Petition — Air Express International Corp. v. National Labor Relations Board

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81-22 92 FILFD

Ra JUN 14 1982

NE wee srevas.

CLERK j

IN THE = ~

Supreme Court of the United States

OCTOBER TERM, 1981

AIR EXPRESS INTERNATIONAL CORPORATION,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

JEROLD D. JACOBSON

GUGGENHEIMER & UNTERMYER

80 Pine Street

New York, New York 10005

(212) 344-2040

Counsel for Petitioner

Air Express International Corporation

Of Counsel:

STEWART A. BRODER

Dated: June 11, 1982

QUESTION PRESENTED FOR REVIEW

Whether the court below erred in enforcing, contrary to the

position taken by three other circuit courts of appeals, an order

of the National Labor Relations Board requiring an employer,

found to be in violation of the National Labor Reiations Act

for its refusal to offer many of its unionized employees a

transfer to a relocated and merged facility, to recognize the

union at the new facility when that order is based on a

presumption that absent the commission of the unfair labor

practices all the employees would nave transferred to the new

facility and would have constituted a majority of the bargain-

ing unit?

LIST OF PARENT COMPANIES, SUBSIDIARIES

AND AFFILIATES

Pursuant to Rule 28.1 of the Supreme Court Rules, the

following is a list of all subsidiaries (other than wholly owned

subsidiaries) of Air Express International Corporation. There

are no parent companies or affiliates to report.

Name of Subsidiary Piace of incorporation

Wings & Wheels (H.K.) Ltd. Hong Kong

Air Express International France

Air Express International

(PHIL.) Inc. Philippines

Olson & Wright/Air Express

International Inc. A/S Denmark

Maruzen Air Express

International Ltd. Japan

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ........... i

LIST OF PARENT COMPANIES, SUBSIDIARIES

ARG REPT AAGE 65 sin 68 iis sed cetcccccesccccces i

TABLE OF AUTHORITIES. .............00000eeee iii

CPP EAI ccccesccccecnccpocosccescncess 1

Fa Bin Fo cdo dec casddbdscdecicsoccce 2

STATUTORY PROVISIONS INVOLVED ............ 2

STATEMENT OF THE CASE. .............00eeee00% 4

REASONS FOR GRANTING THE WRIT........... 8

CAIN a oben cb cdeln nc cevccdcwenrcsacsocns 21

APPENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT... AI

APPENDIX B

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT ON

RECONSIDERATION AND ON CROSS-MO-

TIONS FOR ENTRY OF JUDGMENT......... B-1

APPENDIX C

DECISION AND ORDER OF THE NATIONAL

LABOR RELATIONS BOARD AND OPINION

OF THE ADMINISTRATIVE LAW JUDGE.... C-l

iii

TABLE OF AUTHORITIES

CASES: PAGE

Bell & Howell Co. v. NLRB, 598 F.2d 136 (D.C. Cir.),

cert. denied, 442 U.S. 942 (1979)... 2... 2. ee eee eee 20

Brooks v. NLRB, 348 U.S. 96 (1954)... ..........005- 9

Burns International Security Services, Inc. v. NLRB, 406

Sy SR on os Coeds Gated eb nash se 648 9

Coated Products, Inc., 237 N.L.R.B. 159 (1978), en-

forced, 620 F.2d 289 (3d Cir. 1980).............-44. 9

Cooper Thermometer Company v. NLRB, 376 F.2d 684

NN een ees Rains ds eahewweb sce 8, 13, 15,

16, 17, 18, 20

Cooper Thermometer Company, 160 N.L.R.B. 1902

PAS ik 00.4 RbRb Sab RebbRR es cuabbededs cetoees 14

Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979)..... 18

Fibreboard Paper Products Corp. v. NLRB, 379 U.S.

Pirin « kb uh 5085 6060ebbe ed ceeheneedér rece 18

Fraser & Johnston Company v. NLRB, 469 F.2d 1259

DPE ek ns cbdvcehhes videvtavsaacd 8, 14, 15,

16, 17, 18, 20

Fraser & Johnston Company, 189 N.L.R.B. 142 (1971). 14

Hermet, Inc., 207 N.L.R.B. 671 (1973) .........0005: 19

Lee Norse Company, 247 N.L.R.B. 801 (1980) ........ 11

Local 57, International Ladies’ Garment Workers’

Union v. NLRB, 374 F.2d 295 (D.C. Cir.), cert.

denied, 387 U.S. 942 (1967), cert. denied, 395 U.S.

Mercy-Memorial Hospital Corp., 221 N.L.R.B. 1 (1975) 19

PAGE

National Car Rental System, Inc., 252 N.L.R.B. 159

CEB 6 hw ebb cccccedvcnctvesccddeasescdoeseoss 11, 12,

NLRB v. National Car Rental System, Inc., 672 F.2d

SO ee Gis PEE 5g 3 Svcd dvrda nc tauat coddenbe 8, 10, 13,

16, 17, 18, 20

NLRB v. Fabsteel Co., 587 F.2d 689 (Sth Cir.), cert.

denied, 442 U.S. 943 (1979) ..... 6... cece eeeeeees 7

NLRB v. Houston Distribution Services, Inc., 573 F.2d

260 (Sth Cir. 1978), cert. denied, 439 U.S. 1047 (1979) 7

NLRB v. Pepsi-Cola Bottling Co., 613 F.2d 267 (10th

CEE FEED Fo cv cic cect cweveretnnccadasecceccccess 9-10

Peoples Gas Systems, Inc. v. NLRB, 629 F.2d 35 (D.C.

CE FOU Seve cccccccccccvcacovedpresecceccccten 19, 20

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).... 20

The Pierce Governor Company, Inc., 164 N.L.R.B. 97

(1967), aff'd, 394 F.2d 757 (D.C. Cir.), cert. denied,

Be Soe GE ED oon COE R OLA cece Ces hdcdbadeaces 11

Westinghouse Electric Corporation, 174 N.L.R.B. 636

SE i b.ck Gddeb de weed a bWenseuesen Mates sasdeees ve 9

Westwood Import Co., 251 NLRB 1213 (1980)........ 9

STATUTES AND RULES:

SE SARS, B UGS biince sdb. ch ned denwe sass <ceeiress 2

National Labor Relations Act, 29 U.S.C. § 151 ef seg..i, 2, 8,

15, 18, 21

Geation 9; SPAS. OTT. icewancccccecsces 2, 8, 12,

18, 19, 20, 21

Section 8(a)(1), 29 U.S.C. § 158(a{l) ........... 2, 6, 7,

PAGE

Section 8(a)(3), 29 U.S.C. § 158(aX(3) ........... 2, 6, Ms

Section 8(a)(4), 29 U.S.C. § 158(a)(4)............ 6

Section 8(a)(5), 29 U.S.C. § 158(a)(S) .......... 2, 6, 11,

13, 14, 15

Section 9a), 29 U.S.C. § 159(a)..........025 00s 3

Section 10(c), 29 U.S.C. § 160(c).........6.0005- 3,8

Fifth Circuit Court of Appeals Reorganization Act of

1980, Pub. L. No. 96-452, 94 Stat. 1994 ...........

eS es i BE soa eeaee cesdubscpataneseeVeesensee

Supreme Court of the United States

OCTOBER TERM, 1981

AIR EXPRESS INTERNATIONAL CORPORATION,

Petitioner,

—VvVi—

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Petitioner, Air Express International Corporation, respect-

fully prays that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Eleventh Circuit,

entered in this case on March 15, 1982.

The opinion of the Court of Appeals is reported at 659 F.2d

610 (Sth Cir. Unit B 1981) and is reproduced in Appendix A of

this petition.' This opinion was supplemented by an order on

! The case was originally decided by the Fifth Circuit Court of

Pursuant to the Fifth Circuit Court of Appeals Reorganiza-

tion Act of 1980, Pub. L. No. 96-452, 94 Stat. 1994, the former Fifth

Circuit was divided into the Fifth Circuit and the newly created

Eleventh Circuit. The case at bar, arising out of Georgia, is now under

the aegis of the Eleventh Circuit.

March 15, 1982. (Appendix B). The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statute involved is the National Labor Relations Act, as

amended, 29 U.S.C. § 151, et seq. (hereinafter “the Act”).

Section 7 of the Act, 29 U.S.C. § 157, provides in pertinent

part:

Employees shal! have the right to self-organization, to

form, join, or assist labor organizations, to bargain col-

of collective bargaining or other mutual aid or protection,

and shall also have the right to refrain from any or all

Sections 8(a)(1), (3) and (5) of the Act, 29 U.S.C.

§ 158(aX(1), (3) and (5), state in pertinent part:

8(a) It shall be an unfair labor practice for an em-

ployer—

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 7;

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employ-

ment to encourage or discourage membership in

(5) to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provi-

sions of section 9a).

Section 9a) of the Act, 29 U.S.C. § 15%a), provides in

pertinent part:

9a) Representatives designated or selected for the pur-

Section 10(c) of the Act, 29 U.S.C. § 160{c), provides in

pertinent part:

10(c) . . . If upon the preponderance of the testimony

taken the Board shall be of the opinion that any person

named in the complaint has engaged in or is engaging in

any such unfair labor practice, then the Board shall state

STATEMENT OF THE CASE

Air Express International Corporation (hereinafter “AEI”)

is engaged in national and international air freight forwarding.

Prior to 1978, AEI had been foundering economically and was

on the verge of bankruptcy in 1973, 1975 and again in 1976.

AEI’s recurrent losses were caused by its inability to expand its

share of the domestic market. In order to improve its economic

condition, AEI entered into an agreement to buy most of the

assets of Trans-Air Freight System, Inc. (hereinafter “Trans-

Air”), an air freight forwarding operation with facilities in

Trans-Air and the relocation and merger of the East Point,

Georgia facility at College Park, Georgia was motivated by

valid economic reasons.

The acquisition of Trans-Air by AEI was consummated on

2 _ Bast Point was smaller in size than College Park and had an unusual

shape that was not conducive to efficient operations. College Park was

better suited than East Point for domestk furwarding, which AEl

hoped to strengthen as a result of the acquisition of Trans-Air.

joe

from East Point to AEI’s newly-acquired facility in College

Park. The sixth employee, John Moore, who initially refused

to accept a supervisory position at Co'lege Park, subsequently

accepted the position at the new facility in March, 1978.

Pursuant to AEI’s acquisition of Trans-Air and the reloca-

tion of its operations to College Park, AEI retained eight

non-supervisory, non-sales employees of Trans-Air.’ The Trans-

Air employees were not unionized.

On December 14, 1977, two months prior to AEI’s acquisi-

tion of Trans-Air and its relocation to College Park, the

National Labor Relations Board certified the Truckdrivers and

Helpers Local Union No. 728, International Brotherhood of

Teamsters, Chauffeurs, Warehousemen & Helpers of America

(hereinafter “Local 728”) as the collective bargaining repre-

sentative of:

Following the acquisition and relocation, AEI withdrew

recognition from Local 728 and refused to bargain with it at

the College Park facility on the ground that it did not represent

a majority of the employees in a appropriate unit at College

Park.

a switchboard, a switchboard was instalied at AEI’s new opera-

at College Park and a person was hired to perform operator and

receptionist duties.

On February 13 and 14, 1978, Local 728 filed a charge and

an amended charge, respectively, with the National Labor

Relations Board (hereinafter “NLRB” or “Board”). On April

4, 1978, the General Counsel of the NLRB issued a complaint

alleging that AEI had violated sections 8(a)(1), (3), (4) and (5)

of the Act by, inter alia, discharging Lynn Ashmore, John

Moore, Marlin Rozier, John Shepherd and James McCollum,

and by refusing to recognize and bargain with Local 728 as the

exclusive bargaining representative of the employees at AEI’s

new College Park facility. On April 21, 1978, the Administra-

tive Law Judge consolidated the aforementioned complaint

with an earlier complaint which alleged that Nella Ree Dunn, a

clerical employee at East Point, had been terminated in July

1977 (seven months prior to the relocation) in violation of

sections 8(a)(1) and (3) of the Act.

In its Decision and Order issued on September 7, 1979, the

Board held that AEJ had committed various unfair labor

practices. Pertinent to this petition, the Board found that AEI

had unlawfully terminated the employment of the six East

Point employees in violation of sections 8(a)(1) and (3) of the

Act because of their union activity. The Board ordered AEI to

offer reinstatement to the six employees and to make them

whole for losses they suffered by reason of the discrimination

against them. (Appendix C).

facility would apply to the new operation at College Park. The

unfair labor practices, the six East Point employess would

and

4 The Board found that, absent the unlawful terminations, AE! would

have staffed the College Park facility with unionized East Point

employees together with a sufficient number of former Trans-Air

The Board ordered AEI to recognize, and, upon request,

bargain with Local 728 as the exclusive representative of all

College Park employees in the bargaining unit that was found

appropriate in the East Point certification.

On November 20, 1979 AEI filed a Petition for Review and

to Set Aside the Board’s Decision and Order in the Fifth

Circuit Court of Appeals. The NLRB cross-petitioned for

enforcement of the Board’s oi der. In its decision, dated Octo-

ber 19, 1981, the Fifth Circuit Court of Appeals affirmed the

finding of the Board that the six East Point employees were

terminated in violation of sections 8(a)(1) and (3) of the Act. It

also enforced the Board’s order that AEI recognize and bar-

gain with Local 728 at College Park. The Court of Appeals’

finding of majority status for Local 728 at College Park was

based on the acceptance of the sarc presumption utilized by

the Board, i.e, that, absent the unfair labor practices, the six

East Point employees would have transferred to College Park

and would have constituted a majority of the College Park

bargaining unit.’

employees to bring the College Park facility up to its full complement.

The Board concluded that but for the violations of the Act there would

have been a bargaining unit of ten employees at College Park, of which

a majority of seven would have been former East Point employees who

had been represented by Local 728 at the East Point facility.

5 The Court of Appeals found that one of the former Trans-Air

at College Park comprised of a majority (seven) of former East Point

employees who had been represented by Local 728 at East Point.

The Fifth Circuit cites NLRB v. Fabsteel Co., $87 F.2d 689 (Sth

Cir.), cert. denied, 442 U.S. 943 (1979) and NLRB v. Houston

Distribution Services, Inc., $73 F.2d 260 (Sth Cir. 1978), cert. denied,

439 U.S. 1047 (1979) to support its use of the presumption that, absent

the violations of the Act, the East Point employees

to,

AEI dues not challenge that part of the Board’s order to

offer reinstatemert and to “make whole” the six former East

Point employees. AEI does challenge that part of the Board’s

order requiring AEI to recognize Local 728 at the College Park

facility as an abuse of the Board’s discretion to fashion a

remedy under Section 10(c) of the Act, 29 U.S.C. § 160(c), and

as an undue infringement on the section 7 rights of the

unrepresented College Park employees to join or refrain from

joining a labor organization.

REASONS FOR GRANTING THE WRIT

The NLRB’s order that AEI recognize Local 728 as the

exclusive collective bargaining representative of the employees

working at the College Park facility, as enforced by the Fifth

Circuit, constitutes a flagrant abuse of the Board’s discretion

in remedying unfair labor practices under Section 10(c) of the

Act. Furthermore, the Board’s and the Fifth Circuit’s use of a

presumption to prove that Local 728’s majority status contin-

ued at College Park and, thereby, justified the issuance of a

bargaining order at College Park, is inconsistent with the

section 7 rights of the College Park employees; is punitive

rather than remedial in nature; and is contrary to the decisions

of three other circuit courts.‘

While purporting to restore the status qu.) ante, the bargain-

ing order not only fails to effectuate the policies of the

National Labor Relations Act, it has the opposite effect of

needlessly quashing the fundamental right of employees,

guaranteed by section 7 of the Act, 29 U.S.C. § 157, to bargain

collectively through representatives of their own choosing or to

refrain from doing so.

A decision by this Court is necessary to resolve the extant

conflict among the circuits in order that a uniform Federal law

facility as the predecessor. The cases do not address the issue presented

here, involving a merger coupled with a relocation to another facility.

6 NLRB v. National Car Rental System, 672 F.2d 1182 (3d Cir. 1982);

Fraser & Johnston Company v. NLRB, 469 F.2d 1259 (9th Cir. 1972);

Cooper Thermometer Company v. NLRB, 376 F.2d 684 (2d Cir. 1967).

be established which defines the scope of the NLRB’s authority

to order bargaining with a union at an employer’s relocated

and merged facility where it is uncertain and speculative ai the

time of the order whether the union represents a majority of

the employer’s work force in the new facility.

The NLRB and the Fifth Circuit’s Use of a Presumption

The opinion below correctly states the well-settled principle

that certification of a collective bargaining representative by

the NLRB in an appropriate bargaining unit carries with it an

irrebuttable, one year presumption that the union continues to

enjoy majority status in the bargaining unit, absent “unusual

circumstances”. (Appendix A-6). Brooks v. NLRB, 348 U.S.

96 (1954). “Unusual circumstances” justifying the employer’s

withdrawal of recognition from a union during the first year of

certification arise where changes in the characteristics of a

bargaining unit result in its being classified as either a different

unit or a nonunit. (Appendix A-7).

The NLRB has consistently held that a certification at one

facility applies to another facility, following a relocation of the

employer’s operations, only if the employee complement at the

new facility is comprised of a majority of bargaining unit

employees from the former facility. Westwood Import Co., 251

N.L.R.B. 1213 (1980); Coated Products Inc., 237 N.L.R.B.

159 (1978), enforced, 620 F.2d 289 (3d Cir. 1980); Wes-

tinghouse Electric Corporation, 174 N.L.R.B. 636 (1969).’ Cf.

Burns International Security Services, Inc. v. NLRB, 406 U.S.

272 (1972) (where this Court held that a successor employer is

required to recognize the collective bargaining representative of

the predecessor’s employees only if those employees comprise a

majority of the bargaining unit in the successor’s work force);

NLRB vy. Pepsi-Cola Bottling Co., 613 F.2d 267 (10th Cir.

7 The court below acknowledged that the employee composition at the

new facility following a relocation is normally the most critical factor

in characterizing a relocated or merged unit as either the same or a

different unit. (Appendix A-9).

1980) (where the decision of the court of appeals impliedly

recognized that when there is a change in ownership of a

company during the certification year wherein the new owner

hires less than a majority of the predecessor’s employees, this

would constitute “unusual circumstances” relieving the em-

ployer of the duty to bargain with the union recognized by the

predecessor).

After the Fifth Circuit set forth the principle that the loss of

the union’s majority status at the new facility would constitute

“unusual circumstances”, it went on to affirm the NLRB’s

finding that the majority of the bargaining unit at College Park

would have been comprised of bargaining unit employees from

East Point. It based this finding on the presumption that,

absent the commission of unfair labor practices, the East Point

employees would have transferred to College Park. (Appendix

A-10-11). As a result of the application of this presumption,

the court below concluded that no “unusual circumstances”

existed warranting AEI’s withdrawal of recognition of Local

728 at College Park. The NLRB’s and the Fifth Circuit’s

reliance on this presumption as a basis for an order to recog-

nize the union at the relocated and merged facility has been

specifically rejected by three other circuit courts.

The Decisions of Other Circuits

In NLRB v. National Car Rental System, 672 F.2d 1182 (3d

Cir. 1982), the Third Circuit recently addressed the very same

issue presented in the case at bar. National ceased its opera-

tions in Newark, New Jersey and simultaneously relocated its

facility, for valid economic reasons, to Edison, New Jersey, 20

miles from the Newark facility. At the time of the relocation,

National terminated all thirteen garagemen and mechanics

represented by Local 723, International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of America

(hereinafter “Local 723”) working at the Newark facility.

National refused to consider these employees for transfer to

the Edison facility. The NLRB found that the refusal to

transfer employees was motivated by National not wanting

Local 723 to be the bargaining representative at the Edison

facility. The NLRB, thus, held that National had violated

sections 8(a)(1) and (3) of the Act by discriminatorily refusing

to consider the Newark employees for transfer to the Edison

facility because of their union activity,’ and section 8(a)(5) of

the Act by refusing to bargain with Local 723 over the effects

of the relocation.

The NLRB ordered National to offer employment at the

Edison facility to the thirteen former Newark employees who

had been discriminatorily denied consideration for transfer to

Edison, to dismiss any Edison employees if necessary to make

jobs available, and to pay for any lost earnings caused by the

discrimination.’ The NLRB further ordered National to recog-

nize Local 723 as the exclusive bargaining representative of the

garagemen and mechanics at the Edison facility. The Board

found that the bargaining order was justified because the

Edison facility represented a continuation of the operation at

the Newark facility. National Car Rentai System, Inc., 252

N.L.R.B. 159, 164 (1980). The Board reasoned:

While no employees from Newark actually transferred to

Edison [when it opened,] this result stems directly from

[National’s] systematic discrimination against the Newark

employees. Although the record does not indicate the

number of employees who would have been willing to

transfer, it does show that several of the 13 unit employees

8 Although the NLRB and the Fifth Circuit found that AE! unlaw-

fully terminated the six forme: East Point employees, the Third Circuit

is correct in labeling the unfair labor practice as a discriminatory

refusal to transfer the employees to the relocated facility and not as an

unlawful termination. The Board has consistently held that, absent an

anti-union animus for the relocation, which was never alleged nor

shown in the case at bar, there is no obligation on the part of the

employer to transfer employees to another facility. See, e.g., Lee Norse

Company, 247 N.L.R.B. 801 (1980); The Pierce Governor Company,

Inc., 164 N.L.R.B. 97 (1967), aff'd, 394 F.2d 757 (D.C. Cir.), cert

denied, 393 U.S. 831 (1968).

9 This portion of the order was not challenged by National.

from Newark attempted to do so upon notification of

their termination, and that others who testified also indi-

cated their desire to accept employment at Edison. . .

[A] fair inference to be drawn from these facts is that,

absent [National’s] discrimination, [Local 723] would

have retained its majority among [National’s] employ-

252 N.L.R.B. at 164.

The Third Circuit refused to enforce the Board’s bargaining

order, holding that the order constituted an abuse of the

NLRB’s discretion.

Even if we assume that the Board sufficiently articulated

its reasons for imposing a bargaining order, and that there

is substantial evidence to support the Board’s finding that

Local 723 would have retained its majority at the Edison

facility but for National’s unfair labor practice, we think

that the imposition of a bargaining order at this point is

an abuse of discretion. It is at least premature in view of

the fact that the remedial order requires that the thirteen

former employees be offered employment at Edison on a

seniority basis.If acceptance of this unchallenged remedy

should result in a union majority at Edison, there is no

evidence that National would not recognize Local 723 as

the exclusive bargaining representative for the Edison

garagemen and mechanics. It is also possible that the

' former employees of the Newark facility will not consti-

tute a majority at Edison, even after the other aspects of

the Board’s remedial order are enforced. Employees not

only have the right to bargain collectively, but also to

refrain from collective bargaining. See 29 U.S.C. § 157

(1976). Thus, the Board’s order in this case may impose a

bargaining representative on employees who do not wish

to be represented.

The Board did not explicitly consider the possibility that

its order might impose a bargaining representative on

employces who do not wish one. The Board reasoned

that, absent National’s unfair labor practices, a majority

of the Edison employees would have wanted Local 723 to

represent them. Not to impose Local 723 as their repre-

sentative now ‘would provide [National] with an imper-

missible windfall.’ 252 NLRB at 164 n.26. However, the

Board failed to recognize the injustice in imposing a

bargaining representative on employees who are perfectly

able to decide whether they want one. Here, the present

employees are innocent of any wrongdoing, and some or

all of them may lose their jobs because of other aspects of

the Board’s order. We think the injury that might be done

to the rights of the current Edison employees by imposing

on them a union they may not want is much greater than

the injury that will be done by allowing the possibility that

National will avoid a unionized work force. 672 F.2d at

1190-91.

In Cooper Thermometer v. NLRB, 376 F.2d 684 (2d Cir.

1967), the employer relocated its operations, for economic

reasons, from Pequabuck, Connecticut to a new facility 27

miles away in Middlefield. The employer terminated eighty

unionized production and maintenance employees in Pe-

quabuck and refused to bargain with the union over what basis

the employees could be employed at the Middlefield facility.

The employer did invite the Pequabuck employees to individu-

ally apply for jobs at Middlefield, promising to consider the

employees equally with other applicants.

The NLRB held that the employer violated section 8(a)(5) of

the Act by failing to furnish the union with job data relating to

the Middlefield plant, by refusing to negotiate concerning

conditions of transfer, and by insisting on dealing with employ-

ees on an individual basis. The Board ordered the employer to

offer immediate reinstatement and make whole those bargain-

ing unit employees at the Pequabuck plant who were dis-

charged as a result of the company’s unlawful actions. Cooper

Thermometer Company, 160 N.L.R.B. 1902, 1918 (1966). The

Board also held that the employer violated Section 8(a)(5) by

refusing to recognize the union repz<senting the Pequabuck

that a majority of Pequabuck employees would have trans-

ferred had the employer fulfilled its legal! bargaining obliga-

tion. 160 N.L.R.B. at 1915-16.

The Second Circuit affirmed the NLRS’s order to reinstate

and make whole, but denied enforcement of the NLRB’s order

to recognize and bargain with the union at Middlefield. The

Second Circuit rejected the Board’s presumption that, absent

the employer’s refusal to bargain, a majority of employees

from Pequabuck would have transferred to Middlefield. The

court of appeals found the presumption to be unwarranted on

the basis that even had the company engaged in good faith

bargaining, it would have been under no legal obligation to

transfer the employees to Middlefield.

In Fraser & Johnston Company v. NLRB, 469 F.2d 1259

(9th Cir. 1972), the company relocated its operations (again,

for economic reasons) from its facility in San Francisco to

another facility, 26 miles away, in San Lorenzo, California.

The company notified the San Francisco employees that they

would be terminated and would not be transferred to the San

Lorenzo facility. The company refused to bargain with the

three unions representing the San Francisco employees regard-

ing the effects of the relocation.

As in Cooper Thermometer, the NLRB ordered the company

to reinstate, with back pay, the employees terminated at the

San Francisco plant. The Board also ordered that the company

recognize and bargain with the three unions (which had repre-

sented the discharged employees at the San Francisco facility)

at the relocated operation in San Lorenzo. Fraser & Johnston

Company, 189 N.L.R.B. 142 (1971).

The Ninth Circuit enforced the Board’s order to reinstate the

It is now established (footnote deleted) that the existence

of such an unfair labor practice is dependent upon a

finding that a majority of the unions’ employees would

have transferred to San Lorenzo and thus preserved the

unions’ majorities had it not been for the company’s

unfair labor practices.

469 F.2d at 1264. The Ninth Circuit, citing Cooper Thermome-

ter, again rejected the Board’s use of the presumption that,

absent the unfair labor practice, a majority of the San Fran-

at the San Lorenzo facility without reference to their choice.

The Ninth Circuit stated that “[t}he right to choose a union is a

cornerstone of the National Labor Relations Act.” 469 F.2d at

1265."

10 = The court below attempts to distinguish Cooper Thermometer and

Frase> & Johnston from the instant case on the basis of the nature of

tion, however, is unpersuasive. As the circuit courts held in Cooper

Thermometer and Fraser & Johnston, absent the unfair labor prac-

It is clear that the decision of the Fifth Circuit in the present

case enforcing the NLRB’s bargaining order is inconsistent

with the holdings of the Second, Third and Ninth Circuits.

Here, as in the three circuit court cases, the NLRB relied on

the presumption that, absent the commission of unfair labor

practices, the unionized employees would have transferred to

the relocated facility in sufficient numbers to constitute a

majority of the bargaining unit at the new facility. According

to the Board, this presumption would justify the imposition of

the union on the employees at the new facility and the require-

ment that the employer recognize and bargain with it. Unlike

the Fifth Circuit’s endorsement of the use of this presumption,

however, the Second, Third and Ninth Circuits refused to

enforce this unreasonable and unwarranted exercise of the

Board’s discretion.

The instant case presents even more compelling factors

which militate in favor of rejecting the NLRB’s order to

recognize Local 728 at the College Park facility. To begin with,

it is undisputed that the purchase of Trans-Air and the reloca-

tion and merger of facilities was for valid economic reasons.

Second, while there was some evidence in National Car

Rental, Cooper Thermometer and Fraser & Johnston that at

least some of the terminated employees were interested in

transferring to the relocated facility, neither the Board nor the

Fifth Circuit in the instant case pointed to any evidence that

any of the six discharged East Point employees would have

transferred to bargaining unit positions in the College Park

facility absent the unlawful refusal to consider them for trans-

fer.

Finally, while the decisions of the Second, Third and Ninth

Circuits involved simple relocations with a continuation of

and Ninth Circuits would not permit the NLRB to speculate as to what

might have happened had there been no violation of the Act. Thus,

inasmuch as AE! was similarly under no legal obligation to transfer

East Point employees to College Park, the court below erred in finding

that there was more reason to presume that, absent the unfair labor

practice, the East Point employees would have transferred to College

Park.

operations at the new facility, the AEI relocation was much

more complex. The relocation to College Park was accom-

plished in conjunction with the acquisition of the assets of

another company. There was also a reorganization of AEI’s

corporate structure which resulted in the creation of a new

Southeast Region. Finally, there was a change in the nature of

the operations brought about by the consolidation of AEI and

Trans-Air and the shift in the emphasis in AEI’s operations

from international air freight forwarding to domestic air

freight forwarding. The Fifth Circuit specifically noted that

where a relocation is coupled with a merger, thus producing

somewhat altered operations and structure, the Board’s inquiry

should be more complex than simply ascertaining whether a

majority of the bargaining unit at the new facility were repre-

sented by the union at the former facility. The employee

composition at the new facility, while determinative of whether

there has been a continuation of the bargaining unit in a simple

relocation, becomes one of a number of factors to be consid-

ered when there is a relocation plus other changes in the

employer’s operations. (Appendix A-12 n.11). It follows that in

a relocation coupled with an acquisition of another company

and a change in operations, as is the case with AEI, the

existence of substantial evidence that the bargaining unit in the

new facility is comprised of a majority of union employees

from the former facility may not, by itself, be sufficient to

warrant recognition of the union at the new facility. As

discussed above, the Board and the Fifth Circuit were not even

able to point to any evidence that the East Point employees

would transfer to College Park in numbers sufficient to com-

prise a majority of the College Park bargaining unit.

Although the decisions of the circuit courts in National Car

Rental, Cooper Thermometer and Fraser & Johnston refused

to enforce the Board’s bargaining order when it was based on a

presumption as to the majority status of the union in the new

facility, they do adequately protect the bargaining rights of the

terminated employees. Thus, the decisions do not preclude the

possibility that an order to recognize the union at the new

facility may become the appropriate action by the NLRB once

there is affirmative evidence that the union represents a major-

ity of the bargaining unit at the new facility." The problem

recognized by the Second, Third and Ninth Circuits, but

patently ignored by the Fifth Circuit in the instant case, is that

a premature bargaining order, made before the employee com-

position of the relocated facility is ascertainable, could impose

a collective bargaining representative on a bargaining unit in

contravention of the majority’s section 7 right to choose their

own bargaining representative or to refrain from collective

bargaining. _

The NLRB Has Abused Its Discretion In Not Considering

The Section 7 Rights Of The College Park Employees.

While the NLRB has wide discretion in the fashioning of

remedies for unfair labor practices, this Court has held that

enforcement will be denied of those Board orders which do not

effectuate the policies of the Act. Fibreboard Paper Products

Corp. v. NLRB, 379 U.S. 203, 216 (1964). See also, Detroit

Edison Co. v. NLRB, 440 U.S. 301 (1979) (wherein this Court

held that appellate courts, in reviewing remedial orders of the

Board, are not to be relegated to act as passive conduits of

arbitrary Board orders).

The NLRB’s bargaining order in this case not only fails to

effectuate any discernible policy of the National Labor Rela-

tions Act, it has the adverse effect of infringing upon the

section 7 rights of the College Park employees go select a

collective bargaining representative of their own choosing or to

refrain from collective bargaining.

The right of employees to choose a collective bargaining

representative or to refrain from doing so is the cornerstone of

the National Labor Relations Act. Fraser & Johnston Com-

pany v. NLRB, 469 F.2d 1259, at 1265 (9th Cir. 1972); Local

57, International Ladies’ Garment Workers’ Union v. NLRB,

11 See NLRB v. National Car Rental Systems, Inc., 672 F.2d at 1190;

Fraser & Johnston v. NLRB, 469 F.2d at 1265; Cooper Thermometer

Company v. NLRB, 376 F.2d at 690.

374 F.2d 295, 301 (D.C. Cir.), cort. denied, 387 U.S. 942

(1967), cert. denied, 395 U.S. 980 (1969). In Peoples Gas

Systems, Inc. v. NLRB, 629 F.2d 35 (D.C. Cir. 1980), the D.C.

could result from such an order. Second, the Board’s reliance

12s As the D.C. Circuit noted in Peoples Gas Systems, the imposition of

a bargaining order would infringe on the exercise of the employees’

similar to the year after a union is certified, during which no decertifi-

cation petition will be considered. See, e.g., Mercy-Memorial Hospital

Corp., 221 N.L.R.B. 1 (1975); Hermet, inc., 207 N.L.R.B. 671 (1973).

Thereafter, if a contract is signed within the year, the contract-bar rule

would ordinarily stymie any attempt by the employees to choose

another union or decertify the incumbent union. 629 F.2d at 45 n.17.

on a presumption that the six discharged East Point employees

would have transferred to College Park, absent the unfair

labor practices, is inherently speculative and is clearly not

grounded in factual determinations. Finally, neither the NLRB

nor the Fifth Circuit articulated what, if any, policy of the Act

would be effectuated by imposing Local 728 as the representa-

tive of the College Park employees. Thus, the bargaining order

issued by the NLRB in the present case, as in Peoples Gas

Systems, amounts to an abuse of the Board’s discretion.

This Court has held that the function of a Board order is the

restoration of the status quo to the greatest extent practicable.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). The

primary purpose of restoring the status quo is to redress any

injury caused employees as a result of the employer’s unfair

labor practice. Local 57, International Ladies’ Garment

Workers’ Union v. NLRB, 374 F.2d 295 (D.C. Cir.), cert.

denied, 387 U.S. 942 (1967), cert. denied, 395 U.S. 980 (1969).

Thus, the Board’s powers are remedial, not punitive. Bell &

Howell Co. v. NLRB, 598 F.2d 136 (D.C. Cir.), cert. denied,

442 U.S. 942 (1979); Local 57, International Ladies’ Garment

Workers’ Union v. NLRB, 374 F.2d 295 (D.C. Cir.), cert.

denied, 387 U.S. 942 (1967), cert. denied, 395 U.S. 980 (1969).

Inasmuch as the Board’s bargaining order seeks to redress a

speculative and hypothetical injury to the terminated East

Point employees while having the absolutely certain conse-

quence of stifling the section 7 rights of the unrepresented

employees at College Park by imposing a bargaining represent-

ative on them without reference to their choice, the Board’s

order can only be deemed as punitive.

As the circuit courts found in National Car Rental, Cooper

Thermometer and Fraser & Johnston, the section 7 rights of

the discharged East Point employees to be represented by

ordered by the NLRB and enforced by the Fifth Circuit in the

case before this Court. Thus, the NLRB is empowered to order

a remedial election at the new facility.

The issue of the Board’s authority to order bargaining in

cases involving relocation and merged facilities is important to

the administration of the National Labor Relations Act. This

issue has reached the courts of appeals in several cases, and it

recurs frequently before the Board. Inasmuch as this case

presents a clear opportunity for this Court to strike the proper

balance between the section 7 rights of employees and the

Board’s authority to remedy unfair labor practices, which has

been precariously skewed away from the former, review by this

Court is therefore warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JEROLD D. JACOBSON

GUGGENHEIMER & UNTERMYER

80 Pine Street

New York, New York 10005

(212) 344-2040

Counsel for Petitioner

Air Express International Corporation

Of Counsel:

STEWART A. BRODER

ns:

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mts

APPENDIX A

Opinion of the United States

Court of Appeals for the Fifth Circuit

aol

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT*

UNIT B

No. 79-3776

Oct. 19, 1981.

—*

AIR EXPRESS INTERNATIONAL CORPORATION,

Petitioner-Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

Employer sought to set aside National Labor Relations

Board order entered against it and the Board sought enforce-

ment. The Court of Appeals, Godbold, Chief Judge, held that:

(1) substantial evidence supported finding that certain employ-

ees were discharged in violation of the National Labor Rela-

tions Act; (2) Board’s bargaining order was enforced on basis

that union had not enjoyed its full year of certification; and (3)

substantial evidence supported findings of Board that em-

ployer was in violation of the Act for failing to bargain in good

faith over the effects of relocation of a plant.

Enforced in part, vacated in part, and remanded in part with

directions.

° Former Fifth Circuit case, Section 91) of Public Law 96-452-

October 14, 1980.

Ae2

On Petition for Review and Cross-Application for Enforce-

ment of an Order of The National Labor Relations Board.

- +

Before

GODBOLD, Chief Judge,

MORGAN and HENDERSON, Circuit Judges.

GODBOLD, Chief Judge:

Air Express International (“AEI”) seeks to set aside the

Board’s order entered against it, and the Board seeks enforce-

ment.

AEI is engaged in the business of air freight forwarding.

Until February 9, 1978 its plant serving Atlanta’s airport was

located in East Point, Georgia. February 10, 1978 AEI ac-

quired nationwide all of Trans-Air Freight System, Inc.’s

(“Trans-Air”) air freight forwarding business and moved its

own Atlanta operation to Trans-Air’s Atlanta facility located

seven to 10 miles away in contiguous College Park, Georgia,

consolidating the two Atlanta operations.

Just two months prior to this move Truckdrivers and

Helpers Local Union No. 728 (“the Union”) was certified as

the collective bargaining representative for the nonsales per-

sonnel at AEI’s East Point facility.' Trans-Air’s College Park

facility was not unionized.

This controversy centers on AEI’s decision to transfer only

three of its East Point nonsales personnel to the new College

Park facility, thereby discharging five members of the East

Point bargaining unit, and AEI’s refusal to recognize the

Union as the representative of the College Park employees.

Also at issue is the discharge of a sixth East Point employee

1 The election was held July 28, 1977, with a 5-1 vote for the Union.

The Board certified the Union on December 14, 1977. Guards, supervisors,

and confidential and professional (i.c., sales) employees were excluded from

the bargaining unit.

A-3

prior to the move, the alleged failure of AEI to bargain in

good faith with the Union over the effects of the move, and

AEI’s alleged acts of interrogation, threats of reprisal, prom-

ises of benefit, solicitation of employees not to engage in union

activity or to give testimony to the Board, and creation of the

impression of surveillance. An administrative law judge

(“ALJ”) found against AEI on virtually all charges and recom-

mended that AEI be ordered to cease and desist from the

various violations of §§ 8(a)(1), (3), and (5), 29 U.S.C.

§ 158(a)X(1), (3) and (5), that he had found, to offer reinstate-

ment and back pay to the six discharged East Point employees,

and to post the usual notice. The Board affirmed the ALJ’s

findings in all particulars except one,’ adopted the recom-

mended order (with minor variations), and rejected AEI’s

contention that it had been prejudiced by any bias of the ALJ.

We focus first on the discharged employces. AEI contends

that the five East Point employees who were not transferred to

the new College Park facility were terminated’ because it was

2 The Board ruled that Trans-Air’s station manager at College Park

was not acting for AE] when he made threats of reprisai prior to consumma-

tion of AEI’s acquisition of Trans-Air. We agree with this ruling. As the

Board discerned, the ALJ’s conclusion to the contrary was based solely on

speculation.

3 Some controversy surrounds whether John Moore, one of these five,

was in fact terminated. Moore was offered a position at the new plant but

only as a supervisor. Moore had previously turned down a supervisor's

position at East Point because it lacked the security of tenure that his

rank-and-file position possessed. He again refused a supervisor’s positon at

College Park, and thus was terminated for a time, although he did recant and

agree one month later to come back on as a supervisor. The fact that Moore

was offered another position does not ameliorate AEI’s discriminatory

refusal to retain Moore at his current position because Moore considered the

new position less desirable and because the Board found upon substantial

evidence that AEI, in offering Moore only a supervisor's position, was

motivated by a desire to lessen the number of rank-and-file union supporters

at College Park.

A-4

decided as a business matter that the company needed to break

up one of the employee groups and the employees of the less

profitable operation should be let go with the hope that

Trans-Air’s more profitable customers would be retained.‘

Thus AEI argues that it had no illegal motive, or if there were

such a motive that it would have made the same decision

regardless. The Board found to the contrary. Its decision is

based on substantial evidence. First, there is direct testimony

by a former AEI sales employee that Frank O’Rorke, AEI’s

district manager stationed at East Point, told her over a series

of conversations that the company was not going to allow the

union in Atlanta, that it was going to get rid of the employees

who voted for the union, and that “those guys . . . cut their

throats” by bringing in the union. Second, circumstances speak

as loudly as these words. Of the three East Point employees

retained after the move one was the station manager, one was a

vocal anti-union advocate, and the third was the replacement

for Nella Ree Dunn, the employee who had been discharged

prior to the move. By contrast, the five employees not trans-

ferred included all of the acknowledged union organizers and

supporters at the East Point facility. Elsewhere in the country

when AEI consolidated its operations with Trans-Air’s not a

single AEI employee was discharged except for two part-time

workers. We have no difficulty in holding that the Board

correctly found that these terminations violated § 8(a)(3) of the

Act and in enforcing the orders of reinstatement and back pay.

We also enforce the Board’s decision as it relates to Nella

Ree Dunn. Dunn was secretary to district manager Frank

O’Rorke. She was fired July 11, 1977, two and one-half weeks

before the election, because O’Rorke suspected her of being

the source of leaks of salary information that were causing

4 AEI’s contention that it was motivated by the East Point employees’

refusal 10 months earlier to comply with changes in their shifts patently lacks

merit. Only one employee actually refused a shift change, and only one other

was opposed to the changes. Moreover, at the time of opposition to the

changes no employee was disciplined or reprimanded in any way except for

the station manager who was fired for giving in to the one workers’ protest.

A-5

dissension among the employees. Later, O’Rorke asserted as

additional grounds for Dunn’s dismissal her incompetence and

that business was slow. The Board found these reasons to be

disingenuous. There was no direct evidence that Dunn was

responsible for the leaks, they took place well before Dunn’s

discharge, and salary information was commonly known and

was not as a general rule kept in confidence. The later asserted

grounds were found to be pretextual. Thus, the Board con-

cluded thai the real reason for Dunn’s discharge was that

O’Rorke suspected her of supporting the union. The evidence

is substantial.

In its reply brief AEI raises for the first time the argument

that Dunn is not protected by the Act because she is a

confidential secretary. Without deciding the validity of this

legal contention,’ we hold that the ALJ correctly found Dunn

not to be a confidential secretary. O’Rorke testified that June

8, the day he received the Union’s election petition, all confi-

dential duties that Dunn might have had were withdrawn from

her. Thus, at the time of her discharge one month later Dunn’s

position was admittedly non-confidential.

AEI hotly contests the order directing it to bargain with the

Union at its Colloge Park facility. The Board based this order

on two alternative grounds: first, that the certification ob-

tained December 14, 1977 at the East Point facility covered the

College Park employees once AEI transferred its operations

there February 10, 1978; second, that a Gisse/* order was

warranted because of the severity of AEI’s illegal opposition to

the Union.

5 The U.S. Supreme Court has granted certiorari in a case that

presents this issue. Hendricks County Rural Electric Membership Corp. v.

NLRB, 627 F.2d 766, 771-76 (7th Cir. 1980), cert. granted, ___._ U.S. ___.,

101 S.Ct. 1479, 67 L.Ed.2d 612 (1981) (No. 80-1103).

6 NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23

L.Ed.2d 547 (1969).

A-6

A Gissel bargaining order is typically invoked when a union

that has only informal evidence of majority status is refused

recognition; the order issues because a formal election either

fails or is likely to fail because of the company’s commission

of unfair labor practices. Bargaining orders are also appropri-

ate where recognition is withdrawn from a union that has been

formally certified as the representative of a bargaining unit.

See Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 46-48

(D.C.Cir.1980) (discussing the distinction). Certification car-

ries with it an entitlement to one year’s presumptive majority

status, a presumption irrebuttable absent “unusual circum-

stances.” Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99

L.Ed. 125 (1954); NLRB v. Auto Ventshade, Inc., 276 F.2d 303

(Sth Cir. 1960). If an employer fails to honor properly a

union’s certification, then a non-Gisse/ bargaining order may

issue to enforce the certification. See e. g., NLRB v. Burns

International Security Services, Inc., 406 U.S. 272, 278-81, 92

S.Ct. 1571, 1877-79, 32 L.Ed.2d 61 (1972); NLRB v. Louisiana

Bunkers, Inc. 409 F.2d 1295 (Sth Cir. 1969). If the East Point

certification extends to the College Park facility, then this is a

withdrawal of recognition (non-Gisse/) case. If not, then Col-

lege Park is uncertified and we have a refusal of recognition

(Gissel) case.

A union certification applies to the intangible construct

known in labor parlance as a “bargaining unit” (or simply

“unit”). A unit enjoys the ephemeral attributes of not being

rigidly defined by any fixed location, size, or composition of

personnel. Thus, the relocation of a unit, an increase or

decrease in the size of a unit, or a complete turnover within a

unit alone does not require a finding that a once-certified unit

has ceased to exist. See Lousiana Bunkers, Inc., 409 F.2d at

1298-99 (relocation); NLRB v. King Radio Corp., 510 F.2d

1154, 1156-57 (10th Cir.), cert. denied, 423 U.S. 839, 96 S.Ct.

68,46 L.Ed.2d 58 (1975) (increase); NLRB v. Middleboro Fire

Apparatus, Inc., 590 F.2d 4, 8 (ist Cir. 1978) (decrease); NLRB

v. Leatherwood Drilling Co., 513 F.2d 270, 273 (Sth Cir. 1970),

cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387

(1975) (turnover). But as with other metaphysical categories,

these mutations by degree, if severe enough, shade into muta-

tions by kind, and may result in eradication of a unit. In such

cases, where changes in the characteristics of a unit result in its

being classified as either a different unit or a nonunit, “un-

usual circumstances” have occurred so that a company is

justified in withdrawing recognition from a union during the

first year of certification. See Brooks v. NLRB, 348 U.S. at

98-99, 75 S.Ct. at 178 (unusual circumstances include radical

fluctuation of unit size in a short time). The courts give a wide

degree of discretion to the Board in its determinations of the

composition and definition of units. E. g., Vicksburg Hospital,

Inc. v. NLRB, 653 F.2d 1070 at 1074-75 (Sth Cir. 1981); NLRB

v. Foodway, 496 F.2d 117, 119 (Sth Cir. 1974) (arbitrary and

capricious standard); NLRB v. Baton Rouge Water Works, 417

F.2d 1065 (Sth Cir. 1969) (same).

With these principles in mind, we examin. the facts to

determine whether the College Park unit is a continuation of

the East Point unit. AEI first contends that certification does

not extend to College Park because a single-plant unit is no

longer appropriate as a result of AEI’s reorganization of its

southeastern district. The Atlanta facility once comprised a

single-plant district, but upon acquisition of Trans-Air AEI’s

southeastern district was restructured to include Atlanta and

Charlotte. AEI contends that the Board may now only aggre-

gate the employees at the Atlanta and Charlotte facilities into

one unit rather than maintaining two separate units because

labor management policy is formed only at this expanded

district level. We do not agree. Restructuring AEI’s regions is

not the kind of change that amounts to an “unusual circum-

stance.” To hold otherwise would allow any company to avoid

a certification simply by shifting its management.

AEI next contends that as the result of the relocation of its

East Point facility and its consolidation with the former

Trans-Air facility, the College Park plant is a “new operation”

and therefore not within the East Point certification. AEI

argues that because 85% of its East Point business ~ar interna-

tional air freight whereas 85% of Trans-Air’s business was

domestic, upon merger of the two a new amalgam was formed.

The company also points to the fact that the new facility is

seven to 10 miles away on the opposite side of the airport and

that its staff has doubled. Other facts support the Board’s

conclusion. AE] at its College Park facility continues to service

only the Atlanta airport, it remains only in the air freight

forwarding business, and but for its discriminatory termination

of six employees a substantial percentage of its College Park

employee complement would consist of former East Point

workers.

The authorities cited by AEI are sufficiently distinguishable

on their facts that the Board is not being arbitrary or illogical

in declining to follow them here. In General Electric Co., 170

NLRB 1272 (1968), the Board found that the consolidation of

two plants created a new operation under facts similar to those

here: the new plant was 10 miles away and the product lines of

the two old plants were similar. The critical factor, though, and

the one that the Board focused on, was that only half of the

employees in question at the old plant that was unionized

transferred to the new facility. Similarly, in Electronic Products

International Corp., 208 NLRB 350 (1974), the Board found

that a relocated plant was a separate unit, but only two of the

seven employees at the old plant accepted transfers, and they

both quit within 30 days of the move. By contrast, here, as

discussed below in this section of the opinion, it is presumed

that all of the employees in the East Point bargaining unit

would transfer.

Bearing in mind the deference we give to the Board in the

question of the composition of a bargaining unit, we hold that

the Board did not err in its unit determination in this matter.

NLRB v. Baton Rouge Water Works, 417 F.2d 1065 (Sth Cir.

1969) is analogous. There the Board held that a small rural

water company acquired by Baton Rouge Water Works was an

“accretion” to the Baton Rouge bargaining unit and thus was

covered by union certification at Baton Rouge. We enforced

the bargaining order even though the second facility was nine

miles away, serviced rural customers rather than urban, had a

separate day-to-day management, and was a separate legal

entity. See also NLRB v. Foodway, 496 F.2d 117 (Sth Cir. 1974)

(acquiring company succeeds to duty to recognize existing

union despite 24 distinguishing factors): Vernon Calhoun

Packing Co., Inc., 173 NLRB No. 112 (1968), enforced

without opinion, 436 F.2d 588 (Sth Cir. 1971) (second plant is

an accretion).

So far we have pretermitted the issue of whether former East

Point employees comprise a majority of the College Park

bargaining unit. Employee composition at the new facility is

usually the most critical factor in characterizing a relocated or

merged unit. The Board found after lengthy analysis that the

bargaining unit at College Park consisted of 10 employees, and

that if AEI had not discriminatorily discharged six of its East

Point employees, then seven’ of these 10 would be former

members of the East Point bargaining unit. AEI counters that

no majority exists because three College Park employees found

to be supervisors are actually rank-and-file and there is no

evidence that the six employees not transferred would in fact

have moved if given the opportunity.

The Board’s initial characterization of three of Trans-Air’s

former employees as supervisors was based on substantial

evidence. There is testimony that two of these three had

authority to hire or fire employees and all three exercised

independent judgment in directing other workers. Each was in

charge of the facility during his or her shift. This satisfies the

Act’s definition of supervisor. See NLRB v. Alamo Express,

Inc., 430 F.2d 1032 (Sth Cir. 1970), cert. denied, 400 U.S. 1021,

91 S.Ct. 584, 27 L.Ed.2d 633 (1971). The Board erred, how-

ever, in confining its inquiry to what the duties of these three

were on the day of the move. Shortly after the move one of

these three, Susan Doyle, was reclassified to “lead agent,”

allegedly because it was felt that there were too many supervi-

sors. In assessing the effects of a relocation or merger of a

7 The seventh is Kathy Lee, the anti-union employee who was trans-

ferred.

x In addition to these three contested supervisors there were three

other employees with the title of supervisor.

A-10

bargaining unit, a reasonable “shake down” period may be

required in order for the new unit to stabilize. Cf. NLRB v.

Houston Distribution Services, Inc., $73 F.2d 260. .

(Sth Cir. 1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58

L.Ed.2d 705 (1979) (accord where issue is successorship of

acquiring company). The Board failed to allow for the possi-

bility that Doyle’s reclassification was part of stich stabiliza-

tion. If Doyie’s status were critical to our decision, we should

remand for further consideration. Our assessment of the com-

position of the bargaining unit does not change according to

her status, however, and so we simply vacate the Board’s

decision as to Doyle and assume arguendo that she is not a

supervisor.

We are left then with a bargaining unit of 11, composed of a

majority of seven former East Point employees. AEI argues

though that there is no evidence that the six discharged em-

ployees would have accepted a transfer to College Park if they

had been given such an opportunity, «iting Fraser & Johnston

Co. v. NLRB, 469 F.2d 1259, 1264 (9th Cir. 1972) and Cooper

Thermometer Co. v. NLRB, 376 F.2d 684, 689 (2d Cir. 1967).

In the circumstances of this case, however, the Board is not

required to affirmatively demonstrate that each discharged

employee would have transferred absent his or her illegal

termination. The Board may rely on the presumption that

discriminatorily discharged employees remain on with the com-

pany. See NLRB v. Fabsteel Co., 587 F.2d 689, 695 (Sth Cir.),

cert. denied, 442 U.S. 943, 99 S.Ct. 2887, 61 L.Ed.2d 313

(1979); NLRB v. Houston Distribution Services, Inc., 573 F.2d

260, 267 (Sth Cir. 1978), cert. denied. 439 U.S. 1047, 99 S.Ct.

722, 58 L.Ed.2d 705 (1979). The policy that gives rise to this

1333, 1337 (Sth Cir. 1971), cert. denied, 405

S.Ct. 1497, 31 L.Bd.2d 795 (1972).

All

The critical factor that distinguishes this case from those

cited by AEI is that here the failure to transfer the employees

in question was itself a violation of the Act. For example, in

both Cooper Thermometer v. NLRB, 376 F.2d 684 (2d Cir.

1967) and Fraser v. Johnston, 469 F.2d 1259 (9th Cir. 1972),

the courts refused bargaining orders because there had been no

affirmative showing that a majority of employees at a reloca-

ted plant came from the old unionized plant, even though the

relocation was accompanied by unfair labor practices. In both

cases, however, the labor violations did not involve unlawful

terminations but merely failure to bargain over the effects of

the relocation. Without adopting the reasoning of these cases,

we note that there is much less reason in such cases to presume

that employees who did not transfer would have done so

absent the particular violations.’

Relying on this presumption, we find there is substantial

evidence to support the finding that the six discharged employ-

ees would have transferred to College Park absent their dis-

charge, particularly since AEI has failed to develop any

evidence to the contrary.” We hold, then, that the Board’s

9 We note also that the presumption might not arise where a plant is

relocated to an entirely different metropolitan area. For example, in Local

57, International Ladies’ Garment Workers v. NLRB, 374 F.2d 295

(D.C.Cir. 1967), cert. denied, 395 U.S. 980, 89 S.Ct. 2129, 23 L.Ed.2d 767

(1969), the court held that a bargaining order would not issue where a plant

was moved to Miami from New York but the court observed that this remedy

has been used “where the move was of such a short distance that the Board

could assume that, absent the unfair labor practices, workers would have

followed the employer to the new site.” Jd. at 303.

10 ~=— In a Gissel order case majority status is to be determined at the time

the order issues. NLRB v. American Cable Systems, Inc., 427 F.2d 446 (5th

Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Bd.2d 266 (1970). In this

non-Gisse/ case, however, the composition of the bargaining unit is to be

determined at the time of the relocation (or after a reasonable shake down

period). Otherwise, the rule would be contrary to principles of fair play, see

NLRB v. Auto Ventshade, Inc., 276 F.2d 303, 307 (Sth Cir. 1960), and would

create an undesirable incentive to delay through litigation. The difference

exists between the two rules because in a Gisse/ case the issue is whether an

extraordinary remedy is warranted while in this non-Gisse/ case the issue is

simply whether the certification is to be given continued effect.

77 &

Ae 12

determination of the size and composition of the College Park

bargaining unit, although possibly flawed in one respect, is

correct so far as is necessary for us to affirm the finding of

continuation.

To summarize our reasoning with regard to the Board’s

bargaining order, in this case a certified bargaining unit has

been merged and relocated and employees liave been dis-

criminatorily discharged in the process. Because the move was

over a relatively short distance the Board could presume that

the discharged employees would have transferred but for their

termination, and that presumption has not been rebutted. We

thus view the College Park bargaining unit as being composed

of a majority of workers from the East Point plant, and this

fact along with others adequately supports the Board’s conclu-

sion that College Park is a continuation of East Point."

Because the Union has not enjoyed its full year of certification,

we enforce the Board’s bargaining order (as modified below).

We need not address whether a Gisse/ order would be appropri-

ate in this case.

We come now to the findings of the Board that AEI was in

violation of the § 8(a)(5) for failing to bargain in good faith

over the effects of the relocation.

il We note that a majority of former workers at a new facility is not

necessary to find a continuation of a bargaining unit after merger and

relocation if other factors strongly support this conclusion, see Westwood

Import Co., 251 NLRB No. 162 (1980) (the Board’s practice in relocation

cases accompanied by unfair labor practices has been that if “a majority or

some significant portion of the unit employees at the new location” would

have been from the old location but for such practices, then a bargaining

order has issued) (emphasis added), nor would a majority be sufficient if

these other factors were lacking, for instance if the business of the new plant

were entirely different from that of the former. In each situation the issue

remains whether in the light of all the facts the bargaining unit remains the

“same” or is now a “different” one. We note also that whereas in simple

relocation cases the Board has treated the employee composition factor as

the determinative one, see Westwood, where a relocation is coupled with a

merger and thus somewhat altered operations and structure, as here, the

inquiry is more complex.

A-13

The union and AEI met on three occasions to discuss the

effects of the move. The Board found upon substantial evi-

dence that at these meetings AEI improperly refused to supply

the union a copy of its acquisition agreement with Trans-Air,

that AEI’s list of Trans-Air personnel given to the union was

somewhat incomplete and inaccurate, and that AEI misrepre-

sented its position by stating that it intended to terminate all

East Point employees when in fact it intended to transfer

Kathy Lee. We hold that these findings support the Board’s

order insofar as AEI is required to furnish to the union

complete employee information and a copy of the acquisition

agreement and is required to bargain in good faith in the

future. The Board erred, however, in using the date of AEI’s

first failure to bargain in complete good faith (January 4,

1978) as the measure of the date to which its bargaining order

was to be retroactive. The violations of § 8(a)(5) outlined

above do not amount to a withdrawal of recognition. It was

not until February 11, 1978, one day after the move, that AEI

refused to recognize the Union as the representative of its

College Park plant. This date should measure the bargaining

order because the union enjoyed effective recognition from

December 14 when it was certified until February 11. We

therefore vacate the Board’s bargaining order and remand with

directions to modify the order so as to allow the union to enjoy

certified representative status only for the remainder of its

certified year.”

IV.

We enforce the Board’s order as relevant to the remainder of

miscellaneous violations of the Act. Based on substantial

evidence, the Board found that AEI discriminatorily threat-

ened to withhold raises from some employees while granting

and promising raises to others all in order to discourage union

activity and weaken the pro-union majority, that AEI threat-

12 Thereafter, of course, the certification will remain in effect but

subject to rebuttal or good faith doubt.

A-14

ened employees with various other reprisals because of their

support of the union, and that AEI created the impression of

surveillance and otherwise interfered with the freedom of

employee’s union activities by interrogating employees about

such activities, by warning of “harassment” from Board

agents, and by soliciting employees not to testify before the

Board.

Finally, we agree with the Board that there is not evidence of

bias sufficient to reject the ALJ’s findings.

ENFORCED in part, VACATED in part, and REMANDED in

part with directions to modify.

B-1

Opinion of the United States Court of Appeals

for the Fifth Circuit on Reconsideration and on

Cross-Motions for Entry of Judgment

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT*

UNIT B

No. 79-3776

March 15, 1982.

AIR EXPRESS INTERNATIONAL CORPORATION,

Petitioner-Cross-Respondent,

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

—-

On Reconsideration and on Cross-Motions

for Entry of Judgment

—*

Before

GODBOLD, Chief Judge,

MORGAN and HENDERSON, Circuit Judges.

BY THE COURT:

The court has reconsidered the mandate in its opinion 659

F.2d 610, in the light of cross-motions for entry of judgment. It

concludes that it is not necessary to vacate the National Labor

* Former Fifth Circuit case, Section 91) of Public Law 96-452-

October 14, 1980.

B-2

Relations Board’s order and to remand the case. Instead, it is

sufficient that the order of the Board be ENFORCED but in

conformity with the opinion of this court. The last paragraph

of our opinion, containing the mandate, is deleted and the

following substituted in lieu thereof:

ENFORCED but in conformity with the foregoing opinion of

this court.

C-1

APPENDIX C

Decision and Order of the NLRB and

Opinion of the Administrative Law Judge

FPT

245 NLRB No. 69 D—5638

East Point and

College Park, GA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Cases 10—CA—12941 and 10—CA—13436

AIR EXPRESS INTERNATIONAL CORPORATION

and

TRUCKDRIVERS AND HELPERS LOCAL UNION NO. 728

DECISION AND ORDER

On March 23, 1979, Administrative Law Judge Marvin Roth

issued the attached Decision in this proceeding. Thereafter,

Respondent filed exceptions and a supporting brief, the

General Counsel filed cross-exceptions and a supporting brief,

and Respondent then filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Rela-

tions Board has delegated its authority in this proceeding to a

three-member panel.

C-2

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has decided

to affirm the rulings,' findings,’ and conclusions’ of the Ad-

1 The parties have filed a number of procedural and evidentiary

exceptions to rulings the Administrative Law Judge made during the hearing.

We find no merit to these exceptions, save for the Administrative Law

Judge’s exclusion of an allegedly stolen document offered by the General

Counsel. It is well established, as stated by the General Counsel, that Board

practice is to admit such documents unless it is proven that a Board agent

“has been a party to their unlawful seizure.” Airline Pilots Association, 97

NLRB 929 (1951); H & G Operating Corp. d/b/a Raleigh Hotel, 191 NLRB

719, 728 (1971). There was no such showing herein. We therefore find that

the Administrative Law Judge erred in rejecting the document in question,

but that, in view of the ultimate conciusions herein, this ruling did not result

in prejudice to the General Counsel.

2 In its brief, Respondent cites the recent Supreme Court decision in

Detroit Edison Co. v. N.L.R.B., 440 U.S. 31, 100 LRRM 2728 (1979), as

being analogous to the situation in the instant case, and requiring a reversal

of the Administrative Law Judge's finding that Respondent violated the Act

by refusing to supply the Union with a copy of the acquisition agreement

between the Company and Trans-Air Freight System, Inc. (hereinafter

Trans-Air). In Detroit Edison, the Supreme Court vacated the Sixth Circuit

Court of Appeals’ enforcement order of the Board’s holding that the

employer was required to release to the union representing its employees the

psychological test battery and answer sheets it utilized to determine job

aptitude, as well as employee-linked scores on these tcsts, and remanded the

case to the lower court for further proceedings consistent with its opinion.

The employer in Detroit Edison had offered to turn over the test score

information to the union if the employees involved would sign a waiver of

confidentiality. The Court held that, by making this conditional offer, the

company fulfilled its statutory obligation to bargain in good faith, in view of

the “sensitive nature of testing information, the minimal burden that com-

pliance with the Company's offer would have placed on the Union, and the

total absence of evidence that the Company had fabricated concern for

employee confidentiality only to frustrate the Union in the discharge of its

responsibilities . . . .” (100 LRRM at 2735.)

Respondent argues that, based on the principles set out in Detroit Edison,

the press releases and the CAB order allowing the acquisition supplied to the

Union satisfied Respondent's duty to provide relevant information for the

purposes of bargaining concerning the acquisition. Respondent's claim is

grounded on the confidential nature of the actual acquisiton document, and

the Company’s interest in preserving that confidentiality which is allegedly

C-3

similar to the concerns of the company in Detroit Edison regarding the

employee-linked test scores. We d =* agree that the situations in Detroit

Edison and the instant case are ‘ « “sous. Contrary to what occurred in

Detroit Edison, in the instant case the public documents offered by Respond-

ent to the Union, dealing with the acquisition, did not provide the Union

with the necessary information to intelligently discuss the pending transfer,

and therefore, unlike the conditional offer in Detroit Edison, no adequate

alternative means of granting the Union's request for information was

offered by Respondent. Further, Respondent raises the issue of the confiden-

tiality of the agreement for the first time in its exceptions, therefore

suggesting that there is some question herein as to the validity of Respond-

ent’s concern over the confidentiality of the document. Accordingly, we find

that the Supreme Court's holding in Detroit Edison does not require a

different result herein.

The General Counsel has excepted to the Administrative Law Judge's

recommended remedy insofar as it recommends that interest on backpay be

computed at a rate other than the 9 percent requested by the General

Counsel. We find no merit in that exception. See Florida Steel Corporation,

231 NLRB 651 (1977).

Finally, Respondent has alleged that the Administrative Law Judge's

resolutions of credibility, findings of fact, and conclusions of law are the

result of bias. While we disavow any reliance on certain gratuitous remarks

made by the Administrative Law Judge in characterizing several of the

witnesses who testified herein in adopting his ultimate recommendations in

the instant case, after careful examination of the entire record we are

satisfied that this allegation of bias is without merit. There is no basis for

finding that bias and partiality cxisted merely because the Administrative

Law Judge resolved important factual conflicts in favor of the General

Counsel’s witnesses. As the Supreme Court stated in N.L.R.B. v. Pittsburgh

Steamship Company, 337 U.S. 656, 659 (1949): “[T]jotal rejection of an

opposed view cannot of itself impugn the integrity or competence of a trier

of fact.” Furthermore, it is the Board's established policy not to overrule an

administrative law judge's resolutions with respect to credibility unless the

clear preponderance of all of the relevant evidence convinces us that the

resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544

(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the

record and find no basis for reversing his findings.

3 The Administrative Law Judge concluded that Robert Heney, dis-

trict manager of Trans-Air’s Atlantic facility, was placed by Respondent,

during the pre-acquisition period, in a position where he had apparent

authority to make statements which violated Sec. 8(a)(1) of the Act. There-

fore, the Administrative Law Judge held Heney to be Respondent's agent

and thereby found that by Heney’s statements Respondent violated Sec.

C-4

ministrative Law Judge and to adopt his recommended Order,‘

as modified herein.

8(a)X(1) of the Act. In so finding, the Administrative Law Judge relied on the

arguments that during this time period Heney had a contractual commitment

to become Respondent's Atlanta district manager, which fact he made known

to his Trans-Air employees; and further that in that posture he answered

employee questions concerning the pending acquisition. The Administrative

Law Judge also speculated that, during his contacts with Respondent prior to

the acquisition, Heney was indoctrinated with the antiunion company policy

and was urged to aid in its imp!ementation. Respondent has excepted to this

conclusion and we find merit in its exception.

Contrary to the Administrative Law Judge, we find no evidence in the

record to support the holding that Heney was authorized by the Company to

act as its spokesman at the Trans-Air facility, or that the Trans-Air employees

reasonably believed that such a relationship existed between Heney and

Respondent. It is apparent that the Administrative Law Judge's conclusions

in this area are based solely on speculation. Further, while it is true that

Heney, among other Trans-Air employees had signed an employment con-

tract with Trans-Air which was to be assigned to Respondent upon the

successful completion of the acquisition, this contract cannot be relied upon

to establish an agency relationship. For, at least one Trans-Air manager who

signed such a contract was released from this commitment and did not

remain with Respondent after the acquisition. Based on the above discussion,

we find, in accord with Respondent's contentions, that Heney was not an

agent of Respondent during the pre-acquisition period. Accordingly, contrary

to the Administrative Law Judge, we find Respondent did not violate Sec.

8(aX1) of the Act by Heney’s statements.

Member Truesdale would exclude Carl Herrington from the unit in accord

with his dissent in Tops Club, Inc., 238 NLRB No. 130 (1978).

4 In view of the serious unfair labor practices committed by Respond-

ent, the Administrative Law Judge, in his recommended Order and notice,

included a broad order provision as a remedy under the doctrine set out in

N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941), enfg. 23

NLRB 1058 (1940). In our opinion, the egregious misconduct engaged in

herein by Respondent, as evidenced by its attempt to exclude the Union from

its Atlanta facility by terminating almost all of the unit employees clearly

“demonstrate(s} a general disregard for [its] employees’ fundamental statu-

tory right.” Hickmott Foods, inc., 242 NLRB No. 177, sl. op. at p.2 (1979).

Accordingly, we find in agreement with the Administrative Law Judge that a

broad order is warranted in this case.

Point and College Park, Georgia, its officers, agents, succes-

sors, and assigns, shall take the action set torth in the said

recommended Order, as so modified

1. Substitute the following for paragraph 1(b):

“(b) Threatening employees with discharge, loss of

jobs, loss of pay raises, closure of the Company’s facility,

or other reprisal because of union activity; threatening

employees with no additional hiring because of union

claims of representation; and warning employees not to

engage in union activity.”

. Substitute the following for paragraph 2(a):

“(a) Offer Nella Ree Dunn, Lynn Ashmore, John

Moore, Marlin Rozier, John Shepherd, and James Mc-

Collum immediate and full reinstatement to their former

jobs or, if such jobs no longer exist, to substantially

equivalent positions, without prejudice to their senority or

any other rights or privileges previously enjoyed, and

make them whole for losses they suffered by reason of the

discrimination against them as set forth in the section of

this Decision entitled ‘The Remedy.’ ”

5 We tind merit in the General Counsel's exception to the inadvertent

failure of the Administrative Law Judge to include one of his findings in his

recommended Order and notice. The Board has, therefore, modified the

recommended Order and notice accordingly.

3. Substitute the attached notice for that of the Administra-

tive Law Judge.

Dated, Washington, D.C. September 27, 1979

John H. Fanning, Chairman

John A. Pennello, Member

John C. Truesdale, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

C-7

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

After a hearing at which all parties had an opportunity to

present their evidence, the National Labor Relations Board has

found that we violated the National Labor Relations Act and

has ordered us to post this notice and to carry out its provi-

sions.

WE WILL NOT discourage membership in Truck

Drivers and Helpers Local Union No. 728, or any other

lal ization, by diecrieni i "on Reagsiag

ployees, or in any other manner discriminating against

them with regard to their hire of tenure of employment or

any term or condition of employment.

WE WILL NOT threaten employees with discharge,

loss of jobs, loss of pay raises, closing our facility, or

other reprisal because of union activity; WE WILL NOT

threaten employees with no additional hiring because of

the Union’s claim or representation; and WE WILL NOT

warn employees not to engage in such activity.

WE WILL NOT promise wage increases in order to

induce employees not to support Local 728 or any other

labor organization.

WE WILL NOT question employees concerning their

union membership, activities, or desires, or as to whether

they have been subpenaed to attend a Board hearing.

WE WILL NOT create the impression of spying on

employee union activity by telling our employees that we

have been informed that employees were talking to Board

agents, and WE WILL NOT solicit employees to refuse to

give testimony to Board agents.

WE WILL NOT refuse to recognize or bargain collec-

tively in good faith with Local 728 as the exclusive

collective-bargaining representative of our employees in

the following appropriate unit:

All dockmen, drivers and agents employed by us at

our College Park, Georgia, facility formerly located

in East Point, Georgia, but excluding all sales per-

sonnel, confidential employees, professional employ-

ees, guards and supervisors as defined in the Act.

WE WILL NOT in any other manner interfere with,

restrain, or coerce employees in the exercise of their rights

to organize; to form, join, or assist labor organizations,

including Local 728; to bargain collectively through repre-

sentatives of their own choosing; to engage in concerted

activities for the purpose of collective bargaining or other

mutual aid or protection; or to’refrain from any and all

such activities.

WE WILL offer Nella Ree Dunn, Lynn Ashmore, John

Moore, Marlin Rozier, John Shepherd, and James Mc-

Collum immediate and full reinstatement to their former

jobs or, if such jobs no longer exist, to substantially

equivalent positions, without prejudice to their seniority

or any other rights or privileges previously enjoyed, and

make them whole for losses they suffered by reason of the

discrimination against them, plus interest.

WE WILL recognize and, upon request, bargain collec-

tively with Local 728 as the exclusive representative of all

employees in the appropriate unit described above, with

regard to rates of pay, hours of employment, and other

terms and conditions of employment, and, if an under-

standing is reached, embody such understanding in a

signed agreement.

WE WILL promptly furnish to Local 728 a true and

complete copy of the acquisition agreement between us

and Trans-Air Freight System, Inc.

c-9

WE WILL promptly furnish to Local 728 a complete

and accurate list of the names, job classifications, and

dates of hire of all personnel employed at our Atlanta

station, or by Trans-Air Freight System, Inc., since Janu-

ary 4, 1978.

AIR EXPRESS INTERNATIONAL CORPORATION

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from

the date of posting and must not be altered, defaced, or

covered by any other material. Any questions concerning this

notice or compliance with its provisions may be directed to the

Board’s Office, Marietta Tower, Suite 2400, 101 Marietta

Street, NW., Atlanta, Georgia 30303, Telephone 404-221-2886.

C-10

JD-134-79

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Case Nos. 10-CA-12941

10-CA-13436

AIR EXPRESS INTERNATIONAL CORPORATION,

Respondent

and

TRUCKDRIVERS AND HELPERS LOCAL UNION NO. 728

—

CONTENTS

PAGE

Statement of the Case ... 2... 6.6... ccc cece cence eee C-13

PED cbc ceecctudeaceeseddedecescccesess C-15

I. The Business of Respondent................... C-15

Il. The Labor Organization Involved.............. C-15

Ill. The Alleged Unfair Labor Practices............ C-16

A. Events prior to the Union’s organizational

campaign, and their significance to the Case . C-16

B. The Union organizational campaign and the

Company’s Alleged Response .............. C-22

1. The Wage Freeze............00.eeee0s C-22

2. The Discharge of Dunn ............... C-25

3. Monitoring of Union Activity.......... C-31

C-11

C. The Trans-Air Acquisition, and events culmi-

nating in the Acquisition on February 10,

including Alleged Violations of Section

8(aX(1), (3) and (4) of the Act ............+. C-33

1. The Alleged Conversations between

O’Rorke and Lynda Molanders ........ C-33

3. Alleged pre-acquisition statements by

Robert Heney and Tony Chaffin, and the

questions of single employer and agency. C-43

4. Alleged Promises of Wage Increases .... C-53

5. The Alleged Discriminatory Terminations C-56

6. Alleged Violations of Section 8(a)(1) af-

ter the acquisition .............0sse055 C-64

(a) Threats... .. 2... cece ccceeeeeees C-64

(b) The Region’s Investigation ....... C-65

D. The Alleged Unlawful Withdrawal of Recogni-

tion and Refusal to Bargain In Good Faith

With the Union ..... 2.2.0... cece eeeeeeees C-68

1. Contentions of the Parties............. C-68

2. Meetings and Correspondence Between

the Company and the Union........... C-69

3. Alleged Status of the Union as Bargain-

ing Representative at College Park ..... C-79

Conclusions of Law .... 2.6.6.6 cece sec cceceeeeeens C-93

The Remedy. .... 02... ccc cc ccccccceseeeeneeeeneens C-94

sis Gee vedakoedeccdcsddebanccetsenenansenune C-97

C-12

JD-134-79

East Point and

College Park, GA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

Case Nos. 10-CA-12941

10-CA-13436

——

AIR EXPRESS INTERNATIONAL CORPORATION,

Respondent

and

TRUCKDRIVERS AND HELPERS LOCAL UNION NO. 728

Charging Party

Paul K. Tamaroff Esq., and

Mary K. Mcintire, Esq., of

Atlanta, GA, for the

General Counsel.

Frederick C. McLam, Esq., of

Atlanta, GA, for the

Charging Party.

Jerold D. Jacobson, Esq., of

New York, NY, and Mr. Daniel M.

Thompson, of Atlanta, GA,

for the Respondent.

C-13

DECISION

Statement of the Case

MARVIN ROTH, Administrative Law Judge: Case No. 12941

was Originally tried at Atlanta, Georgia on January 25, 1978.

The charge in that case was filed on July 19, 1977, by

Truckdrivers and Helpers Local Union No. 728 (herein the

“Union”). The complaint, which issued on August 31, 1977,

alleged that Air Express International Corporation (herein the

“Company” or “Respondent”), violated Section 8(a)(1) and (3)

of the National Labor Relations Act, as amended. The grava-

men of the complaint was that the Company threatened its

employees that all pay raises were frozen and that employees

would not get pay raises because of the Union, and discharged

employee Nella Ree Dunn on July 11, 1977, because of her

union and concerted activities. The Company’s answer denied

the commission of the alleged unfair labor practices. All

parties were afforded full opportunity to participate, to present

relevant evidence, to argue orally, and to file briefs. Respond-

ent was represented by its labor relations consultant, Mr.

Daniel M. Thompson. Respondent requested and was granted

to leave to file a brief, but no briefs were filed by any party.'

On February 13 and 14, 1978, respectively, the Union filed a

charge and amended charge in Case No. 13436. On April 4,

1978, while Case No. 10-CA-12941 was pending decision by

me, General Counsel issued a complaint in Case No. 10-CA-

13436, alleging that the Company had violated and was violat-

ing Section 8(a)(1),(3),(4) and (5) of the Act. The gravamen of

the new complaint, in sum, was that the Company: terminated

employees Lynn Ashmore, John Moore, Marlin Rozier, John

Shepherd and James McCollum because of their union adher-

i Before I opened the hearing in Case No. 10-CA-12941, the Regional

Director issued an order severing that case from Case No. 10-CA-13141, in

which the parties entered into an informal settlement argument. As will be

discussed herein, evidence concerning the subject matter of the alleged unfair

labor practices in case No. 10-CA13141 was presented by General Counsel

and Respondent in both the original and reopened hearings, and has been

considered by me in deciding the merits of the present cases.

C-14

ence and union and concerted activities, and because they gave

testimony under the Act; violated Section 8(a)(1) by numerous

acts of interrogation, threats of reprisal, promises of benefit,

solicitation of employees not to engage in union activity or to

give testimony to the Board, and creating the impression of

surveillance; and unlawfully refused to recognize and bargain

with the Union as the exclusive representative of the employees

in the appropriate unit. General Counsel further filed with me

a motion to reopen the record in Case No. 10-CA-12941 and to

consolidate Case Nos. 10-CA-12941 and 13436, which motion

was opposed by Respondent. On April 21, 1978, I issued a

ruling and order granting the motion. I ruled in sum, that

consolidation would effectuate the purposes of the Act because

the cases involved the same parties and similar alleged unfair

labor practices and that it appeared that evidence adduced in

either case might well be probative as to the allegations in the

other case.’ After I issued a ruling and order denying a motion

by Respondent for a more definite statement, Respondent filed

an answer to the complaint in Case No. 10-CA-13436, denying

commission of the alleged unfair labor practices. Thereafter

the consolidated cases were tried at Atlanta, Georgia on May

31 through June 2, June 26 through 30, August 14 through 18,

and September 25 through 27, 1978. All parties were afforded

full opportunity to participate, to present relevant evidence, to

argue orally, and to file briefs. Respondent was represented by

its attorney, Jerold D. Jacobson, Esq. General Counsel pre-

sented an oral argument at the close of the hearing, and both

General Counsel and Respondent submitted briefs.

Upon the entire record in the consolidated cases’ and from

my observation of the demeanor of the witnesses, and having

2 During the reopened hearing, | ruled over the objection of General

Counsei, that as the record in Case No. 12941 was reopened, the parties

could adduce new or additional evidence with respect to the allegations of the

complaint in that case. The parties were afforded full opportunity to do so,

and in fact, General Counsel and Respondent did present such evidence.

3 The official transcript of proceedings hereby corrected in the

following respects:

C-15

considered the oral arguments and briefs, | make the follow-

ing:

Findings of Fact

I. The Business of Respondent

The Company, an Illinois corporation, is engaged through-

out the United States and elsewhere in the world in the business

of air freight forwarding. The Company functions as an

essential link in the transportation of commodities in interstate

commerce, and annually receives gross revenues in excess of

$50,000 from such operations. I find that the Company is an

employer engaged in commerce within the meaning of Section

2(6) and (7) of the Act. Since February 10, 1978 the Company

has maintained an office and place of business at College Park,

Georgia. Prior to February 10, 1978, the Company maintained

an office and place of business at East Point, Georgia. It is

these facilities which are involved in the present case.‘

Il. The Labor Organization Involved

The Union is a labor organization within the meaning of

Section 2(5) of the Act.

Page Line From To

9 19 Stipulation Certification

836 2 conversation question

1086 17-18 cooperation corroboration

1250 22 there they

1496 il Kelsey Cassi

3009 7 now not

3210 18 doctorate doctrine

3212 17 doctorates doctrines

4 East Point served, and College Park continues to serve the Com-

pany’s customers through the Atlanta airport, and both are located near the

airport. The facilities are sometimes referred to herein as the Atlanta facility.

C-16

Ill. The Alleged Unfair Labor Practices

A. Events Prior io the Union’s Organizational Campaign,

and Their Significance to the Case

In his closing oral argument, counsel for General Counsel

asserted that consideration of this case should begin with the

arrival of Frank O’Rorke as District Manager at the East Point

(Atlanta) facility in March, 1976. In view of certain arguments

advanced by company counsel at the hearing, I agree with

General Counsel, at least with respect to the discriminatory

discharge allegations, that such consideration is warranted.

Prior to his arrival as Atlanta District Manager, O’Rorke

held a similar position in Boston, and the Company was

pleased with his peformance. However, the Company was not

satisfied with its profitability picture in Atlanta. Company

President Joseph Berg and Company Vice President Martin

Hoffenberg instructed O’Rorke to take charge of the Atlanta

facility and to make it profitable.’

Hoffenberg and O’Rorke testified that the Atlanta facility

suffered from morale problems. However, after taking over in

Atlanta, O’Rorke told President Berg that the problem was

Regional Manager Resigno, that he was an excessively high

pressure salesman. At that time, and until February 10, 1978,

the Atlanta district manager reported to the Company’s re-

gional office in Pittsburgh, Pennsylvania. However, the Com-

pany’s labor relations policies were and still are formulated

and directed from its principal offices in Stamford, Connecti-

cut.

Resigno was asked to resign, and he was eventually replaced

as Regional Manager by Jim Pschirer. In the meantime,

5 Hoffenberg is and was at all times material, the Company's vice

president for administration, secretary and general counsel. Hoffenberg,

who is an attorney, is responsible for supervising the Company’s legal affairs.

He was also responsible for supervising, in all its phases, including staffing

and labor relations, the Company's acquisition of the air freight forwarding

business of Trans-Air Freight System, Inc. (herein “Trans-Air”). The acquisi-

tion, which was completed on February 10, 1978, is a central factor in this

case. Hoffenberg was the Company's principal witness at the reopened

hearing.

C-17

O’Rorke instituted and attempted to institute some changes in

the Atlanta operation. O’Rorke hired Kathy Lee to serve

principally, although not exclusively, as customer service agent.

Customer service work, in sum, involves receiving and answer-

ing inquiries by customers concerning their shipments, e.g.

inquiries concerning estimated time of arrival or reason for

delay in shipment. Prior to Lee’s employment, customer ser-

vice work was not primarily assigned to any particular em-

ployee. In early 1977, O’Rorke also tried to institute shift

changes, which he felt would make for a more efficient

operation. At that time, the personnel complement at the East

Point facility, exclusive of sales personnel and owner-operator

drivers, consisted of District Manager O’Rorke, his immediate

subordinate, Station Manager James Broadaway, Kathy Lee,

and the six alleged discriminatees in this case. O’Rorke’s plan

was not fully carried out and was substantially modified, in

part because some employees opposed the plan. However,

although the plan would have affected nearly the entire em-

ployee complement, the opposition was not uniform. John

Shepherd went along with the plan, followed instructions, and

accordingly transferred from the day shift to the night shift (11

p.m. to 7 a.m.) instead of Marlin Rozier, as originally planned.

O’Rorke admitted that to his knowledge, only Rozier and John

Moore opposed the shift changes. Although both expressed

vocal opposition to the plan, only Rozier actually refused to

change shifts (in his case, from evening to night). Notwith-

standing this opposition, O’Rorke saw the problem as one

which primarily involved Broadaway. O’Rorke had charged

Broadaway with the responsibility of effectuating the plan.

O’Rorke felt that instead of asserting leadership, Broadaway

simply let the employees have their way. On the basis of

O’Rorke’s recommendation, Broadaway was terminated in late

April, 1977. His replacement as station manager, Mike Floyd,

began work on May 27.* In the meantim«, none of the alleged

discriminatees were terminated for insubordination or for any

6 __ All dates herein refer to the period from April 1, 1977 through

March 31, 1978 unless otherwise indicated.

C-18

other reason. On the contrary, John Moore, one of the oppo-

nents of O’Rorke’s plan, was offered a promotion shortly

before Broadaway was terminated. Other than that relating to

the proposed shift changes, no evidence was presented by the

Company to show that “a group of employees . . . were

resisting management directives.” General Counsel did, how-

ever, present testimony (denied by O’Rorke) that, O’Rorke

said, among other things, that the employees had cut their

throats by bringing in the Union.

This brings me to the arguments advanced by Company

counsel at the hearing, and to General Counsel’s position that

the arguments constitute an admission that the alleged dis-

criminatees were in fact terminated in violation of the Act. In

order to examine this position in proper prospective, it is

necessary at this point, to summarize certain salient facts and

testimony adduced at the hearing.

On June 8, the Union filed a petition for a Board conducted

election at the East Point facility. The election was held on July

28, with the Union winning by a vote of 5 to 1. On December

14, the Board certified the Union as the collective-bargaining

representative of the employees in the following unit:

All dockmen, drivers and agents employed by the Em-

ployer at its operation at 1165 Willingham Drive, East

Point, Georgia, but excluding all sales personnel, confi-

dential employees, professional employees, guards and

supervisors as defined in the Act.

In the meantime, Nella Ree Dunn, who had been excluded

from the election unit by stipulation of the Company and the

Union, upon the Company’s representation that she was a

confidential employee, was discharged on July 11. Her dis-

charge was litigated at the January 25 hearing. On October 19,

the Company and Trans-Air entered into a written contract

whereby, in sui, Trans-Air agreed to sell its air freight

forwarding business to the Company, subject to Civil Aero-

nautics Board (CAB) approval. On February 10, immediately

following such approval, the acquisition took place. It is

undisputed that Trans-Air had facilities in 15 cities including

C-19

Atlanta (College Park), that the Company also had facilities in

each of those cities, and that in each city the facilities were

merged as of February 10. It was further stipulated that except

in Atlanta, the Company retained all of its personnel on or

after the acquisition, with the exception of one part-time

employee in Charlotte, North Carolina and one part-time

employee in Cincinnati, Ohio. Of the six Atlanta employees

who were in the election unit (all of whom voted), Kathy Lee

was retained, Ashmore, Rozier, Shepherd and McCollum were

terminated, and Moore was offered a supervisory position.’

Lee, alone among those employees, was outspoken in her

opposition to the Union. General Counsel does not contend

that the acquisition and the consequent merger of facilities

were unlawful. However, General Counsel does contend that

Ashmore, Rozier, Shepherd, McCollum and Moore were dis-

criminatorily terminated.

During the reopened hearing, Company counsel sought to

question Marlin Rozier about why the employees went to the

Union after the unsuccessful plan to change shifts. After

General Counsel objected to this line of questioning, and

questioned what this had to do with the alleged discriminatory

terminations. Company counsel explained as follows:

“I have a right to show that we have an unreliable group

of employees and were certainly allowed to take that into

account in making our decision (Tr. 926)

> . * > o

When a group of people are told that management wants

to change shifts and they refuse to do it. That’s unreliable

(Tr. 926, 927).”

7 Moore initially refused the offer but later accepted. General Counsel

and the Company differ as to whether, as a matter of law, Moore was

terminated. McCollum, who had been a driver-dockman, went to work for

an owner-operator who performed pick-up and delivery services for the

Company.

C-20

“Your Honor, I have been trying to do two things.

Number one, I have been trying to show through this

witness, based upon testimony brought out by General

Counsel, that there were a group of employees there,

including himself who were resisting management direc-

tives. Number two—

JUDGE ROTH: Is it your contention that certain people

were not hired for this reason—were not hired at the new

facility for this reason?

MR. JACOBSON: Yes. It was part of an overall analysis of

the situation (Tr. 929,930).

It is not a protected activity under the Act for an employee

to refuse to perform an assigned work task, including a change

in work schedule. However, it is a protected activity for

employees, acting in concert, to protest a schedule change or

other work assignment. Therefore it is a violation of Section

8(a)(1) of the Act for an employer to discharge an employee

because he engages in such activity. Montgomery Hospital, 233

NLRB No. 113 (1977), JD at 8; Transportation Lease Service,

Inc. and Allied Stores of Penn-Ohio, d/b/a Pomeroy’s Inc.,

232 NLRB No. 21 (1977), JD at 8.

General Counsel contends that the above quoted statements

by Company counsel constitute an admission that the alleged

discriminatees were terminated in violation of Section 8(a)(1)

of the Act. To an extent, General Counsel is correct. With the

sole exception of Marlin Rozier’s refusal to accept a shift

change, the alleged resistance to management directives con-

sisted of lawfully protected vocal protests against the shift

changes. Therefore, to the extent that the Company considered

those protests in deciding to terminate the alleged discrimina-

tees, the terminations were unlawful.

Moreover, Company counsel’s statements are also significant

in two other respects. In the context of the present record, they

demonstrate that the Company is advancing pretextural rea-

sons for the terminations, and they constitute an implied

adverse reflection upon the credibility of Martin Hoffenberg,

C-21

the Company’s principal witness. Hoffenberg testified at

length as the reasons why the Company decided to staff the

merged facility with former Trans-Air employees, with the

addition of Kathy Lee, Susan Sinclair (who was hired after

Nella Dunn was terminated),* and John Moore as a supervisor,

and to terminate Ashmore, Rozier, Shepherd and McCollum.

However, at no point in his testimony did Hoffenberg claim

that this decision had anything to do with the employees’

response to the proposed shift changes. Nor, for that matter,

did Hoffenberg even claim that the decision was based on an

overall appraisal of the employee’s work performance or

attitude. Rather, the entire thrust of Hoffenberg’s testimony

was that the Company decided to “retain” all of Trans-Air’s

Atlanta employees as a group under the leadership of Trans-

Air District Manager Robert Heney, in order to retain as much

as possible of Trans-Air’s domestic freight forwarding business

in the southeastern United States. Hoffenberg further testified

in sum, that Lee and Sinclair were retained because of their

specific job functions, and Moore because of his needed

expertise in international operations. Moreover, the evidence

concerning the attempted shift changes further demonstrated

that Company counsel was advancing a pretextual reason for

the terminations. John Moore, who opposed the shift changes,

was offered a promotion to supervisor in 1977 and again in

1978, but Jchn Shepherd, who cooperated with management,

was terminated with the others on February 10. Therefore, it is

evident that the resistence to management directives, referred

to by Company counsel, must have involved something more

than opposition to proposed shift changes. As the only such

resistence engaged in by all of the terminated employees

consisted of their support for the Union (which the Company

opposed), the inference is warranted that the Company termi-

nated the employees at least in part because of their union

activity.

x Susan Sinclair, who was a witness at the January 25 hearing, later

became Susan Henry. For convenience in reference | shall refer to her as

Susan Sinclair.

C-22

B. The Union Organizational Campaign and the Company’s

Alleged Response

As indicated, the Union filed an election petition on June 8.

This was the first knowledge that the Company had about the

organizational campaign. Upon receiving the petition,

O’Rorke informed Hoffenberg, who instructed O’Rorke to

retain a labor relations consultant. O’Rorke, with Hoffen-

berg’s approval, retained the firm of A. Val Bradley Associ-

deemed necessary to advance his client’s interests. As will

further disscussed, the Company willingly accepted his advice,

and when it did not, the Company acted otherwise for tactical

reasons, and not because of any reluctance to violate the law.

1. The Wage Freeze

The Company has a policy of reviewing its employees for

pay increases after their initial 6 months of employment, and

thereafter annually. Until June, 1977, wage increases recom-

mended by District Manager O’Rorke for employees at the

East Point facility were routinely approved by Regional Man-

ager Pshirer. However, the Company’s first move upon receiv-

ing the election petition was to announce a wage freeze.

O’Rorke told the employees that “pay raises would be frozen

until the Union matter was cleared up.” O’Rorke so testified at

the January 25 hearing and in the investigatory affidavit which

he gave to the Board’s Regional Office. However, at the

reopened hearing, O’Rorke testified that he told Lynn

C-23

Ashmore and Nella Dunp that all raises were frozen until the

NLRB petition was cleared up. I find that O’Rorke’s admis-

sion in his affidavit and January 25 testimony is a more

reliable indication of the truth than his later testimony, which

was given after Company counsel had an opportunity to

appraise O’Rorke of the potential significance of his words in

the reopened case.’ Therefore, the Company violated Section

8(a)(1) of the Act by threatening to withold pay raises because

of the Union. In either event, O’Rorke’s statement was unlaw-

ful. It is settled law that an employer’s legal duty in deciding

whether to grant benefits during a union campaign “is to

determine that question precisely as if a union were not in the

picture.” Newport Division of Wintex Knitting Mills, Inc., 216

NLRB 1058 (1975). A threat to engage in unlawful conduct is

in itself unlawful. Therefore the Company violated the Act by

threatening its employees with a wage freeze, whether because

of the Union or the pendency of the Union’s petition, and

regardless of whether it carried out such a policy.

Nevertheless, O’Rorke attempted to minimize the offense.

O’Rorke testified that he and Thompson, with Hoffenberg’s

approval, agreed upon the wage freeze in order to avoid the

impression that the Company was trying to influence its

known (at the very least, long before January 25), that what

the Company was doing was unlawful. Moreover, the evidence

indicates that after June 8, the Company exercised its wage

increase policy in a discriminatory manner.” In a memo which

9 Ashmore testified that O’Rorke said that because someone was

interested in having a union, all wages and promotions were frozen. How-

ever, in his affidavit, Ashmore said nothing about promotions. | find that

O’Rorke referred only to raises.

C-24

O’Rorke sent to Regional Manager Pshirer about August 1,

while Company objections to the election were pending before

the Board, O’Rorke recommended a 6-month pay increase for

employee Kathy Lee “based upon the idea that the Union’s

position here in the [East Point facility] will be weakened and

the progress of ratification deferred.” O’Rorke admitted that

the memo reflected Thompson’s advice. The recommendation

was carried out, notwithstanding the Company’s professed

wage freeze. It was stipulated at the January 25 hearing that

Lee received her raise in late November, retroactive to October

1. In the meantime, the Company held up raises for union

adherents Rozier and Ashmore, which had been recommended

on or about June 28. Rozier and Ashmore did not receive the

raises until January 25, and then only pursuant to the settle-

ment agreement in Case No. 10-CA-13141.

Martin Hoffenberg testified that he never saw or approved

the memo from O’Rorke to Pshirer. | do not believe him. I

find it unlikely that Pshirer would have acted on a sensitive

labor relations matter without routinely passing the memo on

to Stamford for Hoffenberg’s attention. In fact, this was done

in a similar situation involving James McCollum, which will be

discussed, infra." 1 find that the wage freeze was imposed, and

at the January 25 hearing, and itself presented evidence concerning the

allegation in the settled case. The Company thereby waived any defense it

might have had to the exclusion of such matter. Moreover, the settlement

agreement expressly provides that “[a}ny evidence relating to issues involved

in this agreement may be introduced in the record in the hearing of Case No.

10-CA-12941.” Even absent such express provision, evidence involved in a

settled case may properly be considered as background evidence in determin-

ing the motive or object of a respondent in activities occuring either before or

after the settlement, which are in litigation. Steves Sash & Door Company v.

N.L.R.B., 401 F. 3d 676, 678 (C.A. 5, 1968). If evidence from a settled case

may be used in a case which is in litigation, then a fortiori, evidence from a

case which has been or is being litigated may be considered in a second case

which is in litigation.

11 Consequently, the inference is warranted that the memo concerning

Lee was obtained by General Counsel in the voluminous documents turned

over by Respondent pursuant to General Counsel’s subpoena duces tecum

C-25

thereafter carried out in a discriminatory manner, as part of a

calculated campaign to undermine the Union.

2. The Discharge of Dunn

A hearing on the election petition was scheduled for June 26.

However, on that date the Company and the Union agreed

upon the composition of the unit, thereby obviating any need

for a hearing. The parties executed a stipulation for certifica-

tion upon consent election, which was approved by the Board’s

Regional Director. Upon the Company’s representation that

Nella Ree Dunn was a confidential employee, the Union agreed

to exclude her from the unit. The Company, i.e., O’Rorke and

Thompson, also represented that Marlin Rozier and John

Moore was supervisors. However, the Company agreed to

include them in the unit.” As will be discussed, all of these

representations were false.

As indicated, the election was held on July 28, with the

Union winning by a vote of 5 to 1. In the meantime, on July

11, the Company discharged Dunn. Following the election, the

Company filed written objections to the conduct of the elec-

tion, stating as follows:

COMPANY OBJECTIONS

THE UNION CAUSED INTERFERENCE WITH THE

ELECTION AND FREE VOTING CHOICE

THROUGH THE CONFIDENTIAL SECRETARY’S

MISACTION OF DISCLOSING CONFIDENTIAL

DATA THAT SHE HAD ACCESS TO AND

directed to Hoffenberg’s attention. Therefore, the memo was properly

obtained. See, General Engineering, Inc. and Harvey Aluminum, 123 NLRB

$86, n. 2 (1959).

12 = At the January 25 hearing, O’Rorke testified that he maintained that

both Rozier and Moore were supervisors. In the reopened hearing, O’Rorke

attempted to back away from this admission, testifying that he described

Rozier as a “lead agent.” However, when confronted with his earlier

testimony, O’Rorke admitted that he took the position that both Rozier and

Moore were supervisors.

C-26

WRONGFULLY GAINED OTHER CONFIDENTIAL

DATA AND DISCLOSED THAT ALSO.

EMPLOYER OBJECTION IS THAT SUCH INFORMA-

TION WAS UNION INDUCED IN THAT IT BECAME

OBVIOUS THAT DISCLOSURES WERE MADE PUR-

POSELY TO ALLOW THE UNION TO GAIN ADVAN-

TAGE IN THE CAMPAIGN, TO WIT: TWO OF THE

MORE ARDENT, SELF-PROFESSED UNION SUP-

PORTERS (MOORE AND SHEPHERD) DISCRED-

ITED THE COMPANY BY PROVIDING

CONFIDENTIAL SALARY DATA TO OTHERS IN

THE UNIT. THE ONLY WAY THEY COULD HAVE

OBTAINED SUCH DATA WAS FROM THE SECRE-

TARY. TIMELINESS OF THESE DISCLOSURES IS A

MOOT ISSUE IN THIS INSTANCE SINCE THERE IS

NO EFFECTIVE RE-BUTTAL TO SUCH A SITUA-

TION.

THE EMPLOYER KNEW THIS INFORMATION WAS

BEING DISCLOSED WHEN OTHERS IN THE VOT-

ING UNIT (LEE AND ROSIER) VOLUNTARILY

MADE SUCH KNOWN TO THE DISTRICT MAN-

AGER. UPON DISCOVERY OF ABOVE DISCLO-

SURES, THE EMPLOYER WAS FORCED TO

DISCHARGE THE SECRETARY. REASSIGNMENT

OF HER TO OTHER WORK, OR ASSIGNMENT OF

ANOTHER EMPLOYEE TO HANDLE CONFIDEN-

TIAL DATA WAS INFEASABLE DUE TO THE NA-

TURE AND SIZE OF THE OPERATION. THE

RESULT OF THE ENFORCED DISCHARGE ITSELF

WAS FURTHER USED TO THE UNION’S ADVAN-

TAGE IN CAMPAIGNING THROUGH DISCREDIT-

ING THE DISTRICT MANAGER IN THE EYES OF

ALL EMPLOYEES. THE EMPLOYER WAS UNABLE

TO REBUT THIS ISSUE ALSO. [Emphasis added].

The Company admits that Dunn was the “confidential secre-

tary” referred to in its objections. O’Rorke further pinpointed

C-27

the source of his information concerning the alleged disclo-

sures. O’Rorke testified that Kathy Lee reported to him that

Shepherd and Moore were talking to Dunn about Mike Floyd’s

salary. On December 14, the Board affirmed the Regional

Director’s rejection of the objection, and certified the Union as

bargaining representative."

Notwithstanding its unqualified assertion that it was forced

to discharge Dunn because she was disclosing confidential

data, the Company has throughout this proceeding, shifted

from one explanation to another in an effort to justify its

discharge of Dunn. At one point in the January 25 hearing,

O’Rorke conceded, de facto, that the Company had violated

the Act by discharging Dunn. O’Rorke testified that he dis-

charged Dunn in order to put a stop to leaks about what

employees were making “and employees’ dissention over pay

raises.” Putting aside the matter of leaks for the moment, it is

a violation of Section 8(a)(1) of the Act to discharge an

employee, in whole or in part, in order to “stop . . . employee

dissention over pay raises.” Section 7 of the Act guarantees the

right of employees to engage in such dissention, and the

Company interfered with, restrained and coerced its employees

in the exercise of that right by discharging Dunn. In the

reopened hearing, the parties were afforded full opportunity to

present new or additional evidence with respect to the allega-

tions in Case No. 10-CA-12941. The Company, although op-

posing consolidation of the cases, availed itself of this

opportunity. Company counsel was meticulous and thorough

in meeting each and every allegation of both complaints.

13 O’Rorke testified that Vice President Hoffenberg instructed him to

file the objections because it “looked like a sound basis.” Therefore, it is

evident that Hoffenberg was familiar with the circumstances of Dunn's

discharge. The Company, with Hoffenberg’s approval, also filed objections

alleging threats by union agents, and that a union agent improperly voted,

but withdrew those objections when it became apparent that they could not

be substantiated. On December 22, the Company, by Hoffenberg, addressed

a motion to the Board to “stay issuance of certification” and grant other

relief. In fact, the Union had already been certified. On January 27, the

Board issued an order denying the motion as “lacking in merit.”

C-28

However, O’Rorke was not asked to explain or elaborate upon

his above quoted testimony. His silence speaks louder than

words, and the admission still stands.

In its objections to the election, the Company described

Dunn as a “confidential secretary” whom the Company was

“forced to discharge . . . upon the discovery of [her] misaction

of disclosing confidential [salary] data.” In fact Dunn was not

a confidential secretary. Rather, she performed clerical and ~

administrative functions of a routine nature. To the extent that

she dealt with “confidential” information, such material was

customer rather than employee information. She did not parti-

cipate in management discussions, and even O’Rorke conceded

that by June 28 she was not performing any confidential

duties. Moreover, the alleged salary information leaks, if they

took place at all, took place well before her discharge on July

11. O’Rorke testified that the leaks in question consisted of (1)

Dunn passed along information as to the salary of Floyd, who

replaced James Broadaway as station manager in May, and (2)

Dunn asked for a raise because Rozier and Ashmore had been

put in for raises, which was supposedly confidential informa-

tion. O’Rorke had recommended the two employees for raises

on June 28. In fact, salaries and rates of pay of East Point

personnel were common knowledge among the employees, and

the Company had no rule which prohibited employees from

discussing their salaries or the salaries of other personnel.

Indeed teletype tapes, including those which might reflect such

“confidential” information, were commonly discarded in

wastebaskets. In the reopened hearing, Floyd, who did not

testify at the January 25 hearing, testified that everybody knew

what everybody was making, and that when employees men-

tioned to him what he made, he did not even bother to inquire

or find out how they obtain d such information. In sum, such

information was not confidential. Significantly, Floyd testified

that it was O’Rorke, and not himself, who complained about

alleged breaches of confidentiality.

As an adverse witness for General Counsel at the January 25

hearing, O’Rorke testified that in addition to the leaks, he

C-29

discharged Dunn because she was unable to do her job. In this

connection, O’Rorke testified that in early 1977 he gave Dunn

increased responsibilities, consisting of routine administrative

work which had thereto been performed by Station Manager

Broadaway. However, in his affidavit which he gave to the

Board’s Regional office, O’Rorke came up with a different

excuse. O’Rorke stated that the Company decided to fire both

Broadaway and Dunn (presumably in April) because business

was stagnant. In the same affidavit O’Rorke admitted that the

East Point facility’s business increased over 60 percent from

January to June, 1977. As for Dunn’s alleged inability to do

her job, O’Rorke admitted that he never criticized or com-

plained about Dunn’s work, but that his knowledge in this

regard was based on the fact that Broadaway complained

about her work. However, in his affidavit O’Rorke stated that

he thought Broadaway was covering up for Dunn. If in fact

Dunn was not performing her work while Broadaway was

station manager; i.e., prior to May, then it is difficult to

understand why O’Rorke would have waited until July 11 to

discharge her for such poor performance. The Company ap-

parently recognized this incongruity, and consequently at the

reopened hearing, O’Rorke presented an explanation.”

O’Rorke testified, in sum: that in April, he decided to fire both

Broadaway and Dunn because he had trouble getting a replace-

ment for her (although the Company went without a station

manager for about a month);" and that notwithstanding

Dunn’s alleged inability to do accounting work, and his deci-

sion to terminate her, he continued to gradually increase her

sesponsibilities from February until her discharge. I find this

explanation incredible. Dunn’s replacement, Susan Sinclair,

did not begin working for the Company until nearly the end of

14 The company evidently felt that it was safer for O’Rorke to testify

about employee work performance than about “employee dissention.”

1S At one point, O’Rorke testified that Broadaway was terminated in

early June. In fact, Broadaway was terminated in late April, and Floyd took

over as station manager on May 27.

C-30

July. Moreover, Mike Floyd, who was belatedly presented as

witness in the reopened hearing, impliedly contradicted

O’Rorke. Floyed testified that he was never told that Company

was seeking to replace Dunn, and that he was unaware of any

problems in the accounting work until mid-June, when he

allegedly first complained to O’Rorke about Dunn’s deficien-

cies. Rather, Floyd inferred that O’Rorke decided in early July

(while Dunn was on vacation) to terminate her. Floyd testified

that O’Rorke then said that he would “act” on Floyd’s com-

plaints.

James Broadaway, who was presented as a witness for

General Counsel at the January 25 hearing, testified that

Dunn’s work was very good, that he never complained about

her work, and that O’Rorke never told him to complain to

Dunn about her work. Dunn testified that O’Rorke compli-

mented her work. I find no reason to disbelieve Broadaway,

who appeared to be a candid witness. In contrast, I have ample

reason to diskelieve O’Rorke and Floyd, in view of their

shifting, inconsistent and inherently inplausible excuses for

discharging Dunn. Moreover, the fact that O’Rorke continued

to give Dunn increased responsibilities until the time of her

discharge, further tends to indicate that O’Rorke regarded her

»» a well qualified employee. I credit Broadaway and Dunn.

In his January 25 testimony O’Rorke hinted at the real

reason for Dunn’s discharge. O’Rorke testified “that there

seemed to be a little collusion” between Dunn and Moore and

Shepherd, the two “more ardent, self-professed union sup-

porters” referred to in the Company’s objections to the elec-

tion. O’Rorke never directly accused Dunn of leaking

confidential information. Rather, upon summarily terminating

Dunn he simply told her that he didn’t “really have any trust in

her any more as a confidential secretary.” In sum, O’Rorke

suspected that Dunn was involved in union activity, and as far

as he was concerned, while it was bad enough to have the

employees talking union, it was too much to take to have his

own secretary engaging in such activity. After the Union agreed

to exclude Dunn from the election unit, O’Rorke saw an

opportunity to get rid of Dunn under the pretext that she had

breached her role as an allegedly confidential secretary. In fact,

C-31

it is questionable whether Dunn engaged in any union activity.

Although presented as a witness for General Counsel, Dunn

never testified that she engaged in such activity. However,

O’Rorke discharged Dunn because he suspected that she was

participating in the Union campaign. Therefore, the Company,

by discharging Dunn, violated Section 8(a)(1) and (3) of the

Act. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 589-90 (1941).

3. Monitoring of Union Activity

On September 30, District Manager O’Rorke sent a memo to

Regional Manager Pshirer in which he recommended that John

McCollum be changed from a part-time to a full-time em-

ployee. O’Rorke advanced several reasons, including the fol-

lowing: “It has also been brought to our attention by Val

Bradley Associates that we will be able to soften the Union’s

control in this station by having at least two out of the six

operations people not carrying a union card.” The memo was

received in Pittsburgl. on October 6, and passed on to cor-

porate headquarters in Stamford. Assistant Vice President

Frank Cassi referred the memo to Hoffenberg with the follow-

ing inquiry next to the above quoted recommendation: “Marty

do you agree?” Hoffenberg’s written response was “No.”

However, on November 15 McCollum was made a full-time

employee.

Hoffenberg testified that he answered “No” to Cassi’s in-

quiry because the recommendation would indicate that the

Company was acting improperly, and because it made no sense

because the facility was either all union or nonunion. Hoffen-

berg further testified that the matter had nothing to do with

the pending acquisition of Trans-Air’s business. I do not credit

this explanation. On its face, Hoffenberg’s terse “No” simply

reflects disagreement with the factual premise that the Union’s

unionization for nearly 4 months. By this time,

son and O’Rorke were undoubtedly fully familiar with the

Company’s policy toward the Union. They would not have

believe that the Company had against violating the

Act. In fact, as heretofore found, it did .

testified that O’Rorke told him that he had information that

him

(i.e. Lee and McCollum), they might be able to continue

operations during a strike." However, Hoffenberg was so

involved in fighting the Union in Atlanta that he had better

information than Thompson and O’Rorke. On cross-examina-

tion, Hoffenberg reluctantly admitted that he kept close tabs

on the union sentiments of the Atlanta employees. Hoffenberg

admitted that he made entries on a list of employees describing

each as “activist,” “neutral” or “opposed.” Hoffenberg admit-

ted that he may have made such entries before or after the

acquisition agreement, or both, and that the entries referred to

the Union’s attempt to organize in Atlanta. Hoffenberg

further admitted that he “certainly” referred to Kathy Lee as

“opposed,” that he referred to John Moore as “activist,” and

he may have referred to McCollum as “neutral.” In sum,

Hoffenberg was not sure where McCollum stood. For

economic reasons, including a continuing growth of business in

Atlanta (see Pshirer’s memo to Cassi), McCollum was made a

full-time employee, and remained in the Company’s employ

until the acquisition, when he was terminated along with the

activists. However, McCollum was treated in a different

fashion than Dunn, Rozier, Ashmore and Shepherd. McCol-

lum was terminated, and thereby hopefully excluded from any

possible bargaining unit, but he was tolerated to work for one

of the Company’s owner-operators. As will be discussed, the

Company solved its desperate need for John Moore’s expertise

and ability in a parallel fashion. Furthermore, it is significant

that even after the acquisition agreement, the Company contin-

ued to monitor the union sentiments or its employees and to

explore ways of undermining the Union’s position. Hoffenberg

16 Georgia law prohibits the union shop, as Hoffenberg undoubtedly

knew.

C-33

would not have been concerned if only a few months operation

at College Park were involved. Rat’ =. % is evident that he was

looking forward to the staffing arrargements which would be

made when the acquisition was cons:.mmated.

C. The Trans-Air Acquisition, and Events Culminating in the

Acquisition on February 10, including Alleged Violations

of Section 8(a)(1), (3) and (4) the Act

1. The alleged conversations between O’Rorke and Lynda

Molanders

Lynda Molanders was employed at the East Point facility as

account executive (a sales position) from January, 1977 until

October 28, when she voluntarily quit her job in order to take

a position with one of the Company’s competitors. Molanders

testified in sum, that during the period from June until shortly

after she left the Company’s employ, she had a number of

conversations with Frank O’Rorke concerning the Union and

the impact of the pending Trans-Air acquisition. Molanders

testified that a few weeks before the election, O’Rorke, in the

presence of Mike Floyd, told her that the Company could end

up closing the station and reopening as an agent if the election

came through, and that other stations had done this." Molan-

ders testified that after the election, O’Rorke told her that the

Company was not going to allow the Union at Atlanta, and

would ultimately get rid of the employees who voted for the

Union. Molanders further testified that in late October, during

her last week at work, O’Rorke talked to her about the impact

of the pending Trans-Air acquisition. According to Molanders,

O’Rorke, in the presence of Mike Floyd, told her that Bob

Heney would be district manager, and had contracted with

Company Vice President Dick Friedl to take over as station

manager. O’Rorke added that Heney would not allow the

Union in there. O’Rorke further said that the guys at Trans-Air

were afraid to mention union to Heney, and that the guys who

17 Air Freight forwarding firms sometimes utilize an agent, rather than

maintain their own offices in particular cities.

C-34

voted Union would not be able to stay because Heney wouldn’t

keep them. Molanders testified that 2 or 3 days before she left

the Company, O’Rorke told her that he had met with Friedl,

and that the Company might or might not keep Moore and

Shepherd. However, on her last day of work (October 28),

Molanders asked O’Rorke what the situation was with the

Union. O’Rorke told her that it was pending in Washington,

and probably wouldn’t go through, that the Company had

“protested” it, but that even if it did, “those guys” weren’t

going to win because they weren't going to have jobs. O’Rorke

added that “those guys” had “cut their throats” by bringing in

the union. Molanders testified that Kathy Lee was nearby

during this conversation. Lee was not presented as a witness by

either side. Molanders testified that in a subsequent conversa-

tion, O’Rorke told her that Trans-Air wasn’t going to keep any

of the employees and that he wasn’t going to worry about

them. However, he told Molanders that he had gone out on a

limb to protect the jobs of Kathy Lee and Mike Floyd. As for

himself, O’Rorke told Molanders that he would remain a

“floater” until the acquisition, and then the Company would

tell him where he was going. O’Rorke said that he expected to

be given a staff position in Stamford. Molanders further

testified that shortly before her resignation, Vice President

Friedl told her, with respect to the acquisition, that the Com-

pany would be Air Express but the personnel would be Trans-

Air. O’Rorke testified that Molanders did in fact have a private

conversation with Friedl; however, Friedl was not presented as

a witness.

In his testimony, O’Rorke, in sum, denied that the alleged

conversations took place. Mike Floyd, in his testimony, either

denied that such conversations took place in his presence, or

asserted that he could not recall such conversations. For the

reasons discussed herein, I credit Molanders.

First, Molanders impressed me as a candid witness. In

contrast, as indicated throughout this Decision, | have been

given ample reason to question the credibility of O’Rorke and

Floyd. 1 do not agree with the Company’s argument that

Molanders cannot be believed either because she now works

C-35

for a competitor, or because she used Nella Dunn as a refer-

ence when she applied for her job with the Company. Molan-

ders did not hesitate to admit facts which might seem adverse

to the interest of General Counsel, the Union or herself. She

candidly admitted that she solicited business from former

customers of Trans-Air and Air Express. Molanders bore no

grudge against the Company. Although she did not think much

of Susan Ward, her immediate supervisor, she left the Com-

pany under amicable circumstances. The Company thought

well of her, and both Friedl and O’Rorke attempted to dis-

suade her from leaving. Although intensively cross-examined

by Company counsel concerning her numerous alleged conver-

sations, her testimony remained consistent, including the order

in which the conversations took place. It is unlikely that this

would have happened if she had contrived the fact of such

conversations. Her answers also demonstrated a spontaneity

which would not likely have eminated from a witness who was

not telling the truth. For example, in testifying concerning a

conversation which was also referred to in her affidavit

(Judge’s exhibit 4, paragraph 7), Molanders recalled that

O’Rorke said that the Company had “protested” the election,

although that word is not contained in the affidavit. It is

evident that Molanders used the affidavit only for the proper

purpose of refreshing her recollection, and that she was testify-

ing on the basis of her own independent recollection of the

conversations.

Moreover, Molanders’ testimony is corroborated by the fact

that the statements attributed to O’Rorke reflected develop-

ments that were actually taking place, or would shortly take

place, and that it is unlikely that Molanders could have learned

of some of these matters from any source other than O’Rorke.

The coincidence of statement and fact also tends to indicate

that to a considerable extent, O’Rorke was privy to manage-

ment’s planning and knew what he was talking about. When

O’Rorke said that Bob Heney had contracted with the Com-

pany to take over as station manager, he was speaking the

truth. As a condition of the Trans-Air acquisition, Trans-Air

President Howard Schor solicited and obtained from certain

C-36

key Trans-Air personnel, signed employment contracts. The

contracts, which each had a duration of one year, were nomi-

nally between Trans-Air and the key person (a manager or sales

executive), but in fact were between the key person and the

Company, i.e. Air Express. The contracts, which were identical

in form except for salary and position, provided that they were

conditioned upon the Company’s acquisition of Trans-Air’s air

freight forwarding business, and would remain in effect after

the acquisition. Acceptance of each contract was acknow-

ledged in writing by an official of Air Express. Heney’s

contract, dated October 19 (as were the other contracts) and

signed by him on or about that date, provided that he would be

Atlanta District Manager and would receive a raise at the time

of acquisition. As heretofore indicated, the acquisition re-

quired CAB approval. The Company and Trans-Air originally

anticipated that such approval would take place before the end

of 1977; however, the acquisition was not approved until

February 9. The employment contracts purported to constitute

the entire understanding of the parties, and were silent on the

matter of union representation. However, it does not follow

from that fact that the Company and Heney had no under-

standing or agreement concerning union representation. Al-

though the acquisition agreement was not executed in writing

until October 19, the Company and Trans-Air had agreed upon

the sale in September. Thereafter, in late September, Company

President Joseph Berg and Vice President Fred Schwartzstein

met with certain Trans-Air district managers, and Heney met

privately with Berg. This aspect of the case will be discussed

further in connection with alleged unlawful statements by

Heney, and again with respect to the alleged unlawful termina-

tions.

When O’Rorke told Molanders that he would temporarily be

a “floater” he was telling the truth. As of February 10,

O’Rorke became Regional Sales Manager for the Company’s

newly constituted Southeast Region (Charlotte and Atlanta).

However, this was only a temporary position for him. As of

the completion of his testimony in this case, in August, 1978,

the Company transferred O’Rorke to New York, to become

C-37

Regional Manager of its New York Metropolitan area. Finally,

“those guys” evidently referred to the voting unit employees

(all of whom but Lee were male), who the Company believed

voted for the Union. In sum, | credit Molanders’ testimony

concerning her conversations with O’Rorke. Molanders was

outside the bargaining unit, was the Company observer in the

election, and O’Rorke thought he could safely talk to her and

to Kathy Lee (and perhaps thereby get the message across to

others). As men sometimes do (and as Heney was also doing at

College Park) O’Rorke let his hair down when talking to a

woman. I find, as alleged in paragraphs 12, 16, 17 and 20 of

the complaint, that the Company, through its supervisor and

agent Frank O’Rorke, threatened its employees with loss of

their jobs or other reprisal because of employee support for the

Union, and thereby violated Section 8(a)(1) of the Act. Al-

though not specifically alleged in the complaint, I find that the

Company further violated Section 8(a)(1) when O’Rorke

threatened that the Company might close the Atlanta station

and reopen as an agent if the employees voted in the Union."

I further find that O’Rorke’s statements evidence that the

Company intended to and did ultimately terminate most of the

unit employees in reprisal for their adherence to the Union,

and in order to destroy the Union’s representative status. In

addition to other factors, some of which have heretofore been

discussed, O’Rorke’s statements tend to explain why O’Rorke

was never allegedly consulted in the staffing decisions which

18 The alleged conversations between Molanders and O’Rorke were

fully and fairly litigated, without pertinent objection, and therefore the

finding in question is warranted. Although the conversation took place in

June, and the charge in Case No. 10-CA-13496 was filed in February, 1978,

the time limitation of Section 10(b) of the Act was tolled by the filing of the

earlier charge in Case No. 10-CA-12941, wherein the Union alleged that the

Company violated Section 8(a)(1) and (3) of the Act by its discharge of Nella

Dunn and by “other acts.” As the instant matter is similar to and arises out

of the same alleged course of conduct involved in Case No. 10-CA-12941,

Section 10(b) does not bar consideration of the matter. See, Laborers

International Union of North America, Local No. 282 (Millstone Construc-

tion Co.), 236 NLRB No. 70 (1978), JD at 22.

C-38

Hoffenberg made for the post-acquisition (College Park) facil-

ity. One might reasonably expect that as Atlanta district man-

ager, and being well regarded by management, O’Rorke would

have had some input into those decisions. However, Hoffen-

berg testified that the Company’s executive committee made

those decisions after consulting Robert Heney, but without

consulting O’Rorke. O’Rorke made no recommendations, at

least not on the basis of any non-discriminatory considera-

tions, because he knew long before February 10 that the

Company intended to get rid of the Union adherents, and he

concurred in that policy. O’Rorke was willing, as he told

Molanders, to stick his neck out for Floyd and Lee, but for no

one else—not even John Moore, whose ability and expertise in

the international field were badly needed, nor John Shepherd,

who had loyally gone along with his plan to change shifts.

2. Alleged Interrogation at East Point

John Shepherd testified on several occasions, including one

which took place a few days before February 10, Station

Manager Mike Floyd asked him and John Moore if they were

going to the Union hall for lunch. Shepherd’s testimony was

not contradicted. It is undisputed that at all times material,

Floyd was and is a supervisor and agent of the Company

within the meaning of Section 2(11) of the Act. I credit

Shepherd. Floyd had no legitimate reason to question the

employees about their union activities. His questioning oc-

curred in the context of serious and continuing unfair labor

practices, and was not accompanied by any assurances against

reprisal. Therefore, Floyd’s conduct tended to be coercive.

See, Naum Bros. Inc., 240 NLRB No. 50 (1979), sl. op at 2. In

the context of the Company’s overall course of conduct, I

further find that Floyd’s questioning was in fact intended to

intimidate ihe employees in the exercise of their statutory

rights. By coercively interrogating Shepherd and Moore con-

cerning their union activities, the Company violated Section

8(a)(1) of the Act.

John Shepherd further testified that on the Saturday before

the January 25 hearing in this case (January 21) Frank

C-39

O’Rorke asked him if he had been subpoenaed. According to

Shepherd, he answered that he had, whereupon O’Rorke

responded that Shepherd really didn’t have to answer, that he

just wanted to know “if everyone was going to be down there.”

Shepherd further testified that O’Rorke said that it looked like

everyone was going to be down there and that he was con-

cerned because he needed people to run the facility that day.

General Counsel contends, in sum, that O’Rorke had no

legitimate reason for questioning Shepherd and that the Com-

pany, by O’Rorke and Mike Floyd, violated Section 8(a)(1) by

interrogating Shepherd and other employees about whether

they had been subpoenaed to attend the hearing. O’Rorke, in

his testimony, denied that he asked Shepherd if he got a

subpoena. Resolution of the credibility issue thus posed, and

of the merits of General Counsel’s position, necessitates con-

sideration of testimony and other evidence concerning conver-

sations and events which preceeded the hearing and the

situation on the day of the hearing.

The hearing in Case No. 12941 was originally scheduled for

October 18. However, by order of the Regional Director dated

October 18, the hearing was rescheduled to January 25. By

subsequent order dated November 23, Case No. 12941 was

consolidated for hearing with Case No. 13141 on January 25.

Subsequently, General Counsel served a subpoena on Frank

O’Rorke, which was dated January 9. General Counsel admit-

ted that John Moore and Shepherd were subpoenaed to testify,

but asserted that neither was present at the hearing. General

Counsel further conceded that Marlin Rozier and Lynn

Ashmore were present at the hearing, and asserted that Moore

and Shepherd were not. Rozier’s presence was noted in the

transcript of the January 25 hearing (testimony of O’Rorke).

Ashmore testified that he was not subpoenaed to attend the

January 25 hearing. Shepherd testified that he received by mail

a subpoena from the Board in Case No. 13141, but did not

attend the hearing. No specific evidence was adduced as to

whether Moore was present at the hearing or whether Rozier

was subpoenaed. The settlement agreement in Case No. 13141

was executed on the morning of the hearing. As that case

C-40

involved the alleged discriminatory withholding of wage in-

creeses from Rozier and Ashmore, it may fairly be inferred

that until the settlement agreement was executed, General

Counsel anticipated their presence at the hearing, and whether

by subpoena or otherwise, so informed them. It may also be

fairly inferred that General Counsel issued subpoenas and

other notices to appear on or about the same date as that

issued to O’Rorke, i.e., on or about January 9.

By ietter dated January 12, labor relations consultant

Thompson comlained to the Regional Director that the Com-

pany was “informed today, January 12, that 100 percent of its

operation employees have been subpoenaed,” and requested

the Regional Director to reconsider whether he needed all of

the employees. By a second letter dated January 20, Thompson

among other things, complained to the Regional Director that

he had not received a response to his January 12 request. In

fact, Thompson had received a response in the form of a

telephone call from counsel for General Counsel, Paul Tam-

aroff. Thompson initially testified that Tamaroff told him

“that all of the people had been subpoenaed.” However, on

cross-examination Thompson admitted that Tamaroff told him

that “only a few” had been subpoenaed, and that Tamaroff

“may” have said that he had made arrangements so that there

would be no disruption of the Company’s operations. Thomp-

son’s admissions on cross examination are a more reliable

indication of the truth than the self-serving assertions con-

tained in his correspondence and direct testimony. I find that

Tamaroff told Thompson that only a few employees had been

subpoenaed, and assured him that there would be no disrup-

tion of the Company’s operations. It would not have been

difficult for counsel for General Counsel to make the assured

arrangements. As of January 25, O’Rorke and Mike Floyd

were normally at East Point during the day, Kathy Lee, Susan

Sinclair and John Moore worked days, Shepherd worked from

7 a.m. to 3 p.m., Rozier and Ashmore worked from 4 p.m. to

1:30 a.m. (evening shift), and John McCollum worked on

mid-day shift. In fact, there was no disruption of the Com-

pany’s operations. The only witnesses called to testify by

C-41

General Counsel were O’Rorke, Nella Ree Dunn, former

station manager Broadaway, and Susan Sinclair. General

Counsel did not originally plan to call Sinclair. However, her

testimony was requested during the hearing, when O’Rorke

unexpectedly failed to identify General Counsel’s Exhibit 7.

Rozier and Ashmore, who were also present at the hearing,

were not scheduled to report to work until 4 p.m., and lost no

time from work. Mike Floyd admitted in his testimony that

none of the employees (presumably including Moore) missed

work on January 25. If in fact, any employees missed work

that day, the Company’s timecard records would have reflected

that fact. However, no such records were offered in evidence. I

find that except as specifically found herein, no employees

were subpoenaed by General Counsel or were present at the

hearing.

Moreover, it is evident from the testimony of Frank O’Rorke

and Mike Floyd that the Company was never informed that

“100 percent of its operations employees have been sub-

poenaed,” and that Thompson knowingly made a false repre-

sentation to the Board in this regard. O’Rorke testified that he

told Floyd to find out who was working on January 25, and

that some employees voluntarily told him and Floyd that they

would not be at work that day. However, O’Rorke later

contradicted himself, testifying that “within a couple of days”

of the hearing, Moore said he would be at the hearing, that he

could not recall any other employee talking to him, and that

within 2 or 3 days of the hearing (i.e., after Thompson’s

January 12 and January 20th letters), he expressed concern to

Thompson about employees who would be absent. Mi! e Floyd

also contradicted O’Rorke. Floyd testified that he learned who

would be present at the hearing by questioning the employees,

that Moore said that he might be off to testify, that Rozier said

that he might be late, but that no one else, other than

O’Rorke, said that they would be away from work.

I credit Shepherd, and consequently find that O’Rorke

interrogated Shepherd about whether he had been subpoenaed

by the Board. In light of Floyd’s admissions, | find that Floyd

C-42

similarly interrogated other employees.” In view of Attorney

Tamaroff’s assurances that there would be no disruption of the

Company’s operations, the Company had no legitimate reason

to engage in such interrogation. Rather, I agree with General

Counsel, that in light of Thompson’s false assertions in his

January 12 letter, the inference is warranted that Thompson

was simply engaged in a “ploy” to determine which employees

could be expected to testify against the Company. When

Thompson failed to trick or cajole the Regional Director into

disclosing such information, he instructed or advised O’Rorke

to obtain such information directly from the employees. As

heretofore indicated, Thompson had no reservations against

advising the Company to engage in unlawful conduct in order

to defeat the Union, nor did the Company hesitate to carry out

such advice. The Company’s interrogation with respect to the

January 25 hearing was consistent with its repeated monitoring

of employee union sentiments and actions taken on the basis of

such monitoring. The chronology of events, beginning with

Thompson’s letter, makes clear that it was Thompson’s con-

cern to defeat the Union rather than any possible concern by

O’Rorke that he would be shorthanded on January 25, which

led to the interrogation by O’Rorke and Floyd.

An employer has a legitimate concern in maintaining normal

operations, and to that end may validly be concerned about

employee absence from work for a Board hearing. Here,

however, any possible legitimate concern was obviated when

General Counsel’s representative assured Thompson that there

would be no disruption of the Company’s operations. There-

fore, there was no justifications for the subsequent interroga-

tion. Rather, such interrogation constituted unlawful

19 The complaint (Paragraph 11) names only Floyd as having engaged

in such interrogation. However, Company counsel did not object to

Shepherd's testimony on this ground, and the matter was fully and fairly

litigated. Therefore the issue of interrogation by both O’Rorke and Floyd is

properly before me for decision. Indeed, the Company in its brief (p. 100)

concedes that both O’Rorke and Floyd interrogated employees about

whether they had been subpoenaed.

C-43

interference with employee rights protected by Section 7 of the

Act. Moreover, the interrogation was coercive in that it was

conducted for a discriminatory purpose, in the context of other

unfair labor practices, and without any assurances against

employer reprisal.” Therefore, the Company violated Section

8(a)(1) of the Act. A.J. Siris Products Corporation of Virginia,

90 NLRB 132, 137 (1950), enf’d 186 F. 2d 502 (C.A. 4, 195");

see also, Mr. F’s Beef and Bourbon, 212 NLRB 462, 466

(1974).”

3. Alleged Pre-Acquistion Statements by Robert Heney and

Tony Chaffin, and the Questions of Single Employer and

Agency

Sue Dennison began working in Atlanta for a firm known as

Air Land, in January 1975. Robert Heney was district manager

of Air Land’s facility, having been with Air Land since March,

1972. In March, 1975 Air Land merged with or was acquired

by Trans-Air, and in October 1975 Trans-Air moved into the

College Park facility which it continued to occupy until the

acquisition by Air Express on February 10, 1978. Heney

remained as district manager for Trans Air, and Dennison also

remained. She performed both secretarial and customer service

work. Denison continued working at College Par’ after the

acquisition, until April 21, when she voluntarily quit her

employment with the Company, because her husband had be ~

transferred to a position in another city.

20 Although O’Rorke told Shepherd that he did not have to answer, he

did not say this until after Shepherd had answered his question. Floyd, in his

testimony, did not claim that he told employees that they did not have to

answer, or that he gave them any assurances against reprisal.

21 = In Mueller Brass Co., 220 NLRB 1127, 1138 (1975), cited by

Respondent, the Board found on the facts therein that the employer's

supervisor was only trying to learn for purposes of work scheduling why an

employee had to be away from work on a date other than a scheduled Board

hearing (n. 9). Therefore Mueller is distinguishable on its facts from the

present case.

C-44

Denison testified that in a series of conversations beginning

about November 1, Heney talked to her about the pending

acquisition by the Company. Denison’s husband was an or-

ganizer for the Laborers’ Union, and she was particularly

interested in the matter of union representation, and personally

pro-Union. About November 1, Dennison, who by then was

aware of the pending acquisition, asked Heney about what was

the latest on the Union deal at Air Express.” According to

Denison, Heney said that some employees at AEI were in-

volved with the Union, had signed authorization cards, and

would be offered jobs when the merger took effect. However,

Heney allegedly added that the employees would come over to

the Trans-Air building at the time of the merger if they were

willing to forget their union activities and not participate in the

Union. Denison testified that Heney repeated this theme in

subsequent conversations, saying that the Air Express employ-

ees would “hit the street” if they did not forget the Union.

According to Denison, Heney said that it didn’t look like any

of the AEI employees would be coming over. Heney also said

that he had signed a contract to be district manager for the

Atlanta Station, and that the sales staff was being asked to sign

contracts with AEI.” Denison testified that in December or

January, she asked about her own job security. According to

Denison, Heney answered that all Trans-Air personnel would

remain, that the ones involved with the Union at AEI would

not come over, and that he would hire additional personnel as

needed. Denison denied that Heney ever said that they had

been through previous acquisitions, and that if the employees

22 Denison testified that Heney initiated this and all but one of the

subsequent conversations. However, in her investigatory affidavit she stated

that she initiated the first conversation by inquiring about the “union deal.”

In light of the overall tenor of her description of the conversations, which

tend to center around her own inquiries, | find that Denison initiated most if

not all of the conversations.

23 + Heney testified that he told the employees that he had signed a

contract with Trans-Air, so that he would be in charge when the acquisition

took place.

C-45

stuck with him everything would be all right. Denison further

testified that about January 1, she asked Heney about the

status of the employees coming over, and about the Union’s

status. According to Denison, Heney said that it appeared that

only O’Rorke, Floyd, Lee, Sinclair and sales employee Marilyn

Francis were coming over.“ However, Heney added that John

Moore was experienced in the international field, and was an

expert in documents and paperwork. Heney expressed his hope

that Moore would reconsider his union activities and come to

Trans-Air after the merger.

In mid-January, Frank O’Rorke addressed two meetings of

the Trans-Air personnel at College Park, at which Robert

Heney was present. The substance of these meetings will be

discussed under the next heading. One meeting was for super-

visory and sales personnel, and the other for tue rank-and-file

operations personnel. The latter meeting took place in the

evening, when Denison was normally not at work. Denison

was not notified in advance of the meeting, and did not attend.

The next day she asked Heney why she was not told about the

meeting. According to Denison, Heney answered that he

thought she would have to be home with her children. Heney’s

testimony concerning this conversation is enlightening in two

respects. Heney testified that he mentioned the children as an

additional reason, but that the first reason he gave was that

Denison had seniority and so didn’t have to worry. Heney also

added that customer service was vital. If Heney was not privy

to the Company’s plans, then it is difficult to see how he could

be so certain that Denison had nothing to worry about. It is

also incongruous that while Heney was holding out a standard

of seniority to the Trans-Air employees, the Company (as will

be discussed), was steadfastly rejecting the Union’s proposal to

staff the post-acquisition facility on the basis of dovetailed

seniority of the Air Express and Trans-Air personnel.

Sue Denison further testified that in late January, Heney

asked what her husband did. Denison answered that he was a

24 _—sIn her investigatory affidavit, Denison did not indicate that Heney

mentioned Sinclair.

C-46

union organizer, and questioned why Heney wanted to know.

According to Denison, Heney replied that a mutual friend

applied for a job and listed her husband as a reference, adding

“I hope Frank doesn’t find out.”” Heney testified that he

asked about Denison’s husband, for the reason indicated in

Denison’s testimony, and that she told him, but denied her

testimony concerning the balance of the alleged conversation.

Except as heretofore indicated, Heney in his testimony denied

the alleged conversations with Denison, and categorically de-

nied interrogating employees concerning union activity, or

threatening employees with discharge or other loss of jobs.

However, Heney came up with an explanation as to how

Denison could have possibly gotten the impression that he was

opposed to unionization. (At this point in his testimony,

Heney, who was normally a self-confident and garulous wit-

ness, was visibly nervous).

Heney testified that 2 or 3 years earlier, when there was union

activity at Trans-Air, he said that if a union came in, he would

shut down the facility and operate with management and sales

personnel out of his home. Heney’s testimony was contra-

dicted by that of his stepson, day operations supervisor Tony

Chaffin, who was presented as a Company witness. Chaffin

testified that Heney has explained his policies regarding union-

ization of Trans-Air “for the whole five years I’ve worked

there,” about once a year, whenever the Coupany has “trou-

ble,” meaning whenever some people “want a Union,” and has

explained those policies to him and to other employees. During

the pre-acquisition period, the Union was a topic of discussion

among employees at College Park as well as at East Point;

indeed, as will be discussed, the matter was

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