State Bank Of India

266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD State Bank of India and Local 6, International Fed- eration, of Health Professionals, International Longshoremen's Association, AFL-CIO. Case 2-CA-19329 18 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 31- January 1985 Administrative Law Judge Howard Edelman issued the attached decision. The Charging Party filed limited exceptions and the Re- spondent filed exceptions and a supporting brief. The General Counsel filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a 'three- member panel. The Board has considered the decision and the record _in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order. The judge found, inter alia, that the Respondent, by suspending employee Scaria and also by sus- pending and subsequently terminating him and em- ployee Viswam, violated Section 8(a)(1), (3), and (4) of the Act. The Respondent excepts, contend- ing, inter alia, that even if the General Counsel had established a prima facie case, it was rebutted be- cause the Respondent proved that its disciplinary actions would have occurred even in the absence of Viswam's and Scaria's protected activity. We find merit in this contention and dismiss the com- plaint in its entirety. The Respondent hired Scaria in March 1975 as a mail clerk and Viswam in April 1977 as a bank messenger. As fully set forth in the attached deci- sion, the judge found, and the Respondent admits, that both Scaria and Viswam were active union ad- herents of long standing. i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent also excepted to our assertion of junsdiction. This ex- ception is without merit State Bank of India, 273 NLRB 264 (1984), enfd 808 F 2d 526 (7th Cir 1986) We also find totally without merit the allegations of bias and prejudice on the part of the judge made by William Perry, president of Local 6. On our full consideration of the record we find no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated a bias against Perry, or Local 6, in his analysis or discussion of the evidence Additionally, we find that Perry's conduct, set forth in the remedy sec- tion in the attached judge's decision, is disgraceful and inexcusable. Any similar conduct will result in a more severe penalty than censure The initial incident in issue occurred on 27 Sep- tember 1982 when Scaria was suspended for 3 days by the Respondent's personnel director, Griffin, for cursing and frightening _his supervisor, Ghate, on 24 September. Griffin investigated the incident by interviewing Ghate, directing Ghate to. describe the incident in writing, and attending separate meetings with Viswam and Scaria. In Ghate's oral statement to Griffin she asserted that on 23 Sep- tember she had warned Viswam about "referring out" incoming calls.- At 5:40 p.m. on Friday, the next day, Ghate left work and saw Viswam and Scaria at the corner of Park Avenue and 54th Street. As Ghate approached, Scaria spoke' loudly and cursed Ghate in Hindi after asking her, "You want telephone calls, is ' it your father's phone?" Ghate explained to Griffin that the translation of Scaria's Hindi obscenities was "bastard" and "one who fucks his mother."2 Ghate also asserted that Scaria repeated his words, approached in a threat- ening manner, and- left with Viswam after Ghate threatened to call the police. Ghate's written state- ment of these events-did not vary from that of her interview with Griffin, except that Ghate did not translate the "bad words." On 27 September Ghate confronted Scaria during a meeting which also included Scaria's im- mediate supervisor, Gururajan, and Griffin. Ghate accused Scaria of confronting and cursing her, but did not specify the nature of Scaria's curses. When Gururajan asked Ghate to translate the curses from Scaria's Hindi, Ghate replied, "I am a lady" several times and offered to repeat the language if Gurura- jan specifically asked, which he did not. Scaria' was questioned primarily ^by Gururajan. Scaria repeat- edly denied any knowledge of the incident. Scaria also asserted that he, Viswam, and other employees had left the bank at 5 p.m., walked to the subway entrance at Lexington Avenue and East 59th Street, and went home. In a subsequent interview on the same day, at- tended by Griffin and Viswam's supervisor, Rao, Viswam corroborated Scaria's statement. Viswam also mentioned another bank employee, Simon, who had accompanied them to the subway. Griffin then interviewed Simon. Simon asserted that he saw Viswam and Scaria at the subway entrance after leaving the bank with them at 5 p.m. Simon, however, did not see them board the train or pass through the turnstile.3 2 The judge did not mention this testimony or discredit Ghate as a wit- ness. 3 Contrary to the judge's findings, Griffin did not testify "that after speaking to Simon she had no doubt that Scaria and Viswam were at the subway with Simon and boarded their train " Instead, Griffin testified Continued 283 NLRB No. 41 STATE BANK OF INDIA After conducting the investigation, Gururajan and Griffin suspended Scaria for 3 days. Viswam, who allegedly was present but remained silent during the incident, was not disciplined . Gururajan testified that, compared to Scaria's muteness and unresponsiveness during the interview , he was per- suaded by Ghate's responsiveness to questioning and obvious agitation. Griffin testified that during the investigation she found no reason to doubt Ghate. Although Simon placed Scaria on Lexing- ton Avenue and East 59th Street after 5 p.m., the incident occurred approximately 30 minutes later at Park Avenue and East 54th Street . Griffin asserted that even if Scaria's alibi was true, it was reasona- ble to assume that Viswam and Scaria could have walked six city blocks in approximately 30 minutes. Two months later, on 17 and 18 November, the Respondent notified Viswam and Scaria by letter that they had been terminated for hiring Johnson, a former union organizer, to assault Ghate. On 29 October Johnson entered the bank and passed a note to Ghate. The note contained his name, tele- phone number, and an allegation that Viswam "has tried to hire me to beat you up." Ghate brought Johnson to Griffin. Johnson told Griffin that after he beat up Ghate, he was to contact Scaria for a cash bonus. Johnson handed Griffin a slip of paper with Scaria's name and telephone number on it. Griffin took the paper to Bhattacharjee, the Re- spondent's deputy chief manager, and conveyed Johnson's story. Bhattacharjee, after identifying the handwriting in the note as Viswam's, called the Respondent's labor attorneys. Griffin accompanied Johnson to their law offices where Attorney Con- neely took Johnson's affidavit. According to the affidavit, Johnson knew Viswam from their organizing activities for the Union. In early October, Viswam asked Johnson to arrange having "someone beat up." Thereafter, Viswam, gave Johnson $100 to assault a person whom he would identify later. On 29 October Johnson telephoned Viswam, and they agreed to meet that day at the bank. Johnson arrived at the bank and met Viswam in the reception area. Viswarn then accompanied Johnson to his desk. Viswam identified Ghate, who was working nearby, described Ghate's customary subway line and departure time, and gave Johnson Scaria's name and telephone number on a slip of paper. Viswam, who was leaving the, country later that day, directed Johnson to assault Ghate early the following week. He also told Johnson to contact that she did not doubt that Scaria "was at the train station at 5 o'clock" and that Scaria "had forty minutes to get back to the place" where Scaria reportedly cursed at Ghate. Griffin did not state her belief wheth- er Scaria had passed through the turnstile or boarded the train. 267 Scaria for a bonus once Ghate had been assaulted. Viswam and Johnson left the bank together and separated. Johnson then returned to the bank and told his story to Ghate. After Johnson described these events to Connee- ly, Johnson and Griffin left the law offices. Griffin returned to the bank and asked the receptionist, Di- Fulvio, if anyone had visited Viswam that day. Di- Fulvio confirmed that a man who resembled John- son entered the reception area twice and on the first occasion to visit and speak with Viswam. Di- Fulvio's account was confirmed by her affidavit and that of Kotak, the bank's deputy manager. Conneely subsequently contacted the Board's Re- gional Office and confirmed that Johnson had worked as an organizer for the Union. On the basis of Johnson's previous affiliation with the Union, DiFulvio's statement and affidavit, 19'otak's affida- vit, and Johnson's statement, affidavit, and detailed knowledge of Viswam's overseas trip and depar- ture time, Scaria's name and phone number, and Ghate's , customary departure time from work and subway line, the Respondent terminated Viswam and Scaria on 17 and 18 November. Assuming that the General Counsel presented a prima facie showing, we agree with the Respond- ent that its disciplinary actions would have oc- curred even in the absence of Viswam's and Scor- ia's union activities. Regarding Scaria's 3-day sus- pension for allegedly cursing Ghate, the judge found that "Ghate did not, during the course of Respondent's investigation, disclose what the `bad words' were." The record contradicts this finding. Ghate testified that, during her first meeting with Griffin on 2T September, she translated Scaria's Hindi words as meaning "`bastard' , and the other word . . . `one who fucks his mother."" Based on the foregoing, we find that the case cited by the judge, Art Steel of California, 256 NLRB 816 (1981), is inapplicable. In Art Steel, the Board found that an employer acted pretextually when, without' confronting an employee with either his,accuser or an accusation, it disciplined that em- ployee by relying exclusively on a conclusory alle- gation that he had used "bad words." In the instant case, however, Ghate translated Scaria's Hindi curses during , her first meeting with Griffin. During the 27 September meeting which Scaria, Ghate, Griffin, and Gururajan attended, the Re- spondent also confronted Scaria with both his ac- cuser and the accusation. The judge also, found that because a witness left work with Viswam and Scaria at 5 p.m. and walked three blocks with them to a subway station approximately ' six blocks away from their alleged encounter with Ghate at 5:40 p.m., it would have 268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been unlikely "for them to have taken the train to the next stop and to double back and intercept Ghate at a corner of 54th Street and Lexington Avenue." We note, however, that no witness saw Viswam or Scaria -board the train or pass through the turnstile and that Griffin testified that even if Scaria's witness spoke truthfully, it was reasonable to assume that Viswam and Scaria could have walked six city blocks in approximately 30 minutes. The judge also found that neither Viswam nor Scaria was sufficiently motivated to have cursed Ghate because "there is no evidence that Viswam was particularly angry about [Ghate's] memo or displayed such conduct which would trigger such an elaborate and planned response." Regarding his telephone message practices, however, Viswam tes- tified that Ghate had previously warned him orally and in writing and that Ghate's warnings were common knowledge at the bank. Viswam also testi- fied that Ghate continually complained about his work and that she "was always trying to harass me." Accordingly, we do not agree with the judge's conclusion that the Respondent's suspen- sion of Scaria was unreasonable and we find that the Respondent has demonstrated that it would have disciplined Scaria even absent his union and protected concerted activities. Regarding the Respondent's termination of Viswam and Scaria for having hired Johnson to as- sault Ghate, the judge found that the Respondent's investigation was "perfunctory and one sided." The judge found that, given the "bizarre" nature of Johnson's confession and demeanor, the Respond- ent should have contacted not only Viswam and Scaria for an explanation, but also other witnesses "who could have shed light on Johnson's credibil- ity or explained troubling aspects of the affidavit." Applying Lancer Corp., 271 NLRB 1426 (1984), the judge concluded that the Respondent's- termination of Viswam and Scaria . was unreasonable because their discharge was not predicated on a "full and fair investigation." In concluding that the Respondent's investiga- tion was deficient, the judge noted that had it con- tacted Viswam or Scaria, "they might have been able to explain Johnson's motivation, or to shed light on his' credibility or to explain how Johnson became aware of some of the details set forth in his affidavit." The judge also posited that had the Re- spondent' contacted the Union's president, Perry, he might have explained Johnson's knowledge of Ghate's name and subway route because "Perry . .. had filed a charge alleging the discriminatory suspension of Scaria, which investigation' was pend- ing at the time Johnson gave his affidavit and these details might well have been within the knowledge of Local 6 representatives and available to John- son." The judge's speculation may or may not be correct. However, the issue is not whether the Re- spondent's investigation would have been more thorough had it elicited possible explanations from Viswam, Scaria, and Perry, but whether the Re- spondent's disciplinary investigation would have been the same had Viswam and Searia not been as- sociated with the Union.4 The judge cited several cases, including Lancer Corp., supra, to infer that the Respondent's investi- gation was perfunctory because it did not contact Viswam, Scaria, or Perry. None of these cases, however, necessarily requires an employer to estab- lish conclusively either the veracity or related mo- tivation of a witness against an alleged discrimina- tee. They also do not require an employer, in all circumstances before an employee's termination, to allow the employee to have his say. Although the judge- found that the Respondent; by not 'allowing Viswam and Scaria to explain Johnson's accusa- tion, did not follow its customary practices, the only evidence of its disciplinary procedures is Grif- fin's assertion that the Respondent "usually, it de- pends on the situation," gave employees a chance to explain reported misconduct. But the allegation of a man, known to have been a union employee, that employees, who also were associated with the Union and who had only 2 months earlier been im- plicated in and/or disciplined for related conduct in cursing at a supervisor, 'had hired him to assault the same supervisor obviously constitutes unusual, not ordinary, circumstances. There' is no evidence that the Respondent had been previously confront- ed with a situation similar to that here. That, how- ever, does not warrant a finding that it departed from its "customary" disciplinary practices. Thus, as noted above, it is not clear that the Respondent had a uniform practice with respect to disciplinary procedures. In any ' event, given the nature of the misconduct of Viswam and Scaria reported by Johnson, the: situation which confronted the Re- spondent obviously was unusual and serious and not one for which "customary" disciplinary proce- dures would apply. We also find that even assuming Viswam and Scaria had explained their second reported offense against Ghate, the clear weight' of the evidence suggests that,' even absent their protected activities, the Respondent's disciplinary actions would not have varied.' The judge speculated- that if Viswam, Scaria, and Perry had been consulted by the Re- spondent, they might have explained that Johnson could have obtained his detailed 'knowledge about 4 See Wright Line, 251 NLRB 1083 (1980) STATE BANK OF INDIA 269 Ghate from the Union's previously filed unfair labor practice charge against the Respondent. But the judge's retrospective version of the incident is only speculation and ignores the Respondent's obli- gation to Ghate, its supervisor and agent, to hold her safe from harm in the face of a plausible, work- related physical danger. Because it was reasonable for the Respondent to have believed Johnson rather than any possible denials by Viswam or Scaria, who had been implicated previously in simi- lar misconduct and had an obvious reason to bear a grudge against Ghate, the judge's analysis of the incident is neither reasonable nor probable. Because we find that the Respondent acted reasonably under the unusual circumstances of this case, we shall dismiss the entire complaint.5 ORDER The complaint is dismissed. 5 In dismissing the complaint, we note that the judge's analysis of the Respondent's alleged violation of Sec 8(a)(4) of the Act is the same as that of the Respondent's alleged 8(a)(3) and (1) violations. The record does not establish a specific causal relationship between Viswam and Scan's use of Board processes and the Respondent's disciplinary actions Judy M. Sandier Esq., for the General Counsel. John F. Gibbons, Esq., and Israel Kornstein, Esq. (Kelly, Drye & Warren), for the Respondent. Saul Jakubawitz, Esq., for the, discriminatees K.M. Vis- wambharan and Johannes Scaria. William Perry, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on May 21, 22, 23, and 25, June 8, and August 2, 1984. On December 29, 1982, Local 6, International Federa- tion of Health Professionals, International Longshore- men's Association, AFL-CIO (Local 6), filed a charge against the State Bank of India (Respondent), alleging that Respondent had discharged its employees K. M. Viswambharan and Johannes Scaria (Viswam and Scaria), in violation of Section 8(a)(1), (3), and (4) of the Act. On January 31, 1983, Local 6 filed an amended charge alleging, inter alia, that Respondent had suspend- ed Scaria, prior to his discharge, in violation of Section 8(a)(1), (3), and (4) of the Act. On March 22, 1984, a complaint issued alleging that Respondent- had suspended Scaria and thereafter discharged Scaria and Viswam in violation of Section 8(a)(1), (3), and (4) of the Act. Briefs were .filed by the General Counsel and Re- spondent. 'On my consideration of the entire record,' the I Following the close of the bearing counsel for Respondent filed a motion to correct the official transcript The General Counsel, counsel for Local 6, and counsel for the discriminatees did not oppose this motion. On due consideration, I issue an Order correcting the transcript to reflect the changes set forth in Respondent's motion The above briefs, and my observation of the demeanor of the wit- nesses, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION Respondent is a banking or financial institution orga- nized under the laws of India. It is licensed to do busi- ness in the State of New York where it has a facility lo- cated at 460 Park Avenue, New York, New York. During the normal course of its business operations, Re- spondent annually derives gross revenues in excess of $1 million and engages in interstate financial transactions in excess of $100,000 from its New York facility. Respondent denies that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent contends that it is a direct in- strumentality of the government of India and, therefore, is not an employer within the meaning of the Act.2 This same contention was made by Respondent concerning its Chicago, Illinois facility and rejected by the Board. State Bank of India, 229 NLRB 838 (1977). The Board con- cluded that Respondent was not excluded within the meaning of Section 2(2) of the Act which provides that the term "employer" shall not include "the, United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivi- sion thereof' and that "there is no public policy or policy of the Act which, on the ground that the employ- er is disclosed to be an `agency' or `instrumentality' of a foreign state, justifies us to continue to decline jurisdic- tion in cases affecting employees in our own country whose employer meets the Board's jurisdictional stand- ards for such enterprises." The Board therefore conclud- ed it would effectuate the purposes of the Act to assert jurisdiction . This contention was raised again by Re- spondent in connection with its New York facility in State Bank of India, 273 NLRB 264 (1984), and again re- jected by the Board. Accordingly, I conclude that Re- spondent is an employer engaged in commerce within the ,meaning of Section 2(2), (6), and (7) of the Act. (262 NLRB 1108 (1982).) I 'conclude Local 6 is a labor organization within the meaning of Section 2(5) of the Act. Port Chester Nursing Home, 269 NLRB 150 (1984); State Bank of India, 262 NLRB 1108. II. THE UNION ACTIVITIES OF SCARIA AND VISWAM-RESPONDENT UNION ANIMUS Scaria was hired by Respondent in March 1975 as a mailclerk. He worked continually for Respondent until his, discharge on November 1982. During this period Scaria was a satisfactory employee and was offered a su- pervisory position by Respondent in January 1981 and March 1982, which he turned down. motion shall become part of the record herein and is designated as J Exh 1 2 The facts on which this contention is based are contained in R Exhs. 19 through 26 and are summarized concisely in the administrative law judge's decision in State Bank of India, 262 NLRB 1108 ( 1982), involving Respondent's New York facility. 270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Viswam was hired in April 1977 as a bank messenger and worked for Respondent continually thereafter until his discharge on November 1982. During this period Viswam was a satisfactory employee. At the time of his discharge he had been promoted to the position of letter of credit negotiator. Viswam was offered a supervisory position in November 1980 but turned it down. In 1977 Viswam and Scaria were among a small group of employees who began organizing Respondent's em- ployees. They formed an independent labor organization called Local 777. On January 12, 1978, following a peti- tion filed with Region 2, Local 777 was certified by the Board. Shortly thereafter Respondent and Local 777 en- tered in a collective-bargaining agreement. Viswam thereafter served the local as the shop steward. By 1980, Viswam and Scaria were dissatisfied with the lack of success achieved by Local 777 in obtaining bene- fits and improved working conditions for the unit em- ployees. Viswam wanted to affiliate with a stronger union. Local 777's attorney advised him to call William Perry, president of Local 6. Viswam contacted Perry and he and Scaria met with Perry. It was decided -that Local 777 would attempt to merge with Local 6. In fur- therance of this merger, Viswam and Scaria circulated and posted Local 6 literature and arranged a meeting of employees where they obtained about 65 employee sig- natures in support of the merger. Thereafter, Local 6, through its president, Perry, requested Respondent to bargain with it. Respondent refused. On December 8, 1980, Local 6 filed unfair labor practice charges against Respondent alleging violations of Section 8(a)(1) and (5) of the Act.3 On January 22, 1981, a complaint issued al- leging an unlawful refusal to recognize and bargain with Local 6. The case was tried in September 1981. During the trial, Viswam and Scaria were the principal witnesses in support of the charge.4 Sometime in January 1981 after the complaint in the above case (2-CA-17711) issued, P. K. Bhattacharjee, Respondent's deputy chief manager and the second rank- ing officer in the New York office, called Scaria to his office. He offered Scaria a promotion to a supervisory position. During this meeting he discussed the pending unfair labor practice case and told Scaria that Respond- ent did not want Local 6 and that if he took this promo- tion it would "bust the Union." Scaria refused to accept this offer of promotion and later confirmed such refusal in writing, setting forth his reason as fear on his part that Respondent was trying to promote him out of the unit to fire him. Bhattacharjee, who -was called as a witness by Respondent, did not deny this conversation. I fully credit Scaria's testimony regarding this conversation.5 About July 1981, shortly before the trial of the above- described, unfair labor practice complaint was scheduled to take place, Viswam was attending a send-off party for a Case 2-CA-17711 4 On February 12, 1982, the administrative law judge issued his deci- sion in the above case in which he dismissed the complaint in its entirety On July 21, 1982, the Board affirmed the judge (262 NLRB 1108 ) 5 I was favorably impressed with Scaria's demeanor throughout the course of his testimony His answers were very candid and forthright during both direct and cross-examination I was also very impressed with Scam's recollection of the facts. Chandurka, Respondent's deputy chief of contract and admittedly an agent and supervisor of Respondent. Chan- durka was going to work at the bank's main office in India. During this party, Viswam testified he spoke to Chandurka and Chandurka expressed his feeling that he had not discriminated against him for his union activities. However, Chandurka told him he had better "watch out" for Respondent. Viswam responded that he was aware Respondent could fire him. Chandurka was not called as a witness by Respondent. Viswam's testimony is therefore undenied. I fully credit Viswam's testimony concerning this conversation.6 As a result of Chandur- ka's threat, an unfair labor practice charge was filed by Local 6 against Respondent.? The charge was with- drawn by Local 6 only after the Regional Director as- sured Local 6 that Respondent had given Viswam "writ- ten assurances to the effect that it will not discriminate against him because of his union activities." Sometime in September 1981, during the hearing in connection with the refusal-to-bargain charge described above, Viswam met Bhatacharjee in the lobby of the Federal Building, Federal Plaza, New York. Viswam tes- tified that Bhatacharjee came over to him during a recess in the trial and told him that he needed Viswam's sup- port and that Respondent did not need a union. Bhatta- charjee told Viswam he needed his help to see that there was no union in the bank. He then told Viswam that Re- spondent would accede to the employees' demands if there was no union. Although Bhattacharjee was called as a witness, he did not deny this conversation. As, set forth above, I found Viswam to be a credible witness. Accordingly, I fully credit his testimony concerning this conversation. In October 1981, shortly after the trial of the unfair labor practice complaint described above. Viswam and Scaria planned to picket Respondent at the Waldorf As- toria Hotel which was the site of a scheduled reception to celebrate the arrival from India of Padmanabhan, the chairman of the bank. In furtherance of this planned picketing, which was to protest working conditions, Viswam and Scaria posted picketing notices throughout the bank and distributed such notices to employees. The picketing was to take place on October 5, 1981, at 5:30 p.m. On October 4, Bhattacharjee called Scaria and Viswam into his office. Both Scaria and Viswam testified that Bhattacharjee pleaded with them to cancel the pick- eting planned for October 5 at the Waldorf. He told them if the picketing- took place, his name and career would be spoiled. Viswam and Scaria listened, but gave no commitment. On October 5, Bhattacharjee called Viswam into his office. Viswam testified that he again pleaded with him to cancel the planned picketing, ex- plaining if the picketing took place as scheduled, his career would be spoiled. As an inducement, Bhattachar- jee told Viswam he would arrange a meeting with Bank Chairman Padmanabhan so that Viswam could presum- 6 Viswam impressed me as a credible witness I was impressed by his demeanor He was very forthright during both direct and cross-examina- tion and like Scaria displayed an excellent recollection of the facts 7 Case 2-CA- 18302 STATE BANK OF INDIA ably present the employees' demands. Viswam agreed and the scheduled picketing was canceled. Bhattacharjee, although called as a witness by Respondent, did not deny these conversations. As set forth above, I have found Scaria and Viswam to be credible witnesses. Ac- cordingly, I fully credit their testimony concerning the above meetings. On July 21, 1982, the Board, as set forth in footnote 3, affirmed the judge's decision dismissing the complaint which had alleged that Respondent had refused to recog- nize and bargain with Local 6. Shortly thereafter, Local 6 filed with Region 2 a petition for election. Viswam and Scaria solicited and obtained from Respondent's employ- ees a sufficient number of signed authorization cards which were used to support this petition for an election. Pursuant to the petition, an election was scheduled for September 2, 1982. On September 2, the election was held. Viswam was the observer for Local 6. Following the vote, the ballots were counted and Local 6 won by a count of 44 for Local 6 to 33 for no union.. Present for Respondent during the count, which took place in the conference room at Respondent''s facility, was Bhattacharjee and Re- spondent's attorney, John Gibbons. Present for Local 6 was William Perry, Local, 6 president, and Scaria and Viswam. Perry testified that following the count he at- tempted to shake hands with Gibbons but he refused and walked away from him. Perry, Viswam, and Scaria were left and began laughing. Gibbons then walked by, heard them laughing, and stated to the group, "I'm going to fuck you." Viswam and Scana corroborate Perry's testi- mony. Gibbons testified that he signed the tally of ballots and left the room without saying a word. He concedes he saw a big smile on Viswam's face. He denies that Perry tried to shake his hand or that he told Perry, Viswam, or Scaria, either individually or collectively, that he would "fuck" them or words to that effect. Bhat- tacharjee could not remember that Gibbons made the statement attributed to him by Scaria, Viswam, and Perry. I credit the testimony of Perry, Scaria, and Viswam. As set forth above, I have concluded that Scaria and Viswam are credible witnesses. I was not im- pressed with Bhattacharjee's demeanor. His responses during cross-examination were often vague. His memory of the above incident was particularly vague. Moreover, his testimony on cross-examination concerning Respond- ent's' decision to terminate Scaria and Viswam was often evasive. Additionally, during the trial of this case, as set forth in the record, Perry and Gibbons demonstrated an intense hostility toward each other. During the short period of time Perry appeared,8 his manner toward Gib- bons was to goad and antagonize him, and Gibbons' re- sponse was to become angry and lose his temper. Perry's testimony is consistent with their conduct at this trial. Counsel for Respondent, in an attempt to discredit the testimony of, Perry, Viswam, and Scaria, established that in several prior investigatory affidavits taken by Board agents after the election, neither Scaria nor Viswam in- cluded Gibbons' statement in their affidavit, nor, did 8 Perry was ejected from the hearing because of improper conduct di- rected to me during the course of this hearing discussed in detail below 271 Perry in sworn testimony in an unemployment insurance proceeding involving the subsequent discharges of Scaria and Viswam. I have considered this evidence arid, not- withstanding, conclude for the reasons described, above that the mutually corroborative testimony of Perry, Scaria, and Viswam is credible. In September 1982, Scaria and Viswam again orga- nized and scheduled picketing to take place at the Wal- dorf Astoria Hotel at a time when Respondent's chair- man, Padmanabhan, was coming over from India for a reception. The picketing was again to protest the em- ployees working conditions. Scaria and Viswam testified that Bhattacharjee again called them into his office and pleaded with them not to picket. -During this conversa- tion, Scaria testified that Bhattacharjee told them their "union activities were interfering with the bank." At the conclusion of this meeting Scaria and Viswam did not agree to cancel the scheduled picketing. The following day Bhattacherjee called Scaria, into his office. He plead- ed with him to cancel the picketing and told him "it [the picketing] was, bad for the bank." Pursuant to Bhatta- charjee's promise that he would arrange a meeting with Padmanabhan, Scaria and Viswam agreed to cancel the scheduled picketing. Bhattacharjee, although called as a witness by Respondent, did not deny these conversa- tions. Accordingly, I fully credit the testimony of Scaria and Viswam. On, September 27, 1982, Scaria was suspended for 3 days for allegedly verbally assaulting Respondent's su- pervisor, Sheela Ghate. Scaria denied that he had spoken to Ghate that day. On November 17 and 18, 1982, Re- spondent discharged Scaria and Viswam for allegedly conspiring with an individual named Joseph Johnson Jr. to physically assault Ghate.9 The General' Counsel has the burden of proving union animus was a substantial or motivating factor in the sus- pension of Scaria and in the discharges of Scaria and Viswam. NLRB ,v. Transportation Management Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 `(1980), enfd. 662 F.2d 899 (Tst Cir. 1981), cert. denied 455 U,S.- 989 (1982). Respondent admits, and indeed' the evidence estab- lished, Respondent's knowledge of Scalia's and Vis- wam's activities on behalf of Local 6. Such activities in- cluded testifying in the September 1981 trial and 'the filing of unfair' labor practice charges alleging unlawful threats.. Respondent further admits, and the evidence fully established, that Scaria and Viswam were the most ' active employees on behalf of Local 6. In fact, the evi- dence established that Scaria and Viswam were the heart and soul of Local 6 as far as its existence in Respondent's facility was concerned and Respondent acknowledged this by its conduct. For example, it was Scaria and Viswam who planned and scheduled the above-described picketing in 1981 and 1982; it was Scaria and Viswam with whom Bhaattacharjee pleaded to cancel such sched- uled picketing, and it was Scaria and Viswam who ulti, mately agreed to cancel the scheduled picketing. ' The facts surrounding the above suspension and discharges will be set forth in the section of this decision relating to Respondent's defense. 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The evidence also conclusively established Respond- ent's intense union animus directed to Local 6 generally and to Scaria's and Viswam's activities on behalf of Local 6 in particular. The following facts conclusively establish Respondent's animus. (a) Bhattacharjee's January 1981 conversation with Scaria in- which he stated that Respondent did not want Local 6 and it would "bust the union." (b) Chandurka's threat to Viswam that he had better "watch out" for Respondent, in connection with his ac- tivities on behalf of Local 6, and the subsequent unfair labor practice charge filed which resulted in written as- surances by Respondent that it would not discriminate against Viswam. (c) Bhattacharjee's September 1981 statements to Viswam to the effect that Respondent did not want Local 6 as the bargaining representative of its employees and would accede to the employees ' demands if Viswam dissuaded the employees from supporting Local 6. Such conduct could arguably constitute a violation of Section 8(a)(1). St. Francis Federation of Nurses v. NLRB, 729 F.2d 844 (D.C. Cir. 1984). (d) Bhattacharjee's pleas to Scaria and Viswam to cancel scheduled picketing, a protected activity, in Octo- ber 1981 and in September 1982, shortly before the sus- pension of Scaria and discharge of Scaria and Viswam, because such picketing would embarrass Respondent and ruin Bhattacharjee's career. These picketing incidents standing alone would, in my opinion, supply sufficient motivation for Respondent to want to rid itself of Scaria and Viswam. It is clear that by threatening to picket, these employees had Respondent by the throat, and Re- spondent did not like it. (e) Gibbons' statement following Local 6's election victory that he would "fuck" the Union. Even a casual examination of Respondent's conduct di- rected at Scaria and Viswam , as described above, estab- lishes conclusively, in my opinion, intense union animus directed at Scaria and Viswam and a substantial motivat- ing factor in the suspension and discharges. It is obvious that if Respondent were able to rid itself of Scaria and Viswam it would effectively rid itself of Local 6. Additionally, the timing of the suspension and dis- charges, within a month of the Local 6 election victory and a second threat to picket Respondent, further sup- port a discriminatory motivation for the suspension and discharge. In short, the General Counsel has established not only a motivating -factor, but a solid prima facie case. Once such motivating factor is established, the burden of proof shifts to Respondent to establish that the same action would have taken place even in the absence of the employees' protected activities. NLRB v. Transportation Management, supra; Wright Line, supra. III. RESPONDENT'S DEFENSE On September 27, 1982, Respondent's supervisor, Sheela Ghate, went to Respondent's personnel director, Selena Griffin, a supervisor and agent of Respondent, and reported the following incident to Respondent in writing: On September 24, 1982 I left the office at 5:40 PM and was walking to the 5th Avenue subway station. Mr.- Scaria and Mr. Viswambharan were standing at the , corner of 54th Street and Park Avenue. As I approached that corner Mr. Scaria spoke to me loudly in Hindi. The meaning was `You want telephone calls, is it you father's phone?; and then he said bad words. He repeated the same thing again and came towards me in a threatening ges- ture..I said to Mr. Scaria, "If you do not stop, I will call police." Then both of them walked away. Ghate did not, during the course of Respondent's investi- gation, disclose what the "bad words" were or describe the "threatening gesture." On September 23, Ghate had given Viswam a warning memo for referring out calls he allegedly should have taken. Ghate told Griffin she as- sumed the reference to "telephone calls" by Scaria was in connection with this memo. Griffin then reported the incident to Respondent's su- pervisor, Gururajan, who was Scaria's direct supervisor. Gururajan, Griffin, and Ghate then met with Scaria in Gururajan's office . Gururajan then said to Scaria, "I be- lieve you confronted Mrs. Ghate on Friday [September , 24]." Scaria said he did not know anything . In this con- nection Scaria testified that he had left the office at 5 p.m. on September 24 with Viswam and other bank em ployees and taken the Lexington Avenue subway home. Respondent's facility is on 57th -Street and Park Avenue and the Lexington Avenue subway is on 59th Street and' Lexington Avenue. Park Avenue and Lexington are al city block apart. After meeting with Scaria, Griffin and Rao, Viswarn's supervisor, met with Viswam. Rao told Viswam he un derstood something had taken place between Scaria and Ghate after work on September 24. Viswam, as did Scaria, denied knowing or seeing anything. He did, how-' ever, tell Griffin and Rao that he, Scaria, Simon, a bank employee, and other , employees had left the office at 5 p.m. and walked to the Lexington Avenue subway to go home. Griffin then spoke with - Simon who confirmed that both Viswam and Scaria left work at 5 p .m. and went with him to the Lexington Avenue subway station. Ac-' cording to Griffin, Simon told her that he did not exact- ly see them board the train because he went to' buy tokens. However, Griffin testified that after speaking to, Simon she had no doubt that Scaria and Viswam were at the subway with Simon and boarded their train , but con- cluded that it was possible for Scaria and Viswam to have gotten off the train at the next stop and doubled back in time to intercept Ghate. Ghate usually left work at 5:30 p.m. On the basis of the above investigation, Griffin testi- fied she made the decision to suspend Scaria for 3 days. No disciplinary , action was imposed on Viswam. An analysis of the above facts establishes' that: (a) The suspension was predicated on alleged state- ments by Scaria to Ghate which are in part incoherent and in part subjective and conclusory. Scaria was alleged to have said "You want telephone calls, is it your fa- ther's phone." I simply do not understand what this sen- STATE BANK OF INDIA tence means, even assuming it was allegedly related to Ghate's warning memo to Viswam the previous day. I certainly do not see how it could be insulting or threat- ening. The reference to Scaria saying "bad words" and making a "threatening gesture" is totally subjective and conclusary. Art Steel of California, 256 NLRB 816, 821 (1981). 11, is undisputed that at the time of the suspension, Respondent had no knowledge of what such "bad words" or the "threatening gesture" were. Ghate testi- fied she did not disclose these bad words or describe the gesture, to Respondent supervisors during the investiga- tion. Nor is there any evidence to establish that Griffin or other Respondent supervisors pushed Ghate to reveal what "bad words" were allegedly used or the nature of the "threatening gesture." (b) The alleged incident took place after working hours and outside of Respondent's facility. (c) The alleged incident did not involve Scaria's super- visor. (d) It is simply not probable that the incident could have taken place as described. Griffin admitted that the investigation established that Scaria and Viswam left work at 5 p.m. and went to the Lexington Avenue subway at Lexington and 59th Street. This is 2 blocks north and 1 long city block east of Respondent's facility. She then testified she concluded it was possible for them to have taken the train to the next stop and to double back and intercept Ghate at a corner of the 54th Street and Lexington Avenue. Ghate generally left about 5:30 p.m. It would be virtually impossible for Scaria and Viswam to double back from the subway given the un- predictability of New York subways and pick the one corner, out of four, that Ghate would traverse, wait there for her, and then pick her out of the thousands of people crowding this area during the height of New York's rush hour by 5:40 p.m., the alleged time of the in- cident. Indeed, there is no evidence that they were aware of what subway Ghate took, or the route she cus- tomarily took to reach the Fifth Avenue subway. She could have taken any number of routes to her subway that would have bypassed 54th Street and Park Avenue entirely, - (e) It is unlikely that Scaria and Viswam would have undertaken such a complex and devious action with such little likelihood of success merely to say a few, "bad words" concerning a memo to Viswam. In this connec- tion there is no evidence that Viswam , was particularly angry about the memo or displayed such conduct which would trigger such an elaborate and planned response. (f) There is no evidence that Respondent suspended other employees or in anyway disciplined other employ- ees based on similar incidents. In view of this analysis, I conclude that Respondent has failed to meet its burden and establish the suspension would have occurred in any event. Transportation Man- agement, supra. Accordingly, I conclude that Respondent suspended Scaria because he engaged in activities in sup- port of Local 6. Since such activities involved testifying during Board proceedings, filing of unfair labor practice charges„ and participating in a Board-conducted election, I conclude that by engaging in such conduct, Respond- ent violated Section 8(a)(1), (3), and (4) of the Act. 273 On October 29, 1982, shortly after noontime, Joseph Johnson Jr., a recent organizer for Local 6, but then un- employed, and a stranger to Respondent, walked into Respondent's facility and handed Sheela Ghate a note which said: Mr. Viswam has tried to hire me to beat you up. My name is Joseph Johnson, Jr. I can be reached at 452-3812. It [presumably a reference to the alleged assault] is supposed to take place after he leaves the coun- try. Let him stay out! Keep this confidential between you, I, and the authorities. Ghate, read the note and asked Johnson to cone with her. He went with Ghate who took him to Griffin's office. Ghate showed Griffin the note and Johnson then related an alleged plot whereby he was hired by Viswain to beat up Ghate. He told Griffin after-he beat up Ghate he was to call Scaria and he would receive a cash bonus. He gave a slip of paper to Griffin with Scaria's tele- phone number on it. Griffin took the note and slip of paper to Bhattacharjee, showed them to him, and related Johnson's story. Bhattacharjee recognized Viswam's handwriting. Bhattacharjee called his attorneys and on their advice it was decided to turn the investigation of this matter over to them. It was then recommended by Respondent's attorneys that Johnson be brought to their office so an affidavit could be taken. Johnson agreed to this and went with Griffin by cab to the attorney's office. Griffin testified that Johnson was dressed in an "osten- tatious" manner and observed that he "stood out in a crowd." Bhattacharjee testified that Griffin later told him, in connection with reporting her impressions of Johnson, that during the ride to the attorney's office he recited poetry, evidently written by him, to her and that she thought Johnson "was not that bad" (a reference to his character and credibility rather than his poetry). When they reached Respondent attorney's office, Johnson was interviewed by Brian Conneely, an associ- ate in the firm's labor department. Conneely took an affi- davit from Johnson which set forth the details of the al- leged conspiracy. 10 Johnson stated that in early October he was at the of- fices'of Local 6 when he happened to meet Viswam. He knew Viswam in connection with his Local 6 activities on behalf of Respondent's employees. Viiswam came to him and said, "I need to have someone beat up." He said he would give Johnson the name of the intended victim and the day of the assault later. Johnson agreed to per- form this alleged act for Viswam. The following day Johnson stated he called the NLRB (Region 2) and spoke to one of the Board investigators. (The Board investigator's' name was not set forth in the affidavit, however, Johnson testified he told Conneely 50 In recounting this alleged conspiracy, I am using the affidavit of Johnson taken by Conneely rather than Johnson's testimony at trial be- cause it was the contents of the affidavit that was used by Respondent in reaching its decision to discharge Scaria and Viswam (See R, Exh. 15.) 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he knew David Leach, at the time a field attorney employed by the' NLRB and working out of Regioti' 2.) He related 'to this Board investigator his conversation with Viswam the day before and was advised to come to Region 2 to give an affidavit. He never did this. The fol- lowing day he called Viswam at his office telephone number and the made an appointment for lunch. During this lunch' appointment Viswam asked how much the job would cost and they agreed to a $100 price. According to Johnson, Viswam gave him the-$100 during lunch and said he would call him later to let him know who he wanted beat up and when. On October 29, Johnson stated he called Local 6's office and the secretary told him Viswam was trying to contact him. Johnson states he called Viswam at his office and he told him to meet him at Respondent's facil- ity that same day about noontime. Johnson met Viswam in Respondent's reception area. He accompanied Viswam to his desk where Viswam pointed out Ghate. At this time he told him what time she left for work and the subway station she entered. Viswam then told Johnson to do the job early the following week when he had left the country. Viswam then gave Johnson a slip of paper with, Scaria's name and phone number on it (described aboe), and told him to contact Scaria when the job was done. According to Johnson, he and Viswam then left Respondent's facility and headed in opposite directions.' When Viswam was out of sight Johnson doubled back to Respondent's facility 'and gave,the note described above to Ghate. After Johnson left the attorney's office, Griffin re- turned to Respondent's facility. She asked their recep- tionist ,whether anyone had come to see Viswam that day and the receptionist described a man answering Johnson's description who she said later returned to the bank. Respondent Attorney Conneely thereafter called Carol Sobin, a field attorney working out of Region 2 and as- signed to investigate the unfair labor practice charge filed by Local 6 concerning Scaria's suspension, Sobin confirmed that Johnson was an organizer for Local 6. The following, week, John Gibbons, Respondent's pri- mary attorney, returned to his office and took over the investigation. Gibbons had been out of town on October 29. On his return Conneely briefed him about the events of October 29 and Gibbons reviewed Johnson's affidavit, the note to Ghate, and slip of paper with Scaria's name and phone number on it. Conneely told Gibbons that Johnson had said he knew, Leach, a field attorney work- ing out, of Region- 2. Later that day Gibbons called Leach who ,confirmed that he knew Johnson to be an or- ganizer for Local 6 and that he had been involved in an 8(a)(3) -proceeding which Region 2 had prosecuted. The following week, Conneely contacted Region- 29 and spoke with a Board agent and asked if he knew Johnson. The agent referred him to Seaport Manor, Inc., 248 NLRB 886 (1980), in which the Board had found Johnson to have been discriminatorily discharged. Johnson was frequently used by Local 6 as a "Plant." He would obtain a job at a plant Local 6 intended to or- ganize and organize it from within. On occasion he would be discriminatorily discharged in connection with these activities. On November - 4, Gibbons spoke with Board Agent Sobin who was investigating Scaria's unfair labor prac- tice charge described above. He - had asked - her several days before to ask Viswam whether Johnson had been in to see him at the bank on October 29. During this con- versation Sobin' told' him she had asked Viswam this question and he replied that he had not. On the basis of this investigation, which was conduct- ed under Gibbons' supervision, Gibbons contacted Re- spondent 'by a letter dated November 15, 1982, recom- mending that Respondent discharge both Scaria and Viswam. Respondent, by letters dated November 17 and 18, notified Scaria and Viswam respectively that they had been terminated. At no time during this investigation did Respondent's personnel or its attorneys contact Johnson's employer, William Perry, president of Local 6, or Scaria or Viswam. When Griffin was asked during her testimony why Respondent had not spoken to Scaria or Viswam, she replied that Respondent just assumed they would deny the accusation. No reason was offered by Respond- ent for not contacting Perry. Respondent did report this alleged conspiracy to the police. However, according to the testimony of Johnson, Scaria, and Viswam, the ,police did not contact them and there have been no criminal proceedings. Griffin admitted during her testimony that when Re- spondent.contemplated disciplinary action against its em- ployees, they were invariably interviewed so that they could present their position, offer an explanation, or rebut accusations before any disciplinary action was taken. The central issue concerning Respondent's defense is whether it acted reasonably and conducted a €ull and fair investigation as a basis for the discharge of Scaria and Viswam, or whether the investigation was prefunctory and the results of such investigation used as anexcuse, for Respondent- to rid itself of union adherents. Lancer Corp., 271 NLRB 1426 (1984); Tama Meat Packing Corp., 230 NLRB 116 (1977); J. W. Mortell Co., 168 NLRB 435 (1967); Norfolk Tallow Co., 154 NLRB 1052 (1965). The first thing that seems obvious to me is that John- son's story is rather bizarre. It is certainly bizarre that two white collar employees with relatively long terms of employment with Respondent, who are reliable workers, with good work records, and family men, would engage in a criminal conspiracy which could not only end their careers with Respondent, but send them to jail and de- stroy their families. And what would be their motiva- tion? Merely to retaliate against Ghate because she issued the memo to Viswam described above. Johnson's allega- tion is a very serious allegation and, under these circum- stances, a full and fair investigation was required. Not only is the allegation bizarre, but the person making the allegation is a total stranger to Respondent. Moreover, Respondent had serious doubts concerning his credibility. In this connection, Griffin' described Johnson as dressed in a very "ostentatious" manner and observed that "he stood out in a crowd." She later reported to STATE BANK OF INDIA 275 Bhattacharjee that during their cab ride to the attorney's office Johnson had recited poetry he had written to her and "was not that bad." During the trial, Johnson was questioned about his literary talents as follows: Q. Well, do you write books? JOHNSON: Yes, I do. Q. And do you write autobiographies? JOHNSON: I write fiction and nonfiction, plays, short stories. I'm a professional writer. I'm an ac- complished writer, on a scale that I'm sure that you're not even aware of. JUDGE EDELMAN: What kind of stories do you write? JOHNSON: I write fiction, nonfiction. I got a book on-I got a manuscript of the 70's; I got a baseball story about a 'federal agent. JUDGE EDELMAN: You've got a baseball story about a federal agent? JOHNSON: Well, yes. JUDGE EDELMAN: What was the story about? JOHNSON: It's a fellow that goes into military, get's programmed by the military to be in a special program that the president is initiating . Then he goes through life and he becomes a part of orga- nized crime and he joins sides in this managing con- trol of America. He grows up to be a leader of a family and he goes to jail and he comes out to be a G-man. JUDGE EDELMAN: When does he become a ball player? JOHNSON: He's a ball player from a child. He joins the nastalgia league when he's 12 years old and he goes throughout life playing baseball, play- ing ball. JUDGE EDELMAN: He goes through his life play- ing- baseball except when he's in the army or- JOHNSON: In the army or conducting business with this organized crime people that are trying to get him to work for him for ten years so they could control the economy of America for ten years. I feel certain that Johnson's poetry was consistent with his prose and that Griffin had serious doubts about John- son's credibility as her observations to Bhattacharjee in- dicate. Moreover, during the trial of this case I was un- impressed with the demeanor of both Griffin and Bhatta- charjee. Both impressed me as being vague and evasive especially in connection with their testimony as to the character of Johnson. I feel certain that Griffin had seri- ous doubts about Johnson's credibility and conveyed this to Bhattacharjee. I am also convinced beyond any doubt that when Re- spondent and its attorneys reviewed Johnson's affidavit they saw it as a vehicle by, which they could rid them- selves effectively of Local 6. As set forth above, Viswam and Scaria were effectively' Local 6 as far as the employ- ees were concerned. I am further convinced that Re- spondent's attorneys who have an extensive practice before the NLRB and are well versed as to Board law, carefully orchestrated an investigation which would give the appearance of a full investigation , but intentionally failed to contact available witnesses who might show that Johnson was not a credible witness, or who might explain incriminating details set forth in his affidavit. Re- spondent's attorneys were aware that Johnson was a stranger as far as Respondent was concerned and Con- neely, the attorney who took the affidavit, could observe as well as Griffin that Johnson was "ostentatious" and "stood out in a crowd ." On hearing Johnson's story, it must have struck Conneely and Gibbons, who later re- viewed the affidavit, as bizarre . Moreover, as Johnson's testimony clearly indicates, even casual questioning es- tablishes that he has some problems distinguishing be- tween fact and fiction. Even if Griffin did not recount her observations and impressions about Johnson to Con- neely and Gibbons, which she probably did as a skilled attorney, Conneely should have been able to observe it himself during his questioning . However, it is obvious that neither Conneely nor Gibbons wanted to become aware of anything negative about Johnson's credibility, or to have any incriminating aspects set forth in John- son's affidavit explained. This is evidenced by the ques- tions they did not ask, the curious facts contained in Johnson's affidavit that did not trouble them, and the witness who they failed to contact, including Viswam and Scaria, that could have shed light on Johnson's credibility, his motivation for telling this strange tale, or explained certain statements set forth in Johnson's affida- vit that tended to implicate Scaria and Viswam. For example, Johnson was never asked if he was con- victed of a crime, or if he had undergone psychiatric treatment, if he would be willing to take a lie detector test, or whether he had any animosity toward Scaria or Viswam. Additionally, Gibbons was not at all troubled by the fact that some 3 weeks prior to October 29, Viswam al- legedly paid Johnson $ 100 in advance to beat up a bank employee, and Johnson kept the money and never re- ported this felony to the police. When he was asked about this, his response was that he was not at all upset by Johnson keeping the money or.his failure to report a conspiracy to commit a felony to the police. Evidently, this did not trigger any suspicions about Johnson's credi- bility either. However, the most revealing aspect about the investi- gation was the people that were not contacted who could have shed light on Johnson's credibility or ex- plained troubling aspects of the affidavit. David Leach, then a field attorney with Region 2, was called by Gib- bons, but was not asked if Johnson had called him or anyone in 'Region 2 to report the proposed assault as set forth in Johnson's affidavit. Perry, president of Local 6 and Johnson's employer, was not called and, questioned about Johnson's character, credibility, or motivation. Perry testified that during Johnson's employment he had told Perry he heard voices from outerspace and that he bought a Rolls Royce automobile . Perry on one occasion observed Johnson sitting on the curb on Madison Avenue wearing nothing but his undershorts and a mo- torcycle helmet. Perry further testified that, Johnson was reported to him by a motel owner as having stripped a motel room while on an organizing assignment for Local 6. On another occasion Johnson was ordered out of one 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the nursing homes represented by Local 6,_ on which occasion the nursing home administrator referred to him as a "crazy man." Had Gibbons taken the trouble to call Perry, Perry would have undoubtedly related these inci- dents. Perry might also have been able to explain how Johnson was aware, of Ghate's name and the subway route she took home. After all, Perry, on behalf of Local 6, had filed a charge alleging the discriminatory suspen- sion of Scaria, which investigation was pending at the time Johnson gave his affidavit and these details might well have been within the knowledge of Local 6 repre- sentatives and available to Johnson. Perry might also have been able to explain possible motivation for John- son's affidavit. Perry should have been called, but was not. However, the most striking example of Respondent's attorneys' failure to conduct a complete investigation of Johnson's allegations is their failure to contact Scaria and Viswam. Griffin testified they were not contacted be- cause it was assumed they would not admit the allega- tions and Respondent would not believe their denial. In view of the seriousness of the allegation and the effect it could have on their careers and their lives, elemental fair play cries out that they be contacted and confronted with the allegations so that they might have the opportu- nity to explain them. Had they been contacted they might have been able to,explain Johnson's motivation, or to shed light on his credibility or to explain how Johnson became aware of some of the details set forth in his affi- davit. For example, Viswam testified that the slip of paper with Scaria's name and telephone number on it, which Respondent regarded as highly incriminating, was written by Viswam and given to Perry, so Perry could contact Scaria if necessary while Viswam was out of the country. Johnson,' who had access to Local 6's office,' could have obtained the slip from Local 6's office. That Gibbons was aware that Viswam and Scaria should have been contacted is evidenced by his request to Board Agent Sobin that she ask Viswam if Johnson visited Viswam at the bank on October 29. This was a question, among others, that Gibbons should have asked Viswam directly if he were truly interested in conducting -a full investigation. He did not do this because he then would have had to confront Viswam with Johnson 's allegations and Viswam might have been able to explain them, and tell Gibbons that Johnson was not a reliable witness and apparently neither Respondent nor its attorney wanted to be confronted with such explanation. Although Board Agent `Sobin allegedly told Gibbons that Viswam denied Johnson was at the' bank on October 29, there is no evi- dence regarding the actual questions Sobin asked Viswam or the circumstances of such inquiry. Such ques- tions were certainly not relevant to the investigation she was at the time conducting. Gibbons should have con- fronted Viswam and Scaria and asked the questions him- self. - - - Respondent's principal reasons for crediting Johnson's affidavit were the handwritten note in Viswam's hand- writing with Scaria's telephone number on it and the fact that Johnson knew where Ghate lived and the subway route she took home. As set forth above, both of these factors could have been explained had Respondent con- tacted Perry, Viswam, or Scaria as should have been done for a full, open, and fair investigation. Even if-it turned out that the above-named individuals were unable to explain such factors, this is no excuse for failing to make such contacts because Gibbons could not have known one way or the other what , if any, explanation he would have received without first contacting such indi- viduals and asking the appropriate questions . The Board has repeatedly held in appropriate circumstances that an impartial inquiry requires that an employee accused of conduct requiring some disciplinary measure be provided an adequate chance to defend himself. Lancer Corp; Tama Meat Packing Corp:, supra; J. W. Mortell Co.; Nor- folk Tallow Co., supra. An analysis of Gibbons' investigation establishes that it consisted entirely of Johnson's affidavit, which was fully credited, by Respondent, the statement of Respondent's receptionist who stated that she observed Johnson meet with Viswam in his office on October 29, and a-few tele- phone calls to Board agents at Regions 2.and 29, who were asked whether Johnson was a Local 6 organizer. The investigation conducted by Gibbons is analogous to the Board conducting an unfair labor practice investiga- tion on a charge filed against an employer by interview- ing only the charging parties' witnesses 'and-thereafter is- suing a complaint without giving the employer a chance to rebut or explain the allegations charged. I am con- vinced, had similar accusations been made by Johnson concerning other employees rather than Scaria and Viswam, the Local 6 adherents, Respondent would have conducted an extensive investigation which would have included calling in the employees and giving them the opportunity to defend themselves and to explain and rebut the allegations against them . In this connection, Respondent admitted that in cases where it contemplates disciplinary action against its employees, the employee in question is invariably given the opportunity to explain or rebut the accusations against him before any disciplinary action is taken. Therefore, in view of Respondent's prefunctory and one-sided investigation of Johnson's allegations, and in view of Respondent's departure from it usual practice of giving employees subject to potential discipline an op- portunity to explain or rebut accusations against them, coupled with the activity by Viswam and Scaria on behalf of Local 6, and Respondent's intense animosity, I conclude that Respondent has failed to meet its burden to establish that the discharges would have taken place in any event. Rather, it is apparent to me that the dis- charges were purely discriminatorily motivated because of Scaria's and Viswam's activities on behalf of Local 6, which activities included their participation in the Board proceedings described above. Accordingly, I conclude that by discharging Viswam and Scaria, Respondent vio- lated Section 8(a)(1), (3), and (4) of the Act. CONCLUSIONS OF LAw 1. Respondent is an employer engaged, in commerce within the meaning of ,Section 2(2), (6), and (7) of the Act. STATE BANK OF INDIA 277 2. Local 6 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by suspending its employee, Scaria, violated Section 8(a)(3) and (4) of the Act. 4. Respondent by discharging and thereafter refusing to reinstate its employees Scaria and Viswambharan vio- lated Section 8(a)(1), (3), and (4) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that it cease and desist from engaging in such unfair labor, practices and take certain affirmative action set forth below. Respond- ent shall offer K. M. Viswambharan and' Johannes Scaria immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges. In addition, Respondent shall make Viswambharan and Scaria whole for any loss of earnings or other benefits they may have suffered by reason of the discrimination practiced against them. All backpay shall be computed in the manner set forth in F W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Co., 231 NLRB 651 (1977). See, generally, Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, I ' shall require that Respondent remove from its records any reference to the unlawful discharges of Viswambharan and, Scaria. Re- spondent shall also be required to provide written notice of such expunctions and to inform them that Respond- ent's unlawful conduct will not be used as a basis for future personnel actions concerning them. Sterling Sugars, 261 NLRB 472 (1982). On May 22, 1984, during the second day of this hear- ing, William Perry, who appeared on behalf of Local 6, was ordered to leave the hearing because he engaged in gross disrespectful conduct demeaning to the court and the judicial process. During the cross-examination of Scaria, Respondent Attorney Gibbons, in connection with the issue of the so-called bad words allegedly used by Scaria, asked Scaria, "Is it offensive in Hindu to refer to somebody as a person- who fucks his mother?" Both the General Counsel and counsel for the discriminatees objected. Gibbons replied: "That is the comment that Ms. Ghjte [sic] will testify was made to her by Mr. Scaria on September 24th, 1982." I then replied that it was my clear recollection based on the testimony of Gururahan that the nature of the "bad words" was never disclosed by Ghate prior to Respondent's, suspension of Scaria and was about to sustain the objection when Perry interrupted and the following exchange ensued: MR. PERRY: That's kind of confusing. I don't know. I don't understand. Ms. Gajte' [sic] was sup- posed to say that she's going to fuck her mother. I thought she's a female- MR. GIBBONS: I object to this. MR. PERRY: He's objecting to it? He raised the damn thing. JUDGE EDELMAN: Mr. Perry- MR. PERRY: I mean where- JUDGE EDELMAN: One second, please. Allegedly, this is what Mr. Scaria said. There is an objection and I am attempting to sustain the objection be- cause- MR. PERRY: The question was not posed, your Honor, "Did you say this?" Is it offensive? It's of- fensive in any language. JUDGE EDELMAN: Well, the issue is- MR. GIBBONS: I'll take that as a stipulation. MR. PERRY: Well, I will take that as it stipula- tion- JUDGE EDELMAN: Excuse me. MR_ PERRY: If that's what Mr. Gibbons always does, screws his mother, I will take that as a stipula- tion. MR. GIBBONS: I am not going to put [up] with this. JUDGE EDELMAN: I'm not going to put up with it either, Mr. Perry and if we have it again you're going to be leaving.I I A few minutes later Perry objected to the turning over to Gibbons of an affidavit submitted by Scaria in a prior related case. Gibbons was cross-examining Scaria at the time. After considerable discussion during which time Perry was permitted to state his position, I ruled Gib- bons was entitled to the affidavit for purposes of cross- examination. The following exchange ensued: JUDGE EDELMAN: My ruling is that he's entitled to any statement given in whatever case relating to his direct testimony. I overrule your objection. MR. PERRY: Your Honor, you didn't even hear his direct testimony. Your Honor said yesterday that he can get, any statements. That's what your Honor said! You didn't even hear his testimony yet. And you already made a ruling! JUDGE EDELMAN: Mr. Perry, I've made my ruling. Please sit down. MR. PERRY: Don't order me! I'm not finished yet! JUDGE EDELMAN: I said please. You are fin- iShed.12 A few minutes later Gibbons asked Scaria a question and Perry objected. I overruled the objection and the following exchange ensued: JUDGE EDELMAN: Overruled. Go ahead. MR. PERRY: (To the witness) If you don't re- member, you don't have to answer. MR. GIBBONS: I object to Mr. Perry coaching the witness while he's testifying. JUDGE EDELMAN: Mr. Perry, it's not your prov- ince to do that. If you want to request that I in- struct him, you may do so. MR. PERRY: When I request of your Honor, I am falling on deaf ears, with all due respect. it Tr 331-332A. 12 Tr 348 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD JUDGE EDELMAN: Mr. Perry, one more remark like that and you will not be falling on deaf ears- you will be out of this room. MR. PERRY : You personally going to throw me out? JUDGE EDELMAN: No. I'm going to order you out. As a matter of fact, Mr. Perry, leave this room. MR. PERRY : Good. Good day. And let the record reflect that I am being asked to leave and I am being denied due process of the law. - JUDGE EDELMAN: You are not being asked. You are being ordered. MR. PERRY: Fuck you! JUDGE EDELMAN-. Let the record indicate that. MR. PERRY: I think you must be taking money too. JUDGE EDELMAN: The record has indicated that. Good day. 3 While Perry is not an attorney, he invariably repre- sents Local 6 which has been involved in extensive Board litigation over the years. Seaport Manor,- supra; State Bank of India, 229 NLRB 838; American Geri-Care, 258 NLRB 1116 (1981); Port Chester Nursing Home, 269 NLRB 150 (1984). An examination of the record-herein, and of other records in cases involving Local 6, indicates that Perry is very knowledgeable about the Board's Rules and the Federal Rules of Evidence. He certainly knows how a representative appearing before the Board is supposed to conduct oneself. I consider his conduct, described above, to be outrageous and demeaning to the Board's process. Accordingly, I recommend that the Board in its decision strongly censure Perry and/or take other appropriate action. [Recommended Order omitted from publication.] 13 Tr. 360 and 361