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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1968
- **Citation:** 393 U.S. 840

## Text

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.

oo

EPO EPI

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SSE ONG NATRONA OS

c Ae LLTTCNEEET HAIDER

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OY Lh a8 AE lige av B Oe. oe wrens ie

[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.

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 select

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1584%3A2. Public record. Not legal advice.