Beckett Aviation Corp.

National Labor Relations Board - Board DecisionsJun 5, 1975

218 N.L.R.B. 238 (N.L.R.B. 1975)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beckett Aviation Corporation and Robert Nischwitz. Case 8-CA-7992 June 5, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 22, 1974, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, and to adopt his recom- mended Order, except as modified herein. 1. We agree with the Administrative Law Judge that Nischwitz was discharged in violation of Section 8(a)(3) and (1) of the Act, and we affirm the Administrative Law Judge's conclusions to that effect. However, we reverse the Administrative Law Judge to the extent he finds conduct occurring outside the 10(b) period to be violative of Section 8(a)(1). Nevertheless, the Administrative Law Judge credited employees over the denial of Hoffman that the latter stated Respondent believed Nischwitz was a union instigator and was going to be fired. While occurring outside the 10(b) period, these statements are evidence of the Respondent's motivation in discharging Nischwitz and may be used for that purpose.2 2. As to the 8(a)(1) findings by the Administrative Law Judge, the record shows that Ronald R. Stephan, a copilot based in Cleveland, testified concerning a conversation with the Respondent's purchasing agent, Hoffman, which took place while he was on detail at Youngstown in early May-prior to the Kentucky Derby.3 Hoffman motioned Stephan aside to a hangar and commenced by asking him if he "had heard anything new about the Union." Stephan replied negatively. Hoffman then stated he "was a little concerned if the Union got in, as the `old man' [i.e., Beckett] would close the place down, and there will be no employment there and he [Hoffman] i Chairman Murphy would disavow fn. 25 of the Administrative Law Judge's Decision Contrary to the Administrative Law Judge 's suggestion therein that through Bonin's testimony Respondent was adducing evidence irrelevant to the issues and in clear violation of his prior rulings, Chairman Murphy views Bonin's testimony concerning his conversations with Nischwitz as relevant to the extent they supported President Beckett's testimony that Bonus had told hurl of the Nischwitz conversations . Though 218 NLRB No. 37 would lose his job." Hoffman proceeded to convey to him that pilots Hugh Krumich, Frank Masters, and Bob Nischwitz were going to be fired. He further stated that Beckett "had proof' that Nischwitz was responsible for the Union, and "they are going to fire him." Shortly thereafter, Stephan informed Nis- chwitz of Hoffman's remarks. Dennis Boos, a Youngstown parts employee, testified to a conversation with Hoffman, which took place after a pilots' meeting, during the warm weather season . Hoffman told him that Beckett was upset because he thought Nischwitz was involved in union activities, and that Beckett believed the three pilots who spoke at the pilots' meeting, naming Nischwitz, Masters, and Krumich, were the "Union instigators." Hoffman gave a series of flat denials that he had these conversations with Stephan and Boos and that he made the specific statements to which they testified. Stephan and Boos were credited by the Administrative Law Judge. He found the above conduct by Hoffman was a violation of Section 8(a)(1) as alleged in the complaint. The Respondent excepted to this finding and we find merit in this exception. As noted above, the Administrative Law Judge found that Charles Hoffman, Respondent's purchasing agent, coercively interrogated employee Stephan, and made threats of reprisals because of union activities, in a conversa- tion with Stephan. The Administrative Law Judge noted that these incidents occurred in early May (prior to Kentucky Derby held on May 5, 1973). The Administrative Law Judge also found: "The charge was filed on November 8 and served by registered mail on November 10." Based on the foregoing facts it is obvious that the Administrative Law Judge's findings are in violation of Section 10(b) of the Act and must be rejected by the Board. Section 10(b) of the Act provides the following in relevant part: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made .... Inasmuch as the alleged incidents between Hoff- man and Stephan occurred prior to May 5, 1973, any the Administrative Law Judge ultimately discredited Beckett , Respondent could hardly have known that at the time. 2 Local Lodge No. 1424, International Association of Machinists, AFL- CIO [Bryan Manufacturing Co.] v. N.LRB., 362 U.S. 411 (1960). 3 The Kentucky Derby was held the first Saturday in May-on May 5 in 1973 BECKETT AVIATION CORPORATION charge of interrogation based upon such incident and any finding of an unfair labor practice based upon it is barred by Section 10(b) of the Act. Accordingly, we find that the General Counsel has not proven by the preponderance of the evidence that the incidents above discussed occurred within the 10(b) period; therefore we shall dismiss this allegation of the complaint. The conversation between Hoffman and employee Boos which the Administrative Law Judge found "constituted clear threats against these named individuals, and other employees of reprisals for engaging in union activities ...." and violative of Section 8(a)(1) of the Act, occurred when it was warm outside, sometime in 1973. Dennis Boos was completely unable to fix the date that the conversa- tion occurred. However, based upon these facts, the Administrative Law Judge found that the conversa- tion occurred "during the warm weather season." We find that the General Counsel has failed to prove by a preponderance of the evidence that the conversa- tion occurred within the 10(b) period. There is a complete lack of evidence concerning the date the conversation occurred, far less than the "substantial evidence on the record considered as a whole" which is required by Section 10(e) of the Act. On the basis of the foregoing we conclude that there is not substantial evidence establishing that the conversa- tion occurred during the 6-month period established by Section 10(b) of the Act. Accordingly, we shall dismiss this allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of The Administrative Law Judge as modified below and hereby orders that the Respon- dent, Beckett Aviation Corporation, Youngstown, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Delete paragraphs 1(a) and (b) and reletter the remaining paragraphs accordingly. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges unfair labor practices not found herein. 1 All dates are in 1973, unless otherwise specified. APPENDIX 239 NOTICE To EMPLOYEES - POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees for, or in any other manner restrain employees from, engaging in concerted activities for their mutual aid or protection, including the expression of critical opinions concerning their employment conditions. WE WILL NOT discourage membership in International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Milk and Ice Cream Salesmen, Drivers and Dairy Employees, Local Union No. 205, or any other labor organization, by discharging employees, or in any other manner discriminating in regard to their employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the National Labor Relations Act. WE WILL offer Robert Nischwitz immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges. WE WILL make Robert Nischwitz whole for any loss of earnings because of the discrimination against him, plus 6-percent interest. All our employees are free to become, or remain, or refrain from becoming or remaining members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk and Ice Cream Salesmen, Drivers and Dairy Employees, Local Union No. 205, or any other labor organiza- tion. BECKETT AVIATION CORPORATION DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: On January 28 and 29, 1974,1 this case was tried before me in Youngstown, Ohio, on a complaint by the General Counsel2 alleging that the Respondent engaged in certain independent acts of coercion and that it discharged Robert Nischwitz, in violation of Section 8(a)(1) and (3) of the Act. 2 The charge was filed on November 8 and served by registered mail on November 10. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Briefs submitted by the General Counsel and Respondent have been duly considered. Upon the entire record, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION With its principal offices and place of business in Youngstown, Ohio, Respondent is engaged in the service and operation of private aircraft at airport facilities located in Youngstown and Cleveland, Ohio, Chicago, Illinois; and Coraoporis and West Mifflin (in the area of Pittsburgh and Allegheny County), Pennsylvania. Annually, in the course of its operations, Respondent has a direct inflow in interstate commerce of products, supplies, and aircraft valued in excess of $50,000; and it receives revenues from its operations having a gross value in excess of $500,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. , II. LABOR ORGANIZATION International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk and Ice Cream Salesmen, Drivers and Dairy Employees, Local Union No. 205, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential Issues 1. Whether Respondent is responsible for the conduct of Charles G. Hoffman, a purchasing -agent, on the basis that he is a supervisor under the Act, or that he was, or had apparent authority as, an agent of Respondent during the times material. 2. Whether Hoffman engaged in interrogation and threats violative of Section 8(a)(1). 3. Whether Respondent discharged Robert Nischwitz because he had, or Respondent believed he had, engaged in union or protected concerted activities. B. Respondents Operations and Management3 Respondent services and operates private aircraft, including the transportation of customer personnel, at and from the Youngstown Airport; the Hopkins Airport in Cleveland; the Midway Airport in Chicago; and the Greater Pittsburgh and Allegheny County Airports in the area of Pittsburgh, Pennsylvania. The issues herein are essentially confined to the main facility and headquarters at Youngstown. At all its locations, the total complement consists of about 180 employees. At Youngstown, it employs some 17 pilots and copilots, as well as mainte- nance, parts, line service, operation, and clerical personnel. Forrest Beckett has been the president of Respondent since its formation in 1944. John Lyden Is executive vice president, and is also manager of the Cleveland Division, where he maintains his' office. John D. Carroll is vice president of operations, with responsibilities extending to all facilities; principally he serves as manager of the Youngstown, Greater Pittsburgh and Allegheny County Divisions. Don Minner is chief pilot and assistant manager at Youngstown; 4 his main area of concern is in flight operation. Harold Hinen and Thomas Jordan are the chief pilots, respectively, at Chicago and Allegheny County. C. Status of Charles G. Hoffman Since the end of 1971, Hoffman has held the position of "Purchasing Agent and Inventory Control." 5 He per- formed his functions almost entirely at Youngstown, although his responsibilities for inventory control encom- passed Respondent's other divisions. Hoffman does "all the purchasing in Youngstown and a lot for the out line divisions." The question was litigated as to whether Hoffman supervises the four or five parts department employees at Youngstown. Hoffman testified that he had authority only in respect to the inventory process and has "no control whatsoever" over any employees in the parts department at Youngstown, Cleveland, or Pittsburgh. He was confronted with his pretrial affidavit given to a Board agent in December 1973, in which he stated: "I am also in charge of the Parts Department consisting of 4 employees in Youngstown, 2 in Cleveland and one in Pittsburgh. I can effectively recommend their hiring and firing and have exercised this authority. I have held this position just short of 2 years." I reject Respondent's contention and attempts to establish post facto that, when the affidavit was taken, Hoffman understood the phrase "effectively recommend" to mean that "the extent of his authority was that he could only recommend." The affidavit was taken in the presence of Respondent's counsel herein, attorney Simerka, and President Beckett. At the hearing, the affidavit was affirmed by Hoffman as true. It was therefore, as I'find, in direct contradiction of Hoffman's earlier testimony, on an issue of substantial materiality herein, and it seriously affects his credibility generally. Furthermore, I find the portion of the affidavit quoted above was tantamount to an admission against interest by Respondent, as it was given in the presence and with the knowledge of Simerka and Beckett .6 3 To the extent revealed in the record and as general background. 4 In Respondent's answer to the complaint signed by attorney Simerka, the allegation was denied that Minner is a supervisor and agent of Respondent. At the conclusion of General Counsel's case in chief, with no reason intervening , Simerka moved to amend the answer to admit this allegation. His explanation is not accepted as in good faith that this was one of the items which somehow escaped his investigation and preparation for trial See Sec 102.21 of the Board 's Rules and Regulations , and rule 11 of the U.S. District Court Rules of Civil Procedure. 5 Theretofore, from mid-1967, excluding 6 months of military service, Hoffman was employed with Respondent in various duties as a line service employee and in the parts department at Youngstown. In 1970, he completed college studies and received a degree. His appointment as Purchasing Agent and Inventory Control related directly to Respondent's institution of a new computerized inventory control system, which was assigned to his charge 6 Vice President Carroll testified in substance that during the material times herein, he personally, and not Hoffman or any intermediary, directly supervised the parts department employees. Carroll has extensive and high level responsibilities at the various facilities of Respondent and is frequently absent from Youngstown. It is highly implausible that he actually exercises, as he claims , all the necessary immediate authority to supervise this small BECKETT' AVIATION CORPORATION Dennis Boos, a Youngstown parts employee, gave credible testimony establishing certain elements of Hoff- magi's supervisory authority which are unrefuted.7 Only Hoffman in the department tells the employees what to do, i.e., assigns their work; he maintains order, cautioning employees in the conduct of their vvork; he selects and assigns employees to work overtime; and he grants employees privileges such as leaving early or reporting late. Boos looks to Hoffman as his immediate supervisor. Hoffman told him he is directly responsible to Vice President Carroll "for the efficiency of our department." Hoffman's name appears on a listing of "Supervisor's Time," which is posted at Youngstown each month. The latter evidence is pertinent as a further showing that the employees are reasonably led to regard Hoffman as a supervisor and member of management. Accordingly, I conclude that, during the times material Hoffman was a supervisor and agent of Respondent, that the employees had just cause so to believes and that Respondent is fully responsible for Hoffman's conduct, as described below. ID. Union Organizing Campaign and Board Election About March 14, Respondent's pilots and copilots began receiving blank authorization cards mailed by the Union. Preceding such date, the record does not disclose more precisely when and how the Union's campaign com- menced. President Beckett testified that, on March 15 or 16, he first became aware of the Union as a result of phone calls from two or three pilots relating that they had received union cards in the mail. On April 26, the Union filed a petition; on May 18 and 21, the election was held in a unit confined to pilots and copilots; and on May 30, the results were tallied and announced, reflecting the Union's loss of the election. E. Conduct of Hoffman Ronald R. Stephan, a copilot based in Cleveland, testified concerning a conversation with Hoffman which took place while he was on detail at Youngstown in early May (prior to the Kentucky Derby). 19 Hoffman motioned Stephan aside to a hangar and commenced by asking him section of the Company operations. In attempted justification, Carroll averred that he works 16 hours a day, 6 to 7 days a week. A record prepared by Respondent of "Supervisor's Time" shows that he worked 202 hours per month and had 44 days off from January through September 1973. In general, I found his testimony shifting and unreliable . Moreover, Carroll's account presents a disproportionate and unrealistic limitation of supervision over employees . See, e g., McKinnon Services, Inc., 174 NLRB 1141, 1143 (1969); Swan Super Cleaners, Inc., 152 NLRB 163, 168 (1965). , Particularly in view of Hoffman's confirmed affidavit, it is unnecessary to discuss all the disputed evidence on this issue. s Enough appears in the record to indicate that Hoffman has substantial discretion , as a buyer, to commit Respondent's credit. Such buyers are normally excluded from rank-and-file bargaining units as their interests are regarded as closely allied with management ; as "managerial employees," contrasted with employees generally, they are excluded from the protection of the Act. N.LR.B v. Bell Aerospace Co., Division of Textron, Inc., 416 U.S. 267 (1974); Retail Clerks International Association, AFL-CIO, et al. v. N.LR.B., 366 F.2d 642, 645 (C.A.D.C., 1966). And it has been held, for example, that an assistant buyer's ' conduct was attributable to the respondent company, even if he did not literally fall within the Act's definition of supervisor, where the employees had just cause to believe he was acting for management . Genuardi Super Markets, Inc., Sandy Hill Market, Inc, Genuardi's Norriton Market, Inc., Genuardt's Audubon Market, 241 if he "had heard anything new about the Union." Stephan replied negatively. Hoffman then stated he was a little concerned if the Union got in, as the "old man (i.e., Beckett) would close the place down, and there will be no employment there and he (Hoffman) would lose his job." Hoffman proceeded to convey to him that pilots Hugh Krumich, Frank Masters, and Bob Nischwitz were going to be fired. He further stated that Beckett "had proof' that Nischwitz was responsible for the Union, and "they are going to fire him." Shortly thereafter, Stephan informed Nischwitz of Hoffman's remarks. Dennis Boos testified to a conversation with Hoffman, which took place after a pilots meeting,l° during the warm weather season. Hoffman told him that Beckett was upset because he thought Nischwitz was involved in union activities, and that Beckett believed the three pilots who spoke up at the pilots meeting, naming Nischwitz, Masters, and Krumich, were the "Union instigators." Hoffman gave a series of flat denials that he had these conversations with Stephan and Boos, and that he made the specific statements to which they testified.11 Stephan and Boos are credited. To find the violations alleged it is not necessary to establish that Hoffman, a supervisor, obtained his informa- tion from Beckett or other supervisory sources.12 Hoff- man's statements to Stephan contain strong doses of coercion to discourage the pilots from supporting the Union at a critical time of the pending election. Thus I find that Hoffman's reference to plant closure and loss of jobs "if the Union got in," 13 and his assertions that Nischwitz, Krumich, and Masters, and then Nischwitz' specifically, were going to be fired 'because Beckett had proof or believed they were instigators of the Union constitute clear threats against these named individuals, and other employ- ees, of reprisal for engaging in union activities. In the context of these threats, Hoffman's interrogation of Stephan must likewise be deemed coercive .14 In these specific respects, Hoffman's conduct is found in violation of Section 8(a)(1), as alleged. Inc., 172 NLRB 1357, 1363 (1968). See also , e.g., Welcome-American Fertilizer Co. and Welcome Fertilizer Co, 169 NLRB 862, In . 1(1968). 9 Held the first Saturday in May-on the 5th in 1973. 10 The pilots and copilots at Youngstown had meetings with manage- ment, particularly with Beckett , at various times when convened by Respondent 11 On cross-examination , Hoffman disavowed that he had ever talked to Boos about the Union , although they had conversations "quite often." I note the testimony elsewhere that , during the preelection time, the Union was a "hot issue," commonly discussed throughout Respondent 's opera- tions. 12 He" was regularly at the Youngstown headquarters and close to the Company hierarchy; the employees could reasonably believe that he was privy to such information and that he expressed management's views. Indeed, it appears that he carried information to, and consulted with, Vice President Carroll and President Beckett concerning alleged misconduct of Nischwitz, e.g., involving Dr. Billings and Dispatcher Barber, discussed infra. 13 These were not privileged predictions carefully phrased on the basis of objective fact or demonstrably probable consequences beyond Respon- dent's control. NLRB. v. Gusset Packing Co., Inc., 395 U.S. 575,618 (1969). 14 Blue Flash Express, Inc, 109 NLRB 591 (1954). 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Discharge of Nischwitz For about 12 years, Nischwitz was a pilot for Respon- dent at Youngstown-until he was discharged on October 22 by decision of Beckett. During this long period, Nischwitz had never been disciplined, nor had there ever been a complaint regarding his performance as a pilot. As cause for discharge, Respondent relies upon a large variety of alleged misdeeds by Nischwitz. A considerable amount of its evidence is based upon uncorroborated hearsay reports received by Beckett. The events affecting Nischwitz arose in early 1973. Respondent's witness , Colin L. Kelly, was a relatively new copilot for Respondent based in Chicago. He had flown with Nischwitz on a 3- or 4-day 'trip in January. They had occasion for frequent conversations concerning their jobs and conditions of work, as is "common" among pilots in such situations. In particular, they discussed opportunities for advancement and pay in Respondent's employ and at other airlines . Nischwitz indicated he had not progressed rapidly enough, he was the lowest paid turbo captain, people at the Company were holding his career back, and he was "stuck with this crummy job." Kelly indicated he had previously applied for employment at Delta, and at other airlines . Nischwitz thought he "would be crazy" for not taking such a job, or pursuing it, as his career would be much better in earning power and potential benefits. Nischwitz also commented that Kelly's previous work as a flight instructor was even better than this job with Respondent. Kelly frankly agreed with some of the things Nischwitz said, such as the basic matter of pay, and he disagreed with others. They also spoke "about the Union." Nischwitz was favorable to it, and Kelly was not. Following the January flight, Kelly told Chief Pilot Hinen the details of his conversation with Nischwitz. He related that some of the things Nischwitz had said made him uncertain of his, job. And he questioned whether he was going to be held back if someone in the Company did not like him; how long it would take him to become a captain; and how he would be treated financially. "It could very well be" that he informed Hinen "about Nischwitz mentioning the Union." Hinen later told Kelly that he had relayed their discussion to Beckett. Two to four months later , Nischwitz told Kelly that Beckett was angry with him. for his "attitude" and asked whether Kelly had "squealed" to anyone in management concerning their previous conversations . Kelly denied that he had. In February, Beckett summoned Nischwitz to his office. He said he had "heard some bad things" about him, and if he believed everything he was told he would fire him immediately. Beckett declined to reveal the nature of the "bad things" he heard or the source of his information.15 About a week later, in February, a pilots meeting was held. In substance, Pilot Krumich asked Beckett if he had 15 Beckett testified he told Nischwilz he "had heard so many rumors of his storing discontent , discouraging the employees," that he was running these things down, and if they were true , he would fire Nischwitz. I consider this version by Beckett as exaggerated. 16 Beckett testified he said that if what he heard about Nischwitz was true, he would fire hun,, and that "rumors are coming thick and fast" and he was "going to run them down." In January, he had had reports from Chief Pilots Hinen and Mmner, Vice President Carroll, and Dispatcher Pitsenbar- ger. Of these, only Carroll was called by Respondent, and he was not checked out these things of which he was accusing Nischwitz, and charged that Nischwitz was improperly being pressured regarding his job tenure. Beckett answered that Nischwitz' job was secure as it always had been-but if he believed everything he was told about Nischwitz, he would have fired him.16 Thereafter, Beckett openly shunned Nischwitz, refusing to respond when spoken to by Nischwitz. In addition, Dispatcher Barber told Nischwitz he had specific instruction not to assign him to fly Beckett to his cabin in Manitoba, Canada-trips which Nischwitz had made several times in 1972. In February or March, prior to the mailing of union cards, Nischwitz spoke to Beckett on their return from a flight to Pittsburgh or Cleveland: I told him I was aware that Don Minner, the Chief Pilot, (sic) if I said anything to him approximately a week before about the Union and I said , "I don't think you, Mr. Beckett, instructed Mr. Minner to do this." 17 Beckett replied that he had told Minner to "find out what he could," and that Nischwitz knew "what [he] could do to help." Without specifically denying Nischwitz' testimony, Beckett described a conversation with Nischwitz which occurred about April after Nischwitz had flown him to Cleveland; as follows: Nischwitz said, "Now that this Union activity has started, I suppose you will blame this on me. Should I quit?" And Beckett replied, "This has nothing to do with the Union activity. If you are guilty, you will be fired." It is probable that there was only one conversation, after they returned from the flight to Cleveland.18 Minner was not called. Beckett's account concedes that the subject of the Union was brought up by Nischwitz. In other respects it is not credited. In Nischwitz' version, there is sufficient indication that Minner, acting on Beckett's instruction, had questioned Nischwitz the week before on a union-related matter. On March 21, Nischwitz signed and returned to the Union the authorization card he received in the mail about a week earlier. Respondent produced and had Nischwitz confirm that he had signed an antiunion petition 19 as of mid-May. Because of a natural compulsion to sign such a circulating document, I do not find that this evidence establishes Nischwitz' change of heart about the Union or that it served to show Respondent he was actually opposed to the Union. On the night of May 30, after the election results were announced, Nischwitz received a single telephone call from three persons, each of whom conveyed the same informa- tion-that Hoffman had told Boos "they were going to get" Nischwitz, Masters, and Krumich for being instigators questioned concerning such a report or its basis. 17 The grammar (as taken by the reporter) is not typical of Nischwitz' language in this record. 1s Respondent's log records , which would have established the date of any such flight, were not attempted to be used. 19 "To whom it may concern: We the undersigned did not sign any authorization for union representation . We definitely do not want a union." The petition contains 25 signatures , including those of 2 dispatchers, and presumably was turned over to Respondent. BECKETT AVIATION CORPORATION 243 of the Union. Nischwitz identified two of the callers as Eric Shively and Ken Riley.20 Nischwitz' uncontradicted testimony is relevant only to confirm the spreading of information among the rank and file concerning Hoff- man's remarks to Boos, supra. Following the election, from July through mid-October, Beckett called in the 17 pilots at Youngstown for "individual interviews," with Nischwitz reserved for the last interview. Ostensibly, his purpose was to investigate an "air of unrest" which created a threat to safe operations. According to Beckett, his approach to each of the first 16 pilots was the same-a request to reveal in strict confi- dence the "honest truth" on any problem, even if it was critical of the supervisors. And he made general notes without indicating the names of his informers in order to maintain the confidence. As to Nischwitz, "interviewed" about October 15,-it is undisputed that Beckett immedi- ately accosted him with a request that he look for another job; then Beckett threatened to put him on the dispatch board and to discharge him when he made his first mistake. A week later, Beckett summarily discharged him without explanation. Respondent's positions appear inconsistent: (a) that from February to April, Beckett withheld action against Nischwitz in order to run down the rumors, (b) that it suspended all investigation of Nischwitz during the pendency of the election, and (c) that the individual interviews beginning immediately after the election were "not. at all" related to the investigation of Nischwitz (but that, unsolicited, his name came up frequently in the interviews). It was not explained how the pending election was considered an obstacle to the investigation of any misconduct by Nischwitz. From all the circumstances, my view is that Respondent conducted the individual inter- views after the election because it equated the quest of some employees for union representation with an "air of unrest," and that a substantial purpose was to gather and bolster grounds to discharge Nischwitz. At the hearing, Respondent was instructed to not adduce evidence of alleged misconduct by Nischwitz unless it had knowledge of and relied upon such evidence as grounds for his discharge.21 Testified by Beckett and mentioned in Respondent's brief are undescribed incidents concerning Nischwitz in 1963. Although Respondent states that these events were not "a factor" in the discharge, I do not credit Beckett that they ever existed. We turn to a consideration of the various reasons given by Respondent for discharging Nischwitz. Kelly The testimony of Respondent's witness, Kelly, has been described above relating to his conversations with Nis- chwitz in January, which he conveyed to Chief Pilot Hinen. 20 Shively was the parts manager and Riley was in charge of the upholstery shop Their supervisory or agency status was not litigated, and there is no alleged violation relating to this telephone call. 21 In certain instances, in the zeal to develop anything adverse to Niscliwitz, these rulings were apparently disregarded. 22 E.g., Indiana Gear Works, A Division of the Buehler Corporation, 156 NLRB 397, 400-402 (1965); System Analyzer Corp., 171 NLRB 45, 50 (1968); NLRB. v. Burnup and Sims, Inc, 379 U.S. 21, 23 (1964). And cf., N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electrical Beckett testified that his information from Hinen was that Nischwitz discouraged pilots (such as Kelly) from staying with the Company, criticized the dispatchers, and made "generally derogatory remarks" concerning employment with Respondent. Hinen was not called; Beckett did not attempt to pursue the matter directly with Kelly; he did not state what he was actually told by Ehnen, other than broad conclusions; and so far as appears, there was no company record made on the subject. I find as a fact that Kelly did tell Hinen, in substance, that Nischwitz spoke favorably of the need for union representation. It is a natural assumption that Hinen included this information in his report to Beckett. Pertaining to the Kelly information, this alleged ground for Nischwitz' discharge was to the same extent available to Respondent in February as it was in October. Beginning in February, Beckett made manifest his hostility toward Nischwitz. But he refused to reveal to Nischwitz or the other pilots any rational basis for his dire accusations. It is reasonably inferable that Beckett, while threatening to discharge Nischwitz on unspecified grounds, was deterred from taking action because of the Union factor, which shortly thereafter became a full blown election issue. In any event, I would certainly hold that the conversa- tions between employees Nischwitz and Kelly, subjectively critical of Respondent's conditions of work and lack of opportunities for advancement, constitute protected con- certed activity.22 If employees were not permitted freely to voice their complaints to each other regarding their employer, the "mutual aid and protection" provision in Section 7 would lose much of its meaning.23 Even assuming, as I do not, that Beckett relied in good faith on the hearsay report he received from Hinen, there is no showing of such misconduct by Nischwitz to render him unfit for further service.24 Bonin Respondent' s witness John A. Bonin had frequently flown as a copilot with Nischwitz. On most trips there is quite a bit of waiting time and not much else for the pilots to do but sit around and talk. On one trip with Nischwitz to New York, Nischwitz indicated that Respondent's allowance for expenses did not sufficiently cover the higher costs in this city. Kelly later was apprised that the pilots are reimbursed by Respondent for the greater expenses in certain cities, such as New York. On several occasions, Nischwitz was critical of Dispatcher James Barber-saying that Barber was a "backstabber" who ran to Beckett with whatever he heard. Bonin emphasized that he never told management of these conversations he had with Nis- chwitz.25 Beckett's testimony is not credited that, in his Workers, A.F.L. [Jefferson Standard Broadcasting Company j, 346 U.S. 464. 23 A clear purpose of the Act is "protecting the exercise of workers of full freedom of association...." Republic Steel Corporation v. N.LKB., 311 U.S. 7, 10. 24 See Terry Coach Industries, Inc., 166 NLRB 560, 563 (1967); Socony Mobil Oil Company, Inc., 153 NLRB 1244, 1246 (1965) et seq. 25 I consider the adducing of Bonm's testimony concerning conversa- tions with Nischwitz, not within Respondent's knowledge, as improper and in disregard of my rulings. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individual interview, Bonin told him of Nischwitz' criticism of Barber and Carroll26 Bonin further related that, in this interview,27 he told Beckett of the rumor among the pilots that Nischwitz was, "going to get it," and Beckett confirmed that Nischwitz was "going to get it" for "causing trouble in the Company." As in Kelly's case , supra, I would find, the Nischwitz conversations with Bonin relating to their working conditions were statutorily protected. Dr. Billings Dr. Billings was Respondent's medical consultant for many years and handled examinations and problems of the pilots . Purchasing Agent Hoffman testified that, in Febru- ary 1973, he was flown by Nischwitz to and from Chicago and they had occasion to engage in discussions. Nischwitz described to him the circumstances in 1961 when he had tests conducted for a possible heart condition at the instance of Dr. Billings . Nischwitz said that the test results, ultimately found to be negative, were held up by Dr. Billings "to the point that made him ineligible for the airlines ."28 Hoffman conveyed the Nischwitz conversation to Vice President Carrol1.29 According to Respondent, this conduct by Nischwitz was an "assault upon" Dr. Billings. I perceive this alleged ground blown out of all proportion. The evidence discloses only factual statements made by Nischwitz to Hoffman, not shown to be inaccurate. Plainly Nischwitz was concerned that he had missed opportunities for employ- ment with "the airlines." The conversation with Hoffman, in February, scarcely rises to any level as would reasonably justify discharge in October. Barber, the Baron, and the dispatchers Hoffman testified that, on the same trip in February, Nischwitz made certain critical remarks concerning Dis- patcher Barber . Nischwitz purportedly stated that Frank Masters called in sick on a day he was scheduled to fly; Barber carried the information to Beckett; therefore a "black mark" was held against Masters for this 30 Nis- chwitz explained to Hoffman some of the problems he had with Barber ; he indicated that Barber was trying to get Carroll's position as vice president, and that Barber would step on anybody to get on top of the pilots' seniority list. Hoffman also related that, through his purchasing authori- ty, Nischwitz bought a small tape recorder to eavesdrop on Barber; but that Nischwitz sought to return or sell it the following week without it having been used. (That Respondent contends all these were matters brought to the attention of Beckett, and were relied upon by him for Nischwitz' discharge-must of course be borne in mind.) Respondent's brief also cites that, in Beckett's individual interview with Pilot Masters, the latter brought up "the old, old false story" that 6 or more years back Barber had refused to -fly a single-piloted plane called a Baron. Ostensibly, it was considered by Beckett a serious offense 26 Beckett was in the courtroom throughout the hearing. Apart from generalized conclusions, his testimony was conspicuously' vague as well as conveniently self-serving. 27 Although Bonin estimated an earlier date, about February or March, it was when Beckett "was calling everybody in." Therefore, as with the other pilots, this interview must have occurred in or after July. that this old matter was still being mentioned. Asserting that Masters was a close friend of Nischwitz, Beckett concluded that it could only have been Nischwitz responsi- ble for recently spreading the story. I reject such reasoning as contrived. Beckett also testified he undertook to "track down" the Baron story and obtained an explanation from Chief Pilot Minner. Neither Minner nor Barber was called. I do not accept Beckett's account. The undisputed evidence is that Barber was, at that time, permitted to check out on a twin- piloted plane without having to fly or qualify for the Baron, even though Nischwitz and two other pilots senior to Masters -had to fly the Baron. There is no probative evidence that a false story was continually being circulated whether by Masters or Nischwitz. Beckett testified that, in their separate interview, six pilots told him Chief Pilot Minner was "no good," and the dispatchers (e.g., Barber, Pitsenbarger, and McLaughrey) were "no good"-although each pilot at the same time denied that these individuals had "done anything" to them. Even if accepted on its face, this testimony would have relevance only to indicate that pilots other than Nischwitz were critical of the dispatchers and of a chief pilot, but were not disciplined in any manner. Beckett added that two or three of the dispatchers told him they had a "lot of trouble" with Nischwitz. Typically, there was no enlighten- ment concerning this "trouble." Pilot Masters complained to Beckett that, while McLaughrey was on dispatch work, Barber blamed everything that went wrong on McLau- ghrey. Beckett testified he immediately called Barber, who said it was not true. Again, Beckett's logic is that false and derogatory remarks about Barber were made by Masters, a close friend of Nischwitz, consequently, it must have come from Nischwitz. Girl in Upholstery Shop Beckett was also told by Masters that a girl who "belonged to" the upholstery shop was taken into the parts department and "they had to threaten to come to [Beckett] to get the girl back." Similarly, in this instance, the bearing upon Nischwitz and ground for his discharge was that Riley, "who heads up the Upholstery Shop," and Nis- chwitz are very close friends, and were formerly in business together (owning a truck); therefore the source of the story could only have been Nischwitz. Other grounds for the discharge Near the close of the hearing and the end of his testimony, Beckett was specifically asked by his own counsel the reasons for Nischwitz' discharge. He an- swered- No. 1, I was out of town so much that I couldn't watch him and, number 2, I didn't feel he had the ability and, number 3, I talked to other people who 28 As explained elsewhere, Nischwitz then became ineligible because he hadjust exceeded the age limit of 28 29 Hoffman's affidavit , However, Beckett testified Hoffman reported the same information directly to him. 30 In Hoffman's affidavit, he described that Nischwitz "felt" that this was a black mark. BECKETT AVIATION CORPORATION thought he didn't have that ability and, number 4, I was afraid he would undermine our competency with our customers. On cross-examination, Beckett agreed that he was referring to Nischwitz' ability to be a dispatcher, and that he never had a complaint on him as a pilot. Nischwitz was employed for 12 years; he had served as a dispatcher on some weekends. Nowhere does it appear that ability to be a dispatcher was an employment requisite for a pilot. These are now entirely new and unsubstantiated grounds. G. Conclusions on Nischwitz In my opinion, there is an extraordinary degree of dissembling in Respondent' s case . I question whether Beckett regarded this entire proceeding with appropriate seriousness. His testimony, as in condemning Nischwitz for the alleged conduct (trivial as it was) of Masters and Riley, because each was a close friend, reaches an absurd state of unreasonableness which defies belief. In general, I regard Beckett's testimony as untrustworthy and not credible. It is observed that in the entire relevant period, from February to mid-October, neither Beckett nor anyone from management revealed to Nischwitz, or sought his position regarding , any of the numerous alleged grounds of misconduct relied on by Respondent for his discharge. And during this period, Nischwitz continued in his employment under the burden of Beckett's threat of discharge for unspecified reasons, while he and other employees were pointedly made aware through Hoffman's disseminations that Nischwitz' offense stemmed from Respondent's conviction that he was a union instigator. Negative factors in the record strongly operate against Respondent to defeat its defenses. I find that all these grounds asserted by Respondent were not the real reasons for Nischwitz' discharge, and that Respondent was strenuously attempting to cloak the true motivation. I recognize that, in this case, there is no showing that Nischwitz was a leader or particularly active in the Union. However, Respondent was aware and had a basis for believing that Nischwitz was involved with the Union- through Pilot Kelly's information, as well Nischwitz' direct conversations with Beckett in March or April. My earlier findings regarding Hoffman's statements and coercive conduct are generally corroborated in the record. This evidence establishes Respondent's strong union animus, its belief that Nischwitz was an instigator of the Union, and its intent to discharge him for this reason. Even if it is accepted that Nischwitz' conversations with Kelly and Bonin were substantial factors in the decision to discharge him, I fmd that in these activities he was protected within Section 7 of the Act. I conclude therefore that Respondent discharged Nis- chwitz because it believed he was an instigator of the Union, and in any event because he was engaged in concerted activities protected by the Act. Accordingly, the alleged violations of Section 8(a)(1) and (3) are sustained. 31 N.L.R.B. v. Express Publishing Company, 312 U.S. 426; NLRB. v. Entwistle Mfg. Co., 120 F 2d 532 (C.A. 4). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 245 The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship with trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. A broad cease-and-desist order is warranted, in view of the discriminatory discharge which goes to "the heart of the Act," and other violations.31 It has been found that Respondent unlawfully dis- charged Robert Nischwitz on October 22, 1973. It will therefore be recommended that Respondent offer him immediate and full reinstatement to his former position, or, if such position no longer exists, to a substantially equivalent position, without prejudice to the seniority or other rights and privileges he previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned, absent the discrimination, with backpay and interest computed under the established standards of the Board.32 It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary and useful to determine the amounts of backpay and the right of reinstatement under the terms of these recommen- dations. Upon the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAw 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Robert Nischwitz, thereby discourag- ing membership in the Union, Respondent has engaged in and is engaging in unfair labor -practices within the meaning of Section 8(a)(3) of the Act. 4. By discharging Robert Nischwitz because of his protected concerted activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By the foregoing, and by other specific acts and conduct interfering with , restraining, and coercing employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging in unfair 3z F. W. Woolworth Company, 90 NLRB 298 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommended: ORDER33 Respondent, Beckett Aviation Corporation, Youngs- town, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge, or other reprisals, for engaging in union or concerted activities. (b) Coercively interrogating employees concerning their union activities. (c) Discharging employees for, or in any other manner restraining employees from, engaging in concerted activi- ties for their mutual aid or protection, including the expression of critical opinions concerning their employ- ment conditions. (d) Discouraging membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk and Ice Cream Salesmen, Drivers and Dairy Employees, Local Union No. 205, by discharging employees, or in any other manner discrimi- nating in regard to hire or tenure of employment or any term or condition of employment. 33 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer Robert Nischwitz immediate and full reinstate- ment to his former position, or if such position no longer exists , to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Decision of the Administrative Law Judge. (b) Preserve and make available to the Board or agents all payroll or other records, as set forth in "The Remedy" section of the Decision of the Administrative Law Judge. (c) Post at its Youngstown, Cleveland, Chicago, Greater Pittsburgh and Allegheny County airports and facilities, copies of the notice attached marked "Appendix." 34 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 34 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."