Petition for Writ of Certiorari — Serv-Air, Inc. v. National Labor Relations Board

SUPREME COURT. L. &

UL @ 1868

JOHN Fs Basis, CLR

ee we |

In the

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1968

o 26 |

Serv-Arr, INC.,

Petitioner,

SORENSEN RI RE RRR

VERSUS

_ Nationa Lasor RELatTIons Boar,

’ Respondent.

APPENDIX B TO PETITION FOR WRIT OF CERTI-

ORARI TO THE UNITED STATES COURT OF AP-

PEALS FOR THE TENTH CIRCUIT .

FRANK CARTER

Attorney for Petitioner

of Counsel:

OJTEN & CARTER

Bass Building

Enid, Oklahoma

July, 1968

UTTERBACK TYPESETTING CO., 13 SO. WALKER, OKLAHOMA City, PH. CE 35-0030 :

APPENDIX B

[Stamped ]

EXHIBIT

B

161 NLRB No. 17

» D-8721

Enid, Okla.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Serv-Air, INc.

and Cases Nos. 16-CA-2122

INTERNATIONAL ASSOCIATION : 16-CA-2131

or Macuinists, AFL-CIO 16-CA-2163

and 3 16-CA-2176

SMOKE-EATERS LopGE No. 898, 16-CA-2187

INTERNATIONAL ASSOCIATION OF

Macuinists, AFL-CIO

DECISION AND ORDER

On November 18, 1965, Trial Examiner Thomas F.

Maher issued his Decision in the above-entitled proceeding,

finding that Respondent had-engaged in and was engaging

in certain unfair labor practices and recommending that

it cease and desist therefrom and take certain affirmative

action, as set forth in the attached Trial Examiner’s Deci-

sion, The Trial Examiner also found that Respondent had .

not engaged in certain other unfair labor practices alleged

in the complaint and recommended dismissal of the com-

' plaint with respect thereto. Thereafter, the Respondent and

General Counsel filed exceptions to the Decision and sup-

porting briefs.

“Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its powers in connection with

this case to a three-member panel.

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SSE ONG NATRONA OS

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[A PPENDIX] it

The Board has reviewed the rulings of the Trial Ex-

aminer made at the hearing and finds that no prejudicial

error was committed. The rulings are hereby affirmed ex-

cept as noted below. 1 The Board has considered the Trial

Examiner’s Decision, the exceptions? and briefs, and the

entire record in this case and hereby adopts the findings,

conclusions, and’ recommendations of the Trial Examiner,

as modified herein:®

1 The Trial Examiner denied as “superfluous” General Counsel's un-

opposed motion urging that certain. minor“corrections be made in

the transcript. The Trial Examiner explained that he had already

made these corrections’ himself on the basis of an earlier motion

made by the General Counsel at the end of the hearing to conform

the “record to the proof.” A review of the record indicates that the

General Counsel at the end of the hearing moved to “conform the

pleadings to the proof in minor matters such as names and dates.”

Such a motion is routine and is made for the purpose of conforming

the complaint and other formal pleadings filed by the General Counsel

with the evidence adduced and recorded during the hearing. See, e.g.,

Consolidated Edison Co. v. N.L.R.B., 305 US. 197, 225. It does not

ordinarily purport to include a motion to correct a transcript of record

which has not yet been seen, and was incorreectly construed by the

Trial Examiner as permitting him to correct the transcript without

any opportunity for the parties to file exceptions thereto. Alternate

procedures are available in the event a trial examiner believes a

record requires correction. See, e.g., W. B. Jones Lumber Company,

Inc., 114 NLRB.415, 421, enfd. 245 F. 2d 388 (CA. 9). We find,

therefore, contrary to the Trial Examiner, that the General Counsel’s

motion to correct the record was not superfluous. In the absence of

opposition, the motion is hereby grantéd. :

161 NLRB No. 17

2 Respondent's request for oral argument is hereby denied, as the

record, ‘including the exceptions and briefs, adequately reflect the

issues and the positions of the parties.

3 No exceptions were filed to the Trial Examiner’s finding that Re-

spondent's “segregation” of the employees who engaged in the Sép-

tember 2, walkout did not violate the Act.

Further, although General Counsel did not except to the Trial

Examiner's dismissal of that portion of the complaint alleging that

‘in the course of a conversation Respondent’s General Manager Hood

threatened employee Knowlton in violation of Section 8(a) (1), we

so ag) 0. a eth ee

—3—

me | (APPENDIX)

1. The facts reveal that, in November 1960, Respond-

ent posted a notice stating its position on union organiza-

tion. The notice stated in part that:

(6) No person will be allowed to carry on union organ-

izing activities on the job. Anyone who does so

. and who thereby neglects his own work or inter-

feres with the work of others will be subject to

discharge. ;

The Trial Examiner stated that since this rule applied

only to on-the-job activity, it was presumptively valid, and

since he found the General Counsel had not established

that the rule was either discriminatorily promulgated or

enforced, the Trial Examiner concluded that it did not

violate the Act. Consequently, he held that Respondent’s

discharge of employees Haley and McCarty under this rule

was not a violation of either Section 8(a)(1) or (3) of the

Act. We do not agree.

The Board has held in interpreting similar notices that -

an employer may lawfully prevent its employees from so-

liciting for a union during working hours provided the

ban is not promulgated or enforced for a discriminatory

purpose.* Contrary to the Trial Examiner, we find that the

record evidence amply establishes such discriminatory pur-

pose-and, therefore, that the rule in question violates Sec-

tion.8(a)(1) of the Act.

‘At the outset, no one disputes that the notice was ini-

tially promulgated in response to union activity which ap-

parently had begun in 1960. Thereafter, Respondent con-

3 (Continued ) ;

do not adopt a possible implication in footnote 20 of the Trial

Examiner's Decision that the actual presence of fear in an employee —

who was allegedly threatened was necessarily crucial to finding a

violation. Cf, Clark Bros. Co., Inc., 70 NLRB 802, 806, enfd. 163

F.2d 373 (CA. 2).

4 Pepsi Cola Botthers of Miami, Inc., 155 NLRB No. 50.

—i—

[APPENDIX]

fi, tinued to maintain the rule in effect; although there was

no“ overt ‘activity of thig nature in the plant. However, in

May 1964, an election’ was held in which the Union was

certified asthe bargaining representative of a unit composed

of employees in Respondent’s Fire an scue Department.

In late August, certain of. Responderft’s supervisors engaged

in interrogation of employees in violation of Section 8(a)

(1). ‘Shortly after this, on September 1, one day after Haley

and McCarty engaged in the solicitations which resulted in

their discharge, and undeniedly to forestall such solicita--

tions, Respondent, posted a notice reminding the employees

of the provisions of paragraph 6, noted above, and calling to

their attention the possible penalties for defiance of its

terms. However, employee solicitations for other purposes

- were permitted on company time and property. Thus, Re-

spondent’s Assistant Manager, Hood, testified that he knew

of such solicitations to send flowers to the widows of de-

_ceased fellow employees and similar purposes.® Further,

although Hood asserted that the Red Cross, Community

Chest, or.similar charities were not allowed to solicit since

"many of the employees contributed to these charities: by —

means of a voluntary payroll deduction, he admitted that

when some employees decided to withdraw their deduction

authorizations, they were called together to try to persuade

_them to reconsider.® ,

‘Under the circumstances here present, we find that the

ban imposed by this rule was discriminatory, since it was

5 Apart from the Haley and McCarty discharges, Hood testified that

only two other employees, who also had been engaged in conduct

on behalf of the Union, had ever been disciplined for engaging in . |

solicitation.

6 The Trial Examiner refused to admit other evidence of such solici-

tations and in view of our decision in Wm. H. Block, 150 NLRB

341, this refusal was efroneous. However, since the record is sufficient

.. to establish discriminatory application of the rule,.we find that this

exclusion was not prejudicial.

—5— -

; [APPENDIX)

clearly promulgated in response to Union activity rather

than for the legitimate purpose of maintaining order in

the plant and was discriminatorily enforced in a manner

directed to stifling union activity. Accordingly, we con-"

clude; unlike the Trial Examiner, that the evidence was

sufficient to establish that the discriminatory promulgation

and enforcement of. this rule violated Section 8(a)(1) of

the Act.?

2. Respondent admits that Haley and McCarty were

both discharged for violating the rule which we have here

held to be ‘an illegal interference with the exercise of the

Section 7 rights of Respondent’s employees. It is also ap-—

parent, and we conclude, that the discharges were an inte-

gral part of Respondent’s illegal campaign to combat union

organization and served to discourage other employees from

engaging in similar activity as well as ridding Respondent

of two active Union adherents.’ Accordingly, we find that

the discharge of these two employees violated Section

8(a)(1) and (3). See Ripley Manufacturing Company, 144

NLRB 1132, 1156. A :

7 Wm. H. Block Company, 150 NLRB 341; Ward Manufacturing, Inc.,

152 NLRB No. 127; Walton Manufacturing Company, 126 NLRB

697, enfd. 289 F. 2d 697 (CA. 5).

8 We note from the record that the Respondent summarily discharged

Haley although he could not have “interfere/d/ with the work of

others” since the employees he solicited were not actually working.

We note also that the record does not support the Respondent's

claim that McCarty either neglected his own work or interfered with

the work of others when he solicited for the Union.

® As we have found that Haley and McCarty were unlawfully dis-

charged, we also find, contrary to the Trial Examiner's statement

in part C(4) of his Decision, that the first walkout of the JEFM

efhployees in protest of their discharges was an unfair labor practice

strike. However, this contrary conclusion does not affect the correct-

ness of the Trial Examiner's ultimate conclusions or the remedy

herein insofar as these strikers’are concerned.

[APPENDIX]

. ORDER .

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations Board

hereby adopts as its order the Recommended Order of the

Trial Examiner, as ‘modified below, and orders that the

Respondent, Serv-Air, Inc., Enid, Oklahoma, its officers,

agents, successors, and assigns, shall.take the action set

forth in the Trial Examiner’s Recommended Order, as

herein modified:

1. Paragraph 1 of the Trial Examiner’s Recommended *

Order is amended by adding the following as paragraphs

(i) and (j): f . .

“(i) Discouraging membership in International

Association of Machinists, AFL-CIO, Smoke-Eaters Lodge

No. 898, International Association of Machinists, AFL-CIO,

or any other labor organization, by discharging or otherwise

' discriminating in respect to the hire or tenure of any em-

ployee under color of enforcing a rule against solicitation

promulgated for a discriminatory purpose or applied in a

discriminatory manner or on any other pretext. 6

“(j) Threatening employees with dtectiaens, lay-

_ off, or other reprisal for exercising their rights under, Sec-

tion 7 of the Act under color of a rule invoked or applied

for the purpose of restraining or coercing employees in the

legitimate exercise of those rights.” .

2. Reletter the present paragraph 2(e) of the Trial

Examiner’s Recommended Order to 2(g) and add the fol-

owing as paragraphs 2(e) and 2(f):

“(e) Offer immediate and full reinstatement, if

this has not already been done, to employees Alfred R. Mc-

Carty and Joe D. Haley, to their former or substantially

equivalent positions with backpay and with interest added

thereto in the usual manner, as referred to in the section

of the Trial Examiner’s Decision entitled ‘The Remedy’.”

3 ea ‘ [APPENDIX] .

_“(f) Preserve and, upon request, make available —

to the Board or, its agents, for examination and copying,

all payroll recoyds, social security payment records, time-

. cards, personnel records and reports, and all other records.

relevant and necessary to the determination of the backpay .

' due ard to the reinstatement and related rights provided

‘ under the terms of the Recommended Order.” -

.

3. Add to the list of employees named in the final

paragraph of page i of the Appendix, the names of Alfred

R. McCarty ‘and Joe D. Haley. "7 o

4. Add to the Appendix, after the third paragraph, |

the following two paragraphs: ,

WE WILL NOT discourage membership in INTERNA-

TIONAL ASSOCIATION OF MACHINISTS, AFL-CIO,

SMOKE-EATERS LODGE NO. 898, INTERNA-

TIONAL ASSOCIATION OF MACHINISTS, AFL-

CIO, or any other labor organization by discharging

or otherwise discriminating in respect to the hire or

tenure of any employee under color of enforcing a

rule against solicitation promulgated for a discrimi-

natory purpose or applied in a discriminatory manner

or on any other pretext.

WE WILL NOT threaten employees with discharge, |

layoff, or reprisal for,exercising their rights under Sec- |

tion 7 of the Act under color of a rule invoked or

applied for the purpose of restraining-or coercing em-

' ployees in the legitimate exercise of those rights.

Dated, Washington, D.C. [Stamped] Oct. 25 1966

Gerald A. Brown, Member

(SEAL) © NATIONAL Lasor RELATIONS BoARD

2

(APPENDIX) a

| , . Enid, Okla.

| UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF TRIAL EXAMINERS

WASHINGTON, D. C.

Serv-Arr, INc. ee

and Case No. 16-CA-2122 .

INTERNATIONAL ASSOCIATION : 16-CA-2131

or Macuinists, AFL-CIO ’ 16-CA-2163

and 16-CA-2176

SMOKE-EATERS LopDGE No. 898, 16-CA-2187

INTERNATIONAL ASSOCIATION OF

Macuinists, AFL-CIO

Norman W. Eckhardt, Esq. and

Charles W. Toomey, Esq., of

Fort Worth, Tex. for the

General Counsel. «B

- Otjen, Carter, Huddleston and

Otjen, by Frank Carter, Esq.

_ and Charles Huddleston, Esq., °

of Enid, Okla., for the

Respondent.

Mr. V. M. Cameron, of Fort Worth,

Tex., Mr. James W. Witcher, of

Oklahoma City, Okla., and

Mr. Harvey Christian of Chickasha,’

Okla., for the charging Parties.

Before: Thomas F. Maher, Trial Examiner.

TRIAL EXAMINER’S DECISION

Statement of the Case

Upon charges and amendments thereto filed between

September 4 and December 2, 1964, by International Asso-

ciation of Machinists, AFL-CIO, and in some instances by

ar

[APPENDIX}

its Smoke-Eaters Lodge, No. 898, both referred to herein

as the Union, the Regional Director for the Sixteenth Region

of the National Labor Relations Board, herein called the

Board, issued a consolidated complaint:on behalf of the

General Counsel of the Board against Serv-Air, Inc., Re-

spondent herein, alleging violations of Section 8(a)(1), (3)

and (5) of the National Labor Relations Act, as amended.

(29 U.S.C., Sec. 151, et seq.), herein called: the Act. Re-

spondent, in its duly filed answer, while admitting certain

of the allegations in the complaint, denied the commission

of any unfair labor practice. However, during the course

‘of the hearing certain amendments to the complaint and

answer were made, and in several such instances to be

considered herein (infra, p. 46) the substance of certain

of Respondent’s amended answer did constitute, in effect,

an admission of a violation of the Act. oo

| _ . TXD-579-65:

Pursuant to notice the aforementioned hearing was--

_ held before me in Enid, Oklahoma; between January 12

and 15 and on April 7 and 8, 1965. All parties were present,

represented by counsel or representatives as indicated

above, and afforded a full opportunity to be heard, to present

oral argument and to file briefs with me. Briefs were filed

‘ by General Counsel and the Respondent: Thereafter Coun-

sel for the General Counsel filed a motion with me request-

ing in considerable minor detail the correction of the tran-

script of the hearing. No objection has since been interposed.

Counisel, however, had already moved, prior to the closing

. of the hearing, and without objection, for the conformance

of the record to the proof in minor details which I granted, _

deeming it to refer to spelling and typographical errors

and omissions. As Counsel’s subsequent motion merely cata-

logues in detail such misspellings and obvious typos; raphical

errors and omissions, and as this matter was already dis-

posed of by motion at the hearing and by my physical cor-

{PRINTER’S NOTE: The infra and supra page references throughout this -

document have been changed to conform.to the printed pages hereof.}

°

ontie

fLAPPENDIX] 7

rection of the transcript where such discrepancies appeared,

_ I deny Counsel’s motion as being superfluous. |

Upon consideration of the entire record, including the

briefs of the parties, and upon my observation of each wit-

ness while testifying and in the hearing room,! I make the

following: :

Findings. of Fact and Conclusions of Law

_. I. The business of. the Respondent

. Serv-Air, Inc., Respondent herein, is a North Carolina

corporation engaged in operations at Vance Air Force Base,

Enid, Oklahoma, under a contract valued at approximately

$5,000,000 with the U. S. Air Force, by virtue of which -

it performs base services which have a substantial impact

‘upon National Defense. Upon these stipulated facts I con-

clude and find Respondent to be an* employer engaged

in commerce within the meaning of Section 2(6) and (7)

. of the Act.? | .

II. The labor organization involved

It is agreed between the parties and I accordingly

conclude and find that International Association of Ma-

chinists, AFL-CIO, and its Smoke-Eaters Lodge No. 898,

are labor orgahizations within the meaning of the Act.

1 Unless specifically indicated to the contrary, any credibility evaluation

_ I make of the testimony. of any witness appearing before me is

based, at least. in part, upon his demeanor as I observed ft at the

hearing and particularly at the time the testimony was given. Cf. °

Retail Clerks International Association, AFL-CIO, Local 219, 134

NLRB 1680, 1682 and fn. 3; Bryan Bros. Packing Co., 129 NLRB

285. To the extent that I do not rely upon or I reject in part or

entirely the testimony of any given witness, it is my intent thereby

to indicate that such part or whole of the testimony, as the case may

be, is discredited by me. Jackson Maintenance Corporation, 126

NLRB 115,117, fn. 1, enfd. 283 F. 2d 569 (C.A. 2). To the extent

that I credit any witness only in part I do so upon the evidentiary

_ tule that it is not uncommon “to believe some and not all” of a

witness’ testimony. N.L.R.B. v. Universal Camera Corp. 179 F. 2d

749, 754 (CA. 2)

2 Gray, Rogers, Graham and Osborne, 129 NLRB 450.

ut ‘ . roth he cal caliiaade wine: iia iieataraae

*

|

[APPENDIX)

; III. The issues

I. Respondent’s admitted refusal to bargain in viola-

tion of Section 8(a).(5).

2. The legality of posted notice provisions, including

a no-solicitation rule. ~ .

3. The discharges of Employees Haley and McCarthy

_ forcause. i

4. The segregation of returned strikers as a safeguard

against anticipated future strike action. Peat |

5. The conditional and unconditional character of offers

to return to work. » .

6. The illegal motivation of an employer lockout:

7. .The distinctions between a lockout and a continu-

ing strike.

8. Unlawful restrictions upon’ the wearing of union

insignia. : .

_ 9. The unlawful character of an employee election

petition. | | 3 +

10. The discriminatory implementation of an economic

_ reduction in force. : .

IV. The unfair labor practices.

A. Introduction

_ Vance Air Force Base, hereafter referred to as Vance,

is one of eight bases of the Air Force Training Command

devoted to the training of pilots for the United States Air

Force Attached to Vance, itself a 2500 acre facility, are

Kegelman Field and Perry Field, two auxiliary fields’ in

the Enid, Oklahoma, area whose operations are fully inte-

grated with those of the main base. The installation at Perry -

Field was deactivated in December 1964, an event of con-

siderable moment to the parties to this proceeding.

| —12—_

[APPENDIX] : :

Respondent’s function at Vance was described by its

President Truman Miller as one of responsibility for the .

operation and maintenance of ‘the base in.support of its

flight training mission, a function. which does not appear

to be assigned to a civilian organization at any of the other

Training Command bases. Thus Respondent is responsible

for the maintenance of all the facilities and equipment used *

in the pilot training program, including the servicing of’

aircraft, utilities and base installations, the handling of °

supplies, and the safeguarding of equipment and personnel.

To this end approximately 1100 civilians are employed by

Respondent; approximately 600 of these are employed in

the Division of Aircraft Maintenance and 80 in the Fire |

‘and Rescue Department, both organizations being the ones

_ principally involved here. In the Aircraft Maintenance Di-

vision of which John Hill is director, there are seven major

units: the base shops, periodic inspection, pipeline, jet en-

gine field maintenance (JEFM), unscheduled maintenance,

quality control, and maintenance control. The Fire and Res-

cue -Department, as its title suggests, is equipped: to fight

- the usual variety of building conflagrations, but its more

specificefunctions deal with the protection of aircraft and

personnel on the field and flight line, and in the hangars,

and to provide the necessary rescue facilities.

By way of further description of the training opera-

tions at Vance it appears that in addition to-the 1100 em-

ployed by Respondent that the military complement at the

time of the hearing was in the neighborhood of 600; 400

being pilots in the various stages of training and the remain-

ing 200 being instructors and staff. and command cadre.

' The training program extends ovér. a fifty-five. week period

and is so organized that eight classes are in progress, with

one class graduating as another commences, at an approxi-

mate six-week interval. Except insofar as military replace-

ments were used on the occasion of one walkout the mili-

tary personnel at Vance has no connection whatever with

any of.the incidents described herein.

Sirs NIE ting ATONE TaN a lS Sa

_—

. , ’ | [APPENDIX]

Throughout the hearing the character and quality of

. aircraft maintenance was continually emphasized. Thus the

type of plane in the training service at Vance was described

‘as a fighter plane of the T-38 variety—a highly developed

jet aireraft capable of attaining supersonic speeds and pow-

ered by a jet engine—the G. E. J-85, whose advanced im-

provements required a high\degree of attention and mainte-

nance not lightly to be compared with the garden variety

of combustion engines, or indeed with jet engines of an

earlier vintage. Accordingly, the standards maintained by

Respondent in its performance of services were shown to

be of the high degree required in the treatment of precision

machinery, and at all.times were intended to conform to

standards established and continually revised upward by

‘the Air Force, as promulgated in the various manuals to

which Respondent and its employees were required strictly

to adhere. . ri. ? 3

Significant to the issues presented by this case are

several rules or policies derived from or directly related

to Air Force requirements and standards. These pertained

to (1) the elimination of foreign object damage, (2): the

interval. of periodic inspection of jet engines, ‘(3) the’ pro-

tection of employees from diversionary activities, and (4)

the maintenance of crew integrity. -

' The foreign object damage referred to hereafter is the

_ resulting havoc caused by the introduction of small objects

into the working mechanism of jet engines. It is well estab-

lished that even .the smallest screw or washer, not to men-

- . tion screwdrivers or metal -names plates, could effectively

demolish a jet engine, and if such occurred in flight the .

consequences to aircraft and ‘pilot would be obvious. A

continuing program to minimize this, hazard has always

been high on the Air Force’s priority of safety precaution

and is significantly. relevant to a program of badge: display

carried out by the employees and discussed in detail here-

after (infra, pp. 42 and 77).

Eb T Re iS és a

a

, ; — }4—

[APPENDIX]

Periodic inspection of jet engines is one of the basic

phases of the aircraft maintenance program. Depending

upon the type of engine involved a specific time interval

is established ‘after which the required inspection is per-

formed by the employees assigned to the Periodic Inspec-

tion Shop. In early 1964 the interval for the periodic inspec-

tion of the J-85 engine in service at Vance was 100 hours.

Thereafter,-for technical reasons adopted by the Air Force

and set forth in appropriate directives to individuals and

units concerned, the interval was raised from 100 hours

to 200 hours, thus permitting the J-85 engine to remain

, in service twice as long between inspections.

_ The pratection of employees from diversionary activi-

ties was a responsibility imposed by the Training Command

to maintain effective workmanship among the maintenance .

mechanics without undue distraction from their work. In ©

this respect, as will be detailed hereafter, Réspondent pro-

mulgated -by notice a rule restricting solicitation of em-

ployees by others. Portions of this rule and its enforcement

has been alleged to constitute an unfair labor practice.

The maintenance of crew integrity was a management

policy approved by the Air Force to insure that an engine

be worked on by an established crew rather than a fluctu-

ating group of individual mechanics..Inherent in this policy _

was the goal of more-effective maintenance and inspection, —

ito the principal benefit of those who would fly the plane.

Consistent with this concept of crew integrity, employees

were reassigned and allegedly segregated into new crews,

an operation alleged to have been instituted for discrimina-

tory purposes and to be considered in detail hereafter

(infra, pp. 29-30).

3 The foregoing is a synthesis of the testimony of Col. James Little,

Major Eugene Bartolich, Major John Troubaugh, and President Tru-

man Miller whom I have credited generally, and of Assistant General

Manager John Hood and Director of Aircraft Maintenance John Hill,

both of whose special competence in the area being considered war-

rants reliance upon their’ testimony. |

—15— |

; CAPPENDIX]

B. Sequence of events

1. Union activity and representation

As early as November 1960 union activity among the

_ Respondent’s employees was manifest by a conspicuously

posted notice relating to its employees’ union activities. 4

Since then and to the time of the hearing it is stipulated ~

that the following notice appeared on all company bulletin

boards at or near the timeclocks at Vance, Kegelman and

Perry Fields: | : . |

_ TO ALL EMPLOYEES

Since the Union is again putting on a campaign ‘to ;

get in here, some of you have been asking questions in et

regard to the following matters. We have decided to

state the Company’s position on these subjects as clearly i

as we can for everybody alike: |

(1) This matter is, of course, one of concern’to the

Company. It is, however, also a matter of serious

concern to you and our sincere belief is that if this

Union were to come into this Plant, it would not

work to your benefit but to your serious harm.

(2) It is our positive intention to oppose this Union

and by every proper means to prevent it from getting

in here. :

(3) We would like to make it clear that it is not ae

necessary, and it is not.ever going to be necessary,

for anybody to belong to any Union in order to work ‘

in this Plant. aa

(4) Those who might join or belong to this Union .

are not going to get any advantages or any preferred

treatment of any sort over those who do not join or :

belong to any Union. j

(5) If anybody causes you any trouble at your |

work or puts you under any sort.of~pressure to join — :

Fi

oni en

P| ee ets lee ~

me age a th, etna

—16—

[APPENDIX]

the Union, you should let the OOOO know, and

we will undertake to see that this is stopped.

(6) No person will be allowed to carry on Union

organizing activities on the job. Anybody who does

so and who thereby neglects his own work or inter-

feres with the work of others will be Gress to dis--

charge.

Anybody who tells you anything contrary to any of

the foregoing is not telling. you the truth.

TRUMAN W. MILLER

President & General manages

SERV-AIR, INC.

’ Vance Air Force Base, Oklahoma

From the union activity thus alluded to there emerged a

campaign resulting in an election among the employees in

the Fire and Rescue Department conducted by the Board

in Case No. 16-RC-3593 on May 6, 1964, in. which the

Union obtained a majority of the votes and was thereafter

certified as bargaining representative of a unit described as:

All employees of Respondent in the Fire and Rescue

Department of the Base Operations and Maintenance

Division, Enid, Okla., excluding office clerical em-

ployees, fire chief, platoon chiefs, guards, watchmen

and supervisors as defined in the Act.

The number of employees in this unit was reliably estab-

lished to be 85 and Respondent concedes the Union’s repre-

sentative status.

2. First evidences of active

company opposition

Previously, on February 19, 1964, a hearing in this

representation proceeding had been held and Employee

R. A. Chodrick was the only one appearing in behalf of

the Union. Thereafter on May 6, immediately following

the Union’s victory in the election Chodrick, in the company

—

: [APPENDIX]:

of Union Representative James Witcher and Employee Dodd |

Stopped off at Perry Field, as they drove from Vance to

Ponca City, and visited with the employees at Perry, dis-

cussing with them the election: results. This conversation

took place in the office trailer at the field during duty hours ©

while the employees there were drinking their coffee. As

the conversation was concluding and Chodrick, Witcher and

fellow riders were about to continue on their journey Per-

sonnel Supervisor Masemore appeared on the scene. While

there is no testimony as to any conversation that transpired

it was stipulated .that as a result of the episode Chodrick —

was presented on May 7 with a warning letter which he

refused to countersign. The letter was signed by Super-

visor Willis B. Moxley and authorized by Director of Base

Operations Cumpston and stated that Chodrick had been

warned as follows: .

In that Ressie A. Chodrick and Myron W. Dodd were

engaging in Union activities on Plant premises at Perry :

Auxiliary Base during working hours on or about 1400

hours, 6 May 1964, in violation of Company Regula- °

tions prohibiting Union activity on Plant premises dur-

ing working hours. Any further violations of Company Z|

_policy by you may result in your termination.

3. Unilateral Company decisions and actions

Prior to May 9 it had been company policy with re-

spect to the fire-fighting employees whom the Union then

represented to permit them to take a night off after having

completed 1314 hours of work, and to permit one of its

three fire-fighting crews to take Saturday and Sunday off

* at three-week intervals. On May 9, three days after the

4 The foregoing is a summary of the undenied testimony of Chodrick.

which I accept as explanatory of the stipulated warning letter. Upon

my observation of him as a witness I am not impressed with Chodrick

as a reliable witness and accordingly, with “the exception of his un-

denied account, reject his testimony unless it is corrobérated by the

testimony of credible witnesses. ,

tin ae 2 ae MARIAN. «

—13—

[APPENDIX]

employees had chosen the Union as their bargaining repre-

‘sentative, Respondent admittedly discontinued this practice

without prior consultation ‘with the Union. Thereafter on

May 12, and continuing for a period of about three or four .

weeks, Respondent, likewise without prior consultation with |

the Union, admittedly changed the night watch assignments

of employees in the bargaining unit from four men standing

night watch for two hour periods, respectively, to one man’

standing an eight hour night watch period; and on May 15

. and 21, again without prior consultation with or notice to

the Union, Respondent changed the existing lunch hours

of fire-fighting employees at Kegelman and Perry Fields.®

4. The questions of employees and

disparagement of the Union

and its members

Elsewhere at the base Respondent’s interest in the

Union became apparent as the Union began to extend its

field of operations beyond the. certified fire-fighting unit.

Thus when Employee Victor Lankard was interviewed for

employment in the base shops on June 29, 1964, J. C.

Masemore, Respondent’s Supervisor of Personnel, asked him —

his stand on the Union.* Subsequently, in late August,

Shop Superintendent Houston Sprayberry admittedly pur-

sued the same course, calling various employees into his

office between August 25 and 27 and asking them how they

felt about the Union and about the organizing drive that

was going on in the shop. Among those called was Employee

5 The foregoing incidents occurring between May 9 and 21 are found

upon the basis of a stipulation between the parties made at the

hearing as a consequence of which I granted a motion for judgment

on that particular portion of the pleadings alleging a violation of

Section 8(a) (5) of the Act, to which Respondent acquiesced, agree-

ing to be bound by the remedial order which I recommended and

which I repeat herein, and not to file se ines thereto with the

Board. See infra, p. 45. ~

6 The cerdited testimony of Lankard, Masemore had no recollection of

. the incident.

-—19— :

| [APPENDIX]

Billy Ming who credibly testified that Sprayberry, in his

office on August 26, said he wanted to obtain his opinion

about the Union. When Ming answered favoring the Union

Sprayberry mentioned that “he had been through this sort

of thing before,” and that he did not think anyone would

benefit from a union. He then commented -on the leaders

of the organizing drive as “some of the sorriest people,”

mentioning Employees Scaia, Knowlton, Mundy, and Ed- -

wards, and saying that “regardless of whether a union came

in he was getting rid of those men.” (Tr. 44). Sprayberry

concluded his conversation with Ming by asking if he knew

any of the other union organizers, and specifically, how

Employee John Kuberskey felt about the Union.

Others to whom Sprayberry spoke during this period

were Employee Thomas Willson whom he asked what he

thought of the Union and how he was going to vote; and

Employee Kenneth Edwards who was asked the same ques-

tions. In the course of this latter conversation, as Edwards

was expressing his personal approval of the Union, Spray-

berry accused him of thinking only of himself and of per- |

sonal gain and being willing thereby to “jeopardize the

jobs of 1100 men-and their families.” Thereafter on Sep-

-———~tember 10 Sprayberry had a conversation at his home with

Employee Talbert Gooday who had visited him seeking a

leave of absence. In the course of the conversation Spray-

- berry. asked him what he thought about the Union and upon

learning that Gooday favored it, said “that it would jeopar-

dize their jobs out there” (Tr. 530). Sprayberry, in defense

of his conduct, testified that he never threatened employees

during these conversations. I reject his interpretation of the

remarks attributed to him and, to the extent that he denies

the remaks themselves I do not credit him.?

RES RE ree ee PY ni

a

vars

7 Upon my observation of Sprayberry at the hearing and as a witness

I am not persuaded of his reliability as 4 witness. I accordingly do

not credit his testimony except insofar as it is corroborated by credible

witnesses or constitutes admissions contrary to his own or Respon-

dent's interests.

i a a Na cai

ee ee

a 2 ae. ta bi

, io —20—

[APPENDIX]

The record also contains the credited testimony of

Employee Russell DeHart to the effect that Morris Shackley,

a leadman in the Hydraulic Department, told a group of

employees on September 2 that if they did not get rid of

their union badges they would lose their jobs. Because the

supervisory status of Shackley was not resolved in the rec-

ord to my satisfaction I shall refrain from including this

incident among the findings’’ which support the allegation: of

theatening employees.

5. ‘The Union’s major. organizing drive

As the foregoing incidents were occurring Respondent

and the Union joined issue on the subject of Union mem- ©

bership solicitation andthe following letter dated Septem-

ber. 1, 1964, was sent to Union Representative Witcher and

‘copies prominently posted on company ‘bulletin boards:

You raised the question of solicitation on the prem-

. ises. In order that there may be no misunderstanding

as to company policy, we refer you to our printed

-Rules and Regulations relating to organizing activities .

_ which have been posted prominently on the Bulletin

Boards with a large, red border, since 1962. The first

sentence of Paragraph No. 6 of this Bulletin read, as

follows:

“No person will be allowed to carry on union

organizing activities on the job.”

This means that:

1. There will be no solicitation by any employee

during working hours, on the premises.

2. No person, who is not an employee of Serv-Air,

Inc. will be permitted to solicit on the premises.

3. As a necessary factor in maintaining order, pro-

duction, discipline, and the efficiency required of.us

= =

we [APPENDIX]

at Vance Air Force Base, there will be no papers, cards,

or literature of any kind distributed during work time,

or left.in working areas of the premises. ! :

The responsibility is yours for any misguidance you

give to any of our employees which results in disciplin-

_ary action or possible termination. _ ;

Sincerely yours,

/s/ Truman W. Miller

TRUMAN W. MILLER

’ President-General Manager

By late August the tempo of the Union’s organizing

campaign had increased substantially. Meetings were being °

held, memberships solicited, and organizers were recruited

from among the ranks of employees and issued steward’s

badges which they wore prominently about the shop. These

organizers, it appears, circulated throughout the base. in

roving bands, seeking new members. Thus Employee Knowl-

ton testified that he personally attempted to get 150 to 200.

employees to join, that he “was always soliciting in the

engine shop,” and that on August 31 a group of twelve |

employees from the engine shop, went to Hangar 141, an-

other shop, to solicit union cards. Included in this group

was Employee Alfred R. McCarty, whose activities together

with those of Employee Joe D. Haley, were the stimulation

for what transpired thereafter.

a, The McCarty discharge

‘McCarty,‘by his own admission, had entered the hangar

with the group for the express purpose of signing up new

members. Excerpts from his testimony best describes what

’ accurred:

We entered the hangar on the north side and walked _

through the hangar up to the break room and there

were several people there eating lunch, playing games.

Sa a ee Reet nde ie

- A. He was eating a sandwich.

©

99

[APPENDIX]

They were all in a group and I walked up to one group

- of people that were sitting at a table—a group of four—

_ eating lunch, and I asked one person there in particular

if he was in the Union and he said, “No” and I asked

him if he was interested in the Union and he ‘said

he was not interested. So I in turn moved to another

table, there was a group of people playing dominoes.

I asked a-gentleman there at the table if he was in

- the Union and he said, “No” and I said, “Would you

mind joining the Union and signing a card,” and he told

me hes get the hell out of there .

2 * * *

Q. What happélled immediately next?

A. Well, our group started out of the break room into

the hangar. We started across the hangar and I

noticed an employee sitting on one of those little

roll type seats under’ the nosegear of an aircraft -

Q. What was he doing?

-

* * *

A. I walked up to him and asked him if he was in

the Union and he said he was ‘not and I said,

“Would you be interested in signing a card and

joining our Union?”

* * *

How long did this conversation last, approximately?

A. The conversation lasted less than two minutes.

Well, he said he was-not interested in the Union

and he made a brief statement about that he was

forced to join a Union for a—some kind of a

music-musician Union and he would have to think

it over. So, I did not have time to fool with him

and I said, “Well, think it over and come see

Cs

Se ey ge ne

: os aks [APPENDIX]~

one of us.” And the people I was with, we turned

and walked on. I looked up and there was a man

' in the canopy of this airplane and I did not Say a

word to him because he was busy. |

- What did you do next?

A. He went-across the Hangar and there was a roll

a type work bench or desk there. There was aman °

_, there at the desk: While I believe he was busy

at something, but I do not recail.

©

Q. What did you say, if anything .

_ A. I asked him if he was working and he said he was

working and I made a remark to him that we were

not allowed to solicit on Company time, I thanked

him and went on around the end of the airplane. |

There was a fellow leaning up against the wing

of an airplane and I asked him if he was working

and he said, “I am just getting ready to start to work,”

so I began to give him my punch line, “Are you a

_ member of the Union” and he said, “No” and I. said,

“Would you be interested in joining our Union?” and

he was undetermined so I handed him a Union card

and told him to take it home and think it over and

if he was interested to bring it. back to anyone of the

committee men and hand it to him.

TRIAL EXAMINER: Then what happened?

THE WITNESss Well the group ‘broke up and went on

their merry way and I went to lunch. .

* Upon cross-examination McCarty supplied further infor-

mation, thus: :

Q. .These one hundred and fifty people that you talked

to and solicited between the 20th of August -and

the 2nd of September; did you do that all during

the lunch hour? ; :

AIS a a ret B58 ca sind

— =

CAPPEND!IX]

A. Some of the people I talked to was not on govern-

ment property and some were on government oP

erty.

Q. ._ Did you do any of that on the job? —

A. No, sir.

Q.* Until this deal on August 31?

A. I never solicited any business on Company time.

Q. Well now, you did on, August 31 solicit some

‘ people while they were "working on the job, did

_ you not?

A.. I was on my lunch hour wid I did not know they

had a shift down there at that time, .

Q. You'saw these men working on a shift, did you

not? ok :

A. The ones I talked to were + odting. playing dominoes

or sitting on their butts. :

a * * * 2, :

Q. Well, did you ever persist: in any way in talking

to them after they had told you that they were

working and did. not’ want to be bothered?

A. Normally I would cease the conversation and thank

them and go on about my business.

Q. I am asking you what you did that morning?

A. To the best of my knowledge, the people that I

noticed that were working I left alone. The people

« that were not working I walked up to them and

talked to them. They could have been on working

time when I talked to them, bat y were not working

when I talked to them.

(TR. 580-593.)

. * ee " — ens . z ‘

” = Sisteee sas io . TR aT SAS Dt Rt NS ian it D at AR RRB ta tench. Ms t

eh cre G 7 C

. : |

. ' i

/ .

95

| fs : [APPENDIX]

Upon learning of McCarty’s activities from reports sub-

_ mitted by several of the employees® Respondent’s Director

__. Of Aireraft Maintenance, John Hill, after consultation with

‘other management officials, sent for McCarty on September

2 and confronted him with the reported details of his ac-

tivities. McCarty admitted to this conduct, whereupon Hill

advised him that his.employment was being terminated for

“union activities during working hours” which Respondent

has at all times claimed. to have been in violation of the

no-solicitation rule contained in Paragraph 6 of the notice

posted in the plant.® “

.b. The Haley discharge

During the same period Employee Joe Haley was en-

gaged in soliciting activities similar to McCarty’s, with

identical consequences. On August 31, after reporting to

work at his usual 7:15 a.m. starting time Haley was directed

to go to the flight line at the north end of the field and

“pull daily preflight inspections in place of another per>~—~,

son.” After engaging in these duties until “about 8: 30”

Haley went into one of the nearby “line shacks to smoke

__.8 Employees Gerald Parker and Louis Durheim, called as witnesses by

* Respondent, credibly testified in substantial corroboration of Mc-

Carty’s account of his membership soliciting, stating in detail the

names and circumstances of his solicitation; and a statement to the:

same. general effect in ‘the handwriting of Employee Richard A.

House is also in evidence. While there is considerable Variation of

emphasis in the testimony of these men in their assessment of

McCarty’s union activity and although it is “clear that Respondent

had solicited their reports of the incident from each of them,

nevertheless the testimony supports in essential detail McCarty’s hesi-

tant and guarded admission that employees were either at work,

about to work, or resting from work while he solicited their union

membership. sia

9 Supra, p. 6. Paragraph 6 reads as follows:

No person will be allowed to carry on Union organizing activi-

ties on the job. Anybody who does so and who thereby neglects

his work or interferes with the work {of} others will be subject to

' discharge. “

@

* FA tet ona

—_26—

[APPENDIX]

a cigarette and check the time,” his break time being from

9:15 to 9:30 am. Upon entering the shack he met a fellow

employee, William Weaver, who inquired about the stew-

ard’s badge Haley was wearing. Haley explained that it

authorized him “to organize for the union.” Haley continued

Then I asked him if he would like to join and he said,

' “No,” so I put my organizer’s card in my pocket and.

started“to leave and I looked at the clock and I said, -

“Well, it is break time and I am ready to go on and

leave.”

Q.

A.

> OP

Excuse me, what time did you think the clock

said?

Nine o’clock.

All right. What happened immediately after this?

He assured me that it was only 8:30 that I had

looked at a fwenty-four hour clock and I had

misread the clock.

Was it, in fact, 8: 30, at that moment?

After recognizing it, yes, it was 8: 30.

All right.

So I turned to leave and he said, “Say let me see

one of those cards.” He said, “Say I might want

to join the union.” Again I took one out of my

pocket which was still folded, he took it out of

my hand unfolded it and read it, looked at it, then

held it up in the air so Mr. Thurman could read it

and he says, “Hey Red, would you like to join

the Union?” And Red turned around and says no,

he says that _

*® * *

Then T returned—then Red Thurman left and Wil-

liam Weaver returned the card to me and I put it

.in my pocket and then I left.

a,

[APPENDIX] -

- Q. Was either Thurman or Weaver working at any -

time during the conversation with these gentle-

men. :

A. No sir. et.

(Tr. 554-556)

* * *

Q. Now Joe, this trip that you made to the line shack

was that a customary duty that you had? s

A. Yes, sir. _ ‘

aos (Tr. 56.)

Subsequently, upon cross-examination at the hearing Haley

admitted that he had signed a-statement for the Compen-

sation Board as follows, “I was discharged from my last.

Employer, Serv-Air Inc., on September 2, 1964, for trying

to solicit Union members while on the job: at Serv-Air.”

Leadman E.. J. ‘Thurman, called as a witness by Re- |

spondent, corroborates Haley’s admissions. As Haley him-

self testified to soliciting during his normal working hours -

I find it unnecessary to rely upon Thurman’s further testi-

mony which elaborates upon the details of Haley’s solici-

tation although much of it is.at variance with Haley’s ac- .

count. The written complaint of Weaver as well as Thur-

‘man’s written report submitted immediatey after the inci-

dent also appear in the record. Weaver is no longer em-

ployed by Respondent. As in the case of Thurman, noted

above, I find it unnecessary to resolve the issue of credibility

created by Weaver’s written statement as to other solicita-

tion appeals which Haley has denied. Suffice it to say the

incident found-above admittedly occurred while Haley-was

at work which is Respondent’s stated reason of discharging

him,1°

10 | do not find it necessary to consider nor do I base my findings upon

further evidence, supplied by Hill and Thurman that other employees

and supervisors were solicited by Employees Hill and McCarty.

-

| states

—28—

LAPPENDIX]

Immediately after disposing of McCarty on September

2, Hill then sent for Haley and confronted him with the

complaints of employees that he had solicited their union

membership on company time. Hill thereupon informed

Haley that upon the basis of the information it had Re-

spondent was:terminating him for “union activity during

working hours” in violation of the posted’ notice.!!

6. The September 2 protest walkout

Immediately upon learning of Haley’s and McCarty’s

discharge on September 2, fifteen employees working in

another. shop on the base, the JEFM shop, immediately

walked off the job and proceeded to Sprayberry’s office

to protest. In Sprayberry’s absence they spoke to his assist-

- .ant, Eugene Lolmaugh, to whom they protested the dis-.

' charges as being for union activity and requested that the

two men be’ returned to their jobs. When Lolmaugh in-

formed the employees that the decision was final all fifteen

punched out their timecards;!2 this action being in con-

formance with a prearranged decision made at an August

20 union meeting, to walk out if anyone were fired for

Union activity.1* The striking employees immediately as-

sembled at a nearby motel and held a meeting attended

by Kelsey Hawkins, president of Smoke-Eaters Lodge Local

898 which represented another unit of the employees, the

firemen, and Harvey Christian, the Union’s Special Rep-

11 Haley testified that he was aware of the notice upon which Respond-

ent based his discharge.

12 The credited testimony of employees Victor Lankard and Robert

Knowlton.

The following employees in the JEFM shop walked out:

Thomas E. Anson G. F. Gooch Billy D. Ming

Franklin Brockway ‘ Robert J. Kuhimeier Donald C. Peckham

Larson L. Brown Robert Knowlton _Jesse C. Payne

Kenneth W. Edwards John W. Kuberskey Van R. Ringgold

Eldon G. Greer Victor H. Lankard Thomas D. Scaia

13 The testimony of Knowlton.

.

2S AORN ed: SG WE A te Nea EA a ES aI tle wet dee Re ORE

—29— , |

[APPENDIX}

resentative. With no indication that circumstances had

changed in the short period between their walkout and

the meeting the employees voted to return to work on the

7 following day, September 3. This they did, presenting them-

selves at the shop at 7:15 a.m.

7. The reassignment of work stations

Upon their arrival in the J EFM shop the returning

strikers were directed by Sprayberry and Foreman Don

Klepfer to work at different work stations or areas from

those in which they had previously been assigned.

It is important at this point to the determination of

the issues raised to understand the nature of the JEFM

shop where jet engine maintenance and inspections are _.

_ performed. By the nature of the work each engine is handled

by a separate work crew of four or five mechanics working

‘in designated docks or work areas. These areas, each usually:

300 square feet in area, are located in blocks of four through-

out the plant, with cross aisles adjacent to each area in

the block. In the interest of efficiency and safety it is com-

pany policy, approved by the Air Force, that crew integrity,

that is, assigned membership in a designated crew, be main-

tained (supra, pp. 15-16).

The returning strikers had been members of eight dis-

tinct crews prior to their September 2 walkout, excepting

only Kuberskey and Ming, assigned to the Gear Box Room,

and Gooch to the Cleaning Room. After the men had walked

out Respondent reassigned the crews to bring each one

~ up to full numerical strength. Accordingly when the strik-

ers returned 11 of them were constituted as three new and

separate crews, Lankard was returned to the crew he had _

left, and Kuberskey, Ming and Gooch to the work to which

they had been previously assigned.’ Sprayberry told the

men at the time. and Hill credibly explained in his testi-

mony that this realignment of the crews was essential to

insure that the adjustments made in the crews after the

CCN OILS. 6 SiR ohh he

3 ete 0,

*

aera weet

~ =

(APPEND!X) 3

men had walked out on the previous day would not be

impaired, to the detriment of. the work being performed

on the jet engines. Hill also credibly explained at the

hearing

It. was our intention in this to put the people that

were building an. engine together, and if we had to

we could set one engine off if this -crew walked ‘off

and then when they came back they could have their

same engine. |

(Tr. 920)

-In a word, the readjustment was. intended to make certain

that the people most likely.to walk off in the future would

be members of the same crews, thus lightening the effect

upon the over-all production of the’shop.

8. The September 3 protest walkout

-Within an hour of their return to work on September

3 under the reassigned conditions the employees involved

protested their relocation to Sprayberry, branding Respond-

ent's action as one of isolation and segregation in repr isal

for their strike action. When Sprayberry refused their

demand to revise the work assignments to eliminate this

> alleged indignity-the men had a brief conference and walked

off again, punching out their timecards.'* In addition to

the 15 employees who had walked out on September 2 and

again on September 3, as just described, 11 more employees

joined in the protest and walked out, making a total of 26.'*

14 The credited testimony of Knowlton and Hill, corroborating in sub-

. stantial parc Sprayberry’s description of thé incident.

15 The additional strikers were

Willard R. Bebee William L. Franklin K. C. Muir

John J. Blankenship George W. Jones _— Phillip O’Daniels

- Richard D.Canaday Darl W. Long’ Richard W. Spoonhoward

Dewey Dale Eeds Earnest E. McCalvin

All except Jones, Franklin and Muir were from the JEFM shop.

None of these additional strikers from JEFM shop had been grouped

PON IET A ION AMG. 6 1! 0 MT. 5 iB led SAR SERIE ED ae,

—31— |

[APPENDIX]

9. The unsuccessful effort to

to return to work

On the evening of their second walkout, September 3,

the 26 employees met and agreed to return’to work on

the following morning, September 4. When they did so at

7:15 a.m, of the 4th they found all of. their timecards out

of the rack and upon inquiry they were directed by Spray-

berry to report to Director of Maintenance Hill’s office.

Hill asked the men if they were willing to resume work

under the new ¢rew arrangements and Employee Van

Ringgold, speaking for the men, replied, “We will give you

till 7:45 Tuesday to put us back where we were before.”

Whereupon Hill, referring to notes which he held, stated,

“Well, since you have walked out, I have had to rearrange

my work schedule and we do not need you tod*+.” Hill

credibly testified concerning this incident in substantial

corroboration of Employee Knowlfon, upon whose testimony

this account is based.'® By way of explanation Hill further

testified that he considered the men’s ultimatum of return-

_ ing to the original positions by the following Tuesday to

be a condition under which they would return immediately

and he accordingly refused to permit them to resume work.

The men again walked out.

10. The base shop walkout

- As news of what occurred circulated aniong the em-

ployees a number of those working at the other end of the

base—at, the base shops—joined in the walkout in protest

of what they-considered to be a lockout on that morning of

15 (Continued )

in the so-called segregated arcas, although four of them, and: many

other employees in the shop, had been reassigned to other positions

as part of Respondent's accommodation move after the first walkout,

September 2.

16 Hill identified Payne as the men’s spokesman, whereas Knowlion

testified that Ringgold stepped from behind Payne and spoke up. I

do not deem this variant to be of significance. ;

ae:

2 ORAL RT EAN x -

—32—

[APPENDIX]

the original 26 strikers.17 According to Hill this walkout: |

caused a chain reaction in other shops throughout the base

and other employees, not specifically identified, 7 the

strike. .

11. The Septecnber 4 offer to return

On the ‘evening of Friday, September 4, the three

protesting groups of employees, namely the original 15 from

the JEFM shop, the 11 who joined them, and the base shop

employees, met with Union Representative Christian and

authorized him to make an unconditional offer in their

behalf to the Company to return to work on September 8,

the next working day following the coming holiday week-

end. Christian’s offer in behalf of the employees took the

form of a telegram to the Company dated September 4

‘which first recited that the employees walked off because

of specified unfair labor practices and concluded:

The Union is respectfully demanding that the Company

cease and desist these unfair practices and to allow all

17 The credited testimony of Knowlton corroborated by Director Hill.

I do not accept Employee Woodbury’s testimony to the effect that

the base shop group’ 6f which he was the leader walked out in

protest of the Haley-McCarty discharges which had occurred two

days earlier (supra). In the first place it contradicts the corroborated

testimony of Hill with whom the base shop employees registered

their protest of the alleged JEFM segregation and lockout. Secondly,

Woodbury testified to having witnessed McCarty’s discharge. Having

done so and having waited until after the’ alleged lockout of pro-

testing strikers had occurred, it seems more reasonable to conclude

that it was the lockout and not the earlier discharges which prompted

the base shop walkout.

The following walked out on September 4, joining the other 26:

‘Ronald Ayoder — Lloyd A. Gloyer Robert Summers

Don Alcorn Kenneth Critz = Doyle L. Stone

John W. Bly Bill Medina Wallace St. Clair

Jack Brazzel Bobby Meador Gary Struble

Elmer L. Brown _— Robert D. Neely Marvin L. Turner

Bobby G. Clark = James Pruner Patrick T. Van Leer

Russell L. Dehart Billy W. Ramsey William F. Wilketson ~

Luke L. Draffin Edward J. Rollo Walter Wazal

Teddy Edwards Olen Smith Roy D. Woodbury

: Thomas Roberson

\

= =

; C[APPENDIXx}

concerned to return to their jobs without any more

‘retaliatory measures being taken against thern because

of their concerted action. ’

An immediate reply as to the Company’s intent is re-

quested. .

12. The September 8 base shop lockout

and JEFM shop walkout

On the morning of September 8, all of the employees

previously on strike, both JEFM and base shop personnel,

‘ appeared for work. Sprayberry told the J EFM group that

Hill wanted to see them and they went to the Break Room

to await his arriva].18 Meanwhile Hill was at ‘the base

shop where he met with the group who had returned to

work there. Hill told them that he had no work for them

at that time, Employee Woodbury quoting him as saying,

“Due to the rearranging of work schedules, we don’t have

any work for. you today.” No other employee present at

this meeting was called to testify but Director Hill’s version .

does appear to be in substantial accord, adding that he

told the men that he had already made. arrangements for

that day and: “if their intentions were to come back: they

should notify me so I could make arrangements to put them

back to work.” In his testimony Hill explained at length

the extent to which arrangements had been made on the

previous Friday, September 4, when the JEFM employees

refused to accept permanently their reassigned work sta-

tions and had again walked out, in the company of the base

shop group. Thus, to insure that the production at the base

shop would not be curtailed if the group remained out on

the following Tuesday, September 8, and thereafter, reas-

signments of work leads and duties were made among

employees and supervisors in the several shops comprising

.the base shop area and on Tuesday morning when the men

appeared for work these prior arrangements for that day’s

. 18 The testimony of Knowlton.

AB AAP a He Trea ys Rise

Pete atte

oh

[APPENDIX]

emergency operations venrentel putting the people imme-

-diately to work. I credit Hill’s explanation of this situation

as it existed when the base shop employees thus presented

themselves. I do not at this point, however, pass judgment

on the wisdom of the decision.

Following Hill’s refusal to permit the returning base

shop strikers to resume their work.all of them got into

their cars and in a noisy cavalcade proceeded to the JEFM

shop area where the returning 26 JEFM strikers were still .

awaiting Hill’s arrival from the base shop. Before Hill

could arrive to speak to them Knowlton and the other JEFM

geturnees went out to confer with Woodbury ang the base

shop group. Upon learning that these people had been pre-

vented from working the JEFM group again walked off,

not, having yet learned whether work was available for

them. Both groups thereafter met with Christian of the

Union who again communicated with Respondent in their

behalf by telegram dated September 8, stating

Be advised that the groups that were locked-out and

the group that walked out protesting the company’s

discriminatory actions on September 8, 1964 will report

for work tomorrow September 9, 1964 at their regular

time. This is to request that their timecards be placed

in their regular place in order to eliminate any confu-

sion or misunderstanding. The group desires to work

but they want their legal rights respected.

Thereafter on the same day Respondent dispatched the

following telegram to each of the employees involved:

Although your walk-out. last week was unwarranted,

nevertheless, we have rearranged our work schedule

to accommodate your services. You are therefore noti-

fied that you may return to your wok at the usual time

on Wednesday 9 September 1964.

John S. Hill

Director of Aircraft

Maintenance

ee “ a lilt cas : AE san Da i lie enolate stata

—

[APPENDIX]

All of the employees involved returned to work on the

morning of September 9 without incident and took up their

usual duties. The employees in the JEFM shop who origi-

nally struck in protest of the changed work area assign-

ments returned to their new stations, and except for minor

operational changes, these assignments were regularly main-

tained thereafter. .

13. Further questioning by Company officials

In the comparative quiet that pervaded for the next

several weeks!® representatives of Respondent and the

Union met and bargainéd in behalf of the fire fighting

employees for whom the Union was the certified repre-

sentative. The bargaining sessions were well attended, it

appears, not only by. representatives of the principles but

by active Union adherents among the employees from other

parts of the base. These spectators referred to themselves

as “the gallery” and included Employee Knowlton who

was also active in the series of walkouts which had just

subsided. During one of the breaks at the September 9 bar-

gaining session Assistant General Manager. Hood walked

up to Knowlton and, noting the steward badge he was

wearing, asked him who he was and if he were among

those who had walked out.2°

19 During this period, it will be recalled however, that Sprayberry, upon

questioning Employee Gooday and finding that he favored the Union

told him that the Union would jeopardize their jobs (supra, p. 45).

20 The credited testimony of Knowlton corroborated by Hood who

admitted to the conversation, describing it as one in which he intro-

I do not credit so much of Knowlton’s testimony, however, to _

the effect that by Hood's so-called interrogation of him he “was

still just as scared as if /he/ had been at the base.” From my

observation of Knowlton, from the credited evidence. of his militant

leadership in the Union, and from the circumstances surrounding

the conversation, as described by him and Hood, I am convinced that

he was neither scared then nor thereafter nor did he appear to be

&

of the temperament to scare easily.

Cd ‘ P :

. =

[APPENDIX]

14, The firemen’s dispute

a. The walkout

As negotiations for a firemen’s contract continued at

headquarters level in a local hotel, events back on the base

did not suggest the same spirit of negotiation. Thus on Sep-

tember 14 Employees Ressie Chodrick, a most active Union

leader among the employees (supra, p..15) and shop steward

of the firemen’s unit, sought out Fire Chief Moxley on the

morning of September 14 and.requested that he discuss

with Chodrick a number of pending grievances. Moxley ad-

vised Chodrick that this was not the proper time to hear

and process grievances and refused to discuss them. Where-

upon Chodrick repeated his request and Moxley again de-’

nied it. Choedrick then. advised Moxley that unless the

grievances were handled the firemen would walk out. Mox-

ley consulted with Assistant General Manager Hood who

appeared on the scene and was presented. with the same

request by Chodrick, who, when again told that there was

an established time for hearing grievances, replied that ©

“the people wanted the grievances heard when they wanted

them heard.” Upon Hood’s refusal to accede the firemen

at the main base walked out under the leadership of: Local

President Kelsey Hawkins and Chodrick and the firemen at*

"the auxiliary bases were notified by Chodrick to do likewise.

Upon securing proper safety clearance at these fields later

in the day the firemen. there joined the walkout.?!

21 Assistant General Manager Hood provided his version of the details

set forth above. Fire Crew Chief Jay Crowley credibly testified as to the

effect of the September 14 walkout upon the Perry Field firemen

where he was stationed.

Employee Chodrick was the only General Counsel witness whose

testimony alluded directly to the details of the firemen’s walkout.

Thus when he was asked if he had ever engaged in union activities

of which the Company had knowledge Respondent's counsel, to

expedite the proceeding, stipulated that it was fully aware of Chod-

. fick’s union activity and of the fact that of all the employees he

was the only one appearing as a witness at the earlier representa-

ete i CRIES ae a

) b. The offer to return

—37—

‘CAPRENDIXx]

At this point normal avenues of communications be-

tween all the parties concerned appear to have been super-

ceded by the telegram. Immediate efforts were made on all

Sides to effect a return to work,*? the method of effecting

it depended upon the viewpoint of the party writing the

" message. Because it has been claimed on the one side that

unconditional offers to return were not made and on the

other that obstacles to return were set up and a lockout,

in effect, instituted, I shall set forth, with regret for the

:*1 (Continued )

tion hearing. When counsel for’ the General Counsel then sought

to question Chodrick further on his activities “to prove that this

man was more active than the others” | precluded ‘him, indicating

that the stipulation adequately established this “fact, as I now find

that it does. In an excess of caution counsel sought to make an offer

of proof of Chodrick’s activity, which J “indicated he might : do.

that the Company was

agreed to stipulate, this time as to Chodrick’s leadership of the walk-

Out; a stipulation which I also accepted and rely upon herein. I have,

nevertheless, rejected the offer of proof of Chodrick’s prominence in

the Union, subsequently made in writing, in view of this stipulation

offered by Respondent and upon which I now find.”. ”

as it related, tangentially, to proof of company knowledge. I would

not be disposed, therefore, to consider this offer as evidence of the

September 14 event. It is also to be noted, of course, that I have not

credited Chodrick generally. (supra, fn. 4)

- Under the foregoing circumstances in the absence of credible

22 On this point I specifically reject Assistant General Manager Hood's

unsolicited remark in the record that the only reason for the walkout

was to embarrass the management ‘upon the visit to Vance of an

Air Force Inspector General’s team.

derbi wading

— on

‘ {APPENDIX} | . .

burden it creates to this decision, the exchange of commu-

nications relating to the September 14 dispute. Thus a tele-

gram from Christian to President Miller-dated September

10 describes"the grievance sought to be resolved:

Be advised that Smoke-Eaters Lodge 898 of the Inter-

national Association of Machinists protest the recent

unilateral changes in the working conditions and work

assignment of the fire department unit namely paint-

ing and mechanical work and request that these con-

ditions be returned to status quo.

Harvey Christian, Special Representative

International Association of” Machinists

On heshiseteie 15, the day following the walkout, at 10: 07

a.m. another telegram from Christian to Miller announced

the walkout, setting forth acceptable terms for settlement:

Be advised that members of Smoke-Eaters Lodge 898

Firemen’s Unit walked off their jobs at Serv-Air Inc.

in. protest of the company’s unreasonable and arbitrary

action of refusing to accept and discuss grievances aris-

ing from unilateral and arbitrary changes in working

conditions in job assignments in the bargaining unit

without negotiating these changes with the union. The

union is requesting: an immediate meeting to discuss

‘this dispute in order that the firemen can return to

their jobs under normal and usual conditions. An im-

mediate reply is requested.

Harvey Christian, Special Representative

International Association of Machinists

Miller’s telegraphic reply to Christian on the same day at

2:45. p.m. stated

Please be advised that members of Smoke Eaters Lodge

‘ 898 were asked why they walked off the job and they

stated specifically that they were leaving because they

could not get their grievances heard at the time they

-—39— ,

| [APPENDIX]

demanded. ‘We respectfully rejec. the reasons stated

in your telegram of this date as the basis for the fire-

men’s unwarranted walkout. Serv-Air has never re-

fused to accept and discuss grievances from fire depart-

ment employees. We have established a scheduled time

for firemen to. present grievances to the fire chief, and

the firemen were aware of this schedule which is posted

in the fire station. We completely reject your charge

that we are requiring unilateral work of the firemen’

as referenced in our letter to you of 11 September

wherein it was pointed out that the firemen were per-

forming first echelon maintenance and housekeeping

functions to include interior painting which the fire-

men have always previously performed and considered

their normal work requirements. Not having the fire-

men available for duty when needed, has forced Serv-

Air to plan and train other personnel: in order to meet

certain test requirements imposed. by the inspector

general team, headquarters, ATC, which are Classified.

This work load, along with other requirements must

be accommodated. Therefore, we will be pleased to

meet with you Wednesday to discuss the firemen’s

interest’ in returning to work and will contact you rela-

tive to a mutually agreeable time. Please understand

that we will not, repeat we will not, discuss any so-

called grievances at this meeting. te

Truman W. Miller

President, Serv-Air Inc.

Before Miller’s telegram had been received (at 4:34 p.m.)

Christian dispatched a second telegram to Miller (at 2:59

p.m:) which he claims to be the strikers’ unconditioned offer

to return. It states as follows:

Be advised that the members of Smoke-Eaters Lodge

898 International Association of Machinists who would

be custorharily scheduled to work tomorrow Wednesday

September 16, 1964 will report to work on their regu-

TAA AM RPO ine

aes, Og Pe ee

PPAHOTNe

Oa ee ee

54

=

~~

+ le Ti neh ABNEY ie

' —40—

[APPENDIX]

lar job and place and in their usual manner. Pe further

advised they ‘are interested in returning to their jobs |

and remaining on their jobs as long as the company

doesn’t create new instances that would cause another

disturbance.

Harvey Christian, Special Representative

International Association of Machinists

That same evening of September 15 Miller a, to Chris-

tian’s earlier offer stating:

The conditions set forth in your telegram are unaccept-

able to Serv-Air relative to firemen returning to work

Wednesday inasmuch as the firemen walked off with-

out justification and the basis of their return to em-

ployment would have to be unconditional; and that

they may be depended upon to provide the service

for which they were employed. Serv-Air specifically

- rejects your inference that the cempany has created

any instance which would justify the irresponsible

walkout of the firemen. In the absence of adequate

assurance that the firemen’s proposal to return to:work

will be unconditional and in view of the fact that we .

have programmed our work requirements on the basis

that the firemen would not be at work Wednesday (16)

‘ September 1964, we will not require.their services on

that date. This telegram does not supersede our offer

. to meet with you tomorrow.

Truman W. Miller

President, Serv-Air Inc.

Thereafter on the afternoon of September 16 Christian com-

plained to the Regional Director of the Board that Air Force

personnel were being used as replacements performing the

firemen’s fighting and rescue duties on the flight lines and

elsewhere at the base. On the following day, September 17,

he again wired the Regional Director, this time referring to

his earlier telegram of September 15 as “restating” the

POL OPENS dat A SARS OSE TOPS

= a

[APPENDIX]

union position that the firemen were “ready, willing and

able to return to their jobs unconditionally”; to which

Miller wired a rejoinder, also on Thursday, September 17,

to the Regional Director and Christian stating the Com-

pany’s position that the September 15 offer to return was

not acceptable because it was not unconditional and that

the men could return on Saturday, September 19 if the °

Union’s most recent telegram to the Regional Director was

intended to constitute an unconditional. offer.’ Meanwhile

on September 16 at 6:15 a.m. seven of the firemen at Perry

Field made themselves available for work but were told by

Respondent’s auditor, Robert Van Buren, that no work was

available for them and they returned to their homes.?3 | ’

As all.of the foregoing communications were in transit

Hood, in behalf of Respondent, and Christian met with a

Federal mediator where the dominant issue. appears to have

been whether or not the offer to return was or was not

unconditional. The Company was adamant that the ‘uncon-

ditional nature of the offer be stated with precision; whereas

Christian, relying on the language of his telegram (supra)

setting forth the terms of the employees’ return restated it

at the: meeting, Respondent would not accept it. Finally,

on September 17, after Hood and the Federal mediator had

suggested language which they believed would clearly indi-

cate the employees’ intent, the firemen at Perry Field signed

an unconditional offer to return which the Company ac-

cepted unconditionally. The remaining firemen followed suit

and all returned to work on Friday, September 18.24

23 The credited, undenied testimony of Employee Jay Crowley. Van

Buren ‘was not questioned on the subject when called as a witness

‘by the Respondent.

24 The employees who engaged in this walkout were stipulated to be

the following, and appear as Appendix H in the consolidated com-

plaint:

Ernest W. Adams Gordon T. Edwards J. L. Niles

Elmer L. Allen Robert L. Fields Dickie D: Pritchard

Billy J. Avery Marshall Frazier, Jr. Charles A. Ramey

PERSE I

Bae

CONN ORES TORIES INS NRO saree

‘

AO ROPTI HP NE FOP ERAT Iw Mp sail

eo EF Woe +

ME ARREITE Sing

a ae

[APPENDIX]

15. The buttons and badges

The heightening tempo of the organizing campaign was

- manifest by the ‘increasing frequency with which Union

adherents indulged in the practice of wearing varieties of

badges indicating their Union allegiance. These badges took

‘many forms, a number of which were displayed at the

hearing and appear among the exhibits. Thus Union ad-

herents appeared at their work stations with pencils in their

shirt pockets bearing the Union insignia on the clip. The

shop stewards, of whom there were a considerable number,

wore plastic badges prominently indicating their position

and bearing the inscription “Justice on the Job,” with Union

insignia. Others wore an improvised badge consisting of a

piece of paper 3 inches in diameter pasted on a smaller

. plastic button, on which was crudely printed “I am a Union

member.” Still others wore a red 214 inch plastic button, .

_ “TAM meets tonight.” Throughout. the early Fall the more

active Union people wore one or more of these insignia

or hand painted facsimiles of them, but by mid-October

multiple badge wearing became the custom. Not only were

employees wearing two or more’badges on their shirts and

hats, plus the IAM pencil clip in their pocket, but some of |

24 (Continued )

Olin N. Ashcraft Weaver D. Gamble Leonard H. Randolph

Robert L. Boon Jerry B. Grammont Lawrence D. Rowe

Robert L. Bratcher John R. Grewell Jack R. Roy

Cecil F. Carroll Francis A. Harris Charles G. Sanders

Jimmie R. Caywood Kelsey C. Hawkins David D. Schroeder

Jim R. Chestnut Donald L. Hildinger Robert J. Sedbrook

Donald R. Clark Willis E. Johnson Andrew F. Sima

R: A. Chodrick . Ronald D. Kihega Sanford E. Stark

Lewis F. Coulter © Marlow Kirk Sammal P. Stinson

Harvey S. Crabtree | Hubert E. Leckie James H. Sturgeon

"Jay D. Crowley Amel L. Letellier Billy D. Tooman

Harold W. Daugherty Delbert B. Luginbill Paul W. Torre

James H. Dehaas Harold L. Lunsford Ronald B. Treat

Myron W. Dodd John C. Madison Wilbur E. Unruh

Donald E. Dodson Michael V. Mitchell Larry R. Voss

Roy L. Eastin Dallas Myers. - Eugene R. Webber

. =

mretakientne ne

[APPENDIX]

them appeared with small signs pasted on their backs. Thus

Employee Knowlton, for example, not only wore two badges

each on his hat and shirt but had a 14 inch inscriptiorr

taped to his back, “Don’t be a fink, come to the Union meet-

ing tonight at 7:30 p.m.” Employee Peckham wore a similar

sign on his back. It appears, however, that some of the

- employees had actually been wearing more than one but-

ton at a time as early as August 27, and many of them,

with Company approval consistently wore plastic name

tags affixed to their shirts. Assistant General Manager Hood,

himself, wore this. type of identification “tag as well as a

badge worn by many officials and rank-and-file employees

who were opposed to the Union. This was a 2% inch white

Plastic badge with the following inscription

I am for Vance

“Keep ’em flying

No Union wanted

Beginning on October 19 Respondent commenced posi-

tive action to eliminate the mass button wearing among

the employees. Thus Hood concedes that Sprayberry called

the situation to his attention on October 19, stating his

feeling that the “badge and sign business” was getting out

of hand; that feelings in the shop were running high be-

cause of it; that the men “looked like a bunch of clowns”;

end that safety at the base was being jeopardized. Accord-

ingly it was determined to take restrictive action.?5

Previously, on October 15 Employee Knowlton with

buttons achest and a taped message on his back was called

into Sprayberry’s office together with Employee Peekham

who was similarly adorned and was also wearing a button

5 inches in diameter. Sprayberry in the presence of his

assistant, Lolmaugh, and Foreman Klepfer, told the men he

25 The testimony of Hood which I accept on this point. The facts with

respect to the badge wearing episode and its curtailment (infra)

are not in dispute. Respondent's purpose in restricting the wearing

of badges és in dispute.

1 Mieaceaiiaih

SORE | PRE RRO Ne

J MUD IRES oemeefesy rvte

Cn alec tases ie irk)

+ Wteiceg oi Ronan daebeet

, --44—

[APPENDIX]

thought their signs were childish.2® He then told them to

take the badges off and the men refused, stating their right

to wear them. They did compromise, however, by removing

their back signs. The men returned to work and continued

. thereafter to openly wear the several buttons they had

previously worn on, their persons. Thereafter on October

19 Sprayberry again sent for Knowlton and also for Em-

ployee Ken Edwards. He told them that hand painted

signs and buttons and defaced anti-union buttons would

not be permitted to be worn. Whereupon Sprayberry gave |

the two men the option of removing such buttons or “go

home.” They refused to — them and Sprayberry

punched out their timecards.?

On the following day, October 20, Sprayberry sent

for Employees Billy Ming and Peckham and asked them,

in the presence of his assistant, Lolmaugh, why they were

wearing the badge “I am a, union member,” noting they

were also wearing steward’s badges. .After some conversa-

tion on the need for the badges Sprayberry told the two

he would give them the same choice he had given other

badge wearing employees on the previous day—they could

_ Wear. one badge or the other or leave. Assistant Manager -

Hood appeared at this point in the conversation and sup-

plemented Sprayberry’s remarks by saying that the badges

' were getting out of hand, and that as they were working

for the U. S. Government-they had to make a good appear-

ance before higher officials. He then said he felt that the

whole button and badge affair had been intended as harass-

ment of management. Whereupon Ming denied Hood’s ac-

cusation and referred him to the badge that he (Hood)

was wearing—the previously described “no union wanted”

badge. (supra.) Hood then repeated Sprayberry’s utimatum

permitting the wearing of only one badge, and when the

26 Knowlton , testified that the maximum number of badges he -wore

on any occasion were two on his chest and two in his hat.

27 The credited testimony of Knowlton. -

essa seshisites

wa SE eae “Anon cucu claudia coca

.

— oe

[APPENDIX]

two employees refused to comply he directed Sprayberry

to punch out their cards, stating that they could come back

to work if they took the badges off.28

On the same day, October 20, Respondent posted a

notice respecting the wearing of buttons. It read as follows:

ADMINISTRATIVE CIRCULAR

NO. 9

SUBJECT: Wearing of Buttons or Badges ‘by Em- |

ployees

1, Effective immediately Serv-Air Emptoyees will be

permitted to wear only one button on their uni-

forms or outer garments while on duty. This can

be one (1) union button or one (1) company

button. This policy has become necessary for the |

following reasons: :

A. Many employees work around and on Jet En-

gines where the wearing of any unnecessary

buttons or badges becomes a safety hazard.

B. In order to maintain the appearance of a re-.

sponsible working organization to our custo-

mer, the United States Air Force.

C. The indiscriminate use of all types and kinds

of buttons is causing disharmony among all

employees.

2. Directors will take action to implement this policy

immediately.

3. <A copy of this circular will be placed on our bul-

| letin boards.

/s/ John M. Hood

JOHN M. HOOD

Assistant General Manager

Serv-Air, Inc.

28 The credited testimony of Ming.

Pte erage eS GER

s ETO Eas : TNE Tes PINT P <n SRR He ORE. IGe

NOR mete FA MON leben

. —

CAPPENDIX] -

By the time this notice had been posted, however, other

employees had been confronted with the same alternatives

- as had the above four, and each went home, All employees

who left in this fashion prior to the posting of the notice

were sent the following letter:

This is to confirm to you that you have not been termi-

* nated from employment with Serv-Air and to further

state to you that we will be happy for you to return to

work provided you will abide by rules and regulations

established by the Company regarding the wearing of

badges and buttons and other adornments on your’ uni-

form. Serv-Air recognizes and has always recognized

your right to conduct legal Union activity as your

conscience dictates in accordance with the rules of

the National Labor Relations Board and Serv-Air’s

policies and procedures. Serv-Air’s policy in this re-

gard prohibits Union activity during working hours on

plant premises. -

Serv-Air’s decision te restrict the use of adornments

on outer garments among all employees is necessary

' for several reasons, and in no way has any connection

with your membership er any union activity that you

have engaged in. A copy of Administrative Circular

No. 9 spells out the reasons for this policy and is

ericlosed.

‘We regret that we had to send you home as a result of

your defiance and refusal of our request to wear only -

one button or badge. You must realize that our rules

and regulations must be applied indiscriminately to

all employees.

Again this is to inform you that you are free to return

to work at any time with the provision that you “abide

\ LE A A a a AAS NA Ni ea a ae ai od ae nt hare

a

—47—

(APPENDIX)

by rules and regulations that all other employees have

to abide by.

/s/ John §S. Hill

JOHN S. HILL:

Director,

Aircraft Maintenance?®

Following the posting of the notice on the 20th, others

who were wearing a profusion of buttons were summoned

to the office, asked by either Sprayberry or Lolmaugh if

they had read the notice, and were given a choice of either

complying or clocking out. These employees included Victor

Lankard, Ernest McCalvin and Richard Canady, all of whom

clocked out on October 23. Previously on October 21, after

the notice had been posted, Employee Thomas Willson was

given a similar ultimatum ‘by Sprayberry in his office.

After directing Willson to return to his shop and make up

his mind Sprayberry ‘followed him there and spoke to a

number of the employees who were also wearing badges.

After first singling out Employee Gooch and dismissing

him upon his refusal to remove his badges Sprayberry told

- the remaining employees, including Willson whose account

of the episode I credit, that unless they removed the badges

they would be clocked out. They all left.3° It was stipulated

at the hearing that during the same October 21-23. period

a.considerable number of other employees were terminated

under the same circumstances for the Same reasons. These

. and the dates upon which they were terminated were:

*% It is stipulated that this letter was sent to the following employees:

Robert Knowlton, Franklin Brockway, Donald Peckham, Kenneth

Edwards, Thomas Anson, Billy Ming, Robert Kuhlmefer, Van Ring-

. gold, and Thomas Scaia.

8° This October 21 group included, according to Willson:

Richard Spoonhoward Kenneth Gritz Philip O’Daniels

Edward J. Rollo Eldon Greer Willard Beebe

Larry Knapp John Blankenship Gary Struble

Stephen Ladd Darl W. Long Archie Murdy

.

oy ae ames VOM INEO Pig me MRE EITM

EE

3 = =

CAPPENDIX]

Winfred B. Haines Oct.21 Jack P. Brazzel Oct. 22

Teddy E. Edwards Oct. 21 - Roy D. Woodbury — Oct. 22

Ronald A. Yoder Oct:21 Bobby Meadors Oct. 22

Jesse E. Payne Oct.21 James Pruner ~—~ Oct. 22

Marvin L. Turner Oct.21 ° Larson L. Brown Oct. 22

Ewald E. Schultz Oct.21- Ferris L. Collier Oct. 22

George W. Jones Oct.22 William F. Wilkerson. Oct. 22

Vernon O’Dea Oct.22 . Robert E.Summers Oct. 23

The Respondent thereafter on October 25 suspended

the enforcement of its rule-respecting the wearing of badges,

and beginning on October 26 the men returned to work,

many of them continuing to wear their respective assort-

ment of insignia. On October 27 Respondent posted its

Administrative Bulletin, No. 10 noting the opposition of

employees to the badge rule and announcing an immediate

suspension of the rule pending final determination of the

legality of if by the Board (referring to the instant pro-

ceeding).

16. The employee election petition

Beginning sometime in late October 1964 and during

a period until shortly prior to January 8, 1965,. approxi-

mately 557 of Respondent’s total. civilian complement at

the base, estimated: to be approximately 1100, signed a

petition directed to the Regional Director of the Board’s

Sixteenth Region. Although alleged in an amendment to

. the complaint as “an anti-union petition” circulated for the -

purpose of interfering with employee statutory rights, the

petition itself bore the heading:

; WE THE UNDERSIGNED EMPLOYEES OF SERV-

AIR, INC., HEREBY MAKE KNOWN OUR REQUEST

THAT THE QUESTION OF UNION OR NO UNION

BE BROUGHT BEFORE: US IN AN ELECTION.

. . tind NT ITE AM ae Geneon eeltllases aera te teehee

. | [APPENDIX]

The letter of transmittal to the Regional Director, signed

by Panthea M. Cauldwell, a clerical employee,?! who ap-

pears to have been the most active in procuring the signa-

tures, elaborated on the stated purpose, thus,

We, the employees as shown on the attached petition,

respectfully request that your office conduct an elec-

tion ‘among the Production and Maintenance employees

of Serv-Air, Inc. The present situation is causing much’

disharmony and is detrimental to the morile of all the

workers at Vance AFB, and could, if allowed to con-

_ tinue over a long period of time, result in a disruption

of the mission at Vance AFB and therefore jeopardize

all employees’ jobs. |

We feel that we have been discriminated against by

not having the privilege of voting in the election held

May 6 at Vance AFB and that we should have a vote

in this matter at the earliest possible time.

On this petition are the Signatures of four individuals

claimed to be of supervisory rank: Donald Klepfer, E. L.

Smith, ' Morris Shackley, and William lL. Huston. Their ,

supervisory status was denied by Respondent and counsel

for the General Counsel adduced considerable testimony in

support of his claim that they were. |

Donald Klepfer, known to the 15 or 20 men who worked

under him as senior mechanic and a leadman, directed them

31 Counsel for the General Counsel sought and obtained a stipulation

‘that Miss Cauldwell ~as a clerical assistant to a Mr. Kenneth Price,

without further identifying Mr. Price. Even were I to assume that

this gentleman were a high company official, I would draw no

inference from that fact in derogation of the petition. That a clerical

employee is directly supervised by a high official is certainly grounds

neither to exclude her from the bargaining unit, nor indeed, as is

suggested here, to deprive her of her Section 7 rights to engage in

what would appear on its face to be a protected activity. Employees

may not be deemied to lose rights merely by working for major —

supervisors rather than minor ones. :

af, —50—

LAPPEND?X)

as to what engines they would work on, (sic) on them

if he found them not working, did no-manual work, at-

tended meetings in the office at which other supervisors °

were in attendance, temporarily reassigned employees from

one. work station and duty to another, and: on a number

of occasions directed employees to report to the office.

Upon the foregoing I would conclude and ‘find that Klepfer 7

is an agent and representative of Respondent and also that

he responsibly directs employees in such a manner as to.

denominate him a supervisor as defined by Section, 2(11).

Sof the Act.3?

_ William L. Huston, another senior mechanic and lead-

man, also assigned men to specific tasks and engines. He

‘has excused absences and has granted. permission to em-

ployees to take time off, assigned them to overtime work,

criticized them for failures in their reports and paperwork,

and has attended supervisory meetings.** Upon the fore-

going I conclude and find that Huston is a representative

and agent of Respondent and responsibly directs employees

within the purview of Section 2(11) of the Act thus con-

stituting him a supervisor. — |

In addition to affixing his signatere to the petition as

did 1 Klepfer and the other two, Huston, in the presence of

' Leadman Smith,** walked through the aisles of the sheet

metal and machine shop carrying the petition. Employee

Turner noted this and called to Huston, asking him to bring

the petition forms to him. Huston complied, stating “We

32 The credited testimony of Employees Ming, Kuhlmeier, and Knowl-

ton, as well as Klepfer’s own explanation of his duties.

33 The credited testimony of Employees John Hill, Knowlton, Hevr, and

Turner. —

34 In view of my conclusions.as to Klepfer and Huston I find it un-

necessary to burden this decision with further’ findings as to the

" supervisory status.of Smith and Shackley. To do so would, in my

estimation, simply constitute surplusage.

=

C[APPENDIx)

want to get an election; get this over with one way or an-

other. We do not want no union.” (Tr. 648)35

17. The JEFM reduction in force

As previously noted earlier in this decision (supra,

p. 12), the Aircraft Maintenance Program administered for

the Air Force by ‘Respondent was subject to revision as

the needs of the service and the improved efficiency of

the engines dictated. Thus, for example, it was determined

that the periodic inspection of the J-85 engine by person-

nel of the JEFM shop need no longer be performed after

every 100 hours of engine use. When the engine first went

into service the periodic inspection interval was 50 hours,

and thereafter raised to 100. During 1965 numerous confer-

ences were held. which representatives of the Air Force

and. Respondent attended, and where it was sought to de-

cide the major improvements that would be necessary to

make a 200-hour inspectiqn “interval possible, and what a

base would have to do to maintain such a 200-hour engine.

In these conferences numerous technical problems were pre-

‘sented for solution and the net conclusion was that upon

the completion of a certain amount of retooling, and the

establishment of new procedures 200 hours of periodic in-

spection interval would be approved by the Air Force Train-

ing Coramand. The Vance facilities were the first of the

Training Command bases to be qualified for this improved

maintenance inspection program. On September 2 the Re-

spondent received from the Air Force “work cards” which

set forth im detail the newly established procedures. Study

of these procedures, establishing as it did that inspections

of J-85 engines woyld be reduced by.one half, indicated

that a reduction in the work force would then be in order.

Accordingly, on October 12 Director of Aircraft Mainte-

- nance Hill notified Assistant General Manager Hood of this

prospect and indicated that a Survey would be made to

35 The credited and undenied testimony of Employee Marvin L. Turner.

¢

SR Re ae

. *

ON DLR A A TIT SN NES RR al hai

pesnens Anan 2 ar ee

* “MER apr pT se NET eo menses

—52—

[APPENDIX] a

determine the extent of the reduction. Based upon the

‘data supplied by. the Air Force it was determined that the

personnel of the JEFM shop could be reduced 20 percent

from its present complement of 80 employees.** This meant

that a reduction of 16 would be in order. By early Novem-

ber, as plans were developing to select those subject to

termination, eight employees had already left through nor-

mal attrition, leaving only eight to be disposed of by termi-

‘nation procedures.%?

Meanwhile, in anticipation of the pending layoff, Hill

wrote to the Air Force on October 14 advising that a reduc-

tion in force of eleven would be effected in the JEFM shop

on October 23 and requested that the Training Command

“be queried to determine if there are other requirements

in the foreseeable future that would justify [Respondent]

retaining these people.” Major John H. Westbrook replied

on October 22 that his office had “no knowledge of any ad-

‘ditional requirements at this time.” Accordingly, plans for

the selection of candidates for layoff which had: already

begun were then accelerated. To this end charts had been

prepared by Sprayberry and his assistant, Lolmaugh,

whereon each employee’s name appeared along the left

margin and a series of blocks provided spaces. for ratings

under specific categories with space provided at the far

right to accommodate each employee’s aggregate rating.

The categories in which the employees were evaluated were

86 There appeared to have been 86 employed there on September 4

when the work stations were reassigned (supra, p. 30).

37 The foregoing details concerning the administration of the periodic

maintenance program is the undenied testimony of Director of ©

' Aircraft Maintenance Hill who was directly responsible for its imple-

mentation and whom I credit in this respect.

*Counsel for the General Counsel stated on the record that he

was not contesting the necessity for the layoff which followed, stating

that “at some time in the fall of 1964 there was a need to lay off

some employees.” Counsel's case rests rather upon the selection

which Respondent made of employees to be laid off.

- —53—.

. [APPENDIX]

the following: Seniority, Production, Job Ability, Initiative,

Temperament, Job Attitude, Attitude Toward. Supervision,

Acceptance of Rules and Regulations, ‘Harmony with Co-

Workers. In each category except Seniority provision was

made for: five separate ratings ranging from Poor to Out-

standing; a candidate being marked Poor receiving only

one mark in the category, whereas a candidate being marked

Outstanding would receive marks in the four other rating

possibilities as well, giving him a.possible maximum of five

for each category. In the category of Seniority a mark was

given for each year or less of service up to and including

9 years. It was determined that those with the lowest ag-

gregate rating would be laid off.

On the morning of November 6 a number of the JEFM

employees were summoned to Sprayberry’s office where

Director of Aircraft Maintenance Hill was waiting for them.

The employees, all of whom were known by Respondent

to have been active in the Union and who had frequentiy

attended bargaining sessions as interested spectators, were

Thomas Anson, Jesse Bayne, Franklin Brockway, Thomas

Scaia, Robert Knowlton, Victor Lankard and Robert Kuhl-

meier. Employee Eldon Greer was also summoned but was

absent on sick leave. Hill handed Sprayberry letters which

the latter distributed among the men. The letters, addressed

to each individual present, were identical in content and

read as follows: .

We regret to inform you that your services will no

longer be required as of the close of business Novem-

ber 1964, due to a reduction in the work force in the

JEFM shop.

This reduction in work force is required due to the

change from 100 hours to 200 hours in the repair and

inspection cycle of the J-85 engine. In an effort to pre-

clude this reduction in force, Serv-Air queried the

Air Force to determine if there were any future work

requirements that would justify the Company main-

PURE TTR Gy

EE OL

tpn ay

PROTO IN IE INO ee RPO RSS

ett ERRORS SUES

IRL HPD

Gorrie

:

z —d4—

[APPENDIX] 4

taining all personnel presently employed in the JEFM

shop. The Air Force has notified us that there are no

foreseeable work requirements that would justify our

retaining all personnel in the JEFM shop. Similar re-

ductions have been programmed for all JEFM shops

in Air Training Command.

Supervisory personnel of the JEFM shop and this office

have completely reviewed the work records of all

personnel in the JEFM shop and selection of personnel

* to be laid-off was based on production, efficiency, sen-

iority, and other pertinent factors.

You will be given first consideration on any job that

comes open in the Company for which you are quali-

fied. You will receive 2 weeks pay in lieu of notice

which we hope will be of material assistance to you

and prevent any undue hardship until you can find

other employment.

We appreciate the services that you have rendered

Serv-Air during your employment and wish you well

in the future. a

/s/ John S. Hill

JOHN S. HILL

Director,

Air Craft Maintenance

Because it is claimed that these individuals thus se-

lected for layoff were victims of Respondent’s reprisal for

their acknowledged activity in behalf of the Union I shall

consider each individual separately. In this respect it is

to be noted, however, that certain facts and circumstances .

are common to all eight.-Thus they were all designated

stewards of the Union in late August, they all partici-

pated actively in the organizing drive mounted in early

September, they participated in the several walkouts pre-

viously described (supra), were the alleged victims of a

—55— |

6 [APPENDIX}

reassignment of ‘work areas, were the most prominent in

the button wearing dispute, and were each given a letter

laying them off until they complied with the button rule.

With several exceptions noted hereafter it is stipulated

that none had previously been the subject of prior disci-

plinary action,** and it is further stipulated that the Re- °

spondent was-fully aware of their respective union activi-

ties. Employees concerned never saw the rating chart which

formed the basis of their layoff, and finally that they never

discussed either the chart or the several categories con- |

tained thereon with their supervisors.

Thomas D. Scaia, a JEFM Crew Chief and a member

of the Union since October 1963, wore his union insignia

constantly since then and on August 31, 1964, as the most

active of the shop stewards, organized the recruiting drives

for new members which took place in the several hangars

and work areas around the base and which provided the

backdrop for the discharge of Employees Haley and Mc-

Carty (supra, 21-29). On that same day Scaia was-sum-

moned to Sprayberry’s office where Director Hill was wait-

ing for him. Hill presented him with a warning notice signed

by himself and Sprayberry which stated that he was being

warned for

- lack of production in that his crew has constantly

turned out the lowest number of engines of any of the

fully manned crews over a two month period. This is

caused wholly upon his lack of interest, initiative, pro-

ductivity and attitude towards his work. Immediate

improvement in these areas is ‘mandatory.

38 There are in the record Certificates of Training issued by the Air Force

to all these employees. It appears that all the employees in the JEFM

shop are at some time required to take specified techt. cal training.

I attach no significance whatever to the evidence that the eight in-

volved here may have satisfied what appears to have been a general

in-service training requirement.

“Ure es —

— os

[APPENDIX]

It is stipulated that this was the first disciplinary action

ever taken against Scaia. When asked for comments upon

the warning Scaia indicated to Hill that he had none and

left the room. Prior to this, according to Scaia, no one .

ever discussed his productivity with him. He conceded

on cross-examination, however, that his production was in

fact-down, and when asked if he gave Hill any assurances

of improvement he replied: that he made no comment but

that he immediately left and filed a grievance for having

received the warning letter. . ,

When Scaia was shown his rating upon which his se-

lection for layoff was determined this, except for the August

31 conference, was the first and only time he had been

appraised for the several categories upon which he was

being rated. He received the rating of 17, thus being in a

tie for the fourth lowest score in the shop.*®

Robert J. Kuhlmeier appears to have been the second

least senior of any of the eight laid off, having been hired

on February 17, 1964. He testified without contradiction

that during his tenure he was never criticized by his super-

visors. When he was notified of his rating he had not, to

that time, nor since seen the chart nor discussed his status

with anyone. He was-rated at 14, being the second lowest.

of the employees rated. In this respect it is to be noted that

he received only one of a possible five points for seniority,

and one of a possible five for production. With respect to

these two factors which appear to have contributed mightily

39 The foregoing is based upon admissions by Scaia at the hearing. Hav-

ing observed him during the hearing I am not disposed to and do not

rely upon his testimony except as it constitutes, as here, admissions

against his interest or is corroborated by credible witnesses. Thus I do

not accept his assertion that he does not understand the rating chart

and the grading system used. It is simple in construction and capable |

of being understood by one of normal intelligence. His stated failure

to comprehend it is deemed to be more the result of his belligerence

as displayed on the stand and at work rather than a lack of intelligence.

a . nee Ca ee ae

—57—

TAPPENDIX}

to his poor score Kuhlmeier testified that he considered

seniority and production to be proper rating scores. His

complaint then was not the categories used but the manner

in which they were applied to the rating in his case.

Robert L. Knowlton does not appear to have been a

stranger to the rating process, having been called to Spray-

berry’s office in July and confronted with a rating sheet

similar in detail to the chart used for the November 6

layoffs. The categores then were much the same and Spray-

berry had discussed these with Knowlton as they applied

at that time to his situation. Thus, according to Knowlton,

he explained that since he had taken Knowlton away from

certain employees his attitude was a lot better and that he

was raising it to “Good.” At the same time it appears that

Sprayberry indicated that they were then: removing from

Knowlton’s file ‘the record of an oral reprimand previously

given him. Respondent makes no representations, however,

that Knowlton had previously been subject to discipline.

A review of Knowlton’s position on the layoff rating: .

chart indicates that he hada rating of 16, being the third

_ lowest of all rated. A breakdown of categories discloses

further that of a possible five in each he was rated as fol-

lows: Seniority—2, Production—2, Job Ability—3, Initia-

tive—3, Temperament—1, Job Attitude—1, Attitude: to-

wards Supervision—1, Acceptance of Rules and Regulations

—l, Harmony with Co-Workers—2. None of these were

ever discussed with him between the July incident and

November 6.

Victor H. Lankard commenced work in June 1964.

Excepting only his connection with the button incident he

was never disciplined. ‘during his five months of employ-

_'ment. He was rated 22, being tied with Employee Gooday

for the position of eighth’ lowest of those rated. Gooday was

also a Union member but was not laid off. He did have

nine months more seniority than Lankard, who appears

to have been the least senior of all, but was rated as having

°

PIERO TRE) ane ag

i

ee Nae a ee ea

—58—

LAPPENDIXY

less Job Ability and Initiative. It was Gooday who had

previously been interrogated by Sprayberry and who also

testified that on November 6 he voluntarily walked off in

protest of the layoff of the other eight.

Thomas E. Anson was given a rating of 20, his rating

in Attitude towards Supervision being “Poor.” Like the

others he had no prior notice of his status and had been

subject to no disciplinary action oe the button in-

cident.

Franklin Brockway was first employed on February

10, 1964, a week before Kuhlmeier, thus receiving only

one point for Seniority. He did have three and a half years.

of prior experience with jet engines while in the Air Force.

His total rating was 20, ranking him as tied for seventh

lowest of all rated. _

Jesse E, Payne was also hir ed on February 10, "1964

and has thus accumulated but one Seniority point. His

rating, which he had never previously cacumeg with any °

supervisor, was 24.

Eldon G.. Greer, unlike the other seven who were ter-

minated on November. 6, was absent from work on sick

leave. Upon his return on November 12 he was given the

- -same termination notice as were the others (supra, p. 53).

Greer was a crew chief in the JEFM shop and had a

record of 14 years of service at Vance, the last four being

with Respondent. On the chart prepared for the November

6 layoff Greer received a rating of 19, receiving gut one

point each in Initiative, Temperament, and Attityde to-

wards Supervision. When asked if he had ever been criti-

cized Greer admitted |to a neers by ee in

Mid-1963 thus,

While I was more or less not staying in the, dock; I

- was running around the hangar more than I should,

and they thought. (TR. 689)

PT AL Sea SH, BALD in AED AN Ni

- —59— 3

[APPENDIX]

Greer also admitted to a further “oral jam session” with

Sprayberry. concerning things he was doing wrong, ending

in what appears, from Greer’s confused account, to be the

presentation to him of a written warning. And when asked

if he had received any other criticism of his work he

replied, “I don’t know the dates, but then a number of

times I have. been—oh, spoken to.”’4°

Earlier in the summer of 1964, and prior to Greer’s

wearing of a union badge, he-applied for a promotion to

a supervisory position and was interviewed by Sprayberry.

On a résumé form submitted at the hearing by Greer in

support of his application notations had been made by -

Sprayberry to indicate that Greer’s qualifications in such

- categories as Ability, Obey Orders, Incentive, Dependa-

bility were “Good.” On the November 6 rating chart Greer

received no rating in any of these categories higher than

“Fair.” ,

A critical review of the rating. chart used to determine

those subject to layoff reveals the following as the 13 lowest,

annotated to indicate those who are actually laid off:

: RANKED

NAME _ Ratine- ~~ Lowest Status

Anson +4 20 7 laid off

Brown 24 = 12 . retained

Greer 19 6 laid off

Knowlton " . ge 3 laid off

Edwards 10 1. retained

Peckham 20 7 - retained

Ringgold 17 4 retained

4° At this point in Greer’s testimony Respondent stipulated that his file

contained no record of disciplinary action taken. Counsel refused to

stipulate, however, that Greer’s termination on November 12 had no.

relation to any shortcomings that he had concerning his work or con-

duct. ' |

Se ete (a amen

OE A ER Ete

¢

ST te

fr.

LAPPEN DIX] ;

Scaia 17 4 . laid off

Gooday 22 10 quit

Brockway 20. 7 |: laid off

Payne 24 12, laid off

Lankard 22 10 laid off

Kuhlmeier 14 ; 2 laid off .

On the foregoing it is evident that the eight lowest

were not laid off. Sprayberry, who with Lolmaugh made

the ratings as well as these elections, explained this anomaly

thus: ;

That was the fourteen people that had low points on

these rating charts,*! there were eight of them on two

crews. We decided, even though the people on the two

crews that were laid off did not have the lowest points —

on this chart, in some cases, we felt it would be better’

to lay off two crews in the J-85 engine periodic inspec-

tion section which actually is the area of where we had

to lay the people off to start with.

Q. Now, were these eight people among the lowest

fourteen? |

A. Yes, sir, they were.

, * * *

We decided that we were going to have to lay the people ~

off in the periodic section or a part of the section, we

decided it would be best to layoff tWo crews that were

in this low fourteen point rating.

And it is also evident that the eight selected for layoff on

November 6 were the September 2 strikers who returned

to work on September 3 and were allegedly segregated into’

two distinct work crews (supra, p. 51). On the other hand

‘monthly production records of the Company subpoenaed by

’

41 The. rating chart, being Gesersl Counsel's Exhibit 17 (a) and (by

shows only thirteen employeés with a rating of 24 or less.

' [APPENDIX]

General Counsel and introduced by him into the record in-

dicate that of all of the full crews producing during July,

August, September and October, the Scaia crew: was the

lowest producer in July, August and October, and the second

lowest in September, and the Greer crew was the second

- lowest in July, third lowest in August, and lowest in Sep-

tember and October, tieing with the Scaia crew in the later

month.#?

18. The Perry Field reduction in force

Meanwhile the fate of Perry Field, the auxiliary base,

had been settled by a directive of November 16, 1964, of

the vice-commandant of the Air Force Training Command,

Randolph Field, Texas, ordering the field closed. Two days

later, on November 18, Headquarters, Vance Air Force Base,

notified Respondent it was terminating operations at Perry

“effective this date.” Whereupon it was determined that a

‘ reduction in force of seven firemen would be‘necessary to

accomplish the curtailment of fire and rescue operations at

Perry. A rating chart similar in form to the one set up for

the JEFM shop layoff was. prepared and consultations were

had with Christian of the Union, this matter being related

to the bargaining unit.4?

4® The crew compositions in July and August did not include the total

eight who were laid off in November as did the September and Oc-

tober records. In fact Edwards was the only one in either of these two’

crews that ‘was in either Scaia’s or Greer’s crew at the Outset, and he,

with a score of 10 was not laid off.

43 The foregoing is based upon the undenied assertions of Assistant Gen-

eral Manager Hood. Neither Christian nor Crowley, an employee at

Perry, both called to testify for the General Counsel on the third day

of the hearing, were questioned on the subject of the Perry layoff.

Upon the conclusion of General Counsel’s case the hearing re-

cessed for several months. During the intervening time Counsel for

the General Counsel’ prepared a number of written. offers of proof

which he served upon the parties and introduced into the record over

Respondent's objection? By this time Counsel for the General Counsel

had rested his case and had neither moved to reopen for the purpose

—62—

[APPENDIX]

By the time the selection of candidates for layoff was

completed one employee had already quit and only six re-

mained to be selected. Included among the six was Em-

mayer Ressie Chodrick, whose prominence in the Union’s

activities has previously been. discussed. Chodrick, a fire-

man, had been employed by Respondent for over four years

and was giving the rating of 17 on the chart, the third low-

est of a complement of 58. Prior to his employment by Re-

spondent Chodrick had four additional years of experience’

as a fireman as a Civil Service Employee.

Chodrick, it will be recalled, was the leader of the fire-

men’s walkout on September 15, had previously been active

‘ as the Union’s shop steward, and was the Union’s only wit-

ness at the representation hearing preliminary to the Union’s

certification of the firemen’s unit. No one questions that .

Chodrick was the most active. and milifant Union member

of the bargaining unit. When he was told by Hood at a meet-

ing between Hocd and Union representatives that he was

selected for layoff he and Union Representative Christian

immediately protested that his sélection was for reasons of

his Union activity and that the chart’s ratings did not rep-

resent an objective evaluation of his qualifications.

Hood, in his testimony, admitted to the Union’s protest

of Chodrick’s selection, and he also described a companion

grievance that was raised. It appears that an employee of

43 (Continued )

of supplying additional evidence nor to amend his complaint. Because

« J deem the matters contained in-these offers to constitute little more

than either an accumulation of evidence already in the record or sup-

plementry materials relating to issues on which counsel had failed to

examine the witnesses when they were on the stand I reject them as

unnecessarily burdening and confusing the record. ©

, .Christian’s expected testimony relating to the layoff of Chodrick

was in such a Category although Christian, who testified on the third

day of the- hearing, was not questioned on the subject nor was his

return to the stand requested at any time thereafter. I specifically re-

ject the offer directed to his expected testimony.

SN Sal cl NDR, SEALERS eee

—§3— rate

C[APPENDIX}

less than a year’s service, Marler, was being retained and

another, Field, with more than a year’s service, was being

laid off. Upon reconsideration of this case Hood reversed

-the decision that“had been made by his subordinates, per-

sonally notified Field that he would be retained, and told

Marler that he would be let go “due th his very little senior-

ity.’ However, Hood-told the Union representatives at that.

time that-Chodrick’s case, involving over four years senior-

ity and’ eight years experience, “would have to stand.”*4

Accordingly on November 25 Chodrick and five others were

terminated with pay running through December 3.

19. ‘The threat to pickets

The hearing in this matter was set originally for Janu-

ary 11, 1965, but did not get under way until the following

day due to transportation difficulties experienced by the

examiner. On the morning of the eleventh, however, the

employee-members of the Union, ineluding those not in the

bargaining unit, again engaged in a strike and established

a picket line at the main entrance at Vance AFB.

, The genesis of this strike is worthy of note. During the

' Fall 1964 there had been numerous unfair labor practice

charges filed with the Board’s Regional Director and by No-

- vember 27 two complaints had ‘been issued, consolidated and

amended. Finally on December 2, the Regional Director re-

44 For reasons previously stated I do not credit Hood generally but only

upon admissions contrary to his or Respondent’s interest. Accordingly .

I do not credit his denials that these selections were based upon con-

siderations of union activity. 3 ae

As I do not credit Chodrick: generally I do not rely upon the.

statements which he attributes to Hood throughout this incident to

the effect that‘ the selection of Chodrick “goes back four years” when

he was involved in a Wage and Hour grievance, or that Hood has

stated that “he had the goods on Chodrick,” the latter statement being

allegedly reported to Chodrick by Union Representative Christian who

never testified concerning it himself. (Cf. fn. 21, relating to offers of

proof which I do not accept.)

~

[APPENDIX]

scheduled to January 11, 1965 the hearing originally set for

December 15, 1964. On the following day, December 3, it

is stipulated that the Union wrote to Respondent stating its

intention to strike on January 11, 1965, thus coinciding with

the opening of the hearing. The exact purpose of the strike

- that was in progress on my arrival upon the scene was never

disclosed on the record. It is quite apparent however, that

it, like all of the Union’s activities following its certification

in the fire fighting unit, was for the purpose of organizing

the rest of the base.

During the course of this latest strike it is claimed that

a number of pickets were struck by cars approaching and

‘ passing through the main gates. And it is specifically alleged,

by way of an amendment to the complaint, that Max Cump-

- ston, Director of Base Operations, “instructed, directed and

encouraged” employees to strike picketing employees with

their autos. Employee Charles L. Cagle — the details .

of this incident which I accept.

On Friday, January 8, meetings of the employees were

called in anticipation of the strike expected on the follow-

ing Monday morning, and the ground rules respecting the

strike, rights of pickets, obligations of employees, etc., were

explained. At one such meeting addressed by the County

Sheriff, Cumpston added his own instructions. During the

question period which followed an employee asked Cump- .

ston “what if someone stepped out in front of him, one of

those pickets, when he was going through the gate.” In re-

ply Cumpston asked the questioner what he would do if “a

man ran out in front of you.” The questioner replied that °

he would have to hit him because he wouldn’t have’a chance

- to stop if he just ran out. Whereupon Cumpston replied, |

“There you have it. I guess the fence will stop him; if it

doesn’t he’ will end up in [a field].” Cagle testified without

further explanation that midway in his reply Cumpston

turned away and laughed.

' —65—

[APPENDIX]

Cumpston, called ‘by Respondent, corroborated Cagle >

and identified the questioner as.one:Tex Frazier. Frazier

was not called. In verifying the statement attributed to him

‘Cumpston credibly explained that he was using an illustra- .

tion to emphasize the fact that if someone did jump out in

front of the driver’s vehicle and he could not avoid hitting

him there would, under such circumstances, be no fault He

testified further, however, that throughout his talk and after

discussing this particular illustration that he placed much

emphasis upon the need for all employees.to drive with

extreme care. There is nothing in Cagle’s testimony to sug-

gest that he did not. | ee

Cc Analysis and conclusions

The substance of the findings I have made herein pre-

sents for consideration an interrelated series of events that

does credit to few, if any, of the parties or individuals in-

volved. They present .(1) an employer with a predilection

for resisting the principles of collective bargaining, as well

as the legitimate organizing efforts of its employees, (2) a

labor organization .whose representatives have resorted to

a peculiarly immature approach to the organizing and bar-

gaining processes and (3) a group of interested and partisan

employees whose antics are worthy of the average school

yard. Be this situation as it may, the rights of all of the ap-

proximately eleven hundred employees are concerned here

and these are the rights which deserve the fullest protec-

tion afforded by the statute, regardless of the irritants and

obstacles at hand. Accordingly, to the extent that employees

are deprived of their rights, either actually or potentially,

it is the deprivation and not the peculiar manner in which

the rights may have been asserted that will be of prime im-.

portance in the several analyses which follow. ;

1. The refusal to bargain

No one contests the Union’s status as, representative of

the employees in the Fire and Rescue Department and the

Board’s earlier findings in this respect in Case No. 16-RC-

—o—

[APPENDIX].

3593 and the very wording of Sections 8(a)(5) and 9(a)

of the Act clearly established Respondent’s obligation to

bargain collectively with such a certified representative.

Despite this obligation explicitly imposed upon Respondent

by the terms of the May 1964 certification_it admittedly

changed the working hours and conditions of its employees

in the bargaining unit in a number of respects enumerated

above, without any consultation whatever with the Union

(supra, p. 16). This, as I ruled at the hearing. upon Respond-

‘ent’s admission, constitutes a clear refusal to bargain in

violation of Section 8(a) (5), and supporting citatich of au-

thority is unnecessary in this restatement of my finding and

conclusion to the same effect. In so doing I find as a fact

that Respondent has agreed on the record to be bound by

my oral finding of a violation of Section 8(a)(5) and has

agreed further that it would file no exceptions thereto.

2. The notice

Included in the notice posted by Respondent (supra,

p. 15), at@Puite apart from its prohibition of union solicita-

tion, is a statement that the Union‘s organizing campaign

is a matter of serious concern to the Company. The notice’

states further .

It is, however, also a matter of serious concern to you

and our sincere ‘belief is that if this Union were to

come into this Plant, it would not work to your benefit

but to your serious harm.

This very phrase in an employee notice has frequently

been reviewed by the Board and found to constitute unlaw- -

ful interference, restraint and coercion.**® Indeed a varient

of the phase substituting for the last segment of the final

sentence: “but in the long run operate to your serious

45 Morris and Associates, 138 NLRB 1160; White Oak Acres, Inc., 1 34

NLRB 1145; Owens-Corning Fiberglass Corp., 146 NLRB 1492.

—_— =

[APPENDIX]

harm.”, has also been proscribed by the Board.#® Upon such _

authority, therefore, I would conclude that so much of the ©

posted: notice as I have quoted above constitutes interfer-

ence, restraint and coercion in violation of Section 8(a) (1)

of the Act. . :

3. The Haley-McCarty discharges :

The notice considered above also stated that -

(6) No person will be allowed to carry on

Union organizing activities on the job. Any-

body who does so and who thereby neglects

his own work or interferes with the work

of others will be subject to discharge.

Because this no-solicitation rule seeks to regulate em-

ployee activity only during working hours it is presump-

tively valid on its face.** If, therefore, it is illegal it is be-

cause it has been promulgated discriminatorily*® or dis-

criminatorily applied.*® It was promulgated in November

1960, long before any of the ‘incidents related herein oc-

curred, including the May 1964 representation election con- »

ducted by the Board which resulted in the Union’s certifica-

tion. Asa long term proposition this, it would seem, nulli-

fies any suggestion that the four-year promulgation of the

notice was discriminatory. I would accordingly conclude

and find that absent evidence of discriminatory promulga-

tion the no-solicitation provision of the notice, in and of

itself, is not discriminatory. There ‘remains howeyer for

——"

46 Sagamore Shirt Co., 153 NLRB No. 27. The underlined words were

added to the notice in that case. ; e,

47 The Rose Co., 154 NLRB No..19; Ward Manufacturing, Inc. 152

NLRB No. 127. Walton Manufacturing Co., 126 NLRB 697, enfd.

289 F.2d 177 (CA. 5). Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB

No. 50. * : at |

48 Ward Manufacturing, Inc., supra. °

49 Sagamore Shirt Co., supra.

ay CLIT Mas Nts cathe Nhe! We *

PMT Sse. Seana eke Win

—63—

[APPENDIX] ;

determination whether this provision of the notice’ was dis-

criminatorily applied:*$ -

Employee Alfred seCanty, by his own admission (supra,

p. 21), roamed about the plant soliciting employees during

regular working hours on August 31. A reading of his testi-

mony suggests that the only possible excuse he may have

had was his belief that some of the employees were not at

work when, in fact, they were; or that they were taking a

periodic “smoke break.” McCarty’s soliciting activity was

duly reported to Respondent's officials by those employees . a

whom he solicited and who objected to his interference.

And Respondent, upon receiving such information, enforced

the rule by imposing the stated penalty of discharge.

Common sense and a normal interpretation of:a usual

plant-rule prohibiting solicitation “on the job” or “during

working hours” certainly does not permit of distinctions so

finely drawn that workers being solicited must have tool iri

hand before the solicitation becomes improper. Nor do ‘I

believe that Respondent’s supervisors should be held to this

‘standard of vigilance in the enforcement of such a shop rule.

McCarty was, by every reasonable criteria, soliciting on the

job and upon the facts found: it is clear that his was a dis-

charge for cause. Nor does it become less because his ac-

- tivity was in behalf of the Union. The Act does not provide

‘ insulation in such circumstances.®1 Any union solicitation

is union activity and indeed it is this particular type. of

_ union activity, solicitation on the job, that can and has been

legitimately restricted.®? It cannot be used here, therefore, -

‘as General Counsel urges, as the premise for excusing a

violation of a plant rule. Finding as I do, that McCarty was

50 Sagamore Shirt Co., supra.

51 Cf. Southwire Co., 152; NLRB No. 158 seal Coca-Cola Bottling

Co., 130 NLRB 1505, 1509 and fn. 7; Wix Corporation, 132 NLRB

1059, 1078, and fn. 34.

52 Walton Manufacturing Company, supra.

—69— : |

, [APPENDIX]

properly discharged for cause I would recommend that so

_much of the complaint alleging this to be a ‘violation be

dismissed. . et

The discharge of Joe Haley stands on.no different foot- _

ing (supra, 20). There is no question but that he did solicit

an employee who was working on the job. Haley himself

testified to this, seeking to excuse the incident by explain-

ing that he mistook the time. Accepting as I do Haley’s

belief that he had misread the clock when he recruited the

employee concerned, the simple fact is that he violated the

posted rule. Accordingly, when this violation was reported

to Respondent the posted penalty for violation—discharge—

was properly: imposed. Accordingly, and upon the same con-

siderations as noted in McCarty’s case above, I conclude and

find that Haley too was discharged for cause and } shall

recommend that so much of the complaint as alleges his

discharge to be a violation of the Act be dismissed.

4. The first walkout - 7

The facts clearly establish the Haley-McCarty dis-

charges to be the direct cause of the several walkouts which :

followed (supra, p. 28). It is of no consequence, however,

that the subject matter of the protest, the discharges, turn

‘out to be for good cause and not violations of the Act, for

the distinctions between a so-called economic and an unfair

labor practice strike relate only to the aftermath; an unfair

labor practice striker being entitled to reinstatement ypon

request under -any circumstance and an economic striker

being so entitled only if he has not been permanently re-

placed.53 In no strike or walkout situation occurring herein

has representation been made that any striker was’ perma-

nently replaced. It is of no consequence, therefore, that the

strike was of one variety rather than the other. I conclude

and find, however, that the initial walkout ‘on September 2

was in fact an economic strike.

53 N.L.R.B. v, Mackey Radio and Telegraph Co., 304 US. 333, 343.

Ce ee

—70—

[APPENDIX]

. 5. The segregation of returning strikers

-Respondent’s reassignment of returning. JEFM_ shop

strikers to two specific crews (supra, p. 37) is claimed to

be unlawful as.a discriminatory reprisal for their walking

off the job. I have credited Director of Aircraft Maintenance

‘ Hill’s explanation for this reassignment as being one dic-

‘ tated by the emergency situation created .in the plant by

the walkout, and as an assurance, of sorts, that the produc-

‘tion of the shop would’ not again be completely disrupted

in case another walkout by these people occurred. «

In N.L.R.B. v, John, Brown, 380 U.S. 278, the United

States Supreme Court, holding to be lawful a lockout in

“response to a whipsaw strike, where operations continued

with temporary hélp, stated (at 283):

In the absence of proof of unlawful motivation, there

are many economic. weapons which an employer may

use that either interfere in some measure with con-

certed employee activities, or which are in some degree

discriminatory and discourage union membership, and

. yet the use of such economic*weapons does not consti-

tute conduct that is within the prohibition of either

Section 8(a)(1) or (3). See, e.g., Labor Board v. Mackey

Radio and Telegraph Co., supra; Labor Béard v. Dalton

Brick and Tile Co., 301 F.2d 886, 896. Even the Board

concedes that an employer may legitimately blunt the

effectiveness of an anticipated strike by stockpiling in-

ventories, readjusting contract. schedules, or transfer-

ring work from one plant to another, even if he thereby

makes himself “virtually strike proof.” As a general

matter he may completely liquidate his business with-

out violating either Section 8(a(1) or (3), whatever .

the impact of his action on concerted employee activi-

ties. Textile Workers v. Darlington’ Manufacturing Co.,

380 U.S. 253. ?

—l— oF ei

: [APPENDIX]

If then an ote exclusion of employees from their

work can thus be lawfully effected under certain conditions

specified by the Court, a fortiori, the assignment of em-

ployees to, specific work stations for-the purpose of safe-

guarding against future strike action would be equally per-

-missive: Thus as the Supreme. Court stated on the same day

in another me involving the legitimacy of a lockout, Ameri-

can Shipping \Building Co. v. N.L.R.B., 380 U.S. 300 at 311.

oe

. « We have consistently construed [Section 8(a)(3)]

to leave -unscathed a wide range of employer actions

taken to serve legitimate business interest in some sig- .

‘nificant fashion, even though the act committed may

tend to discourage union membership.

Upon the foregoing authority, therefore, I would con-

clude and find that the reassignment of employees to new

work stations upon their return from their strike was a safe-

guard by which “the employer may legitimately blunt the)

effectiveness of an anticipated strike,” and was neither a

. discrimination in violation of Section 8(a) (3), nor inter- —

ference, restraint and coercion in violation of Section 8(a) |

(1). I will. accordingly recommend: that so much of the

complaint that alleges such a violation ‘be dismissed.

6. The September 4 conditional offer to return

As set forth in detail earlier in this decision (supra, p. |

37-39) the treatment of the fifteen strikers upon their return

from their one day protest of Haley’s and McCarty’s dis-

charge sparked a series of walkouts. The JEFM shop em-

ployees responded in greater numbers, 26, to be exact, and

at thé end of the day they agreed, it will be recalled, to.

return to work on the following morning, to find when they

appeared that the same rearranged assignments were to be

observed. When asked if they were ready to return to work

their leader stated that they were giving the Respondent

until the following Tuesday (September 8) to rearrange the

workplace assignments to their original form. Respondent

ARR Dees. Qe

ee

Sones ae Pe eae

| —T2—

[APPENDIX] ~

interpreted this ultimatum to be a condition upon the em-

ployees’ return and refused to let them work. It is this re-

fusal on the morning of September.4 that General Counsel

alleges to be a discriminatory lockout violation Section

8 (a) (3).

It is well settled, of course, that an employer need only

reinstate strikers upon their unconditional offer. to: return

to work.>* It is critical to the issue presented, therefore, to

determine if the strikers who returned on September 4 and

were refused had placed a condition upon their willingness

to work. ; .

The Board has recently considered facts similar to this

in Northeast Products Co., Inc., 147 NLRB 675, holding that

where strikers were unwilling to work on existing terms but -

only upon proposed new terms the employer “was reason-

ably justified in regarding the strike as not yet over.” Re-

lating this case to the instant one the assertion of Employee -

Ringgold (supra, p. 37-39), speaking for the men, “We will

five you till 7:45 Tuesday to put us back where we were

before,” is on no different footing. Upon it I conclude and

find that Respondent’s Hill was “reasonably justified,” as

’ was the employer in the cited case, “in regarding the strike |

as not yet over.” Accordingly, I would recommiend that so

much of the complaint as alleges the employees’ September

4 absence from work as a lockout in violation of Section

8(a)(3) and (1) be dismissed.

‘7. The unlawful lockout of September 8

The continuing walkout on September 4, augmented by

at least 28 more employees (supra, p. 33 and fn. 17) was

interrupted by still another offer to return—this return set

for the morning of September 8. By this offer the Union,

speaking for the strikers, “respectfully demanding that the

54. Deaton Truck Line, Inc., 152 NLRB No. 137, fn. 10; Park Edge Sheri-

dan Meats, Inc., 139 NLRB 748, enfd. 323 F.2d 956.(C.A. 2).

—73— ‘

' [APPENDIX]

Company .. . allow all concerned to return to their jobs

without any more ‘retaliatory measures being taken against

them because of their concerted activities.” This request to

return, unlike the previous one, had no condition attached

to it. By it the men were ready, willing and able to work,

expecting that when they did so they would not be pun-

ished. This is not a condition; it is simply an expression of

their right not to be hurt. When the men employed at the

base shop appeared for work on the morning of September

8, however, they were refused, Respondent insisting it had

already made its emergency arrangements at the base shop

for that day’s work in anticipation of a continuing strike.

When the returning strikers employed in the JEFM shop

learned of the treatment of the base shop strikers this group

again walked off their jobs in protest. ° —

‘Here we have two separate’ situations. One group al-

legedly locked-out—the base shop employees. Another group

who never waited to learn if they had work, but who left

in protest—the JEFM employees. The former has been de-

prived of work, the latter has not—and the distinction is

critical in remedying any loss of pay that may have oc-

curred.

- Accepting on its face Respondent’s reasons for curtail-

ing base shop work on the morning of September 8 as being

prompted by operational necessity it remains to be seen if

this justifies locking out the base shop people for that day; .

remembering of course, that on September 4, immediately

before the intervening weekend, the striking employees

made what I have already found to be an unconditional offer

to be at work on the 8th.

Preliminary to any consideration.of a lockout as a Sec- .

tione8(a)(3) violation is the assessment of the employer’s

motive. Cf. N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221;

* American Ship Building Co. v. N.L.R.B., supra. Respond-

ent’s motives are manifest. Thus it has already been found .

eS ae ee *

TO ee Toe

sec a hale ae

. *

a MM CNA aaa, abide icsend ean ie

—T4—

[APPENDIX]

that’ Respondent has an ‘admitted the pediapnitiiee to ig-

nore its bargaining obligations with the Union (supra, p. 66),

and in addition, it has made repeated inquiries of its em-

_ ployees as to the Union, its campaign, and their position

with respect to it, it has singled out its leaders for criticism,

has told other employees that the Union would jeopardize

their jobs (supra, p. 18, all of which I conclude and find to

be unlawful interference, restraint and coercion in violation

of Section 8(a) (1).°° Added to this Respondent has posted

- a notice, the essence of which I have already found to con-

stitute a threat (supra, p. 66) and which states in paragraph

2 that “it is our positive intention to oppose this Union and

by every proper means to prevent it from getting in here,”

and, as the recitation of all the facts herein disclosed, it has

carried on throughout the entire period covered by this De-

cision its own harassment of the Union which I will con-

sider in detail as we continue in this Decision. Under all the

circumstances enumerated above, therefore, and upon the

facts found herein, I can and do infer from them Respond-

ent’s antipathy to the Union. Being so motivated and with

three working days in which-.to prepare (September 5, 6

and 7) I would conclude and find that Respondent’s failure

fo accept the strikers’ September 4 unconditional offer to

return was in fact rejected because of the Respondent’s

antipathy to the Union and that the alleged unpreparedness

of the base shop on September 8 when the men appeared

there for work was but a contrived excuse to put them off

for another day. With three days in which to adjust itself -

it cannot be heard to say that the men’s arrival on the

morning of the eighth caught them unprepared and thereby

justified depriving these men of work until the following

day. I find Respondent’s excuse to be but a pretext for its

desire to thwart or punish its employees for engaging in

-a legitimate concerted activity. I accordingly conclude and

find that Respondent’s. one day lockout of the base shop

55 Cf. Fontainbleu Hotel Corp., 131 NLRB 14, fn. 2.

—T5—

[APPENDIX]

employees whose names are enumerated in fn. 17 supra, as

discriminatory and a violation of Section 8(a)(3) and (1)

of the Act.

I am conscious, to _ sure, of a distinction that I —

made herein in the application of the law governing an

employer’s resort to self help. Earlier I justified a reassign-

ment of work stations as a legitimate anticipation of future

strike activity, citing recent Supreme Court decisions. Here

I have found a subsequent lockout: to be unlawful. This, it

would seem, is the element of balance suggested by .the

Court in John Brown v. N.L.R.B., supra: While I have not

overlooked the likelihood of a continuing anti-union moti-

vation on Respondent’s part I would direct my conclusions

to the consequences rather than to the acts themselves. Thus

the reassignment of work stations deemed to be justified

was, at most, an inconvenience to employees. The lockout

above, on the contrary, was not shown to be justified but

to be motivated by a spirit of reprisal. This constituted, not

a mere inconvenience in work location, but an computable

loss of pay. :

Because there is no evidence that the J EFM employees

' were deprived of work on September 8 and upon the evi-

dence that they actively refrained from work in protest of

the base shop lockout I specifically conclude and find that

no. discrimination was visited upon this group on this oc-

casion. Indeed Union Representative Christian’s telegram

dated September 8 establishes this very fact, specifically

identifying two distinct groups as “the groups. that were

locked out and the group that walked out protesting .. .”

I accordingly recommend that so much of the complaint

as alleges the absence from work of the JEFM strikers on

September 8 to be a violation of Section 8(a)(1) and (3) be

dismissed.

BE PRL ER EY a

-

renee, 5

bis

PRAY ORL NINE pe

idles

[APPENDIX]

8. The Firemen’s walkout and lockout

_ The walkout of the firemen on September 14 is set

forth in the findings above (supra, p. 36) and appears to

have been prompted by Respondent’s unwillingness to en-

gage in an immediate, on-the-spot settlement of a grievance

_ of undetermined merit. Regardless of the clouded circum-

stances and the questionable wisdom which prompted the

men to walk out there is nothing in the record to suggest

it was not a protected activity. And because all were subse-

‘quently. returned to their job it is of no consequence that

this was or was not an unfair labor practice strike. Actually

it is the circumstance of their return that is at issue.

Detailed in the facts (supra, p. 38) is the Union’s tele-

gram of September 15 “advising” Respondent that the em-

ployee members of the Union would report to work on the

following day, September 16. Respondent rejected this offer,

calling it a conditional one which ‘it was not obliged to ac- ~

cept. The portion of the Union’s offer claimed to be a con-

dition was the following sentence in the telegram: .

Be. further advised that they are interested in return-

ing to their jobs and remaining on their jobs as long.

- as the Company doesn’t create new instances that would

cause another disturbance. (Emphasis supplied)

| This is the Respondent’s second such objection to an :

employee offer to return (supra, p. 34). A reading of this —

one makes it abundantly clear that the employees were

attaching no strings whatever to their return. What they

did was to reserve their rights, for the future and after they °

returned -to work, not to be hurt. I would conclude and find

that the employees in the fire fighting unit accordingly

offered unconditionally to return to work on September 16,

and indeed seven actually appeared for work at Perry Field

and were refused. When thereafter Respondent, by its presi-

dent’s letter, refused to accept this unconditioned offer it

.

pa ee

TAP PENDIX 1

effectively estan out the employees. The employees re-

mained in this status until September 17 when they adopted

language acceptable to Respohdent. During this intervening

time, September 16 and 17, based upon my earlier conclu-

sions respecting Respondenf’s anti-union motivation (supra,

p. 73, 74) I conclude and find that the men were excluded

from their jobs by Respondent for retaliatory reasons in

violation of Section 8(a)(3) and .(1) of the Act.5¢

9. The buttons and badges

The ludicrous spectacle of Union adherents and Re-

spondent’s representatives seeking to outdo each other in a

childish display of buttons and badges of all sizes and de-

scriptions nonetheless presents a serious legal issue quite

apart from its comic aspects (supra, p. 42).

Upon the conclusion of General Counsel’s presentation

of evidence dealing with both the. button wearing and the

subsequent disciplinary terminations I dénied Respondent’s

motion to dismiss so much of thé complaint as alleged dis-

charges for such a reason to be a discrimination in violation

of the Act. Upon hearing evidence adduced by Respondent

in support of its reason for the rule and the terminations I

reaffirm my ruling and find a violation of Section 8(a) (3)

and (1). of the Act. .—

It is well settled that the promulgation of a rule pro-

hibiting the wearing of Union insignia constitutes a viola-

tion of Section 8(a) (1) in the absence of evidence of “spe- -

cial circumstances” showing that such a rule is necessary

to maintain production and discipline.®* It would follow,

56 In this respect it is to be noted that the employees at Perry Field re-

turned on September 17, and all others on September 18.

57 Floridan Hotel of Tampa, Inc., 137 NLRB 1484; Fabri-Tek Inc., 148

NLRB No. 156; Parker Seal Co., 149 NLRB No. 73; Harrah’s Club,

150 NLRB No. 169; The Annin Co., Division of Worthington Corp.,

151 NLRB No. 147.

en ae eee

[APPENDIX]

-—

as a logical consequence, therefore, that a discharge pur-

suant to such a rule would constitute discrimination in vio-

lation of Section 8(a)(3).

It is Respondent’s contention, of course, that “special

circumstances” do justify its conduct ‘here, referring to

the disruptive influence upon both production and the har-

mony in the plant, and to the danger to the jet engines in-

herent in the presence of “foreign objects” on the persons

of those wérking on and near such engines.

_ With respect to its claim that the wearing of insignia

creates a disruptive afmosphere it would seem that Re-

spondent’s own actions defeat its position. Thus, in the first

place, its rule restricts the employees to the.wearing of one

button of their choice, It is difficult to perceive how if each

partisan union member were to wear one button the pro-

duction would be less disrupted and the plant harmony less

disturbed than if they each wore more than one. It would

seem more reasonable to expect that production and har-

mony-would be effected, if at all, by buttons or ho buttons;

but certainly yes on a quantative basis. Moreover, if this

objective was/seriously being sought by Respondent it is

equally difficult to understand how it could be encouraged,

or was intended to be encouraged, by Respondent’s own

officials, including Assistant General Manager Hood, and —

those employees who opposed the Union, each wearing but-

tons of like dimensions expressing opposition to the Pnion.

Indeed if dissension had not been generated by the appear-

ance of union buttons I can conjure no more effective way

to generate it than by Hood’s appearance wearing an oppo-

sition button. Furthermore, it seems obvious that Respond-

ent’s fears for production and disharmony were of recent

_ origin. Thus, Employee Knowlton credibly testified that

prior to August 28 many of the employees were wearing

-more than one union button in the presence of supervisors

_and were never noticed or reprimanded for it. Nor was it

thereafter mentioned to them as a deterrent to either pro-

—79— ;

[APPENDIX]

duction, harmony, or safety, for in a notice stipulated by

the parties to have been posted as late as September 16,

1964 employees were exhorted to observe the “no smoking”

regulations and to avoid temporary absences from their

- work stations, but the wearing of buttons was not men-

tioned, albeit Respondent subsequently claimed it to be a

deterrent to production as well as a safety hazard. _

Upon the considerations discussed above and in view of

Respondent’s expressed antipathy to the Union I reject as

implausible its claim that the wearing of Union buttons was

disruptive of plant production and conducive of dishar-

mony. On‘the contrary I find that these stated objections

to the Union.member’s activities constituted a pretext to

mask Respondent’s effort to curtail the union organizing ef-

fort then in progress.

Nor do I accept wholeheartedly Respondent’s reliance

upon the foreign object damage safety program as the other

basis for iss promugation of the button rule. For there ap-

peared to be too many exceptions to the regular observance

of these safety precautions to make promulgation of the rule

a matter of prime consideration in that respect. Thus it ap-

pears that all civilian as well as military personnel, includ-

ing Assistant Manager Hood, wore or were permitted to

wear plastic name tags affixed to their jackets with a safety

clip or pin of a construction identical té the badge worn by

Hood and other Respondent officials, and to the proscribed

badges worn by Union adherents. Similarly it was estab-

lished at the hearing that employees working on jet engines

habitually carried pencils, both loose and clipped, steel rules .

without clips, cigarettes and other items in their breast pock-

éts with the knowledge and without the objection of man-

agement and supervisors. And finally there is credible

testimony (Knowlton) that employees never heard of the

safety hazard aspects of the button wearing until the notice

was posted restricting, not the wearing. of buttons, but the

number of buttons that might be worn.

ace ald MaKe.

—

[APPENDIX]

Upon the foregoing, and without in any way ‘minimiz-

ing the need and justification for a rigidly enforced safety

program directed to the elimination of foreign object dam-

age, I conclude and find that Respondent’s restriction of

badge wearing for that stated reason was also but a pre-

text to curtail union activity of its employees.

Most persuasive of Respondent’s intent in this matter

of badge restrictions and the safety reasons assigned by it

_ were two unrelated situations. Employee Robert E. Sum-

mers whose duties were to run a lawnmower credibly testi-

fied that although he was terminated on October 23 for

wearing too many buttons he never worked anywhere near

an aircraft or a jet engine. Similarly, there were instances

_ of employees, including Knowlton, who were instructed to

remove Union legends taped to their jackets under ‘pain of

discharge. It challenges credulity to equate the work ac-

tivities of a ground keeper or a taped sign on a jacket with

the elimination of foreign object damage.

Upon all of the foregoing considerations, therefore, I

conclude and find that Respondent has not established cir- —

cumstances of a variety that would except it from the ap-

plication of well established rule of law which permits the

wearing of Union insignia.®* I therefore conclude and find

that Respondent has thereby interfered with, restrained and.

coerced its employees in violation of Section 8(a)(1), and

insofar as it terminated certain of its employees whose

names and: the dates of their términation appear above

(supra, pp. 42, 43, 44) for refusing to comply with the rule

it thereby discriminated against them in violation of Section

8(a) (3).

10. The employee petition

It is counsel for the General Counsel’s contention, as

stated at the hearing, that the petition signed by a majority

of Respondent’s employees between October 1964 and Janu- .

58 Cf. Standard Fittings Co, 133 NLRB 928.

4

a ee ea Oe a ee et eee oe

8 iach tha SB i i aan Retain cnet

— sa

: [APPENDIX]

_ ary 8, 1965 and sent to the Board’s Regional Director “was

encouraged, sponsored and circulated by supervisors and

was an anti-union petition and therefore it interfered with

Section 7 rights. Pe

‘It has been established by credible saatioonees that at

‘least two supervisors signed the petition, and that one of

them Huston, actually solicited signatures (supra, pp. 47,

48). So, to that extent General Counsel accurately states the

participation of Respondent’s supervisors in the effort.

What remains to be considered, however, is whether

this petition was, in fact, an anti-union petition and whether

its sponsorship by supervisors did Geprive employees of

Section 7 rights.

It is appropriate to inquire, it seems, what Section 7

rights did the petition, on its face, interfere with. All that

the petition, as presented to the Regional Director, stated

- was that those who signed it were, to paraphrase its lan-

guage, making known their request that the question of a

union or no-union be brought before them in an election.

This, it appears, was nothing more on the part of the em-

ployees than an expression of their right guaranteed by

Section 7 to determine for themselves whether or not they

are to be represented for collective bargaining purposes or

other mutual aid or protection. Thus on its face the petition

appears to be nothing more than a mass effort of the em-

_ ployees to secure for themselves what the Act provides for

them through Section 9(c), namely, an election.

The vice in this petition must lie, if at all, in the fact

that supervisors as well ds rank-and-file employees desired -

a Section 9(c) election, or in the alternative, that super-

visors were instrumental in urging rank-and-file employees

to request one, That supervisors had merely joined in such

a petition by adding their signatures seems hardly grievous

enough to invalidate the document. For if this were so it _

could bring into question those situations where employees’

SS MO NS.

Dah Kinet h hesteost

A

(APPENDIX)

supervisory status might be in doubt. Thus if their names

were included in a Section 9(c) petition this might well be

.the cause of invalidating the: petition and the otherwise

valid representation proceeding flowing from it. This would —

be a ludicrous result and I reject any. suggestion that the

presence of a supervisor’s signature on an otherwise valid

election petition in and of itself invalidates it.

It remains to be considered, therefore, whether solici-

tation by a supervisor of signatures on a petition for an

election is actually deprivation of employee rights.

This Respondent has been found by me to have har-

bored animus against the Union and has engaged in a var-

iety of unfair labor practices designed to thwart the Union’s

organization efforts. Having thus given unlawful expression

to the animus it bears, in an effort to curtail the Union, to

now permit it to urge through its supervisors a choice among

its employees would simply permit the employer to reap.

the harvest of its earlier efforts. It has long been settled

that an employer may not be permitted to enjoy the fruits

of his own unfair labor practices®® and that is precisely

what would occur here’ for an election to be held when so

requested. To the extent, therefore, that Respondent’s super-

visors sought such a result it thereby deprived all of the

employees of an election free from the debilitating ‘effects

of the Respondent’s unlawful conduct. Under these circum-

stances, therefore, I would find that the supervisory spon- _

sorship of the otherwise legitimate request for an election

constitutes interference with the employees’ Section 7 rights

in violation of Section 8(a)(1). ~

11. The November JEFM layoffs

It is General Counsel’s contention that the reduction

in force resulting from the change in inspection operations

(supra, pp. 51-54) constituted discrimination for two reasons:

. 59 Franks Brothers Co. Vv. N.L.R.B., 321. US. 702. .

Set Sh arm

[APPENDIX]

_ That. the time was discriminatorily selected, and that the

"employees were likewise discriminatorily selected.

There can be no question but that a reduction in force

was necessary in the Fall of 1964. Documentary evidence in

the form of Air Force directives and correspondence, as well

as undisputed testimony, detail the technical circumstances

‘which dictated curtailing the work force of the JEFM shop

_ by sixteen men, eight of whom were actually eliminated by

attrition. A review of the chronology of this technical

This text is long and has been trimmed here. Open the source document for the complete record.