come in one at a time and talk with him, and never requested that they meet with him as a group. As noted earlier, Day was not an impressive witness and I am persuaded, by the cumulative testimony of the eight employees who met with him that evening, that they requested to meet as a group and not on an individual basis. It should be noted in this regard that most of their previous meetings with Day had been on a group basis and not on an individual basis. Thus, I find it far more prob- able that the employees elected to continue that avenue of approach rather than to attempt to discuss their dissatisfactions with Day on an in- dividual basis. i' Marco Polo Resort Motel, 242 NLRB 1288 (1979), and Coopco, Incor- porated. d/b/a Dove Restaurant, Inc., 232 NLRB 1172 (1977). 830 THE EXCHANGE BANK Even assuming, which I do not, that the Respondent had reasonable cause to believe some of its employees may not report for work on February 26, so that it might conduct its business as required by Kentucky banking statutes, it probably had a right to uncoercively attempt to determine staff availability for Monday, February 26, but it may not do so in an atmosphere of other unfair labor practices. Cf. Preterm, Inc., 240 NLRB 654 (1979). However, where as here such inquiry is conditioned upon the employees' immediate agreement to work for 2 weeks and the threat that failure to so agree would result in discharge, such interrogation is coercive and tends to interfere with employees' Section 7 rights in violation of Section 8(a)(l). Thus, both the interrogation of the em- ployees concerning their availability for work on Febru- ary 26 and the threat to discharge if they did not imme- diately agree to work for 2 weeks violate the Act as al- leged in paragraph 5(a)(i) of the complaint. Commercial Management, Inc. d/b/a Continental Manor Nursing Home, 233 NLRB 665 (1977). It appears that at the conclusion of the meeting with each employee Day instructed, or admonished, each of them not to discuss with the other employees anything that had been said in the meeting or any agreement that had been reached concerning their wages and terms of employment, including whether they had agreed to work for 2 weeks. In paragraph 5(a)(iv) the General Counsel alleges this to violate Section 8(a)(1). It is well settled that an employer interferes with its employees' Section 7 rights by invoking rules or instruc- tions not to discuss their wages. T. V and Radio Parts Company, Inc., 236 NLRB 689 (1978). Similarly, rules or instructions forbidding discussion among the employees of work rules, which are terms and conditions of em- ployment, have been found to curtail or infringe upon employees' protected concerted activity and the exercise of Section 7 rights, Poly Ultra Plastics. Inc., 231 NLRB 787 (1977). At the meeting a number of employees, Reed, Jones, and Morgan, asked Day what other employees had de- cided with respect to working on February 26, and for 2 weeks. Day refused to tell them, saying that he wanted their own decision without being influenced by the others. In conjunction with Day's refusal to meet with the employees as a group, his admonition to them not to discuss their meeting with other employees, and his in- sistence upon an immediate decision from them, without benefit of group consultation, such conduct is coercive because of the atmosphere of reprisals it created, and fur- ther violates Section 8(a)(1) of the Act. See Mosher Steel Company, 220 NLRB 336 (1975). During Day's meeting with Martha Beasley he told her that he knew she was with the group of employees making an issue of more money and alluded to the fact that the bank (he) had other plans for her. Similarly, during Day's meeting with Nance, whom he knew to be one of the leaders of the group, he told her that she could be the head teller in 4 to 6 weeks, which job would pay $4 an hour. In paragraph 5(a)(ii) of the complaint, the General Counsel alleges each of these statements to constitute a promise of economic benefits to these employees to induce them to forgo engaging in protected concerted activity. Under the circumstances here, including the other unfair labor practices committed at these meetings, I agree that Day's statements to Beasley and to Nance were made to induce them to forgo engaging in protect- ed concerted or union activity in violation of Section 8(a)(1) of the Act. See N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964), reversing 304 F.2d 368 (5th Cir. 1962), enfg. 131 NLRB 806 (1961). As a result of their previous agreement, five of the unit employees, Nance, Nolan, Reed, Beasley, and Janes, met at Pappa G's restaurant on Saturday at 10 a.m. They discussed the activities of the past few days and their failure to make any progress toward getting more wages or better working conditions. Although Nolan had pre- pared a letter to several banking-related governmental agencies, it was decided not to be sent at that time, but instead to obtain information on how their group could be formalized and perhaps, by law, require the employer to deal with them on a collective basis. As a result of this discussion concerning their right to organize a union on Saturday, Nedra Nolan went to the library of Murray State College located nearby. There, with or without assistance, she located a volume of the second edition of CCH (Commerce Clearing House), dealing with the NLRA and employee rights thereunder, including the right to "form, join and assist" labor orga- nizations, and the right to bargain collectively with an employer. She copied, by Xerox, some 34 pages which she felt would be of help to the employees in their effort to bargain collectively with the employer. Armed with this information Nolan returned to May- field where she discussed the materials with Patsy Nance. Saturday evening and Sunday morning, February 25, Nance, Nolan, and other employees telephoned, or attempted to telephone, all the employees in the unit where they discussed the information Nolan had ob- tained, and scheduled a meeting with all the employees who could attend for 3:30 p.m. at DeVanti's restaurant. The purpose of the meeting was to consider a more formal organization of their group. In the meanwhile, on Saturday, according to McKel- vey and Day, they again discussed the employees' com- plaints and the impact of Nance and Nolan's statement that they "would not" or "would rather not" train the new employee during the 2-week period Day had re- quested. McKelvey reiterated his decision to wait until Monday to decide what to do if Nance and Nolan were asked to train the employee and refused at that time. Of the 12 employees in the unit, 9 employees attended the Sunday meeting at DeVanti's. Except as noted, there is no dispute as to the events transpiring there. Patsy Nance presided over the meeting and the materials ob- tained by Nolan concerning employee rights to organize a labor organization and collectively bargain with the employer were discussed and at least some of the materi- al was shown to the other employees. As a result of these discussions it was concluded by the employees that they could more effectively deal with the employer on matters concerning their wages and other conditions of employment if their group were more formally struc- 831 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tured. All witnesses present, except Pat Pritchard as hereafter addressed, testified that a formal vote by show of hands was taken on the question of whether the em- ployees desired to form a collective-bargaining group." The vote was unanimous that such a group be formed. Patsy Nance and Nedra Nolan were then duly elected president and vice president, respectively. Each employee was then given a blank piece of paper, about 3 by 5 inches, and was asked to write her name, job classification, length of time employed, and the amount per hour she felt she should be making. This was done by each employee and the completed papers were returned to Nance and Nolan. Nance advised the group that she would prepare a letter to the bank advising the bank that they had formed a collective-bargaining group and demand that the bank recognize it and bargain col- lectively with the group as a labor organization. They were also to advise the bank of the salary desired by each of the employees. In conclusion, it was decided to give the employer the 2 weeks, which Day had request- ed at his Friday meeting, and that during that time they would endeavor to be the best employees possible. Upon adjournment of the meeting, Nance telephoned employee Joyce Kelton, who had told her she could not be at the meeting, and advised her of what had tran- spired there and asked if she wanted to join. Kelton told Nance that she wanted to join and authorized Nance to fill in the same information for her that had been ob- tained from the other employees. 12 Employee Pat Pritchard who was in attendance at the Sunday meeting made three telephone calls that day con- cerning the meeting to Chairman of the Board McKel- vey. She first called McKelvey when she was invited to the meeting by Nance, and advised him the employees were having a meeting and asked if she should attend. A short time later she called McKelvey and told him she had decided to go. Although both she and McKelvey denied that McKelvey made any request on that occa- sion, or that there was any agreement that she would report back to McKelvey on the events of the meeting, she telephoned McKelvey a third time and reported what had happened there. She told McKelvey, inter alia, that the employees had formed a collective-bargaining group;'3 elected Nance as president and Nolan as vice president; solicited the employees to sign the papers and indicate the salary they desired; intended to demand that the bank bargain with them as a group, but had agreed to give the bank 2 weeks before it took any further I" It is not clear whether the name the "Exchange Bank Collective Bargaining Group" was used on that occasion. 12 These 10 sheets of paper as prepared by the employees were re- ceived into evidence at the hearing. The General Counsel contends that they are tantamount to the more formal union authorization cards and under the circumstances here serve that purpose. As hereafter found, I agree. '3 Although she testified at the hearing that there was never a vote taken at the meeting on the question of whether the employees wanted to organize, it was stipulated that, if the General Counsel recalled the other eight employees who were at the meeting, each would testify that such a vote was taken. Given that stipulation, in conjunction with the other formal conduct at the meeting, e.g., the election of officers and the solici- tation of the names of the employees and their desired wages, I am con- strained to find that such a vote was taken with due solemnity sufficient to form a labor organization as found in sec. II of this Decision. action and agreed to try to be good employees during that time. According to both Pritchard and McKelvey she also told him that Nance and Nolan had said they were not going to train the new employee and had urged all the other employees to refuse to train new employ- ees. 14 Nance and Nolan admit that during the course of the meeting they stated something to the effect that they had told Cecil Day that they "would not" or "would rather not" train the new employee during this 2-week period, but denied that they urged or suggested to other employ- ees that they likewise refuse to train the employee. By rebuttal testimony the General Counsel, through several witnesses, corroborated the substance of Nance's and Nolan's version. Accordingly, I find that Nance and Nolan did not urge other employees to refuse to train new employees. Thus conclude the pertinent facts and findings with re- spect to the employees' initial protected concerted activi- ty and the formation of the Exchange Bank Collective Bargaining Group as a labor organization. E. The Discharge of Patsy Nance and Nedra Nolan- The Strike and the Nature Thereof-The Demand To Bargain Again, there is little, if any, significant testimonial or evidentiary conflict as to the following facts. On Sunday evening Nance and Nolan prepared a letter to be deliv- ered to Cecil Day the following day. The substance of the letter was to advise the bank of the formation of their collective-bargaining group and demand that the bank recognize them under the law and bargain with them in good faith on matters pertaining to wages and other terms and conditions of employment. Also at- tached to the letter was a list of the names of the 10 em- ployees who had joined the group and the salary desired by each. However, neither Nance nor Nolan had the opportuni- ty to hand deliver the letter to Day on February 26, as they had planned. On February 26, Nance was driven to work by her husband and arrived about the same time as Nedra Nolan, who had driven herself, shortly after 8 a.m. As the two women approached the entrance to the bank they were met by Chairman of the Board McKelvey, who told them that they were terminated and could not enter the bank and to "hand over" their keys to the bank. Nance told McKelvey that she did not have her key with her and suggested to Nolan, who appeared to hesitate, that she not surrender her key to McKelvey since he was not an officer of the bank, and reminded her of repeated instructions from Hamby, the former manager, and apparently from Day, that they should not surrender their keys to anyone except an officer of the bank. McKelvey reminded them that he was chairman of the board. Nance told McKelvey that he was violating their rights and McKelvey told them that they did not 14 According to Respondent, it is this last information that prompted it to discharge Nance and Nolan the following day before it opened for business. 832 THE EXCHANGE BANK have any rights.' McKelvey told them they could talk to Malcolm Boaz about their rights. They requested to talk with Cecil Day which request was denied. McKel- vey thereupon entered the bank and locked the door behind him. Nance and Nolan then went to the nearby post office where they hoped to find Cecil Day. Day had the duty of collecting the bank's mail at the post office each morning. Not finding Day there, they used the copying machine to make copies of their "demand letter." Nance then went to a pay phone and telephoned the bank and spoke with Janis Strong in the bookkeeping department. She told Strong that she and Nedra had not been permit- ted to enter the bank (fired) and said, "you girls come on out." Within a few minutes, 6' 6 of the remaining 10 unit em- ployees concertedly ceased work and left the bank, join- ing Nance and Nolan. As Janis Strong started to leave the bank she asked Day if Nance and Nolan had been fired. He refused to answer. According to Susan Janes, as she was leaving Day called her into his office and asked if she wanted to work for the bank. She told him she did. Strong then went to Day's office and told him the employees had agreed to give him 2 weeks but he had failed to keep his part of the bargain by firing Nance and Nolan. Day told them that they had talked among themselves about the Friday meetings, which he had asked them not to do, and that they should not have had their meeting. He argued that they did not have any right to make any de- mands since they were not a union. Day's conduct here is alleged, and found, to constitute coercive interrogation and a threat of discharge in violation of Section 8(a)(1) of the Act. These eight employees went to the home of Martha Beasley, one of the striking employees, who lived nearby, to consider their plight. One of the first decisions made was to deliver to the bank their demand for recog- nition. To accomplish this, Nance telephoned Day, and Nolan telephoned Judy Mohler, and advised them that at 10 a.m. that day something would be deposited in night depository which would be of great interest to them. The letter was so deposited and admittedly received by the bank. They then contacted a local attorney, Dan Sharp, and advised him of what had happened. Sharp telephoned the bank's attorney, Boaz, and inquired about the em- ployees returning to work. Boaz told him that he would talk with the six employees who walked out on an indi- vidual basis about returning to work, but not to Nance and Nolan. ' 15 McKelvey denies making this statement. However, in view of McKelvey's acts at that time and subsequently, it is evident that in McKelvey's mind the employees did not have any rights. Having ob- served McKelvey on the witness stand for several hours and heard his testimony, I am persuaded that he would have said what he thought. Ac- cordingly, I credit Nance and Nolan. i6 Janis Strong, Susan Janes, Peggy Morgan, Martha Beasley, Linda Reed, and Joyce Kelton concertedly walked out. Tellers Holt and Pritch- ard did not join the strike. 17 This is not alleged as an unconditional offer to return to work. Since none of the six striking employees attempted to talk with Boaz, it is obvious that any offer which might be construed here was conditioned upon the reinstatement of Nance and Nolan. i. Analysis and conclusion: on the discharges of Nance and Nolan I can only marvel at the Respondent's ingenious de- fense to the discharges of Nance and Nolan, which was clearly fathered by desperation, when considered in light of the largely undisputed facts in this case. That defense is that the well-known leadership of Nance and Nolan in the employees' clearly protected concerted activity for the preceding 10 days and their leadership role in the formation of the Bargaining Group, a Section 2(5) labor organization, were not factors considered by McKelvey and Boaz when they decided to precipitously discharge them on February 26. The Respondent contends that McKelvey, after a telephone discussion with Boaz, and with Boaz' agreement, decided to discharge Nance and Nolan because of the uncorroborated report to McKel- vey by Pritchard that Nance and Nolan had urged, or suggested, to the other employees at the Sunday meeting that they not train new employees. I According to McKelvey, after Pritchard's third tele- phone call to him about the employees' meeting, he tele- phoned co-board member and corporate attorney, Mal- colm Boaz. He told Boaz of the employees' meeting and i" It appeared for a time at the hearing. and the Respondent alludes to certain incidents in its brief, that a precipitating reason for Nance's dis- charge might include some kind of culpability in the banking irregulari- ties which brought about the termination of Hamby. Although I believe the Respondent has totally abandoned all contentions that this was a factor, to the extent that a shadow of such contention might continue, I shall deal briefly with that issue here. Nance was, inter alia, the "cash items" teller for the bank. A "cash item" in banking nomenclature is a "cold check,' "hot check," "bad check," or any item which had been credited to the customer's account but could not be collected by the bank. Among Hamby's problems with the Kentucky State Banking Commission and the bank was that for a period of more than 10 months a customer named "Hawkins" had out- standing at all times cash items ranging from $50,000 to $550,000, which Hamby did not collect. As noted, when such items, including those of Hawkins, were returned to the bank they were sent to Nance as "cash items" teller. Nance testified that when such items were received she would check the customer's account and if it contained sufficient funds she would charge the item back to the account, and if not she would notify the customer and attempt to collect the item. Any item she could not collect or any "large" item was brought to the attention of Hamby, the bank's chief executive officer, and board member at that time. It ap- pears that most of the Hawkins' items were in this category and were reported immediately to Hamby. This, it is admitted, was the extent of Nance's obligation in this regard. However, the Respondent, in brief, alludes to the fact that Nance re- tained these items in her drawer for a 10-month period, except for a period of time Hamby held them personally, and did not report these items to McKelvey. It argues, and Nance agrees, that on other occasions she had advised McKelvey of cash items. The record contains no exam- ples or specifics concerning these occasions. In any event, the items, when in Nance's possession, were in her drawer, to which all officers of the bank, and McKelvey, had access. Moreover, a weekly list of such cash items was prepared and presumably available to McKelvey, as chairman of the board It is clear that Nance handled the Hawkins' cash items under the usual procedures: advised Hamby of such items; Hamby assumed, as was his responsibility, the duty to collect on them; did not do anything to conceal such items from McKelvey, or other board members or bank officers; and had no duty, as suggested by the Respondent, to call such items to the personal attention of McKelvey. Indeed, McKelvey does not specifically deny that he was at all times unaware of these items. In the event the Respondent relies to any extent upon Nance's handling of the Hawkins' items as a reason for her discharge, I find and conclude that Nance was in no way culpable in this regard, and such is merely a pretext to discharge her for engaging in protected concerted and union activities 833 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Nance and Nolan had reiterated that they were not going to train the new employee and had urged the other employees to also refuse. Based upon this alone, he and Boaz decided that Nance and Nolan would be termi- nated immediately, prior to the commencement of busi- ness on Monday, because such a refusal might create tur- moil at the bank. The Respondent argues, and would have me believe, that although Pritchard had advised McKelvey of the organization of the Collective Bargain- ing Group and the election of Nance and Nolan as its of- ficers, and what the group planned to do, these matters were not discussed with Boaz and, thus, played no role in the decision to discharge Nance and Nolan before work on Monday, rather than as previously planned, let them come to work on Monday and decide any disciplin- ary action if they refused, when ordered to train the new employee. Prior to the hearing it appears that the sole reason ad- vanced by the Respondent for the discharges of Nance and Nolan was their statement to Day on Friday that they "would not" or "would rather not" train the new employee during the 2-week period Day asked them to give him. It was not until it was pointed out that Day and McKelvey had known of their position since Friday evening, and that McKelvey had made the decision, which he reaffirmed to Day on Saturday, that no action would be taken until Monday if they actually refused to train the employee when ordered to do so, that Respond- ent added the allegation that it was Nance's and Nolan's asserted inducement to the other employees to refuse to train new employees, that prompted McKelvey to change his mind and fire them prior to their refusal to train the new employee. The lengthy pretrial affidavits of McKelvey and Boaz, which were taken by Boaz, and submitted to the Region- al Office during its investigation of this case, do not allude to any such incident as a factor in the Respond- ent's decision to fire Nance and Nolan, but, inter alia, as- serts only that it was their announced refusal to train the employee for which they were discharged.' 9 I am per- suaded that this defense was concocted as an after- thought when the Respondent realized that the only per- tinent events occurring between Friday, February 23, and Monday, February 26, were the two employee meet- ings, one of which resulted in the formation of a collec- tive-bargaining group and the election of Nance and Nolan as its officers. In short, I find and conclude that, even assuming Pritchard's report to McKelvey to be true, Respondent was motivated to discharge Nance and Nolan solely because of the leadership role they assumed in the employees' clearly protected concerted activity and the formation of the collective-bargaining group as a labor organization. The General Counsel's evidence of discriminatory mo- tivation here far exceeds the test of causation adopted by the Board in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). Accordingly, I find and con- clude that the discharges of Nance and Nolan violate Section 8(a)(3) and (1) of the Act. 19 Indeed, the affidavits do not mention the telephone calls by Pritch- ard to McKelvey on February 25 2. Analysis and conclusions on the nature of the strike On the facts here the nature of the February 26 con- certed work stoppage and strike requires little analysis or discussion. Having found that the Respondent committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by the discharges of Patsy Nance and Nedra Nolan, there can be no doubt that the resulting work stoppage and strike by the six employees named in the complaint was in protected concerted protest of these unfair labor practices. Accordingly, I find and con- clude that the strike which commenced at the bank on February 26 was directly caused and prolonged by these and other unfair labor practices of the Respondent and is an unfair labor practice strike. 3. Analysis and conclusions on the demand for recognition Having found that the Exchange Bank Collective Bar- gaining Group was a Section 2(5) labor organization rep- resenting a majority of employees in an appropriate unit on February 25, and the letter deposited in the Respond- ent's night depository constituted a lawful request to bar- gain with the Respondent on matters pertaining to wages, hours, and other conditions of employment, the Respondent's March 7 refusal by letter to recognize and bargain in good faith with the group violates Section 8(a)(5) and (1) of the Act. In its letter declining to recognize and bargain with the Exchange Bank Collective Bargaining Group, the Respondent asserted its good-faith doubt that the group represented an uncoerced majority of the employees in the described unit or any appropriate unit, noting the un- reliability of the so-called authorization cards. The Re- spondent further alluded to the petition for certification of representative which the Group had filed in Case 9- RC-12832,20 and that such filing raised a question con- cerning representation. It further asserted a doubt as to the appropriateness of the unit described. I find and conclude that, on February 26, the Re- spondent did not have a good-faith doubt that the Bar- gaining Group represented a majority of the employees in the unit described or, indeed, in any appropriate unit. McKelvey knew, based upon Pritchard's reports to him on Sunday, that nine employees had signed papers authorizing the Group to act as their collective-bargain- ing representative. Nine employees constituted a major- ity of the Respondent's employees in any appropriate group even if assistant cashier Hamlet, as well as Wertz, who began work on February 26, were included, there were a maximum of 14 employees. Nine is clearly a ma- jority. While it is true, as argued by the Respondent, that it has a right to force the Union to prove its majority status in a Board-conducted election, this is true only if the Re- spondent refrains from engaging in unfair labor practices which tend to undermine and dissipate the Union's ma- l' This petition was either withdrawn or dismissed upon the issuance of the complaint herein alleging that Respondent's refusal to recognize the Group violated Sec. 8(a)(5) and (1) of the Act. 834 THE EXCHANGE BANK jority status and preclude the holding of a free and fair Board-conducted election wherein the employees could express their free choice with respect to representation. Here the Respondent's unfair labor practices between February 23 and February 26, including the discharges of Nance and Nolan, were so outrageous and pervasive that they absolutely precluded the conduct of a free and fair election. By failing and refusing to recognize the Bargaining Group as the exclusive representative of its employees on February 26, 1979, the Respondent violat- ed Section 8(a)(5) and (1) of the Act. The Respondent shall be ordered to bargain in good faith with the Bar- gaining Group and its successors, retroactive to Febru- ary 26, 1979. See Trading Port. Inc., 219 NLRB 298 (1975). 2 1 As to the Respondent's contention that the unit de- scribed in the demand letter of February 26 was inappro- priate: It is well settled that a union's request for recogni- tion is sufficient to raise a duty to bargain on the part of an employer if the employer is apprised in general terms of the proposed unit description. The request need not be grammatically perfect and need not define the unit in minute detail, and the request is sufficient if it describes any appropriate unit, it need not describe the most appropriate unit. 22 The demand letter described the unit only as "nonex- empt employees." The parties appear to argue that the term "nonexempt," a term more common in issues in- volving matters under the jurisdiction of the wage and hour division of the Department of Labor, meant hourly paid employees who received overtime pay-thus, exempted employees who were to be excluded were the officers of the bank and others who were salaried and did not receive overtime pay. As in Pilot, supra, the unit description was sufficient to raise a duty on the part of the employer to bargain upon demand. F. The Unconditional Offer by the Striking Employees To Return to Work On or before March 19, the six striking employees contacted attorney Mark Pierce. On that date Pierce telephoned the Respondent's counsel and board member, Malcolm Boaz, and told Boaz all six striking employees were unconditionally offering to return to work. Boaz replied that all striking employees had been permanently replaced and there were no positions available. By letter to Boaz, dated March 22, Pierce confirmed the March 19 telephone conversation and reiterated the unconditional offer to return. By letter dated April 13 to Pierce from the Respondent's labor counsel, the Respondent again declined to reinstate them contending that they had been permanently replaced and at most were economic strik- ers and would be accorded reinstatement rights in ac- cordance with the "Strictures" of The Laidlaw Corpora- tion v. N.L.R.B., 414 F.2d 99 (7th Cir. 1969). 21 See, generally, .L.R.B v. Girsel Packing Company, Inc., 395 U.S 575 (1969) 22 Pilot Freight Carrieri. Inc, etc, 223 NLRB 286, 304 (1976). It is so well settled that unfair labor practice strikers are entitled to immediate and full reinstatement to their former positions upon their unconditional offer to return to work, even if respondent is required to terminate their replacements, that no cases need be cited. This issue is not addressed by the parties in brief. Accordingly, the Respondent violated Section 8(a)(3) and (I) of the Act by failing and refusing to immediately reinstate these six unfair labor practice strikers on March 19 upon their unconditional offer to return to work. G. The Merger of the Exchange Bank Collective Bargaining Group With the IAM-IAM's Demand To Bargain By the first part of March, the Bargaining Group rec- ognized that they did not have the expertise in labor re- lations matters to deal effectively with the employer, and commenced searching for a more experienced labor or- ganization with which to affiliate. Nance, Nolan, Strong, and perhaps other members contacted representatives of several labor organizations 2 3 and discussed the possibil- ity of a merger with them. The latter part of March a group of the employees met with Tommy Mayfield, an organizer for District Lodge 154 of the IAM, the Dis- trict Lodge with jurisdiction over Local Lodge 2507, which represented other employees in the Mayfield area. As a result of this discussion with Mayfield, all 10 mem- bers of the Bargaining Group were notified that there would be a meeting with Mayfield at DeVanti's restau- rant for the purpose of considering and voting on the question of whether to "disband" the Exchange Bank Collective Bargaining Group and merge with, or become a part of, IAM Local Lodge 2507. In the afternoon, on April 10, 8 of the 10 members of the Bargaining Group met with Mayfield and another union official where there was extensive discussion among the group and the union officials concerning affiliation. All members present were permitted to participate in the discussion and to ask questions. After much discussion the union officials left the room and the employees were read a resolution which had the effect of disbanding the Exchange Bank Collective Bar- gaining Group and, forthwith, affiliating with Local Lodge 2507 of the IAM. The resolution provided that Local Lodge 2507 of the IAM would assume and admin- ister all terms, conditions, and covenants contained in any labor agreement executed with The Exchange Bank. The negotiating committeemen and stewards for the Group remained the same. All membership fees and dues in the treasury of the Group were transferred to Local Lodge 2507. The members voted by secret ballot on the resolution and it carried seven votes to one. All eight employees then signed and dated the resolution as of 5:30 p.m. April 10. Each of the eight then signed an IAM authorization card. 2 4 21 Among the labor organizations contacted were: Amalgamated Meat- cuiters, Tire and Rubber Workers, Teamsters, Amalgamated Clothing Workers, and the IAM. 2- Subsequently three other employees signed such cards: Linda Foy on May 4, Patti Hlopwood on May 0, and Julie Sasseen on July 16. 835 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I agree with the General Counsel that under the cir- cumstances here the due process standards of this affili- ation of labor organizations more than comply with the Board's minimum standards. 25 Although Local Lodge 2507 represents other employ- ees, The Exchange Bank unit continues to meet separate- ly and have its own officers and committeepersons and any contract negotiated does not have to be ratified by any other units of Local 2507. Accordingly, I find and conclude that, as of 5:50 p.m., April 10, the Exchange Bank Collective Bargaining Group was dissolved by affiliation with Local Lodge 2507 of the IAM, and Local Lodge 2507 of the IAM became, and has remained, the exclusive collective-bar- gaining representative of all the employees in the unit de- scribed herein. By certified mail directed to Cecil Day, on April 25, Tommy Mayfield notified The Exchange Bank of the af- filiation and that Local Lodge 2507 of the IAM was now the exclusive representative of all the unit employees. He made a continuing request that the Respondent meet with it and negotiate to conclusion an agreement cover- ing "wages, hours of employment and all other terms and conditions of employment" of the employees in the appropriate unit. By letter dated April 30 from the Respondent's labor counsel to Local Lodge 2507, the Respondent again re- fused to recognize Local 2507 as the "alleged" successor of the Bargaining Group, asserting a good-faith doubt of the Union's majority status. It contended its good-faith doubt of majority status was bolstered by the fact that all the striking employees had been permanently replaced and would be entitled to vote in any Board-conducted election. In its brief the Respondent contends that at that time there were 20 employees in the unit. First, the replacements for these six unfair labor prac- tice strikers and the two discharged employees would not be allowed to vote in a Board-conducted election. 2 6 Having found herein that the strike was an unfair labor practice strike, the replacements for such strikers were temporary employees, as were the replacements for Nance and Noland. Therefore, the unit as described by the Respondent, excluding these replacements, consisted of 13 employees. 27 In any event, I find, as with the Respondent's refusal to recognize and bargain with the Bargaining Group, that such refusal was not based upon any good-faith doubt of the Union's majority status, but that the refusal was designed to undermine and dissipate the Union's strength, and therefore the Respondent's unfair labor practices precluded the conduct of a free and fair elec- tion. Such refusal violates Section 8(a)(5) and (1) of the Act. a2 New Orleans Public Service. Inc., 237 NLRB 919 (1978); Amoco Pro- duction Company, 239 NLRB 1195. 26 In the event no determination on the nature of the strike or the le- gality of the discharged employees had been made at the time of the elec- tion, the replacements and alleged discriminatees would be permitted to cast a challenged ballot. Whether such challenged ballots were sustained or overruled would depend upon the Board's finding with regard to the nature of the strike and the legality of the discharges. " New employee Wertz, hired on February 26, would be included in the unit. H. Additional 8(a)(1) Allegations It appears that all was quiet at the Respondent until late June. On June 26, Lynda Foy overheard Cecil Day, in response to an employee's question about a raise, tell her that it would probably be sometime "next year." When Foy told this to the other employees, 8 or 10 of them again gathered in the bookkeeping department and discussed their situation. They then went collectively to Day's office, but were unable to see him because he was busy. On June 26, the employees decided to draw up a petition demanding a 25-cent-an-hour across-the-board increase. This petition was signed by 10 employees. However, before presenting the petition to Day, Day called each of the employees into his office, except Foy, and gave them a 10-cent-an-hour raise. 28 Later that day, Foy went to Day's office and asked about her raise. She was also given a 10-cent-an-hour merit increase. The following day two employees who had signed the petition asked that their names be withdrawn, or the pe- tition torn up. When Foy balked, they reported the inci- dent to Day. Day summoned Foy to his office where Chairman of the Board McKelvey was also present. I credit Foy's version of her conversation with Day and McKelvey, which is, in part, corroborated by McKel- vey. McKelvey immediately reminded Foy of how he had met her on the street and given her a job, and stated, "you turn right around and start making demands." He continued, ". . . the other bunch tried to tell us what to do, and look where they are now." McKelvey told her she did not know how hard it was to get a job "after you've been involved in something like this." McKelvey told Foy he was not pleased at all about the demands and on at least three occasions asked her why she did not quit.29 McKelvey then left the room after repeating he was not pleased. The General Counsel alleges that McKelvey's remarks to Foy violated Section 8(a)(1) of the Act, in that his telling Foy to quit if she did not like it there constituted a veiled threat of discharge; his telling Foy it would be difficult to obtain other employment because she en- gaged in protected concerted activity is also coercive, as alleged in paragraphs 5(b)(i)(ii) and (iii). I find and conclude that these allegations have been sustained and that McKelvey's conduct violated Section 8(a)(1) of the Act as alleged. After McKelvey left, Day told Foy that at least 10 people had told him that Foy had gotten "all this" start- ed, and that she was a troublemaker and instigator in the bookkeeping department, and "it can't be allowed to go on." He then asked her why she would not tear up the petition and told her he would do whatever was neces- sary to see that the bank ran smoothly. The foregoing is alleged (pars. 5(a)(v) and (vi)) and found to constitute an impression of surveillance and a threat of disciplinary action for instigating the petition and engaging in protected concerted activity. 28 It appears that two employees who did not sign the petition had been called into Day's office on June 26 and granted the raise 29 McKelvey admits one such statement. 836 THE EXCHANGE BANK Under the facts here, and in view of the bitter animus demonstrated by both McKelvey and Day toward the employees engaging in protected concerted and union activity, Day's remarks inevitably tended to interfere with, restrain, and coerce employees in the exercise of their Section 7 rights as alleged. The foregoing concludes the findings of fact and con- clusions with respect to the complaint allegations. As noted elsewhere in this Decision, the pertinent facts ger- mane to findings and conclusions with respect to the pri- mary issues in this case are either admitted, or not dis- puted, by the Respondent. The concerted activities of the employees commencing on February 16 were clearly for the purpose of obtaining better wages and working conditions and are clearly protected concerted activities for which the Respondent could not retaliate. Their ac- tivities on February 22 and 23 and the interviews with Day were likewise clearly protected concerted activity. Many of the 8(a)(l) violations found herein arising out of these individual interviews are not in dispute; i.e., the in- terrogation concerning whether the employees would report for work on Monday; instructions not to discuss the interviews with other employees; refusing, upon re- quest, to tell employees decisions made by other employ- ees, while insisting upon immediate decisions from them concerning their working on Monday and for 2 weeks; and the refusal, without cause, to meet with them as a group. The facts relevant to the employees' formation of a Section 2(5) labor organization are not in dispute. While the conclusion that the employees' activity on February 25 resulted in the formation of a labor organization is a legal conclusion made by me, such conclusion is well supported by the facts and Board precedent. The demand by the Bargaining Group that the Re- spondent bargain with it and the Respondent's refusal is not in dispute. The Respondent's asserted good-faith doubt that the group represented a majority of the em- ployees in any possible appropriate unit is clearly with- out merit in view of its knowledge of the number of em- ployees who were engaged in the February 16, 23, and 25 activity. Similarly, the discharges of Nance and Nolan, and the Respondent's motive therefor, raise no se- rious questions. Nor does the nature of the February 26 strike; the strikers' March 19 unconditional offer to return to work and the Respondent's refusal; the merger with Local Lodge 2507 of the IAM, and the Respond- ent's duty to bargain with it. Most of the other issues in this case do not present serious questions of fact or law. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above in connection with its business as set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to disputes obstructing the free flow of commerce. CONCLUSIONS OF LAW 1. Jurisdiction by the Board is properly asserted in this proceeding. 2. All clerical employees, including tellers and book- keeping employees employed by the employer at its Mayfield, Kentucky, bank, excluding all officers, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times between February 25 and April 10, 1979, the Exchange Bank Collective Bargaining Group was the duly designated exclusive collective-bargaining representative of all the employees in the unit described above, within the meaning of Section 9(a) of the Act. 4. On April 10, 1979, the Exchange Bank Collective Bargaining Group was dissolved as a labor organization and forthwith merged with Local Lodge 2507 of the In- ternational Association of Machinists and Aerospace Workers, AFL-CIO. 5. At all times since April 10, 1979, Local Lodge 2507 of the IAM has been, and is, the duly designated exclu- sive collective-bargaining representative of the employ- ees in the unit described above, within the meaning of Section 9(a) of the Act. 6. On February 26, the Bargaining Group, described in item 3, above, requested the Respondent to recognize and bargain with it on matters pertaining to hours of work, wages, and other terms and conditions of employ- ment of the employees in the unit described above. On April 25, 1979, Local Lodge 2507 of the IAM, described in item 5 above, made a similar and continuing demand upon the Respondent. 7. From February 26 to April 10, 1979, the Respond- ent failed and refused to recognize and bargain collec- tively with the Bargaining Group regarding wages, hours, and other terms and conditions of employment of the employees in the unit described above. 8. Since April 10, 1979, at all times, the Respondent has failed and refused to recognize and bargain collec- tively with Local Lodge 2507 of the IAM, described above, regarding wages, hours of work, and other terms and conditions of employment of its employees in the unit described above. 9. By coercively interrogating its employees concern- ing their union and protected concerted activities, and those activities of other employees; threatening its em- ployees with discharge or other reprisals for engaging in protected concerted and union activities; refusing, with- out cause, to meet with its employees as a group to dis- cuss rates of pay, wages, and other terms and conditions of employment; warning its employees not to discuss with other employees conversations concerning rates of pay, wages, and other terms and conditions of employ- ment; insisting that employees meet individually with management to discuss wages and other working condi- tions, promising its employees economic benefits or better jobs to induce them to forgo engaging in protect- ed concerted activity; creating the impression that it has its employees' protected concerted and union activities under surveillance; attempting to force employees to quit 837 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because they engaged in protected concerted activity, and telling employees it would be difficult to obtain em- ployment elsewhere because they engaged in protected concerted activity, Respondent has violated Section 8(a)(1) of the Act. 10. The strike which commenced at the Respondent on February 26, 1979, was caused and prolonged by the Respondent's unfair labor practices and is, and has been at all times, an unfair labor practice strike. 11. By discharging its employees Pat Nance and Nedra Nolan on February 26, and thereafter failing and refusing to reinstate them to their former positions without loss of pay or other benefits; on or about March 19, upon their unconditional offer to return to work, failing and refus- ing to reinstate to their former positions its unfair labor practice strikers Martha Beasley, Susan Janes, Joyce Kelton, Peggy Morgan, Linda Reid (Reed), and Janis Strong, the Respondent has violated Section 8(a)(3) and (1) of the Act. 12. By failing and refusing to recognize and bargain with the Exchange Bank Collective Bargaining Group from February 26 to April 10, 1979, and thereafter fail- ing and refusing to recognize and bargain with Local Lodge 2507 of the IAM, as the exclusive collective-bar- gaining representatives of the employees in the unit de- scribed above, and to bargain in good faith on matters pertaining to hours of work, wages, and other terms and conditions of employment, the Respondent has violated Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent has committed acts in violation of Section 8(a)(1), (3), and (5) of the Act, it shall be ordered to cease and desist therefrom and from any other unlawful activity and to take certain affirma- tive actions designed to effectuate the purposes and poli- cies of the Act. Such affirmative action shall include the posting of the usual informational notice to employees at- tached hereto as "Appendix;" offer immediate and full reinstatement to its employees Pat Nance, Nedra Nolan, Martha Beasley, Susan Janes, Joyce Kelton, Peggy Morgan, Linda Reid (Reed), and Janis Strong to their former positions, discharging if necessary any replace- ments, or, if those positions no longer exist, to substan- tially equivalent positions without loss of seniority or other benefits; and to make them whole for any loss of earnings they may have sustained by reason of the unfair labor practices against them. Loss of earnings for the six unfair labor practice strikers shall be computed from 5 days after March 19, 1979. All loss of earnings and other benefits due under the terms of this Order shall be com- puted with interest thereon in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).30 The Respondent's unfair labor practices found here are clearly so outrageous, pervasive, and egregious that it is highly unlikely that traditional remedies would be effec- tive in overcoming their lingering coercive effects on the employees in this small unit so that a free and fair Board- conducted election could be held for the employees to s0 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). express a free and uncoerced choice on the selection of representation. Hasbro Industries, Inc., 254 NLRB 587 (1981); Ed Chandler Ford, Inc., 254 NLRB 851 (1981). Accordingly, the Respondent shall be ordered to recog- nize and bargain with Local Lodge 2507 of the IAM concerning all mandatory bargaining subjects retroactive to February 26, 1979 (the date of the first demand). I have found, as alleged in the complaint, that the Re- spondent violated Section 8(a)(l) of the Act on February 23 when Day refused to meet collectively with the em- ployees and insisted upon talking with them on an indi- vidual basis only, if they wished to learn anything con- cerning their pay raises. This violates the Act because at that time the employees did not have a duly designated exclusive collective-bargaining representative. As found herein, Local Lodge 2507 of the IAM is, and has been since April 10, 1979, the employees' duly designated ex- clusive collective-bargaining representative and the Re- spondent's duty, as ordered herein, is to bargain exclu- sively with the Union. Accordingly, the Respondent shall not be ordered to cease and desist from that activity under the present circumstances where the employees have collective representation. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I issue the following: ORDER3 ' The Respondent, The Exchange Bank, Mayfield, Ken- tucky, its officers, successors, agents, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their protected concerted or union activity or such activ- ity by other employees. (b) Threatening its employees with discharge or other reprisals for engaging in protected concerted or union activity. (c) Warning or instructing its employees not to discuss conversations concerning wages and other terms and conditions of employment with each other. (d) Insisting that employees meet with management or an individual basis for the purpose of discussing wages and other working conditions. (e) Promising its employees better economic benefits on jobs to induce them to abandon engaging in protected concerted and union activity. (f) Creating the impression that it has its employees' protected concerted and union activity under surveil- lance. (g) Attempting to force its employees to quit because they engaged in protected concerted or union activity. (h) Telling its employees it would be more difficult to obtain a job elsewhere because they have engaged in protected concerted and union activity. al In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 838 THE EXCHANGE BANK (i) Discharging its employees because they engage in protected concerted and union activity in order to dis- courage other employees from engaging in such activity. (j) Failing and refusing to immediately reinstate its unfair labor practice strikers upon their unconditional offer to return to work. (k) Refusing to bargain collectively with respect to wages, hours, and other terms and conditions of employ- ment with Local Lodge 2507 of the International Associ- ation of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the appropriate unit as found herein. (1) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Immediately recognize and bargain collectively with the above-named Union as the exclusive representa- tive of all the employees in the unit described previously with respect to wages, hours, and other terms and condi- tions of employment and, if an agreement is reached, embody such agreement in a signed contract. (b) Offer Pat Nance, Nedra Nolan, Martha Beasley, Susan Janes, Joyce Kelton, Peggy Morgan, Linda Reid, and Janis Strong immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights and privileges previously enjoyed; and make each employee whole for any loss of earnings they may have suffered due to the discrimination practiced against them by paying each of them the sum they would have earned, less net interim earnings, with interest thereon as set forth in the section of this Decision entitled "The Remedy." The above-de- scribed pay due the six unfair labor practice strikers shall be computed from 5 days after their April 19, 1979, un- conditional offer to return to work. (c) Post at its place of business in Mayfield, Kentucky, copies of the attached notice marked "Appendix."3 2 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by an au- thorized representative of the Respondent, are to be posted by the Respondent 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. Rea- sonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 32 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 839