Bank of America National Trust & Savings Association California

In the Matter of BANK OF AMERICA NATIONAL TRUST & SAVINGS Asso- CIATION CALIFORNIA and UNITED OFFICE AND PROFESSIONAL WORKERS OF AMERICA Case No. C-903.-Decided August 4, 1939 Banking Business-Employer: national banking association is an-Interfer- ence, Restraint, and Coercion-Discrinvination : discharge ; for union activity- Reinstatement Ordered: of discharged employee-Back Pay: awarded, to dis- charged employee. Mr. William R. Walsh, for the Board. Hettman cQ Scampini, by Mr. A. J. Scampini, Mr. Walter E. Hett- man, and Mr. Louis Ferrari, of San Francisco, Calif., and Mr. Ed- mund Nelson, of Los Angeles, Calif., for the respondent. Mr. Roger M. Strobel, of Los Angeles;, Calif., and Boudin, Cohn & Glickstein, by Mr. Louis B. Boudin, of New York City, for the U. O. P. W. A. Mr. Abraham J. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by United Office and Professional Workers of America, herein called the U. O. P. W. A., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued and duly served its complaint dated June 2, 1938, against Bank of America National Trust & Savings Association California, herein called the respondent, alleging that the respondent had engaged in and was engaging 'in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices, the complaint alleged in substance that on November 27, 1937, the respondent discharged one Edward C. Washer,.its employee, because he had joined and assisted a labor organization and had engaged in concerted activities with other 14 N. L. R. B., No. 15. 207 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees for their mutual aid and protection, and thereby dis- couraged membership in a labor organization. Thereafter, the respondent filed a special appearance praying for the dismissal of the complaint for want of jurisdiction on the grounds that the respondent is not an employer, within the meaning of Sec-, tion 2 (2) of the Act, and that it is not engaged in commerce and/ that its activities do not affect commerce, within the meaning of Sec- tion 2 (6) and (7) of the Act. At the same time, the respondent filed its answer and, thereafter, its supplemental answer denying the alleged unfair labor practices. Pursuant to a notice served upon the respondent and the U. O. P. W. A., a hearing was held in Los Angeles, California, from June 27 to July 6, 1938, before R. N. Denham, the Trial Examiner duly designated by the Board. The Board and the respondent were rep- resented by counsel ; the U. O. P. W. A., by an organizer. All par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the close of the hearing, oral argument was had before the Trial Examiner. During the hearing, the respondent renewed its motions to dismiss contained in its special appearance. These were denied by the Trial Examiner. During the course of the hearing, the Trial Examiner made a number of rulings on motions and objections to the admis- sion of evidence. The Board has reviewed these rulings and the rul- ings made with respect to the special appearance and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 31, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act and recommending that the respondent cease and desist therefrom and reinstate Washer to his former position with compensation from the date of his discharge. On September 19, 1938, the respondent filed exceptions to the Inter- mediate Report and to other parts of the record, including rulings 'upon certain motions and objections made during the course of the hearing. It also filed proposed findings of fact, conclusions, and decision. On January 20, 1939, it filed a brief. Pursuant to notice, oral argument was had on January 24, 1939, before the Board in Washington, D. C. The respondent and the U. O. P. W. A. were represented by counsel and participated in the argument. Pursuant to leave granted at the oral argument, the U. O. P. W. A. filed a brief on February 9, 1939; on March 8, 1939, pursuant to leave granted by the Board, the respondent filed a reply brief. The Board has con- sidered the exceptions filed, the respondent's proposed findings of BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 209 fact, conclusions, and decision, and the arguments presented at the oral argument as well as those contained in the briefs. Save for those exceptions which are consistent with the findings, conclusions, and order set forth below, we find the exceptions to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Bank of America National Trust & Savings Association California, the respondent, is a national banking association organized under the laws of the United States, having its main office in San Francisco, California, and also transacting business at 493 branches in 307 Cali- fornia communities and at a branch in London, England. The respondent conducts a general commercial banking business and, in addition, offers the following services to the public : Trust services, small loans, foreign banking, savings banking, and safety- deposit boxes. As part of its foreign banking business the respondent issues travelers' checks and travelers' and commercial letters of credit, the latter being used to finance foreign imports, and buys and sells foreign exchange. The respondent does business through many corre- spondents in at least 34 States of the United States and one Territory. The respondent is one of the 10 largest banks in the world and one of the 5 largest in the United States. As of December 31, 1937, the total resources used in its business amounted to almost 11/2 billions of dollars; its capital, surplus, and undivided profits to over 109 million dollars. At the same time, the respondent had on deposit with banks in New York, Chicago, and other cities almost 80 million dollars, and had outstanding a liability of almost 24 million dollars for letters of credit and acceptances and foreign bills on which the respondent was the acceptor, endorser, or maker. As of the same date, the respondent had on hand commercial deposits of over 565 million dollars and had loans and discounts outstanding of over 630 million dollars. II. DEFENSES RAISED BY THE RESPONDENT IN ITS SPECIAL APPEARANCE A. The contention that the respondent is an instrumentality and agen&y of the United States Government and, therefore, is not an employer within the meaning of Section 2 (2) of the Act The respondent claims that national banks are agencies and instru- mentalities of the Federal Government ; that as such they are synony- mous with the "United States" ; and that therefore national banks are not "employers" within the meaning of Section 2 (2) of the Act. This contention the respondent seeks to support by showing that it is a 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member of the Federal Reserve System and of the Federal Deposit Insurance Corporation, and is subject to the laws governing national banks and members of the Federal Reserve System and the Federal Deposit Insurance Corporation and the rules and regulations pre- scribed for and imposed upon such banks and members by the several governmental agencies having supervision of their affairs. The respondent also acts as a depositary for United States funds. All the respondent's stock is privately owned and aside from the afore-mentioned regulation the respondent is responsible only to its stockholders. It selects its own personnel and otherwise manages its own affairs so as to pay dividends to its stockholders. In 1936, such dividends amounted to $8,000,000, an additional $4,156,000 having been added in the same year to surplus and undivided profits. The United States did not create the respondent, as it has many other agencies, for the purpose of carrying on its governmental func- tions. The United States merely provided a permissive means by which the respondent could be organized and do business. Having so permitted the respondent, the United States has subjected it to certain regulation and has conferred upon the respondent certain rights and privileges. While subjected to certain governmental regu- lation, the respondent performs no governmental functions other than such as are purely incidental to its business, such as it might per- form for any other person dealing with it. We find that the respondent is not the United States within the meaning of Section 2 (2) of the Act. We further find that the respondent is an employer within the meaning of Section 2 (2) of the Act. B. The contention that the respondent is not engaged in commerce within the meaning of Section 2 (B) of the Act and that its opera- tions described in Section I above do not affect commerce within the meaning of Section 2 (7) of the Act In the course of conducting its business a commercial bank regu- larly engages in numerous activities, each affecting vitally the com- mercial life of the nation. It thus affords facilities to the commer- cial system of the United States without which commerce would completely fail. The nature and extent of these facilities are so well known as to require neither proof nor discussion. We shall mention but a few of them. A commercial bank, such as the respondent, transmits money for its customers from one part of the country to another by means of drawing drafts upon its correspondent banks in those other parts of the country. It finances the current business operations of its cus- tomers, whether they are engaged in agriculture, industry , or comp BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 211 merce, including the production and marketing of their products. It issues letters of credit and bank drafts, secured by bills of lading or warehouse receipts, which are standard instruments of domestic and foreign commerce. It finances the journeyings of travelers by issuing travelers' checks and letters of credit. It trades in foreign exchange. It supplies the capital requirements of every type of in- dustrial and commercial enterprise both through supporting the underwriting and distribution of securities by investment bankers and by maintaining a market for commercial paper. It discounts trade acceptances, thus facilitating the sale and shipment of goods in the channels of trade. It provides for its customers a checking system, a means of payment for goods and services which obviates the necessity, danger, and delay of shipping actual money from one part of the country to another, and, through its correspondent banks and the Federal Reserve System, participates in a Nation-wide and world- wide collection and check-clearance system which similarly permits and facilitates commercial transactions. It furnishes credit informa- tion to other banks upon the basis of which they engage in one or more of the afore-mentioned banking activities which affect the nation's commercial life. In addition to all these activities and many more, many banks, of which the respondent is one, maintain trust departments, the activ- ities of which, including various fiduciary services, acting as fiscal agents for others, handling the transfer and registration of corpor- ate stock, etc., are incidental to the successful discharge of a bank's other functions. The activities of a bank's trust department and commercial department are closely related and intertwined. It is a matter of common knowledge that the commercial bank, of which the respondent is an outstanding example, is the primary medium in the commercial system of the United States for the trans- fer of money credits from one portion of the country to another, without the actual transfer of cash, whereby payment is effected for goods or merchandise sold and transported from one part of the United States to another and between the United States and foreign countries. As the railroad or the steamship serves to move the physical goods from one place to another, the commercial bank, through its correspondents in the various States of the United States, serves as a medium for moving the credit-in the form of actual checks or drafts, or in the form of a charge against its own funds left on deposit in such other city-which effects payment for the merchandise. - Commerce without payment for the goods moved in commerce would immediately fail. The commercial bank is the medium that supplies the mechanism for making that payment as well as the credit, in the form of loans to the purchaser, that makes prompt payment possible. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commerce also depends in large part on bank checks as a means. of payment, approximately 85 per cent of'all money payments in the United States being made in this form.. Indeed, the ability to pay by checks drawn against bank deposits is one of the primary condi- tions of successful commerce. The credit system and the use of bank checks as a medium of exchange lie at the very base of our economic life and are indispensable to the continued flow of commerce among the several States and with foreign countries. Practically all commercial-banking activities arise in connection with the buying and selling of commodities and serv- ices. Banking is the life-blood of commerce and the cessation of bank- ing operations in this country as a result of industrial strife would have dire consequences on the flow of commerce among the several States and with foreign countries. The respondent, in arguing in its brief that it is an instrumentality and agency of the United States, recognized the relationship between banking and commerce and the effect which industrial strife in con- nection with the former would have upon the latter. While we do not agree with all the conclusions drawn by the respondent, we find its argument cogent. According to the respondent's brief, ". . . the wheels of industry [are] kept moving by a free flow of financial credit ... Strikes of bank employees would immediately disrupt bank clearings and commercial activities . . . Public confidence in the stability of the banks would be undermined and . . . the results would be comparable to the conditions which made necessary the bank holidays and moratoria of 1933, with all of their disastrous effects on business, employment, property values and even the sol- vency of the government itself." According to the respondent, paralysis of much of the Nation's commercial life would result from the cessation of banking operations. The prominent place of the respondent in the banking system of the United States as an instrumentality of commerce is evident from the facts stated in Section I, above. The respondent's large deposits with other banks in New York, Chicago, and elsewhere, its tremen- dous liability for outstanding letters of credit and acceptances and foreign bills of exchange, the huge volume of its loans and discounts outstanding, the amount of commercial deposits maintained by others with the respondent, its maintenance of a branch office in London, England, the volume of its business in travelers' checks-all these disclose the transcendent importance of the respondent in the banking system of the country and the close relationship of the business of the respondent to the Nation's commercial life. It is evident that an interruption of the respondent's business would hinder, obstruct, and seriously impair an instrumentality of commerce-the mechanism whereby payment for goods shipped in commerce is effected-and the BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 213 flow of commerce among the several States and with foreign countries. We find that the operations of the respondent have a close, intimate, and substantial relation to trade, traffic, commerce, and transportation among the several States and with foreign countries. III. THE ORGANIZATION INVOLVED United Office and Professional Workers of America is a labor or- ganization, affiliated with the Committee for Industrial Organization, admitting to its membership office workers, employed by the respon- dent, who do not have the power to hire and discharge other employees. IV. THE UNFAIR LABOR PRACTICES In March 1935 the respondent employed Washer, as one experienced with investments, to work in the securities division of its trust de- partment in Los Angeles. In January 1936 Washer was transferred to the chief clerk's division of the trust department. His starting salary was $125 per month and, in November 1937, when he was dis- charged, he was receiving a salary of $165 per month, having received two salary increases in the interim. Prior to his employment by the respondent, Washer had had ap- proximately 15 years of banking experience as well as an education which fitted him for such work. He had completed a course at the American Institute of Banking and a law course, receiving an LL. B. degree for the latter. He had worked in bank-trust departments since 1925. During this period he continued to study banking, including 6 months' study at the. Graduate School of Business Ad- ministration of Harvard University. He had been well thought of by previous employers. In the spring of 1937 Washer became actively interested in the union organization of bank clerks. That this became known to the respondent is evident from the fact that at that time, Kiester, an assistant trust officer and the chief clerk of the trust department, asked Washer whether he had been spoken to by any of the bank examiners, who were then examining the trust department, regarding union ac- tivities among the bank clerks. Kiester stated that he was certain that if anyone in the trust department would know about such mat- ters, it would be Washer. In March 1937 Washer communicated with a Committee for Industrial Organization attorney and with an or- ganizer, telling them that he was interested in the organization of bank clerks. Nothing, however, resulted from these conversations. Later in the spring, Washer wrote to John L. Lewis of the Committee for Industrial Organization, telling him that he was interested in organizing the respondent's employees. Lewis referred Washer's 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter to Lewis Merrill, the president of the U. 0. P. W. A., and from that time until December 1937, Washer corresponded with Merrill regarding the organization of the respondent's employees. In April 1937, following the decisions of the Supreme Court of the United States upholding the constitutionality of the Act, Washer clipped from a newspaper an article concerning these decisions, wrote on it "Read and Think," and placed it on a bulletin board at the entrance to the men's washroom in the trust department. This was noticed by a number of employees and discussed by them with Washer. Later that month, Harry M. Bardt, vice president and trust officer in the Los Angeles main office, suggested to Washer that he could profit by some branch experience and that later he could return to the main office to work in the comptroller's division of the trust de- partment. Bardt stated that he had created an opportunity for Washer in the Fresno, California, branch and that Washer was to go there to learn how a, small branch was operated. Prior to that time Washer had refused to be transferred to branches as he did not wish to live in a small town. However, with the understanding that the assignment to a branch would be temporary and that he would re- ceive a $25 per month salary increase, Washer agreed to the transfer to Fresno. Two or three days later, instructions from the San Fran- cisco office directed Washer to go to San Jose instead of to Fresno. This appears to have been agreeable to Washer. A day or so before Washer was to have left for San Jose he was instructed to report to W. J. Kieferdorf, the senior trust officer and executive vice president of the respondent at San Francisco and the head of the respondent's entire trust department. Washer did as instructed. At San Fran- cisco, Kieferdorf told Washer that there had been too many recent changes in the San Jose trust department and that, to avoid criticism, he would prefer Washer's being transferred to Chico, California. Chico is a small community in the northeast portion of California and the respondent's branch there serves as the center of its trust- department activities in that portion of the State. Washer protested and did not conceal his dislike for his transfer to Chico, describing it as "Siberia." Washer told Kieferdorf that he did not want to go there because he did not want to become a "yokel." Kieferdorf stated that the assignment there was only temporary and gave Washer the impression that he would be transferred to the San Francisco office before the end of the year. At Chico, Washer remained dissatisfied with his transfer. He wrote to Bardt stating that he hated "this hell-hole" and asking for the position of assistant comptroller in the Los Angeles main office. He found that at Chico the trust business was handled by a trust BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 215, officer, an escrow officer, and a stenographer and that they were able to. care for all the trust business that developed in the Chico area., Washer's work there was substantially that of bookkeeper and there was no opportunity for.him to engage in the type of work for which- he was best qualified-that of investments. The post of comptroller of the trust department was created by the respondent at about the same time that Washer was transferred to Chico, and one Fiefield was given that position. Washer sought-to be his assistant and, during Washer's vacation, in August, conferred with Fiefield in regard to this. Fiefield told Washer that he had spoken to various people in- the trust department who had recom- mended Washer, and that he would attempt to have Washer trans- ferred to his department . as his assistant. Fiefield then asked Washer, "What about these union ideas you have ?" and inquired as to, what Washer's attitude would be if he were transferred into Fie-. field's department. Fiefield indicated that in his department Washer's union activities would be embarrassing because Washer "would be considered more or less on the side of the management." Also during his vacation, Washer discussed with a number of the respondent's employees the question of unionization. In the fall-of 1937 Washer was visited at Chico by A. J. Robelard, assistant trust office of the Los Angeles main office, who stated to Washer, "By now I guess you know it doesn't pay to talk about unions." At approximately the same time, Fiefield also saw Washer in Chico and told Min that he and Kieferdorf were still trying to have Washer transferred to the comptroller's department. He said to Washer,- "Don't you believe for the time being inasmuch as you are in the dog house on this union business that you ought to forget about this raise that you mention," referring to the $25- per month salary increase which had been promised to Washer when he was transferred to Chico but which he never received. Being dissatisfied with his position in Chico, Washer, early in the fall of 1937, wrote to Kieferdorf "asking him just what my future was in the Bank of America." As answer to this, Washer received, in November, a letter from Kieferdorf asking him to come to San Francisco for a conference on 'November 10. At this conference, Kieferdorf suggested to Washer that he resign from his position with the respondent and enter the practice of law. This Washer refused to do. When Kieferdorf refused to give Washer any reason fo'r' this suggestion, Washer stated that his union activities constituted the reason. ' Kieferdorf then inquired of Washer as to those activities and told Washer that "being as young as I was and having a future 'ahead of me that I wouldn't jeopardize it by associating with my mental inferiors, by engaging in a labor union, movement." In this connec= 190935-40-vol. 14-15 ' . 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, Kieferdorf also asked Washer, "Well, who do you think double crossed you, McGuigan , Bardt, or Kiester ?" J. E. McGuigan was a vice president and trust officer under whom Washer had worked. When Washer refused to resign , Kieferdorf requested his resignation and said that there was nothing which required the respondent to keep Washer in its service. Washer telegraphed to Merrill the facts con- cerning this interview. On Kieferdorf's instructions , Washer returned to Chico. On No- vember 24, the day before Thanksgiving Day, Washer, with a group of other employees of the respondent , mailed, at their expense, cir- culars to approximately 5,000 employees of the respondent. These circulars were signed "Bank of America Employees ' Organization Committee." They did not name Washer, but ' biographically de- scribed him in such detail as to leave no doubt in the minds of any person knowing anything of Washer's employment record as to the identity of the subject of the circulars . The circulars, inter alia, stated : This personal history is given merely to show the Bank's.,atti- tude toward collective bargaining on the part of employees, which is the only effective method of insuring fair treatment for the individual ... Bank managements . . . attempt to deny their em- ployees the right to stabilize their own salaries through collective bargaining. The Wagner Act guarantees this right and no em- ployee can be discharged for attempting to obtain such benefits by joining or organizing a union. The message we have for all employees at this time ,... is Nor TO BE MISLED BY ANY LAST MINUTE RAISES OR BONUSES GIVEN BY THE BANK OF AMERICA IN AN ATTEMPT TO BLOCK THE UNION MOVEMENT. Any raises or concessions as to hours or conditions , since not based upon a contract, can be withdrawn as suddenly , upon the slightest whim of the management. .. . We will soon offer you an opportunity to join SECRETLY. a statewide union embracing all Bank of America employees. This union will definitely not be a "company " union, an evil which we wish to warn you against . We hope and expect that we will soon be sponsored by and affiliated with one of the national labor organizations. When we have a majority of all employees 'signed up we will then be entitled to sole bargaining rights and shall demand and GET shorter hours and salary increases, _:. . We suggest that you read about, think about, talk about, and prepare for unionization. Presumably these circulars were delivered to the respondent's em- ployees on November 26, the day following Thanksgiving Day. With thousands of such circulars in the hands of employees, it is BANK OF AMERICA NATIONAL TRUST .C SAVINGS ASSOC. CALIF. 217 inconceivable that some of them did not reach some of the respon- dent's officials and we find that the respondent knew of this circu- larization of its employees. On the morning of November 27 Giffin, the manager of the Chico branch, told Washer that he was discharged pursuant to instructions Giffin had received by telephone from San Francisco. Giffin said that the discharge was for cause, but he did not know what the cause was. At Washer's request Giffin called the personnel department at San Francisco to discover the reason for the discharge and then told Washer that the San Francisco office refused to give any reason therefor. On December 9, after Washer had, by letter, accused the respondent of having discharged him for union activities, the re- spondent advised him that he had been discharged for "insubordina- tion and conduct unbecoming a subordinate to his superior officer." Following his discharge, Washer joined the U. O. P. W. A. The respondent, in its answer and supplemental answer, assigned several reasons for its discharge of Washer : (1) the unsatisfactory services rendered by Washer and his lack of qualifications for his position; (2) his making a false expense claim against the respond- ent; and (3) insubordination and insolence toward his superior officers. The first mentioned defense is unsupported by the evidence. It appears that Washer's education and experience were of the sort best calculated to fit him for the work he was hired to do by the respondent. In connection with prior employment, Washer's good work had been commended on several occasions. While employed by the respondent he had also been commended by a number of his superior officers and had received two salary increases. In each case, the salary increase received by him was not as great as that for which he was recommended. Kiester, under whom Washer worked, was so impressed by his ability that he proposed Washer's accompanying him on a trip to New York for the purpose of inspecting systems employed by New York banks. Fiefield told Washer that he- would like to have him as his assistant in the comptroller's division, and that both he and Kieferdorf were doing their utmost to have Washer transferred out of Chico. Bardt, too, had faith in Washer's ability. Washer testified that he did not think there was anyone in the trust department who was more experienced than he; that he had been in the banking business as long as Kieferdorf had; and that he was more familiar with minor details of operation than was Kieferdorf. At no time, including the interview of November 10 when Kieferdorf suggested Washer's `resignation,•.did Kieferdorf. complain..to Washer of his failure to perform his duties properly. The respondent intro- duced no evidence controverting any of this. Had there been any evidence of the unsatisfactory character of Washer's work or of his inefficiency, the persons best qualified to testify thereto would have 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been officials of the respondent who occupied positions superior to Washer. None of these were called by the respondent to testify. It is significant also that inefficiency was not assigned by the re- spondent as a reason for Washer's discharge either at the time thereof or on December 9, 1937, when the insubordination ground was asserted. The second mentioned defense also is not borne out by the evidence. This defense is based upon the expense claim made by Washer fol- lowing his November 10 trip to San Francisco to confer with Kiefer: dorf at the latter's request. The expense account rendered by Washer for this. trip amounted to $15.12. Of this, $6.12 represented Washer's railroad fare and $9 represented meals and lodgings while in San Francisco. After Washer submitted this expense account, it was re- turned to him by Kieferdorf with the request that he itemize his daily expenses. Washer replied to Kieferdorf stating that he was "writ- ing off as a loss the $15.12 I considered a nominal but fair expense account for a two-day trip to San Francisco made upon your order." Kieferdorf thereupon wrote to Washer stating that there was "no complaint as to 'the amount of .the expense involved" and asking Washer to return the expense statement, which Washer did. He then received a check payable to him in the amount of $15.12 with which there was enclosed :a new statement of traveling expenses: which Washer was asked to sign and return. This new statement had been prepared by the respondent and contained a purported item= ization of Washer's expenses on the San Francisco trip. Washer thereupon wrote a letter, addressed to the trust officer from whom he received this new statement, explaining that his failure to itemize the expenses,,in the first instance, was due to the fact that while in'' San Francisco he had stayed with friends and as a result had not incurred a ' hotel bill. He explained, however, that he had thus be- come obligated to his friends and it had been necessary for him to reciprocate by entertaining them while in San Francisco, and that the expenses actually incurred by him on the trip exceeded $15.12. With this letter, Washer returned the check and asked that the respondent return the check to him "if after reading this letter you are convinced of the fairness of the account as rendered . . . If you do not con- sider the accounting satisfactory you may forget the entire matter." The account was then approved by the respondent and the check' returned to Washer. The respondent relies upon this incident to show that Washer made a false claim and was, therefore, dishonest. We find no merit in this contention: It would appear that had Washer been dishonest he- would not have returned the check insisting that he did not want to receive payment unless the respondent understood thoroughly the entire situation. It is to be noted, moreover, that the filing of a false BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 219 expense claim also was not assigned by the respondent as a reason for Washer's discharge either at the time thereof or on December 9, 1937, when the insubordination ground was asserted. The third mentioned defense, we find, is not supported by the evi-^ deuce. It is based upon certain correspondence between Washer and Kieferdorf and the circular mailed on November 24 to the respond- ent's employees. The latter cast aspersions upon the respondent as a bank which paid low salaries, was "kicking an employee around" because of his union activities, and was unwilling to bargain collec- tively with its employees. Such statements were unquestionably not calculated to enhance the respondent in the eyes of its employees. The circular, however, was obviously an honest attempt by a group of employees to lead their fellow employees into self-organization, and the publication and distribution thereof were concerted activities which could not lawfully be made the ground for a discharge. The correspondence which the respondent claims amounted to in- subordination was that concerning the expense accounts submitted by Washer following his trip to San Francisco. When the expense account was first returned to Washer by Kieferdorf with the request for itemization, Kieferdorf closed his letter with the words "Kind regards." Replying to this,and saying that he was "writing off as a loss the $15.12," Washer stated in his letter : Your letter appears to me to be but one of a series of petty annoyances I expect to be subjected to because of my failure to accept your advice to resign because of my Union activity. I can see no other reason for correspondence regarding such a petty detail by the Vice President and Senior Trust Officer of one of America's largest banks. "Kind regards" to you too. To this letter Kieferdorf replied, stating inter alia: I am certainly not obligated in any way to make explanations to you, but for your own information I might state that the mat- ter of your expense statement was handled by me personally be- cause of the illness of the Comptroller. Any other conclusion that you have drawn with reference to my personal handling of the matter is, of course, unfair and certainly shows lack of appreciation. Washer replied, thanking Kieferdorf for his letter, and stating: I refrain from answering at length the last phrase in your letter, "unfair and certainly shows lack of appreciation." But very briefly, in the light of my past experience with other "friends" among the officers of the Trust Department, coupled with my present "enviable" position, am I to be criticized for 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not appreciating help which must be described as invisible, in- tangible, and inedible? We live in a material world. If your efforts in my behalf though possibly unavailing, merit my appreciation you most certainly have it, Kind regards. Washer, himself, typed the letters he wrote to Kieferdorf, since he was writing to Kieferdorf personally, and testified that he believes that he marked the letters "confidential." That they were so marked was not denied by the respondent. As a result Washer did not feel that his addressing Kieferdorf familiarly caused any "sacrifice of his [Kieferdorf's] dignity because no one else was involved." It is true that in writing the letters from which we have quoted above Washer did not observe the usual business amenity. When, however, it is considered that the relationship between Washer and Kieferdorf was a friendly one, the respondent's charge of insolence and insubordination is unsupportable. That the relationship be- tween them was such is clear not only from the letters themselves but also from Washer's undenied testimony. In this connection, it should be noted that Washer wrote to Bardt also in this familiar vein, the familiarity being based, similarly, upon the friendship which existed between Washer and Bardt. Letters, however, which Washer wrote to officers of the respondent with whom he was not on a familiar basis were couched in the usual tone of business correspondence, even though such officers were less important than was Kieferdorf in the heirarchy of the respondent's establishment. Washer was first advised that insubordination was the reason for his discharge by letter of December 9. The respondent did not introduce the testimony of any witnesses to refute the charge that Washer was discharged for union activities. Neither Bardt, Robelard, McGuigan, Kieferdorf, Giffin, Kiester, nor Fiefield was called as a witness to deny or explain any of Washer's testimony. No personnel officer of the respondent was called to give evidence concerning the reasons asserted by the respondent for the discharge. On the other hand, officers of the respondent had indi- cated to Washer their disapproval of his union activities. Under these circumstances, we are constrained to and do find that the dis- charge of Washer was due to none of the reasons asserted by the respondent, but only to his obvious interest in the self-organization of the respondent's employees. Prior to Washer's discharge some of the respondent's employees were U. O. P. W. A. members. The activities of Washer which served as the cause of his discharge had the necessary effect of en- couraging such members, as well as those of the respondent's em- ployees who were members of no organization, to exercise their rights BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 221 under the Act. The discharge of Washer, on the other hand, was calculated to discourage membership in labor organizations. The necessary effect of such discharge was to discourage those of the respondent's employees who were U . O. P. W. A. members from con- tinuing their membership in that organization and to discourage other employees of the respondent from becoming members of the U. O. P. W. A. or any other labor organization. The discharge necessarily , furthermore , interfered with, restrained , and coerced all such employees in the exercise of their right to self -organization, to form , join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities , for the purpose of collective bargaining or other mutual aid or protection. We find that the respondent discriminated in regard to hire and tenure of employment of Washer and thereby discouraged member- ship in the U. O. P. W. A. and iii other labor organizations. We further find'that by its discharge of Washer , the respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. After his discharge, Washer applied to the Occidental Life Insur- ance Company, the company through which the respondent operated an employees' retirement plan, for payment to him of the amount due him from the retirement fund, and returned to the Insurance Company his retirement plan certificate for cancelation. He re- ceived from the Insurance Company $157 . The respondent claims that, by taking this action, "Washer accepted said discharge and did thereupon sever his relationship of employment with respondent." We find the respondent's claim to be without merit and that this action of Washer was no evidence of an intention to waive his claim against the respondent for having discriminatorily discharged him, but was merely the collection by him of funds accumulated to his credit to which he was at all times entitled . In this connection, it should be noted that Washer's intention to invoke the provisions of the Act with reference to his discharge was asserted by him in a letter to the respondent prior to the receipt of his funds from the Insurance Company. In this letter, Washer also stated : In withdrawing the balance to my credit in such fund it is to be expressly understood that it does not denote any intention of voluntary resignation or acquiescence in involuntary discharge as an employee of the bank. In January 1938 Washer obtained employment working for a friend of his in the retail-merchandising business and was there em- ployed until the end of April 1938 . He earned $60 in January, $75 in February, and $125 in March and in April . At the end of April, 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business conditions were such that Washer left his friend's employ. He then undertook to become a. purchasing agent for various indi- viduals and was so acting at the time of the hearing. However, he did not maintain an office, had very few customers, described him- self as unemployed "for material purposes," and did not consider his occupation at the time of the hearing as permanent.. From the time of his discharge to the time of the hearing, Washer had earned ap- proximately $400. He desires to be reinstated to his position with the respondent. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section IV above, occurring in connection with the operations of the respondent de- scribed in Sections I and II above, have a close, intimate, and sub- stantial relation to trade, traffic, commerce, and transportation among the several States and with foreign countries and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices. We will order it to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. We have found that, because of his union activities, the respondent discriminated against Washer in regard to hire and tenure of em- ployment, within the meaning of the Act, in discharging Washer on November 27, 1937, and thereby discouraged membership in labor organizations and interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. To remedy this so as to effectuate the policies of the Act, we will order the respondent to offer immediate reinstatement to his former or to a substantially equivalent position to Washer without prejudice to his seniority and other rights and privileges, including the right to his participation in the respondent's employees' retire- ment plan. We will further order the respondent to make Washer whole for any loss of pay he has suffered by reason of his discharge by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from November 27, 1937, to the date of the offer of reinstatement less his net earnings 1 during said period. 1 By "net earnings" is meant earnings less expenses , such as for transportation , room, and board , incurred by washer in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOC. CALIF. 223: Upon the basis of the foregoing findings of fact and upon., the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. United Office and Professional Workers of America is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The respondent is an employer, within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Edward C. Washer and thereby discouraging membership in a labor organization, the respondent has engaged in and is en- gaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices. within the meaning of Section 8 (1) of the Act. 5.. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations At, the National Labor Relations Board hereby orders that the respon- dent, Bank of America National Trust & Savings Association Cali- fornia, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Office and Professional Workers of America or any other labor organization of its em- ployees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N . L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due to Washer and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State , county, municipal , or other govern- ment or governments which supplied the funds for said work -relief projects. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual aid or protection, as guaranteed in Section 7 of the National. Labor Relations Act. 2. Take the following affirmative action, which the Board finds- will effectuate the policies of the Act : (a) Offer to Edward C. Washer immediate and full reinstatement to his former or a substantially equivalent position without preju- dice to his seniority and other rights and privileges, including the- right to his participation in the respondent's employees' retirement plan; (b) Make whole the said Edward C. Washer for any loss of pay he may have suffered by reason of the respondent's discrimination hl regard to his hire and tenure of employment by payment to him of a suln of money equal to that which he normally would have earned as wages during the period from November 27, 1937, the date of such discrimination, to the date of the offer of reinstatement, less- his net earnings 2 during said period ; deducting, however, from the amount otherwise due to Washer, monies received by him during said period for work performed upon Federal, State, county, municipal,. or other work-relief projects, and pay over the amount, so deducted,. to the appropriate fiscal agency of the Federal, State, county; or- other government or governments which supplied the funds for said work-relief projects; (c) Immediately post in conspicuous places in each of the respond- east's main offices in Los Angeles and San Francisco, and in each- branch operated by the respondent, and maintain for a period of at least sixty (60) consecutive days, notices stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and that it will take the affirmative action set forth in para-- graphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Twenty-first Region in. writing within ten (10) days from the date of this Order what steps. the respondent has taken to comply herewith. Mn. WILLIAM M. LESERSON took no part in the consideration of the above Decision and Order. 2 See footnote 1, supra.