Mooney Aircraft, Inc.

National Labor Relations Board - Board Decisions

Jun 5, 1963

142 N.L.R.B. 942 (N.L.R.B. 1963)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps Respondents have taken to comply herewith.lo
10 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director , in writing , within 10 days from
the date of this Order, what steps Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA
AND LOCAL 15173, DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL, upon request, bargain collectively with Central Soya Company, Inc.,
in the following unit of employees with respect to rates of pay, wages , hours of
work, and other conditions of employment and, if an understanding is reached,
embody such understanding in a signed agreement:
All production and maintenance employees, including the scheduling
clerk in the feed mill, employed in the Employer's plants at Decatur,
Indiana, and the lecithin, elevator, maintenance , solvent, feed mill, yard,
steam power , trucking departments , and laboratories ( including the analyti-
cal, feed research , and technical sections thereof), exclusive of office
clerical employees , plant clerical employees , sales personnel , guards, pro-
fessional employees, agricultural laborers, temporary employees , supervisory
foremen , assistant superintendents , and all other supervisors as defined
in the Act.
WE WILL NOT seek to include in the unit excluded employees such as agricul-
tural laborers.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------(RALPH COURTLEY , Assistant Regional Director)
LOCAL 15173, DISTRICT 50, UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(I{ENNETH HIRSCHY , President)
This notice must remain posted for 60 days from the date of posting, and must
not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, 46204, Telephone No. Mel-
rose 3-8921 , if they have any questions concerning this notice or compliance with
its provisions.
Mooney Aircraft , Inc. and Lodge 725 , International Association
of Machinists , AFL-CIO. Case No. 23-CA-1475. June 5, 1963
DECISION AND ORDER
On March 25, 1963, Trial Examiner Laurence A. Knapp issued his
Intermediate Report in the above-entitled proceeding, finding that the
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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
142 NLRB No. 106.
MOONEY AIRCRAFT, INC. 943
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
'As part of its brief, the Respondent filed a request for leave to adduce certain addi-
tional evidence . This request is hereby denied for the season that, assuming the truth of
the evidence sought to be adduced , it would not be sufficient to alter our decision herein.
For the seasons set forth in the dissenting opinion in Isis Plumbing d Zleatiug Co, 138
NLRB 716, Member Rodgers would not award interest on backpay.
The notice appended to the Intermediate Report is hereby modified by inserting the
phrase "and the Universal Militaiy Training and Service Act of 1948, as amended ," after
the phrase " Selective Service Act" which appears in the "Note" thereof.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case originated with a charge duly filed, following which the complaint issued
on November 15, 1962, alleging that Respondent had discharged one George E. Mays
because of his union membership and activities , in violation of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended , herein called the Act. Re-
spondent filed an answer denying the commission of these alleged unfair labor prac-
tices and the case was heard before Trial Examiner Laurence A. Knapp at Kerrville,
Texas, on January 29 and 30, 1963 . Although the parties were afforded opportunity
to do so, none filed a brief with the Trial Examiner.
On the entire record, as corrected on notice to the parties, and on my observation
of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT, AND THE LABOR ORGANIZATION INVOLVED
As alleged in the complaint and admitted in the answer , and as found by the Board
in the two earlier proceedings referred to hereinafter , Respondent , a manufacturer
of small aircraft at Kerrville , Texas, is engaged in commerce , and the Charging Party,
Lodge 725, International Association of Machinists , AFL-CIO ( sometimes here-
inafter called the Union ), is a labor organization , within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES : THE DISCHARGE OF GEORGE E. MAYS
1. Events leading up to Mays' discharge
Mays, an employee with 4r/4 years of continuous service with Respondent, was a
class A mechanic employed in Respondent 's maintenance department at the time of
his discharge on August 10, 1962. At this time he was recording secretary of Lodge
725 and for a lengthy period had been its shop steward for the maintenance depart-
ment. In one or another of these union capacities , he was a participant in collective-
bargaining negotiations between Respondent and the Lodge (the certified bargaining
representative of Respondent's production and maintenance employees ), and attended
one such session shortly before his discharge ; he had also posted notices, on the
Union's bulletin board in Respondent 's plant.
While on a fishing trip on Saturday , August 4, and part of Sunday , August 5, 1962,
with his father-in-law, R. B. Fikes ( then also an employee of Respondent), Mays
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered a sunburn of his feet and lower legs. Because of the ill effects of his burns,
particularly those of the foot and lower leg areas, Mays remained away from work
during the week beginning August 6.1 That the burns were sufficiently severe to war-
rant his absence is amply established by the evidence, including medical reports 2
Upon concluding early Monday morning that he was unable to go to work, and
aware that work absences were required to be reported to the Company,3 Mays took
two courses of action on Monday to have his absence reported to Respondent. First,
since he regularly rode to work with his father-in-law, he requested Fikes to report
his absence to his foreman, Charles G. Cox, Jr. It is undisputed that when Fikes
reached Respondent's plant, he proceeded directly to Cox's office shortly before
the 7 a in. starting time, where, according to the combined accounts of Fikes and Cox,
he informed Cox that Mays had received a bad sunburn on the fishing trip, was
very sick and running a fever, and would not be at work that day. Second, Mays
sought to report directly to Foreman Cox at Respondent's plant by telephone, was
connected with Cox's office, and upon being informed that Cox was away from his
office, talked with Crenwelge, Cox's clerk. He informed Crenwelge of his illness and
inability to work and asked Crenwelge to give the message to Cox, which Crenwelge
later did through a note to Cox.4
Mays requested Fikes to report him absent again on Tuesday, Wednesday, and
Thursday, and on this subject Fikes testified that: (1) around 9 a.m. on Tuesday he
informed Cox that Mays was badly burned and still in bad shape, and told Cox that
Mays would not be to work that day; (2) in the course of the morning on Wednesday
he told Cox that Mays was still in bad shape, he did not know when Mays would
be back, and would try to keep Cox further informed each day; and (3) on Thursday
he told Smith, Cox's leadman, that Mays was feeling a little better.
In his testimony, Cox admitted that Fikes told him on Tuesday that Mays had a
"very bad sunburn" and that he understood from Fikes' account that Mays was
"burned pretty good," but denied that Fikes specifically told him Mays would not be
to work that day. As to Wednesday, Cox flatly denied having had any conversation
that day with Fikes with respect to Mays.
Upon careful consideration of the Fikes and Cox testimony as to these 2 days,
and their respective demeanors on the stand, I find that on Tuesday and Wednesday
Fikes did report to Cox that Mays would be absent from work on each of those
days, on the same lines of the report Fikes concededly made to Cox on Monday 5
1 With the exception of about 2 hours on Monday evening, Mays stayed within his house
and mainly in bed from Sunday evening until Thursday afternoon treating his burns with
the preparation known as Unguentine. On Monday evening, Mays tested his ability to
wear boots, his normal work attire, by attending a National Guard drill and wearing his
military boots. The result, including skin loss and added irritation, was an aggravation
of his burns
2 As a result of queries by Respondent 's president on August 11 as to why he had not
theretofore consulted a doctor, Mays had medical examinations on that day and on
August 15. The corresponding reports state that on August 11, Mays was still unable to
wear boots, but that on August 15 his burns were sufficiently healing to permit him to
return to work then. From testimony at the hearing, Respondent appears to have enter-
tained doubt, after discharging Mays, whether Mays' burns were significant, but I see no
basis for such doubt on the evidence or any relevance of the postdischarge scrutiny Re-
sponden,t gave to this matter.
3 The appropriate or permissible methods of reporting such absences are a basic issue in
this case considered infra.
4 According to Crenwelge , his note to Cox stated merely that Mays would "not be in
that day." Mays testified that after describing his burns and inability to work 'to
Crenwelge, he told ^Crenwelge that he would return to work as soon as he "was able to."
At the hearing, iCrenwelge first testified that Mays merely said that he would "not be in
that day," later testified that this is what he "understood" Mays to have said , and finally
made no response to the question whether he was certain that Mays had not also said he
would be in further touch as soon as he felt better. For reasons later apparent, it is
unnecessary to decide whether Maya limited this report to that day' s absence.
5 It follows from this finding that I accept Fikes' testimony , and reject that of Cox, on
the narrow question whether on Tuesday Fikes stated explicitly ( after admittedly and,
vividly describing to Cox the severity of Mays ' burns ) that Maya would not be at work
that day. But whether Fikes used such explicit words would seem immaterial because
Cox admitted at the hearing that , at the time of his Tuesday conversation with Fikes, he
knew that Mays had not reported to work ; that be understood from what Pikes was telling
him that the latter was explaining Mays' absence ; and that he assumed from this con-
MOONEY AIRCRAFT, INC. 945
Moreover, Cox testified that when the Company had been notified that a prolonged
sickness 6 existed, it was unnecessary for the affected employee to report his absences
on a day-to-day basis. In this case, and certainly by Tuesday morning, Cox knew
or had every reason to know from Fikes' reports on Monday and Tuesday that Mays
was suffering from a disability of a continuing character. In the circumstances, I
consider and find that Mays was relieved, under the company practice attested to by
Cox, of any necessity to make daily reports subsequent to Tuesday, August 7. For
this reason, it is immaterial whether Fikes reported to Cox on Wednesday although I
have found that he did, or whether Fikes' conversation with Smith, Cox's leadman,
on Thursday (the occurrence of which is not disputed) should or should not be
considered a report to Respondent of Mays' absence from work on that day.
2. Mays' discharge
At the end of the day on Thursday, August 9, Cox made out a notice of termina-
tion i.e., discharge, of Mays on Respondent's regular termination form, and put on
the form as reasons for the discharge the words:
Excessive Absenteeism
Failure to Report in as Required
Under Provisions of Employees Guide
This document, bearing the signatures of Cox and Tonnessen, the factory supervisor,
and then signed "approved" by the personnel manager, Duderstadt, was transmitted
to Mays by certified mail early on Friday, August 10, and was received by Mays in
the midafternoon of that day.
Counsel for the General Counsel rested his case after introducing proof along the
foregoing lines and, as his proof of antiunion motivation, referred me to and re-
quested me to take official notice of two earlier decisions of the Board involving
the same parties, in which the Board found such an animus on Respondent's part.
I deal with this request below, after considering Respondent's explanation at the
hearing of Mays' discharge.
3. Respondent's explanation of the discharge at the hearing
While Foreman Cox listed "excessive absenteeism" first on Mays' termination no-
tice as a reason for his discharge, and while, as will be seen, Respondent's "Employees
Guide" states that "frequent," as well as "unexplained" or "unreported," absences
will "probably" result in termination, at the hearing Cox did not rely on excessive
absenteeism, as such, as a reason for his decision. Rather, Cox (1) testified that
Mays' total absences from work were about average; and (2) whenever the subject
of Mays' discharge was approached, directly or indirectly, bottomed his decision on
the ground that Mays had 3 consecutive days (those of Tuesday, Wednesday, and
Thursday) of "unreported" absences?
The provisions of the "Employees Guide" (Respondent's Exhibit 1, page 2) to
which Respondent refers read as follows:
(We depend on you to be on time and regular in attendance so that we can
meet production schedules. Frequent or unexplained absence from work or
lateness in reporting for work will impair the value of your services to the
Company and will probably result in termination. If you must be absent for all
or part of a day, please notify your supervisor as far in advance as possible. If
versation that Mays would not be at work that day. In the circumstances, I find that
Cox understood from the Fikes report that Mays would be absent for the whole day,
whether Fikes used such precise words or not.
01 interpret the words "prolonged sickness" as used by Cox with reference to the re-
quirements for reporting absences, as encompassing an illness of several days' duration
In this connection, the provisions of the Employees Guide hereinafter set forth call upon
an absent employee to report "the probable length of time [he] will be absent," thus in-
dicating that one reported explanation of an absence, whether of 1 day's duration or
indefinitely longer, is sufficient.
7As is evident from an exhibit prepared by Respondent (General Counsel's Exhibit
No. 4) and from the testimony of Cox and Duderstadt, "excessive absenteeism" figures in
this case only as an expression Respondent used to describe its practice of discharging
employees who accumulate 3 successive days of "unreported" absence. Thus, for purposes
of this case, the term represents Respondent 's definition of the number of consecutive
"unreported" absences which Respondent considers sufficient to cause discharge, a number,
incidentally, not stated in the Guide.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any reason you are unable to report for work, telephone the Company
Operator (CLearwater 7-4043) after 8 :AM and state, "I wish to report an
absence." The operator will connect you with the Personnel Office. Explain
the reason for your absence, the probable length of time you will be absent, and
other information relative to your absence which you feel should be passed on
to your foreman. Unreported absences will probably result in termination.)8
At no point in the hearing did Foreman Cox or Respondent's counsel state
explicitly the respects in which Cox concluded that Mays' absences were not re-
ported, as required" under these provisions, so that these precise specifications
must be deduced from the testimony of Foreman Cox,9 who made the discharge
decision and put the corresponding inscription on Mays' dismissal notice. From
an analysis of Cox's testimony, it appears that he reached his conclusion that Mays'
absences on Tuesday, Wednesday, and Thursday were "unreported" because (1)
no reports of any kind were received concerning Mays' absences on Wednesday
or Thursday, (2) because Fikes did not specifically state in the Cox-Fikes conversa-
tion on Tuesday that Mays would be absent that day, and (3) because, in any
event, Cox did not consider a report of an absence made solely through a co-rider,
such as Fikes, as permissible. Taking Respondent's asserted policy of automatically
discharging any employee having three successive "unreported" absences as a start-
ing point, Cox thus classified Mays' absences on Wednesday and Thursday as, in
fact, totally unreported, and that of Tuesday as "unreported" in fact, or, if reported
by Fikes, as not properly reported under the Guide.
With respect to all factual links of this chain, I have found, contrary to Cox's
testimony, that Fikes did inform Cox both on Tuesday and Wednesday that Mays
would be absent on those days, and have further found that, under the company
practice attested to by Cox, Mays was relieved from reporting his absences on
Wednesday and Thursday because of Cox's awareness on Tuesday that Mays' dis-
ability was of a persisting character. In the light of these findings, the chain of
three successive "unreported" absences falls apart on factual grounds, leaving for
consideration Respondent's contention that any reports communicated through
Fikes were impermissible under the Guide.
On this subject, Respondent sought at the hearing to portray the pertinent
sentences of the Guide previously quoted as laying down fixed rules prescribing
the exclusively permissible procedures for reporting absences, namely (1) absences
foreseen a day or more in advance may be reported to the appropriate supervisor;
but (2) any absence first reported on the day of absence must be reported exclu-
sively by the procedure of post-8 a.m. telephonic call to the personnel department.
On these premises, Cox at some points, and Duderstadt generally, testified (with
particular reference to Fikes' testimony concerning his reports to Cox) that they
did not treat or consider absences notified to Respondent by fellow employees-
riding companions-as "reported." But Foreman Cox did not adhere to the con-
cept that the second procedure represents the sole acceptable method for reporting
on the day of absence. Thus, he variously testified that: (1) he treated Mays'
absence on Monday as "reported" because of Mays' attempt to reach him directly
that morning; (2) employees in his department could report, and in some cases had
reported, absences by direct calls to him on the day of absence; (3) that telephonic
reports of absence given to the plant guard, and relayed directly to him before
the plant switchboard opened at 8 a.m., were acceptable; and (4) an employee
could send Cox word of his absence through "whoever he rides with," the method
he stated "most boys" used 10
These various avenues of reporting not set forth in the Guide but nevertheless
acceptable to Cox were accompanied by his further acknowledgments that the im-
8 For reasons evident from my report, no material significance can be attached in this
case to a notice Respondent posted in February 1962 calling attention to these procedures
for reporting absences
9 Respondent's general position that Mays was discharged for not reporting his absences
in accordance with these Guide provisions was several times stated by Rachal at the hear-
ing, but without the particularization which became requisite under the specific circum-
stances of the case.
10 Cox gave this testimony about reporting through "co-riders " without qualification
during questioning by the Trial Examiner , and subsequent to his testimony on examination
by Respondent that he did not classify an absence as "reported " on the basis of word
sent in by other employees unless such word was followed by a telephonic report to the
personnel department.
MOONEY AIRCRAFT, INC. 947
portant thing is that he receive word, regardless of the reporting channel used,
concerning which of his staff were to be absent.il In the light of this factor and
the variety of reporting methods Cox permitted, and the tenor of other pertinent
testimony by him and Duderstadt, Respondent's other witness on absence-reporting
procedures,12 it is clear that the Guide is by no means the sort of clear, authorita-
tive, and all-embracing statute on the subject of permissible procedures for re-
porting absences which Respondent sought to depict it as at the hearing. In this
connection, it is particularly noteworthy that the pertinent passages of the Guide
(1) do not clearly state that the two methods of reporting are mutually exclusive,
i.e., through the supervisors for anticipated absences, and the personnel office for
unanticipated ones; (2) do not state that these methods are the only permissible
ones; and (3) of particular importance, do not state that utilization of one as against
the other, or any other method, would be cause for discharge.13 Moreover, as is
self-evident and as Cox recognized, these methods do not cover all possible situations
(e.g., that of an ill employee lacking a telephone or one not in working order).
In the light of all the foregoing circumstances, I am unable to credit Respondent's
contention that it discharged Mays because of a failure to report his absences "as
required under provisions of the Employees Guide," and hence I find that Re-
spondent discharged Mays for some other reason.
I am the more impelled to this conclusion by a consideration of other testimony,
not yet adverted to, concerning efforts made by Mays in the period closely preced-
ing his discharge to pin down what were appropriate procedures for reporting
absences. Mays testified that as a result of one occasion when he had reported
an absence to Personnel Manager Duderstadt, he was informed by Cox that this
was not the proper procedure and that he should report to Cox; and that a bit later
(apparently only about 2 or 3 weeks before his discharge), having heard that the
absence of another employee had been reported to Cox through a co-rider, he in-
quired of Cox whether this procedure was permissible and was told that it was.
While, in apparent reference to this testimony by Mays, Cox denied that he had
ever told Mays to report to him rather than the personnel department and asserted
that, on one occasion when he was advising Mays concerning proper reporting
procedure, he told Mays to "be sure" to telephone the personnel department, in
other testimony perhaps but not necessarily referable to the particular occasions
involved in Mays' testimony, Cox admitted that he had told Mays that the latter
could report to Cox if he could not "get a hold" of the personnel department.14
"As the Guide states and the testimony shows, absences reported through the per-
sonnel office are relayed to Cox or other appropriate foremen Cox utilizes such informa-
tion for two purposes: (1) arranging daily work assignments of his staff; and (2) keep-
ing records in his department , and making corresponding reports to the personnel office,
concerning department employees on duty and absent (with those absent classified as
"reported" and "unreported"). As to his staff, he determines whether an absent em-
ployee should be classified as "reported" or "unreported," making this decision at the
end of the day as to any employee absent until then and classifying the absence as "re-
ported" if during the day the employee "gets a hold" of him or the personnel office.
12 While asserting that the proper reporting procedures are specified in the Guide,
Duderstadt recognized ^Cox's authority to accept the direct report Mays made to Cox on
August 6 ; stated that he would have to "interpret" as "justifiable" a direct report to a
supervisor if there was no one in the personnel department when an absent employee tele-
phoned ; and temporized as to the acceptability of absences reported through a third party
by stating that "I don't think" that would be "a legal manner "
13 Fully read and fairly construed , the Guide as a whole appears to be more what the
word "guide" Imports, that is, a broad explanation, particularly to new employees, of
Respondent's employment atmosphere, policies, and practices, rather than a formal and
precise compendium of working rules and regulations This introductory character of the
Guide is further evidenced by Its repeated directions that employees should consult their
supervisors for fuller clarifications and more specific guidance, and follow the instructions
and advice so received.
14 It cannot be determined from the Mays-Cox testimony just how many conversations
they had, or precisely when they all occurred , but one of them was prompted by a clearly
unreported absence by Mays on June 7. In the course of the resulting talk, Cox, accord-
ing to his own testimony, "talked to Mays about reporting in" and went on to explain
the procedure to Mays, including a reference to the Guide. Respondent, largely through
712-548-64-vol. 142-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But, as previously seen , the telling factor is that at other points in his testimony
Cox unconditionally conceded that members of his staff could properly report to
him, directly or through a corider. In the circumstances, I find that at some points
during a period beginning about 2 months prior to Mays' discharge, Cox did
advise Mays that absences could be safely reported to Cox directly or through a
co-rider, and that, as was clearly implicit from Mays' testimony, Mays relied on this
advice in reporting his absences during the week of August 6 in the ways he did.i5
The final question, then, is whether the discharge was motivated by an animus on
Respondent's part toward Mays' membership in and activities on behalf of Local 725,
and on this dispositive question of motive I turn to a consideration of the two prior
decisions of the Board involving the same parties.is These decisions are reported in
132 NLRB 1194, decided August 24, 1961,17 and in 138 NLRB 1331, decided
October 1, 1962.
In the first case, it was found that during the period October 1959-July 1960,
Respondent had engaged in a broad spectrum of unfair labor practices directed
against Lodge 725 and its members, in violation of Section 8(a)(1), (3), and (5)
of the Act, including a refusal to bargain collectively with Lodge 725 and consequent
precipitation of a strike, discriminatory action in reinstatement of its striking em-
ployees, and a discriminatory discharge and refusal to reinstate one employee be-
cause of his activity in the Union
With reference to these manifold violations, and specific conduct and statements
by Respondent manifesting its purposes to rid itself of the Union as the collective-
bargaining representative of its employees, and of union members as employees, the
Board found:
The broad pattern of the violations found evinces a general hostility on the
Respondent's part to the principles of collective bargaining and to the right of
employees to engage in legitimate concerted activities for the purposes of orga-
nization or other mutual aid and protection.
In the second case, the Board adopted findings of the Trial Examiner that during
the period from December 1960 to mid-1961, Respondent engaged in further viola-
tions of its duty to bargain collectively with the Union; that, because of their par-
ticipation in a 1-day strike in May 1961, Respondent discriminated in succeeding
months against several employees in the bestowal of desirable "makeup" and over-
time work; and that Respondent, on April 12, 1962, discriminatorily discharged the
president of the Union. With respect to this union official, it was specifically found
that Respondent for months kept "tabs" on him for the purposes of obtaining a pre-
text for a discharge in fact motivated by Respondent's antiunion policy.
Respondent's hostility to the policies of the Act in general, and toward Lodge 725
and its leaders and members in particular, as found in these cases, is at once deep-
seated in nature, recent in time, and continuing in character. Considered in conjunc-
tion with my inability to accept the ground for discharge given by Respondent, that
hostility presents itself as the true reason for action which otherwise is far from
Rachal''s questions, characterizes this as a "warning" to Mays. But a "warning," both
in general as well as in cases under the Act, means an advance notice of some impending
or probable danger if a given course of conduct is followed. There is no suggestion that
what 'Cox said was in such terms. A fair construction of his testimony, which is akin to
that of Mays, is that what he said to Mays had the character of a reminder, not a warn-
ing Indeed, Mays was absent again without reporting, and without discharge and with-
out comment by Cox, on July 16, just 3 weeks before his discharge
15 In making these findings, I have relied, in part, upon the demeanor of Mays while on
the stand. He impressed me as an honest man, disposed to give straightforward, un-
hesitant testimony to the best of his recollection and ability. As to Cox, he created much
the same impression while under examination by the Trial Examiner, where in effect he
retreated from answers he had given concerning reporting methods while under examina-
tion by Rachal. I attribute this self-contradictory character of his testimony on rather
crucial points to Rachal's position as president of Respondent.
11 That I am free to take official notice of those decisions for purposes of such an inquiry
is well established. Paramount Cap Manufacturing Company v. N.L.R.B., 260 F. 2d
109, 113 (C A. 8), and cases there cited. See also, Nahtel Corp v. West Virginia Pulp &
Paper Co, 141 F 2d 1, 2, footnote 2 (C A. 2) ; Underwood Machinery Company, 79
NLRB 1287, 1288-1290, enfd. 179 F. 2d 118 (C.A. 1) ; Fred P. Weissman Co., 71 NLRB
147, 151, 155, enfd. 170 F. 2d 952 (C.A. 6).
17 The Board Order in this case was enforced by the Court of Appeals for the Fifth
Circuit on November 28, 1962, 310 F. 2d 565.
MOONEY AIRCRAFT, INC. 949
persuasively explained or explicable on the record.18 I find that Respondent dis-
charged Mays because of his membership in and activities on behalf of Lodge 725,
in violation of Section 8 (a) (3) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, have a close,
intimate, and substantial relation to 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.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (3) and 8(a) (1) of the Act, I recommend below that it cease and desist
therefrom, and take certain affirmative action designed to effectuate the policies of
the Act, including offering to George E. Mays immediate and full reinstatement to
his former or a substantially equivalent position, and making him whole for any loss
of earnings he may have suffered because of the discrimination against him, by pay-
ment to him of a sum of money equal to the amount of wages he would have earned
from the date of his discharge to the date of the offer of reinstatement, less his net
earnings during such period, together with interest thereon at the rate of 6 percent per
annum, the loss of pay and interest thereon to be computed in accordance with the
respective formulas and methods prescribed by the Board in F. W. Woolworth Coin-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging George E. Mays on August 10, 1962, as found above, the Re-
spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3)
and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and 2(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, I recommend that the Respondent, Mooney Air-
craft, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Lodge 725, International
Association of Machinists, AFL-CIO, or any other labor organization of its em-
ployees, by discharging or in any other manner discriminating against any individual
in regard to his hire, tenure of employment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer to George E. Mays immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges.
(b) Make George E. Mays whole in the manner and in accordance with the
methods referred to in section IV, above, entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
Is See N.L.R.B. v. Texas Bolt Company, 313 F. 2d 761 (C.A. 5) ; N.L.R.B. v. Baker Hotel
of Dallas, Inc., 311 F. 2d 528 (C.A. 5).
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, personnel records and reports, and all other records necessary to a deter-
mination of the amount of backpay due.
(d) Post at its plant at Kerrville, Texas, copies of the attached notice marked
"Appendix." 19 Copies of said notice, to be furnished by the Regional Director of
the Board for the Twenty-third Region, shall, after being duly signed by an author-
ized representative of the Respondent, be posted by the Respondent immediately upon
receipt thereof and maintained by it for a period of 60 consecutive days thereafter in
conspicuous places, including its main bulletin board, all department bulletin boards,
and all other places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps it has taken to
comply herewith.20
19 In the event that this Recommended Order is adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the additional event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
20 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Lodge 725,
International Association of Machinists, AFL-CIO, or any other labor organiza-
ton of our employees, by discharging or in any other manner discriminating
against any individual in regard to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist the above-named Union or any other labor organization,
to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer to George E. Mays immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his seniority or
other rights and privileges and make him whole for any loss of earnings he may
have suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named or any other labor organization.
MOONEY AIRCRAFT, INC.,
Employer.
Dated------------------- By---------------------------------- --------
(Representative) (Title)
NOTE.-We will notify George E. Mays if he is presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, 77002, Telephone No.
Capitol 8-0611, Extension 296, if they have any question concerning this notice
or compliance with its provisions.,