N.L.R.B. v. First Nat. Bank of Pueblo
| Citation | 623 F.2d 686 |
| Decision Date | 20 June 1980 |
| Docket Number | Nos. 79-1182,79-1205,s. 79-1182 |
| Parties | 104 L.R.R.M. (BNA) 3031, 89 Lab.Cas. P 12,111 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FIRST NATIONAL BANK OF PUEBLO, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Paul J. Spielberg, Washington, D. C. (John D. Burgoyne, Asst. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on the brief), for petitioner.
John A. Criswell, Englewood, Colo. (Anthony Gary Bell, Jr. of Criswell & Patterson, Englewood, Colo., and William F. Mattoon, Pueblo, Colo., with him on the brief), for respondent.
Before BARRETT, SEYMOUR and PECK *, Circuit Judges.
The National Labor Relations Board (Board) seeks enforcement of its order issued against First National Bank of Pueblo (Bank).
Board initially charged Bank with two unfair labor practices, i. e., interfering with, restraining, and coercing Joseph F. McGee, a representative of the Office and Professional Employees International Union (OPEIU) while he was engaged in distributing union literature in a public place to Bank's employees, and discriminating against Judy Whorton, a Bank employee, by terminating her because of her activities on behalf of OPEIU as an observer at an NLRB union representation election held at Bank on May 4, 1977.
Within a formal complaint filed on August 30, 1977, as amended on September 23, 1977, Board charged: (1) the holding company which owned Bank had threatened employees by stating it would not agree to any union contract and that it would sell Bank if its employees selected a union to represent them; (2) Bank violated the National Labor Relations Act (Act) by interfering with the solicitation of employees by Joseph McGee, an OPEIU representative; (3) Bank had violated the Act by discharging Judy Whorton because of her activities on behalf of OPEIU.
An administrative hearing was held on December 6, 1977, during the course of which Board called Frank B. Martinez, Assistant Vice President of Bank, Joseph McGee, a representative of OPEIU, Judy Whorton, Bank's former employee, and Charles Bunce, Jr., Cashier at Bank. Bank called J. Robert Armstrong, President of Bank, and Jim Hadley, Administrative Assistant in the Trust Department of Bank.
On March 3, 1978, the Administrative Law Judge (ALJ) entered a decision dismissing the Board's complaint in its entirety. With respect to Board's allegation that the bank holding company which owned Bank would not have a unionized bank or agree to any union contract, the ALJ found, inter alia :
As set forth above, Whorton testified that Armstrong made a number of coercive remarks concerning union activity at the April 26 meeting. Armstrong flatly denied making those remarks and his testimony was corroborated by Hadley. None of those witnesses were completely disinterested. Whorton is an alleged discriminatee. The animus stemming from the remarks attributed to Armstrong could help her establish that she was fired in violation of the Act. Armstrong, as president of Respondent, also has an interest in the outcome of this case. Hadley, as a leader of the committee against the Union, could hardly be called disinterested. Under these circumstances, a credibility determination would have been made much simpler if additional witnesses had been called on the matter. Armstrong had meetings in all of the bank's departments. He spoke to more than 100 employees in the various meetings. Eight other employees were present at the very meeting to which Whorton testified. However, General Counsel called no witness to corroborate Whorton's testimony. Credibility can never be determined by merely counting the number of witnesses on each side, but Hadley's corroboration of Armstrong's testimony cannot be ignored. While giving weight to the possibility that Hadley might have been biased, his testimony was straightforward and quite believable. I credit Armstrong and Hadley rather than Whorton and find that the General Counsel has not established by a preponderance of the credible evidence that Armstrong made the unlawful remarks alleged in paragraphs V(a), (b) and (c) of the complaint.
With respect to Board's allegation that Bank had violated the Act by interfering with the solicitation of employees by Joseph McGee, an OPEIU representative, the ALJ found, inter alia :
Employees have the right to receive information from a union and an employer can interfere with that right only in very limited circumstances where a lawful no-solicitation rule is applied. An employer cannot lawfully interfere with such communication when it takes place in a public street and where it does not interfere with ingress or egress from his establishment. However, the General Counsel has not established that the right of any employee to receive information from the Union was infringed. Johnston's concern was with the distribution of handbills to customers rather than employees. There is no showing that the one handbill that Johnston took was being given to an employee. McGee may have felt threatened by Johnston's "hovering over" him, but it was a transient incident that had no meaningful impact. McGee called the police and received assurances that things should be all right. The entire incident involved a petty, momentary squabble which arose from Johnston's belief that McGee was handing out circulars to customers. I find that the General Counsel has not established by a preponderance of the credible evidence that Armstrong and Johnston unlawfully interfered with McGee in his lawful solicitation of employees (sic) support as alleged in paragraph V(d) of the complaint.
(R., Vol. III, at pp. 208-209).
With respect to Board's allegation that Bank violated the Act by discharging Judy Whorton because of her activities on behalf of OPEIU, the ALJ found, inter alia :
On Saturday, July 16, 1977, Whorton learned that her grandfather died. A few hours later she called her immediate supervisor, Lessar, at Lessar's home. Whorton said that her gransfather (sic) had died and she wanted to know what Respondent's funeral policy was concerning whether her grandfather was considered immediate family and how many days off she would receive as funeral leave. Lessar said that she did not know but that she would check the handbook and call back Monday morning before Whorton came to work.
About an hour after Whorton spoke to Lessar on July 16, 1977, Whorton learned that the grandfather of a friend of hers had died and that his funeral would be the following Monday, July 18, 1977.
At 7:10 a. m. on Monday, July 18, Lessar called Whorton on the telephone and read to her the section of Respondent's handbook relating to funeral leave. 12 Whorton said: "In other words, I would only have one day off for my grandfather's funeral" and Lessar answered in the affirmative. Whorton told Lessar that she needed Thursday off for the funeral and Lessar replied, "Yes, you have it." Whorton then said, "I would like to inform you that I will not be able to work today." Lessar asked the reason and Whorton replied that she had a funeral to attend that day. When Lessar asked who it was, Whorton replied that it was not a relative but that it was someone she felt very close to. Lessar asked whether Whorton had any personal time accumulated so that she could be paid. Whorton replied that she did not and that she would take it without pay, but that she wanted to let Lessar know that she would not be there. Lessar said, "okay." 13
On Tuesday, July 19, 1977, when Whorton reported for work, Martinez spoke to her. Martinez asked why she had not been to work the previous day. She replied that she had a funeral to attend and explained the circumstances. Martinez asked why she took the full day off for her friend's funeral and Whorton replied that she thought employees received the full day off for a friend's funeral. Martinez said that the only time an employee could take time off for a friend's funeral was when the employee had accumulated personal or vacation time. Whorton said that she wasn't aware of that and she had talked to Lessar. Martinez asked whether Lessar gave permission for her to take the day off. Whorton replied: that Lessar did not say that she could not take the day off; that when she informed Lessar that she would not be at work that day, the only thing that Lessar asked was whether she had personal time so that she would be paid for it; and that when she said that she did not have the time, Lessar said, "okay." (Footnote omitted).
After speaking to Whorton, Martinez met with Lessar and Armstrong. There was a discussion concerning whether the Monday off was supposed to have been for her grandfather's or her friend's funeral, which indicated that even with all the prior discussion, they didn't have their facts straight. They decided that Whorton had not asked for or received permission to take July 18 off and had simply told them that she would not be there. They concluded that it was an unauthorized absence and that she would be terminated.
Surrounding circumstances such as the timing of the discharge with relation to the date that Respondent obtained knowledge of Whorton's union activity, and the treatment of Whorton after such knowledge was obtained must also be considered.
Respondent learned of Whorton's union activism on the date of the election, May 4, 1977. There is no indication in the record that Whorton engaged in any union activity after that date. About 3 days after May 4, 1977, Lessar (sic) was given a favorable evaluation and a raise. Whorton understood from other employees that the $30 per month raise she received was more than any other employee was given. She did not know the amount of the raise until she received it. The raise was a merit one...
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