Petroleum Helicopters, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 58 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petroleum Helicopters, Inc. and Robert J. Davies,
Richard N. Dutson, and Robert C. Mitchell.
Cases 15-CA-7963, 15-CA-7964, and 15-CA-
7982
July 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On February 12, 1982, Administrative Law
Judge Richard J. Linton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed limited exceptions, a sup-
porting brief, and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In sec. III,E,2, of his Decision, the Administrative Law Judge stated
that it was Respondent's vice president and chief pilot, Clay, who initial-
ly fired employee Mitchell whereas it is clear that Area Manager Shugart
initially discharged Mitchell at the instruction of Respondent's vice presi-
dent of Domestic Operations, Dougherty. This inadvertent error is insuf-
ficient to affect the results of our decision.
No exceptions were filed to the Administrative Law Judge's dismissal
of the allegation that Respondent, through Area Manager Bundy, violat-
ed Sec. 8(a)(1) of the Act by informing employees at its Intercoastal base
that wage increases would be withheld.
2 In view of the Administrative Law Judge's finding, with which we
agree, that employee Mitchell was discharged because of his union activi-
ties in violation of Sec. 8(a)(3) of the Act, we find it unnecessary to pass
on his further conclusion that Mitchell's discharge was additionally un-
lawful under Alleluia Cushion Co., Inc., 221 NLRB 999 (1975), because he
exercised his rights under FAA regulations to refuse to fly an aircraft. In
so doing, we note that, as is clear from the Administrative Law Judge's
findings, Respondent seized on this latter incident as a pretext to dis-
charge Mitchell because of his union sentiments. Thus, we note that Mit-
chell's refusal to fly the aircraft was not insubordination and that Re-
spondent's director of safety, Cadoret, acknowledged that a pilot has final
authority under FAA regulations to ground an aircraft he feels is not air-
worthy. We also agree with the Administrative Law Judge's finding that
the other grounds advanced to justify Mitchell's discharge, including his
purported ignorance of aerodynamics, were pretextual. In so doing, how-
ever, we do not rely on his finding that Clay himself inadequately de-
fined a physics term while faulting Mitchell for his inability to define it.
3 The Administrative Law Judge inadvertently failed to include in his
recommended Order a reinstatement provision for employees Dutson,
Mitchell, and Davies. We shall modify the recommended Order accord-
ingly. The Administrative Law Judge also did not provide in his recom-
mended Order that Respondent make whole employee McJunkin for
monetary losses, if any, resulting from his discriminatory transfer, noting
263 NLRB No. 9
Based on the evidence set forth below, we agree
with the Administrative Law Judge's conclusion
that Respondent violated Section 8(a)(l) of the Act
by transferring employee McJunkin from its Sabine
Pass base and subsequently refusing his requests to
retransfer because of his union and/or protected
concerted activities.
McJunkin was a member of the Union's board of
directors and an activities coordinator. Based on
credited testimony, the Administrative Law Judge
found that at the outset of the Union's formation
Respondent's vice president, Dougherty, asked
McJunkin why he had become involved with the
Union and, when McJunkin responded, Dougherty
stated he was disappointed with him. Dougherty
further stated that he thought McJunkin had a
good future with the Company but warned him
that that would not be so if he continued his activi-
ties.4 Thereafter, Dougherty informed McJunkin
that this transfer from the Sabine base was due to
Area Manager Ross' report that he was a disrup-
tive influence. As one example Dougherty men-
tioned McJunkin's having scheduled, during Ross'
absence, a meeting of pilots to discuss problems
concerning various working conditions to be
brought to the attention of headquarters. Further,
Respondent's personnel manager, Michel, testified
that McJunkin was "continually stirring up" the
employee factions that had developed during the
union campaign. Finally, after McJunkin requested
a retransfer to Sabine, Dougherty told him that he
was "still being punished" and that he was not
going to send him back to Sabine, and said he
thought that McJunkin would have been "ashamed
of himself" for not resigning when the Union lost
the election.
The Administrative Law Judge found, and we
agree, that Dougherty's telling McJunkin that he
was being transferred in reprisal for his union
and/or protected concerted activities and that his
job transfer opportunities would continue to be
withheld because of such activities was clearly vio-
lative of Section 8(a)(1) of the Act. Further, based
on the foregoing and the record as a whole, we
find it clear that, consistent with Dougherty's state-
that counsel for the General Counsel did not request such a remedy.
However, counsel for the General Counsel offered no affirmative reason
for not seeking such a remedy but merely stated that he was unaware
whether McJunkin had suffered any monetary losses. Furthermore, as
noted by the Administrative Law Judge, the discriminatory transfer may
have resulted in increased commuting expenses for McJunkin. We find a
make-whole remedy necessary to effectuate the policies of the Act and
we shall modify the recommended Order accordingly.
We also shall modify the Administrative Law Judge's recommended
Order to require Respondent to expunge from its files any reference to
the unlawful discharges of Dutson, Mitchell, and Davies. See Sterling
Sugars, Inc., 261 NLRB 472 (1982).
4 This conversation was considered for background purposes only as it
occurred outside the 10(b) period.
58
PETROLEUM HELICOPTERS, INC.
ments, Respondent transferred McJunkin and sub-
sequently denied his requests for retransfer because
of his union and/or protected concerted activities,
and thereby violated Section 8(a)(1) and (3) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Petroleum Helicopters, Inc., Harahan, Louisiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as new paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Offer Richard N. Dutson, Robert C. Mitch-
ell, and Robert J. Davies immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed."
2. Insert the following as new paragraph 2(c)
and reletter the subsequent paragraphs accordingly:
"(c) Make Daniel E. McJunkin whole for any
monetary losses he may have suffered by reason of
Respondent's unlawful transfer of him, with inter-
est."
3. Insert the following as new paragraph 2(d)
and reletter the subsequent paragraphs accordingly:
"(d) Expunge from its files any references to the
discharges of Richard N. Dutson, Robert C. Mitch-
ell, and Robert J. Davies, and notify them in writ-
ing that this has been done and that evidence of the
unlawful discharges will not be used as a basis for
future personnel actions against them."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT tell you that you are being
transferred, or transfer you, in retaliation for
your union or other protected concerted activ-
ities.
WE WILL NOT tell you that transfer opportu-
nities are being withheld from you as punish-
ment for your union activities, or deny such
transfer opportunities to you because of your
union sentiment or activities.
WE WILL NOT tell you that transfer opportu-
nities will continue to be withheld because of
your union or protected concerted activities.
WE WILL NOT discourage you from joining
or supporting Professional Helicopter Pilots
Association, or any other labor organization,
by unlawfully discharging any of you or other-
wise discriminating against any of you with re-
spect to your hire or tenure of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Richard N. Dutson, Robert
C. Mitchell, and Robert J. Davies immediate
and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them
whole for any loss of earnings they may have
suffered as a result of our discrimination
against them with interest.
WE WILL make whole Daniel E. McJunkin
for any monetary losses he may have suffered
as a result of our discrimination against him,
with interest.
WE WILL expunge from our files any refer-
ences to the discharges of Richard N. Dutson,
Robert C. Mitchell, and Robert J. Davies, and
WE WILL notify them that this has been done
and that evidence of the unlawful discharges
will not be used as a basis for further person-
nel actions against them.
PETROLEUM HELICOPTERS, INC.
59
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge:
These cases were heard before me in Lafayette, Louisi-
ana, on November 16, 17, and 18, 1981, pursuant to the
January 27, 1980, consolidated complaint and notice of
hearing issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 15 of the Board. The complaint is based on
charges filed by Robert J. Davies (Davies), Richard N.
Dutson (Dutson), and Robert C. Mitchell (Mitchell)
against Petroleum Helicopters, Inc. (Respondent or
PHI).
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the Act by threaten-
ing employees with discharge and by other specified
conduct, and Section 8(a)(3) of the Act by discharging
Dutson on June 20, 1980, Mitchell on November 6, 1980,
and Davies on November 25, 1980, because of their ac-
tivities on behalf of Professional Helicopter Pilots Asso-
ciation, Incorporated (PHPA or the Union herein).'
By its answer, Respondent admits certain allegations,
but denies that it has violated the Act in any manner.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with its principal
office in Harahan, Louisiana, and operational facilities
throughout the United States and overseas, provides heli-
copter services primarily to the petroleum industry.
During the preceding 12 months, a representative period
of all events material herein, Respondent did a gross
volume of business in excess of $500,000, and purchased
and received goods and materials valued in excess of
$50,000 which were shipped to Respondent in the State
of Louisiana directly from points located outside the
State of Louisiana. Respondent admits, and I find, that it
is an employer within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that during the relevant
times herein Professional Helicopter Pilots Association
(PHPA) was a labor organization within the meaning of
Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The current organizing campaign2 began in early 1979
when a group of Respondent's approximately 700 domes-
: All dates shown are for 1980 unless otherwise indicated.
I Little information appears in the record concerning an earlier cam-
paign by International Association of Machinists & Aerospace Workers,
AFL-CIO, other than the fact that lead pilots were found to be statutory
tic pilots and pilot-mechanics (the latter being licensed
mechanics as well as licensed pilots) formed the nucleus
of what became PHPA. Richard Dutson, one of the
Charging Parties herein, personally delivered a copy of
PHPA's articles of incorporation to the office of Carl
Dougherty, vice president and director of Respondent's
domestic operations, in March 1979 (G.C. Exh. 11). In a
five-page memorandum distributed or mailed "To All
PHI Pilots" in November 1979, PHPA described its
origin and explained to all pilots the reasons for its for-
mation. Safety is stressed as a primary reason for PHPA's
existence.
PHI notified its employees that it opposed the organiz-
ing campaign. For example, in a memorandum dated No-
vember 21, 1979, and addressed to all PHI employees,
Vice President and General Manager Frank W. Lee
stated, inter alia:
You can rest assured we intend to fight these mal-
contents with every legal means at our disposal.
In a memorandum of the same date to all PHI pilots, Lee
advised them that PHI president, R. L. Suggs, on leav-
ing for a trip to the Far East, asked that Lee send them
the memo (slightly over a page in length) describing
PHI's position. Suggs' message included the words that:
We want to assure you that we do not intend to
hand over this company to any individual or any
group of malcontents so that they can destroy ev-
erything that we have worked so hard to build here
at PHI.
And:
If it comes to a confrontation in a Labor Board
election, we will point out the danger to your job
security and the welfare of your families if this
union should succeed in its purpose. Once you un-
derstand the real truth, we know that we will be
able to depend upon you to help us defeat this dan-
gerous threat.
On December 5, 1979, PHPA filed a representation
petition in Case 15-RC-6578. Unable to agree on the
unit placement of the lead pilots, the parties offered evi-
dence in a representation hearing. References in the
record to the hearing place it in December 1979, but the
exact date is not specified. The Regional Director, in his
Decision and Direction of Election dated January 22,
found the lead pilots to be supervisory.3 PHI requested
review by the Board. On February 15 the Board tele-
graphically notified the parties it had concluded that "a
substantial issue is raised concerning the supervisory
status of the lead pilots," but that "such issue can best be
resolved through the challenge procedure." A mail ballot
supervionra. Petroleum Helicopters, Inc., 184 NLRB 60, 61 (1970). Al-
though the lead pilot status is raised in this case, it is not necessary for
me to resolve the issue.
s Contending that the duties of its lead pilots had changed since the
Board's decision reported at 184 NLRB 60, PHI apparently relied largely
upon the testimony of James 1. Michel, director of personnel. The Re-
gional Director observed that Michel did not have personal knowledge
of the duties and responsibilities of lead pilots.
60
PETROLEUM HELICOPTERS, INC.
election was thereafter conducted. The ballots were
mailed about February 15 and counted on April 5. Al-
though the tally of ballots is not given in the record, it is
clear that any challenges were not determinative, for a
certification of results (certifying that PHPA lost the
election) issued on April 14.
B. Principal Issues
The primary question is whether Respondent unlaw-
fully discharged the individual Charging Parties on the
dates shown:
Richard N. Dutson-June 26, 1980
Robert C. Mitchell-November 6, 1980
Robert J. Davies-November 25, 1980
Aside from some allegations of independent restraint
and coercion, the complaint alleges that PHI unlawfully
transferred a pilot (Daniel E. McJunkin) from the Sabine
Pass, Texas, base, and thereafter denied his requests to be
returned. The General Counsel seeks only a remedial
notice regarding McJunkin, for McJunkin ultimately was
transferred to the base of his choice. All four-Dutson,
Mitchell, Davies, and McJunkin-were active in PHPA.
C. Daniel E. McJunkin
McJunkin credibly testified that he was elected to
PHPA's board of directors in about March 1979. Shortly
thereafter, a PHPA newsletter was distributed reflecting
McJunkin's status as schedule 2 coordinator (apparently
one who coordinates activities of certain PHPA repre-
sentatives). About a week or so later, in March or April
1979, PHI Vice President Carl Dougherty spoke to
McJunkin at Respondent's Sabine Pass, Texas, base.
Dougherty asked McJunkin why he had become in-
volved (with PHPA) and asked him what he was trying
to do to PHI. McJunkin explained that he thought the
pilots needed a voice in the decisions being made by PHI
and that PHPA was strictly an internal organization of
PHI pilots. Dougherty said he was disappointed with
McJunkin and that he thought the pilot had a good
career future with PHI.4 However, Dougherty warned
that would not be so if McJunkin continued his PHPA
activity. McJunkin responded that he thought the pilots'
PHPA efforts were necessary.5
About June 15 Dougherty, in the presence of Jack
Ross, area manager (the new title of base supervisor) for
Sabine Pass, and Lead Pilot Jim Scott, informed McJun-
kin that effective the next morning he was being trans-
ferred to the Cameron, Louisiana, base some 35 miles
away.6 When McJunkin asked why, Dougherty said be-
4 McJunkin, in September 1978, had informed Dougherty in writing
that he was interested in becoming base supervisor of the Sabine base
after John Kangas retired from that position. McJunkin lived in the
nearby city of Beaumont, Texas. Dougherty wrote back indicating that
he and McJunkin could talk about it on Dougherty's next visit, but that
PHI did not select supervisors on the condition they be assigned to cer-
tain bases.
I The General Counsel offered this conversation for background pur-
poses.
6 Cameron, Louisiana, would be 35 miles farther for McJunkin to
travel since Sabine Pass is situated roughly between Beaumont and Ca-
meron. Dougherty testified that had he been wanting to punish McJun-
cause Ross had reported that he was a disruptive influ-
ence on his ability to supervise the base.
Dougherty cited two events. The first involved
McJunkin's moving a "No Parking" sign's location on
the parking lot about a month before his transfer.
McJunkin said that was true, but Lead Pilot Scott knew
about it, and Ross (apparently away at the time) did not
complain on his return. Dougherty then asked Scott
about it, and Scott confirmed that he was aware that
McJunkin was moving the sign.'
Dougherty then raised the second point which he de-
scribed as McJunkin's organizing a meeting of the pilots
to discuss problems to be sent to headquarters at La-
fayette, Louisiana, by the advisory employee system, and
that McJunkin had held the meeting at a time to pre-
clude Ross from participating. McJunkin testified that he
told Dougherty that he arranged the meeting for a time
convenient to most of the pilots, and that, while he knew
Ross was on vacation, Lead Pilot Scott was present for
the meeting. Indeed, McJunkin told Dougherty that he
and Ross had discussed in advance certain shortcomings
of the advisory employee system (apparently utilized by
PHI as an informal sounding board for pilot problems),
and that it was Ross' suggestion that each base resolve
petty grievances, such as an inadequate supply of toilet
paper, rather than submitting them to top management at
Lafayette. 8
Dougherty testified that when Sabine Base Supervisor
(Area Manager) John Kangas retired, he decided to op-
erate the base through lead pilots, and without a base su-
pervisor, since Sabine is a small base. This did not prove
satisfactory because PHl's customers requested that
someone be at the base whom they could talk to about
business when the lead pilots were flying. So Dougherty
assigned Jack Ross to be the base supervisor.
It is undisputed that a lot of employee unrest devel-
oped at the Sabine base under Ross. Rumors existed that
Ross and the base secretary were having an affair. A
utility employee apparently carried gossip back and forth
between Ross and the pilots. The pilots did not perceive
Ross as being truthful. After the election, Director of
Personnel James I. Michel made an inspection visit to
the base and found it "just about in total chaos." Dough-
erty and Vice President of Maintenance Burns thereafter
visited the Sabine Pass base.
Michel testified that McJunkin "got the employees in-
volved in what I considered nit picking situations about
what kind of cokes go into the Coke machine." More-
kin, he could have transferred the pilot to bases 300 miles or more dis-
tant
Although complaint par. 7(a) alleges the transfer to be violative of Sec.
8(a)(1) of the Act, the General Counsel does not seek a remedial transfer.
While the transfer to Cameron apparently did not affect Mciunkin's pay.
it may have increased his expenses commuting to work. However, the
General Counsel seeks only a notice remedy.
I While another pilot and two mechanics were moving the sign, in
order to give more parking space to PHI employees who drove to work,
McJunkin went and informed Scott who said he did not know whether
Ross would approve. McJunkin responded that they would move it back
if Ross did not approve. McJunkin heard nothing more on the subject.
s McJunkin testified that earlier PHI had ceased using the advisory
employee sysILm, but reinstituted it following the formation of PHPA.
9 While it is not clear when this occurred, it apparently was in 1979.
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over, Michel testified, "Mr. McJunkin was continually
stirring up the pilots as to keep the factions that devel-
oped during the [union] campaign going."
Michel recommended to Dougherty that the latter
visit the base. Dougherty did so, and he was accompa-
nied by Vice President Burns. Dougherty testified that
he made the decision to transfer McJunkin "because all
the problems seemed to be centered around him, as far as
the rumors and different groups breaking off into splinter
groups, fighting among themselves." He also decided to
transfer Ross at a later time. Some 6 weeks later Ross
was transferred and Byron Stone was assigned to replace
Ross at Sabine Pass. According to Dougherty, some me-
chanics were transferred at the same time as McJunkin.
Describing McJunkin as "very ambitious," Dougherty
theorized that after McJunkin was not made base super-
visor at Sabine Pass, he began trying to undermine Ross
by spreading rumors about Ross and the secretary.
Moreover, Dougherty testified, McJunkin held several
meetings with the mechanics. On cross-examination
Dougherty testified as follows:
Q: These meetings with the mechanics, what
were they about?
A: I have no idea, I wasn't involved in it. But he
has a couple of separate meetings with the mechan-
ics that was reported to me. I don't know what was
said in the meetings, but that was a very unusual sit-
uation.
Q: Is there some problem with the Coke ma-
chine?
A: Yes. We had all kind of little minor problems
at the base. It all culminated in the changes that we
made. I don't remember the little items like the
Coke machine. I got this from the different people.
The mechanics wanted one kind of coke, one kind
of drink in the machine, but it's just little things like
that that lead up to the big things. I said, "Well let's
just clean out the base and make changes."
Q: So it's just a lot of complaints about the work-
ing conditions?
A: That's correct.
Q: The job situation?
A: That's correct.
Shortly after Stone was assigned as the area manager
at Sabine Pass, McJunkin requested to be retransferred to
Sabine from the Cameron, Louisiana, base. Dougherty
visited Cameron in late August 1980 and told McJun-
kin:'0
Well, you've made your bed. Now you're going to
have to lie in it. As a matter of fact, I'm kind of sur-
prised. I would have thought that you'd been
ashamed of yourself for not resigning when the
vote-when the results of the election were an-
nounced.
McJunkin asserted that he had no desire to quit PHI,
and that while he felt the pilots should have a chance "to
participate," the vote was no and the matter was over. In
light of that, McJunkin asked if he could return to
10 Dougherty's remarks form the basis for complaint par. 7(b).
Sabine.'" Dougherty replied, "You're still being pun-
ished. I'm not going to send you back to Sabine."
McJunkin asked if he could participate in PHI's senior-
ity-based base selector system.' 2 Dougherty grudgingly
conceded on that with the comment that he, Dougherty,
had to live with the seniority-based selection system.
Thereafter, McJunkin learned from other pilots that he
had twice been passed over for less senior pilots for a
position at Galveston.' 3 After talking with some inter-
mediate officials on the subject, McJunkin, about Sep-
tember 1980, telephoned Dougherty and asked him
whether he was still being held in Cameron. Dougherty
replied yes, that he intended to leave McJunkin at Ca-
meron under Area Manager Messer a while longer.
When McJunkin asked if he was still being punished,
Dougherty answered, "Well, you can say that." 4 For
all practical purposes, McJunkin testified, he dropped the
issue after that. Eventually, about August 1981, McJun-
kin accepted a voluntary transfer to Rockport, Texas, for
his family had moved to Austin, Texas, in the interim.
Conceding that he met personally with McJunkin once
on the subject of his transfer request, Dougherty denies
that he told McJunkin he was being punished. According
to Dougherty, McJunkin used the term, but Dougherty
told him that, because of his problems at Sabine, he was
to stay at Cameron under Area Manager Messer for as
long as Dougherty felt necessary. Dougherty approved
McJunkin's transfer to the Rockport, Texas (near Corpus
Christi), base because he "had gone along for a long time
with no problems ... ."
Conclusion
Largely for demeanor factors, I credit McJunkin over
Dougherty, and I find that Respondent violated Section
8(a)(1) of the Act as alleged in complaint paragraphs
7(a), (b), and (c).15 In any event, Respondent practically
concedes that it transferred McJunkin because of his
PHPA and protected concerted activities of meetings
with the pilots and mechanics over job conditions.
D. Richard N. Dutson
Dutson, a former U.S. Army helicopter pilot, had been
employed as a helicopter pilot by PHI for some 6 years
before he was discharged on June 26. It is undisputed
that on the night of June 23 Dutson, as requested by
maintenance personnel, did a "hover" check on a heli-
copter. As Dutson lowered the helicopter at the conclu-
sion of the hover, the aircraft settled onto a maintenance
stand (a short ladder stand) which punctured the vehi-
cle's fuselage. Dutson was fired over this event.
Dutson was one of the foremost supporters of PHPA.
He was one of the founders of PHPA, served on its
Il McJunkin testified that the Sabine base is a 45-minute drive from his
Beaumont home.
:A The system utilizes a list of pilots by seniority and type of aircraft
the pilot is flying.
ta Galveston, Texas, appears to be no closer to Beaumont than Ca.
meron. Louisiana, and the record is unclear as to why McJunkin felt Gal-
veston to be a more advantageous location than Cameron.
4 Complaint par. 7(c).
1I Moreover, I take note of the fact that McJunkin is currently em-
ployed by Respondent, yet testified adversely to PHI's interests.
62
PETROLEUM HELICOPTERS. INC.
board of directors, appeared at the NLRB representation
hearing, and was the only PHPA representative present
when the mail ballots were opened and counted in April
1980.
Since December 1979, Dutson had been flying night
duty from Respondent's Intracoastal City, Louisiana,
base. As most of the maintenance on Respondent's air-
craft was performed at night, Dutson's duties included
assisting the mechanics in the performance of their main-
tenance function. He piloted a Bell 212 helicopter.
On the night of the incident Dutson agreed to hover
test a 206L model helicopter. Dutson had never qualified
to operate such a helicopter, and additionally, of course,
was not currently qualified in the particular aircraft.1 6
Although Dutson reviewed various regulations and
manual provisions before undertaking the hover check,
he failed to notice the provision in PHI's operations
manual which provides that night test flights by pilots
flying alone would be permitted "only by pilots ap-
proved for night flight and only in helicopters in which
the pilot is presently FAR/135 current." The hover
check would qualify as a night test flight, and Dutson
was not currently qualified to operate the 206L.
Before going to get the mechanic, Dutson walked
around the helicopter and inspected it for obstructions.
He then walked toward the trailer to meet the mechanic,
Russell Martin. Dutson testified that he entered the heli-
copter while Martin said he was going to check on his
"stuff" and make sure everything was okay. Martin testi-
fied that they both got in the aircraft and then he looked
back to make sure that the main rotor blade tie-down
was released and that his instruments were properly at-
tached. There is no dispute that Dutson did the usual
preflight inspection of instruments inside the aircraft.
Thereafter, Dutson raised the helicopter to a point ap-
proximately 3 to 5 feet off the ground, hovered a minute
or two and then sat back down. Both Dutson and Martin
testified that they could tell something was wrong in that
the aircraft did not feel right when it sat down. On in-
specting, they found a maintenance stand lodged under-
neath the aircraft. Dutson testified that the mechanics
were able to pull the stand from underneath the aircraft,
whereas Martin testified that Dutson had to reenter the
helicopter and pull it into a slight hover again so that he
could pull the stand out and set the helicopter back
down.
Martin testified that the lead mechanic asked him if he
had left the stand there, and he told the lead mechanic
that he thought he had moved it over to the side and put
it on the grass after he had finished using it.
Dutson testified that he believes the mechanic placed
the maintenance stand over the left skid just forward of
the aft cross tube after Dutson had made his inspection.
Dutson was suspended while Respondent investigated
the matter. The incident occurred on Sunday night; and,
"6 Dutson testified that although he was not qualifted in the aenae of
part 135 of the regulations of the Federal Aviation Administration, he be-
lieved that he was sufficiently qualified to perform a hover check on the
aircrat in view of his many hours of flying 206B model helicopters. The
L helicopter is six passenger, while the B model carries only four. There
are other differences in the aircraft, but Dutson persuasively testified that
the operating procedures are virtually identical.
on the following Thursday, Vice President and Chief
Pilot Stanley R. Clay called Dutson and requested him
to come to the Lafayette headquarters. Clay told Dutson
that PHI considered this a very serious matter and did
not see how Dutson could have missed seeing the stand.
Dutson responded by saying that he thought the me-
chanic had left it there. When Clay said he could not
find that Dutson was checked out in the helicopter,
Dutson replied that he was not. Clay asked him if he did
not know he was supposed to be (qualified) in order to
do a night test flight. Dutson said no. Clay replied that
such was no excuse and that he should have known what
the operations manual provided. Clay then said he had
talked the matter over with Vice President Dougherty
and they had decided to terminate Dutson,
Dutson asked if the incident was the only basis for the
discharge or if there was anything else in his file which
warranted the discharge. Clay flipped through the papers
in the file and came to an incident which occurred about
5 years previously in which he said Dutson had used
poor judgment in a situation when a helicopter lost the
hydraulic system in flight. In any event, Clay stated that
he did not want to argue about the matter, "That's just
the way it is and we just feel you'd be happier else-
where."
At the hearing Dutson explained that the hydraulic's
incident occurred about 5 years ago when he was ferry-
ing two passengers from an offshore location. He discov-
ered that the hydraulic fluid was leaking and he made a
precautionary landing of the aircraft. Another PHI heli-
copter pilot close by heard Dutson's communication to
the tower and stopped by and picked up the passengers.
Thereafter, Dutson obtained permission from supervision
to fly the helicopter back to base. Neither at Dutson's
termination interview nor at the hearing did Clay explain
in what way Dutson used bad judgment in the hydrau-
lic's incident.
Clay testified that the reason for Dutson's discharge is
set forth in the personnel status notification form (Resp.
Exh. 18) as follows:
Terminated-Damaged a company aircraft as the
result of failure to conduct a preflight inspection
and operated a company aircraft that he is not
qualified to operate. Both items are in violation of
the company operations manual as well as careless
and reckless.
The record reflects that no disciplinary action was
taken against mechanic Russell Martin. Indeed, it is not
clear to what extent Respondent's investigation of the in-
cident involved Martin. Clay testified that he did not
know the amount of damages caused by the incident, but
that PHI does not consider the amount of monetary
damage to aircraft with respect to disciplinary actions.
Instead, Respondent considers the severity of the viola-
tion.
It is undisputed that the pilot is the person ultimately
responsible for ascertaining that the way is clear for him
to safely fly (or hover) a helicopter.
The record reflects that there have been other inci-
dents in which pilots have damaged helicopters, yet the
-
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pilots were not discharged. Respondent's director of
training, Vernon E. Albert, testified that Respondent
does not discharge pilots who commit errors not involv-
ing knowing or intentional violation of applicable rules
and regulations. Thus, Respondent did not discharge
pilot Jimmy Walker whose helicopter sustained damage
when the tail rotor blade struck a cable.'7 Walker re-
ceived only a letter of reprimand. The Walker incident
occurred about November 24.
Ted Leete, about February 3, 1977, negligently started
his helicopter without removing the intake plugs. This
was classified as improper preflight procedure which
could have resulted in damage.
On or about December 14 pilot Dana Raaz started an
aircraft in temperatures below zero degrees centigrade
without following the cold starting procedure. That is,
he forgot to place the fuel control lever in the manual
position. An engine overspeed resulted. Raaz received a
letter of reprimand (G.C. Exh. 9). Albert testified that
Raaz was not discharged because his pilot error did not
involve intentional misconduct.
At the hearing Respondent introduced records reflect-
ing that 25 other pilots were discharged for violation of
rules (Resp. Exh. 13). However, these examples consist
mostly of pilots discharged for drinking alcoholic bever-
ages while on duty, or probationary employees because
of poor performance, or repeat violations of rules. One
pilot, Dat Tan Ho, was terminated on December 26,
1979, not only because he failed to properly shut down
the helicopter resulting in an engine overheating situa-
tion, but also because he failed to file an incident report
on the matter (Resp. Exh. 13-9). Thus, the implication is
that pilot Ho sought to cover up his negligence by fail-
ing to report the incident.
Conclusion
On brief, Respondent argues that Dutson (as well as
Davies and Mitchell) engaged in conduct which not only
was technically violative of the rules, but that such con-
duct could be phrased as an intentional violation in that
Dutson was apprised of all the relevant facts and still
flew his aircraft. Respondent further argues that the situ-
ation of Dutson (and Davies and Mitchell) is entirely dis-
tinct from the situations involving pilot error. "If Mr.
Leete had been aware of the intake plugs and had failed
to remove them, then his situation would be analogous.
If Mr. Walker had known that the guy cable was present
and in such a location as to cause a rotor strike and still
rotated his aircraft, then his situation would be analo-
gous. If Mr. Raaz had intentionally refused to flip his
fuel lever from automatic to manual, then his incident
would be similar." Respondent argues that Dutson knew
that he was not qualified or current in the 206L model
aircraft, yet he flew and damaged the aircraft.
Dutson did not intentionally violate any rules of Re-
spondent. Thus, I find that his negligence was nothing
more than pilot error. I, therefore, would find that the
case of Dutson reflects a disparity of treatment accorded
him in comparison as to what Respondent has accorded
"T Director of Safety Warren Cadoret testified that "in most caaes a
rotor strike will indicate some violation of the manual."
to other pilots in the past. Moreover, I note that Re-
spondent issued not even a disciplinary reprimand to me-
chanic Russell Martin. Even though pilot Dutson had
the overall responsibility for maintaining a safe clearance
to lift off the helicopter, Respondent never demonstrated
before me that it established even to its own satisfaction
that it investigated Martin's participation and absolved
him of responsibility for placing and leaving the mainte-
nance stand over the left skid of the helicopter.
Most telling of all, however, and the real key to the
proof that Respondent seized upon the incident as a pre-
text in order to discharge Dutson for his activities on
behalf of PHPA, is the language used by Vice President
and Chief Pilot Clay when he discharged Dutson. On
this occasion Clay unwittingly revealed his true motive
when he stated, as quoted by Dutson, "That's just the
way it is and we just feel you'd be happier elsewhere."
There was absolutely no basis for Clay to state that
Dutson would be "happier elsewhere." I find that this is
a direct reference to Dutson's PHPA activities and re-
flects the true and real reason for Dutson's discharge.
Accordingly, I shall order that Respondent offer rein-
statement to Dutson and make him whole, plus interest.
E. Robert C. Mitchell
1. Introduction-Complaint paragraphs 9 and 10
dismissed
As with the other Charging Parties, Mitchell is an ex-
perienced helicopter pilot. He began as a helicopter me-
chanic with the U.S. Army in Vietnam in the 1960's,
servicing mostly Bell helicopters, including Bell 206's.
He graduated from flight school in January 1972, subse-
quently becoming an instructor pilot. On leaving the
Army in November 1977, he was hired immediately by
PHI. His background experience and education include a
degree in aviation flight technology and he is classified
as an air transport pilot, which Mitchell described as
something similar to a master's degree in aviation. With
respect to the tests administered by the Federal Aviation
Administration (FAA), he scored a 92 on the instrument
test and a 90 on the visual flight rules test.
Mitchell was quite active for the Union and had more
than one conversation regarding PHPA with Area Man-
ager Shugart, base supervisor for the Houma, Louisiana,
base where Mitchell was assigned. In early 1980, appar-
ently around January or February, Mitchell and pilot
Hou Whin flew to the Placid Oil Company, a customer
of PHI, in Houma, Louisiana. John Cross, transportation
manager for Placid Oil Company, spoke to Mitchell and
Whin on this occasion. He said that he wanted them to
know that if the Union went through at PHI, that Placid
was going to drop PHI and Mitchell and Whin would be
out of jobs.
Later that same day, Mitchell told Shugart about the
conversation. Shugart responded, "That's right. I asked
John Cross to talk to you guys about this Union because
he's in the oil business, and you obviously don't believe
any of us that it's going to destroy the Company and I
wanted John Cross to talk to you pilots. I've even asked
him to come over here to the base and talk to the rest of
64
PETROLEUM HELICOPTERS, INC.
the pilots." Shugart impliedly denied this allegation in his
own testimony. He conceded, however, that the oil com-
pany customers of PHI would question him on occasion
to see what was going on. Shugart describes them as cu-
rious, and testified that they did not say what they
would or would not do if the Union came in. I credit
Mitchell regarding this conversation. i
Mitchell also testified that after the election (which
PHPA lost) a lot of the pilots went around saying they
had voted for PHI even though Mitchell knew they had
voted for PHPA. Mitchell could not stand their insincere
reversal, so he specifically told Shugart that he wanted
him to know that he had voted for PHPA and was
proud of it. This conversation was within the first week
after the election. Shugart responded that Mitchell had
better walk a fine line because there would not be any
second chances. In his own testimony Shugart admitted
that after the election Mitchell did say he had voted for
the Union and did not want Shugart to believe that he
was two-faced. Shugart said okay, that the election was
over and it was time to get on to other things. He denied
saying that Mitchell had to walk a fine line and would be
given no second chances. Based on demeanor factors, I
credit Mitchell over Shugart. Moreover, I note that Shu-
gart's admission that Mitchell referred to not wanting to
appear two-faced supports Mitchell's version that other
pilots, formerly prounion, were now saying they had
voted for PHI and Mitchell wanted to disassociate him-
self from that group of pilots.
In September several pilots were in the pilots' lounge
discussing the fact that a prounion pilot, Lonnie Hall,
had been discharged. Shugart remarked, "Well, you
know there's not going to be any second chances for
those guys." In the presence of other pilots (neither
named nor numbered in the record), Mitchell said,
"Well, in my case you probably wouldn't even give me a
first chance, would you?" Shugart looked at Mitchell
and said, "That's right, Bob, I wouldn't." Shugart denies
making any such statement. I credit Shugart in his
denial. Although I have credited Mitchell in some re-
spects over Shugart and other witnesses, in other re-
spects I find Mitchell's testimony to be unpersuasive. I
find it unlikely that Shugart would make such an incrimi-
nating statement in the presence of many witnesses.
Moreover, the General Counsel offered no corroborating
testimony from any of the several pilots who supposedly
were present. Accordingly, I shall dismiss complaint
paragraph 9. 19
Complaint paragraph 10 alleges that on or about Octo-
ber 18 or 19 Respondent, by its supervisor and agent
George Park, at its Houma, Louisiana, base, threatened
an employee (Mitchell) with discharge because of his
union and/or protected concerted activities. The supervi-
sory status of Park is in issue. Testifying in support of
Ia The conversation, outside the statutory limitations period, was not
alleged in the complaint and the General Counsel offered it for back-
ground purposes only.
:9 Although the foregoing testimony was offered in support of com-
plaint par. 9, the complaint allegation alleges that on several occasions in
September Shugart "admonished an employee [Mitchell] for engaging in
union and/or protected concerted activities, and instructed said employee
to discontinue said activities." No such evidence was offered by the Gen-
eral Counsel.
this allegation, Mitchell asserted that on the occasion in
question (a weekend when the base supervisor was off
duty and lead pilot Park was in charge) Park became
angry because Mitchell did not deliver a message proper-
ly to another pilot. According to Mitchell, Park said that
he was going to get Mitchell if PHI did not get him first.
Park allegedly said that he was going to see to it person-
ally that Mitchell was fired because he thought Mitchell
was lazy and because of Mitchell's attitude. Mitchell
asked what he meant by lazy and Park described an inci-
dent. Mitchell told him that he was confused on the inci-
dent, and Park said he would check into it. With respect
to attitude, Park allegedly said, "You have got the worst
attitude here." Mitchell testified that Park was referring
to Mitchell being so vocal on behalf of PHPA. Howev-
er, he subsequently testified that Park did not use the
term "union." That about ended the conversation. Two
days later, Park supposedly apologized in the presence of
other pilots for calling Mitchell lazy, saying that he had
checked into the matter and had discovered that there
was no foundation for the story he had heard.
Park testified that he had to talk to Mitchell constantly
about his playing cards because Mitchell did not want to
interrupt a card game in order to service a customer. For
this reason, he told Mitchell that he had a bad attitude
toward his job and that he "bad mouthed" PHI. Park
testified that he was not involved in Mitchell's discharge.
He emphatically denied that he ever made an apology to
Mitchell in the presence of other pilots of accusing
Mitchell of being lazy.
On the occasion when Park talked to Mitchell about
the card playing, he said he told him that he and pilot
Hou Whin had to decide whether they wanted to make a
living playing cards or flying helicopters. Mitchell said
that he knew that Park was after his job. Park denied
this and said that if he were, he would make a concerted
effort at it. Park said, "Every man needs a job, but I
think every man should take an interest in keeping it."
He again denied that he was after Mitchell's job.
I am not persuaded by Mitchell's testimony on this
event. Park struck me as a candid witness in this respect.
Moreover, it is undisputed that the pilots would play
cards while waiting at the base for assignments. Al-
though Mitchell denied that PHI had any problem with
him regarding a reluctance in leaving a card game to
service a customer, I do not credit that denial and I
credit the version given by Park. Accordingly. I shall
dismiss complaint paragraph 10.
2. Mitchell discharged
The events giving rise to Mitchell's discharge oc-
curred on Wednesday, November 5, and Thursday, No-
vember 6. On November 5, Mitchell was flying a Bell
206L-I to an offshore site of Placid Oil Company. As he
neared his destination, and while flying in a crosswind,
he observed that the helicopter developed a vibration
with the intensity increasing. Thinking that the wind had
picked up, he turned the aircraft into the wind to see if
that would affect the intensity of the vibration, but it did
not. In addition to the vibraticn, Mitchell noticed a bang-
ing noise from above and to the rear of the aircraft.
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell then turned back on course and continued to his
destination since that was the closest safety point. After
discharging his passengers at the destination site, he had
a pilot-mechanic, Royce (Mitchell could not recall his
surname), check the helicopter. Mitchell testified that
mechanic Royce found what appeared to be a crack in
the tail rotor and excessive play in the transmission sup-
port mounts and also in the swash plate. Mitchell in-
spected the components along with the mechanic. Al-
though the mechanic said that there were definite prob-
lems with the aircraft, he felt that it was safe to fly back
to the Houma base where the mechanics there were
better equipped to work on it.20
On returning to the Houma base, Mitchell related the
problems to an unidentified mechanic who said that he
would fix it, but that Mitchell should not write it up.
When Mitchell asked why not, the mechanic repeated
his request that he not write it up and promised that it
would be fixed that night. In Mitchell's words, "I don't
know why they do that. Mechanics are funny. You write
something up, they go crazy." As the record reflects,
when a pilot "writes up" a helicopter as having a me-
chanical deficiency, it grounds the aircraft until it re-
ceives an airworthy clearance by maintenance. The
record also reflects that pilots are required by PHI rules
to log all discrepancies (Resp. Exh. 20).
The next morning Mitchell observed from the engineer
report sheet that maintenance had been performed on the
helicopter the night before. The maintenance sheet
(Resp. Exh. 10(a)) indicates that four items of mainte-
nance had been performed. The third item involved re-
moving pylon links and installing "serviceable pylon
links." These are support mounts for the transmission of
the aircraft which are situated above or on top of the
helicopter. The fourth item states that the mechanic
checked the swash plate and found it to be within serv-
iceable limits.
According to Mitchell, he took the helicopter on a test
flight and immediately observed the vibration and bang-
ing noise. On returning to the base, a mechanic walked
up and asked how it went. Mitchell informed him that it
was still "messed up." The mechanic brought up a main-
tenance stand, opened up the cowling and remarked that
he could see what the problem was. Mitchell climbed up
beside him and the mechanic pointed to the transmission
restraint mount and said, "This is your problem. That
will definitely cause a banging and a vibration." When
Mitchell asked why they did not notice it last night, the
mechanic replied that he did not know because he did
not work last night. Mitchell asked if the mechanic had
another one, and the mechanic replied that they had one
in stock, but they would have to pull the aircraft into the
hangar and it would take about 4 hours to fix because
they had to remove the whole transmission.
Mitchell then went to tell Base Supervisor Shugart
what had happened, and Shugart replied that he wanted
to go for a ride and test it for himself. It is undisputed
that at some point that morning Shugart did take the hel-
20 Neither party called mechanic Royce as a witness, and none of the
passengers, unidentified in the record, testified. The testimony of any of
these people could have assisted greatly in the difficult task of resolving
the credibility disputes in Mitchell's case.
icopter for a test ride with Mitchell accompanying him.
According to Mitchell, Shugart agreed that it definitely
had a vibration and a banging noise, but explained that
the banging noise was coming from a vent which was
taped up for the winter time. Mitchell disputed Shugart's
assessment of the source of the banging noise.
According to Shugart, about midmorning on Novem-
ber 6, he discovered that Mitchell's helicopter was not
flying.2 ' He asked Mitchell what was happening, and the
latter replied that he had a vibration in his aircraft. Shu-
gart asked what maintenance was doing about it, and
Mitchell replied that they were inspecting the compo-
nents. About an hour and a half later when Shugart re-
checked on the matter and asked mechanic Kenneth
Bruning about the aircraft, he learned that Bruning felt
the aircraft was airworth and that he could find no fault
with it. Shugart then went to Mitchell and told him that
maintenance could find nothing wrong and suggested
that he and Mitchell take a test flight to see if they could
identify the problem. In his testimony Shugart conceded
that it was not unheard of for a pilot or a mechanic to
have trouble making a determination. They went on a
test flight, with Shugart at the controls. Mitchell told
him that there was a banging noise and a vibration. After
the test flight of about 15 minutes, while they were
seated in the helicopter waiting for the mandatory 2-
minute cool down, before turning off the engines, Shu-
gart told Mitchell that he observed nothing more than a
slight two vibrations per revolution of the blades. 22
Shugart denied that he heard the banging noise that
Mitchell was complaining about. He testified that a "2
per" vibration would cause maps or other papers on the
dash to vibrate slightly. He told Mitchell that he had to
sign the aircraft off as airworthy and told him that he
would fly it all day if he were the pilot. Mitchell replied
that he did not want to fly the aircraft. They then went
to Shugart's office and talked some more about vibra-
tions in helicopters. Finally, Shugart said that the heli-
copter was airworthy. "Either you have to fly it, or I
have to pick up the phone and call Lafayette and get a
pilot down to fly it." Mitchell testified thai his statement
meant that once he calls Lafayette headquarters, the
matter is out of his hands. Shugart did telephone Vice
21 On cross-examination he placed the time as around 8 a m.
22 The term of two vibrationls per revolution is described by various
witnesses and exhibits as inherent with a two-bladed helicopter. The ex-
planation is rather technical, but it relates to the fact that as each blade
rotates past a point, a vibration will be created A "3 per" vibration theo-
retically then would be experienced only on a 3-bladed helicopter. When
vibration becomes abnormal, it supposedly is referred to as excessive or
abnormal, but not as a "3 per" or "4 per" on a two-bladed helicopter.
This information is relevant because at one point in his testimony, Mitch-
ell referred to the excessive vibration as a "3 per" and that it was a term
Bell Helicopter used for the aircraft because of its nodomatic suspension
system for the transmission and rotor. The nodomatic system appears to
act as a supershock absorber. On cross-examination Mitchell admitted
that technically it is impossible to have a "3 per" in a two-bladed aircraft.
Mitchell also asserted during his cross-examination that the Bell Heli-
copter manual states that the pilot should never feel any vibration in the
model 206L-I because of the nodonatic suspension, and that the pilot
should therefore ground the aircraft for correction if the pilot ever does
feel "a vibration." The pages (Resp. Exh. 21) from the manufacturer's
manual received in evidence do not support Mitchell's testimony in this
respect as we shall see below in the discussion of mechanic Bruning's tes-
timony.
66
PETROLEUM HELICOPTERS, INC
President Dougherty and informed him that he had a
pilot who did not want to fly an airworthy aircraft. An-
other pilot was sent to fly the aircraft.
Kenneth W. Bruning, Jr., was a junior mechanic in
November 1980. At the time of his testimony he had ad-
vanced to senior mechanic with a total of 5-1/2 years'
service for PHI. He began working for PHI in June 1976
after graduating from Emory Riddle Aeronautical Uni-
versity with an airframe and power plant mechanic li-
cense after 18 months of schooling.
Bruning testified that about midmorning on November
6 he was advised by "Operations" that a helicopter was
returning with a maintenance problem with a request
that a mechanic meet him. 23 Bruning testified that he
met Mitchell when he landed, and Mitchell advised that
he was experiencing an inflight vibration and asked the
mechanic to go for a check flight, which they did. 24 The
test flight lasted 10 or 15 minutes. Bruning testified that
at first the aircraft felt normal to him with no abnormal
vibration taking place. "So I sat and concentrated to try
to feel the vibration and was able to pick out a slight
two per rev vibration in the aircraft." In his testimony
Bruning explained that he utilized a technique common
with maintenance people by placing a pencil on the dash-
board and watching for the amount of movement by the
pencil during the flight. He testified that it was a "very
slight" two vibrations per revolution. Bruning identified
the pages from the PHI maintenance manual for the Bell
model 206L-1 (Resp. Exh. 21). In section 65-4, Low
Frequency Vibration, page 2 of the exhibit, appears the
following statement:
Two per rev (2/rev) vibrations are inherent with
two bladed rotor systems and a low level of vibra-
tion is always present. .... An increase in the 2/rev
level of the rotor itself can be caused by worn or
loose parts in the rotor hub or looseness in the ro-
tating controls. The correction of excessive 2/rev
vibrations is primarily dependent upon the mechan-
ic. The pilot cannot determine the exact cause and
hence cannot prescribe specific corrective proce-
dures.
Bruning testified that in his experience the foregoing
statement from the Bell helicopter maintenance manual is
accurate. 2 5
During the test flight Bruning told Mitchell that there
was a slight "2 per" present, but that he did not feel the
vibration level was unusual or abnormal or that it re-
quired any action. Nevertheless, Mitchell insisted that
the vibration had not been present until the previous day
and inquired as to what would make the vibration sud-
denly appear. Bruning explained that perhaps he had
s2 This is consistent with Mitchell's version that a mechanic met him
after Mitchell made his own test flight that morning.
24 Mitchell logically might or might not have asked the mechanic to
go on another test flight. Were it necessary to resolve, I would credit
Mitchell that no mechanic went on a test night with him.
as Sec. 65-2 contains this observation:
Even experienced pilots sometimes make the mistake of concentrat-
ing on feeling one specific vibration and conclude that the vibration
level is higher than normal when actually it isn't. It just seems so
because the pilot is concentrating on it.
started concentrating on the vibration and it then seemed
worse than what it actually was. Mitchell still insisted
that the vibration had not been present the day before.
On returning to base, Bruning inspected the rotor
head, the swash plate area, the transmission restraint
area, and other parts. The only discrepancy he noted
was a small amount of play in the right-hand spherical
bearing of the transmission restraint which would con-
tribute to a "2 per rev" vibration. He testified that in his
judgment the play was not excessive or outside the man-
ufacturer's limits, and that the part did not require
changing.
Bruning testified that Mitchell did not mention any
banging noise or a cracked tail rotor nor excessive play
in the svwash plate area. Bruning testified that he spent
approximately 35 to 45 minutes on the inspection which
he described as plenty of time to conduct an adequate
visual and hands-on inspection of the aircraft. Bruning
testified that Mitchell never joined him during the in-
spection. Following the inspection, Bruning advised
Mitchell of his findings, including the small amount of
play in the transmission restraint bearing, and advised
him that he did not think the bearing was worn past
limits. He told Mitchell that he did not think the part re-
quired changing, but that they could go ahead and check
into it further that evening. Mitchell seemed to accept
the information and then asked how long it would take
to change the transmission restraint. "And I told him,
myself doing it during the day alone, it would take ap-
proximately four to four and a half hours from start to
finish." Bruning testified that Mitchell acknowledged
that information, but said nothing else. Bruning then left
Operations (apparently the office area of or near Shu-
gart) and went back to his other assigned duties. 26
Bruning testified that it is not unusual for there to be
an increase of nonspecific complaints by pilots at the end
of their hitch. These complaints "require a lot of time
chasing down a problem and it's just that there seemed
to be more of them on the last day of the hitch than
there are during the work week." Bruning stated that he
could not explain why that is so, but that it does
happen.27 During the rebuttal, stage pilot Dutson ex-
plained that it is a common practice for pilots to help the
mechanics on their own shift from having to start some
lengthy maintenance task on their last day of the work
hitch where the problem is something that can wait until
the next day for the mechanics of the new hitch to
arrive. That is, the pilots are doing a favor for the me-
chanics on their own hitch so long as the problem is not
something which would affect safety.
Some 30 to 45 minutes later, Bruning received a call
from the lead pilot wanting to know about the status of
Mitchell's helicopter. This surprised Bruning, and he told
lead pilot Fay Buck, who called, that he was not work-
ing on the aircraft and that the helicopter was free to go.
26 Bruning's own version is a bit confusing. It would seem that Mitch-
ell would be justified in thinking that Bruning was going to work on the
aircraft. While Bruning in fact did nothing further on the helicopter, he
never told Mitchell that he deemed the craft airworthy
27 Pilots and mechanics work a 7-day "hitch" of 12 hours on and 12
hours off duty followed by 7 days off duty.
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Bruning, he previously had notified the lead
pilot that the aircraft was ready to fly.a2 A short time
after this conversation, Shugart approached and asked if
Bruning wanted to take another look at the helicopter,
and Bruning told Shugart that he had done a thorough
inspection on it and did not think it was necessary to
repeat the inspection. Shugart asked if Bruning was
saying that the helicopter was airworthy, and Bruning
replied that without a doubt, yes, it was airworthy.
Bruning testified that later that day he discussed the
situation with lead mechanic Earl Brewer. They decided
to remove the transmission restraint in order to resolve
and put to rest any question about serviceability. They
found that the bearing had .004 of an inch axial wear
which was still within the limits of .007 set by the manu-
facturer in section 66-131.3b of the maintenance manual
(Resp. Exh. 22). Although Bruning did not know at the
hearing whether Respondent replaced the bearing, it ap-
pears from the engineering report for November 6 that
only the inspection was perfornted by them (Resp. Exh.
11l(a)). However, the same engineering report shows that
on that same date mechanic Richard Lawson performed
the following work:
Found transmission isolation mount to be worn in
bearing areas. Removed isolation (wishbone) mount
and installed serviceable mount.29
Mitchell testified that the aircraft he flew did not have
an inherent vibration problem, and that it felt "smooth as
silk" during flight before he observed the vibration in
issue. Although his pretrial affidavit stated at page 7 that
the vibration he noticed on November 5 was constant
and "in excess of normal vibration," he explained what
he meant by that phrase was that it was in excess of
normal vibration which other helicopters exhibited and
that he did not mean that the helicopter he flew regular-
ly exhibited a normal vibration.
Mitchell also explained that he did not include in his
affidavit information about the suspected crack in the
rotor or the problem with the swash plate. He testified
that when he gave his affidavit on January 15, 1981, he
forgot to tell the Board agent about those problems.
Mitchell testified that at the end of the test flight,
while they were still in the helicopter, Shugart asked him
whether he was going to fly it. Mitchell replied that he
could not do so because of safety reasons. After they
were inside the building, and Shugart repeated the ques-
tion, Mitchell told him again that he would not fly the
aircraft. Mitchell also told Shugart that he was not refus-
ing to fly, but that he was just refusing to fly the aircraft.
He asked Shugart to get him another aircraft. Shugart
replied that either Mitchell fly that aircraft or he was
fired. Mitchell again repeated, "Jim, I'm not refusing to
fly. Give me another aircraft." Shugart replied that they
did not have another aircraft and that he would have to
take that one. At that point, according to Mitchell, Shu-
l" Bruning's testimony raises the factually unanswered question of why
lead pilot Buck would be calling Bruning about the status of the aircraft
if Bruning already had told him it was ready to fly.
29 Mitchell testified that such replacement on November 6 was after
he was discharged
gart made a telephone call, and Mitchell went to get a
cup of coffee.
Mitchell testified that the helicopter of pilot Hou Whin
is assigned to Placid Oil Company also; that it is the
same model 206L-I; that Whin, although asleep in the
trailer awaiting an assignment, could have taken the as-
signment; and that Shugart could have assigned Whin's
helicopter to Mitchell to fly that particular mission. Re-
spondent offered no rebuttal to this testimony.
Moments after Shugart's telephone call, the two re-
sumed their conversation, and Mitchell repeated that he
was not refusing to fly generally, but only with respect
to that aircraft. He testified that he told Shugart that he
was not going to fly a helicopter with a "sick rotor
head" because if the rotor head goes out, it is a guaran-
teed fatality. 30 Shugart did not say anything, so Mitchell
turned around and walked out of the office and sat down
outside the office. Moments later Shugart called him
back in and told him that he was terminated and to drive
to Lafayette to see Vice President Dougherty. Mitchell
asked that if he was terminated, why did he have to
drive to Lafayette just to be told the same thing. Shugart
agreed and said that they could do it there, and he then
obtained from Mitchell his key, manual, and identifica-
tion card. Mitchell had to wait the rest of the day since
he was pilot in an airplane pool for a group who lived in
Pensacola, Florida.
Later that day, Vice President and Chief Pilot Clay ar-
rived on a general visit. While he was there, he invited
Mitchell in to hear his story. When Mitchell reached the
point of describing his turn into a crosswind to see if it
had a change on the vibration, Clay raised his hand over
his head, then slapped his knee and said to Shugart, who
was present, that he could see what the whole problem
was. "Bob is obviously ignorant of helicopters." Mitchell
asked what he meant, and Clay stated that there was no
way he could pick up a vibration flying in a crosswind.
Mitchell disputed this and told him that a helicopter will
feel as if it is about to fall apart if it is flying at maximum
gross weight in a strong crosswind. Clay said he had
never heard that. Mitchell told him simply to ask the
other helicopter pilots. Clay then said that he heard that
Mitchell had passed his air transport pilot test. Mitchell
replied that he had, but had not yet taken the check ride.
Clay asked for the scores, and Mitchell told him 92 on
the instrument and 90 on the visual. Clay said those
scores were pretty good. He then asked Mitchell to give
him the definition of the "Coriolis effect." Mitchell testi-
fied that he was rather flustered at this even though he
just had the question on the test, and asked Clay to start
the definition with a couple of words and he would
finish it. Clay said he could (would) not do that.
Clay then asked Mitchell if he would accept a suspen-
sion, and Mitchell stated that he did not feel he deserved
o0 Although Mitchell did not explain this, the record indicates that he
meant that the blades could not turn during a fall That is, there would
be no autorotation. In autorotation, even though the engine might be off
in an emergency landing, the blades will turn during the fall thereby pro-
viding enough lift to slow the descent for a safe landing. The record re-
flects that pilots receive training in autorotation. Indeed, some do it for
kicks (Michel). See also the FAA's publication AC 61-13B, Basic Heli-
copter Handbook, p. 91, "Autorotation" (1978).
68
PETROLEUM HELICOPTERS, INC.
either a suspension or a discharge. Clay then asked him
to write a statement telling him about the events and that
he would investigate it. Mitchell said he would. At that
point, he left the office and went to a place where he
wrote out the statement which he then gave to Clay.31
Clay told him that he would probably hear something by
the following Monday. Thereafter, Mitchell returned to
his home in Pensacola, Florida, and the following
Monday or Tuesday, Shugart telephoned him and told
Mitchell that he was in fact still fired.3 2 Shugart offered
to give an oral recommendation on behalf of Mitchell,
but stated he could not put something in writing because
that could be used against the Company.
When testifying as the General Counsel's first witness,
Chief Pilot Clay stated that the bases for Mitchell's dis-
charge were his insubordination in refusing to fly a heli-
copter and the additional reason that he was very defi-
cient in his knowledge of aerodynamics in helicopters
and specifically in the helicopter he was flying. Finally,
Clay added that Mitchell failed to personally inspect the
components of the helicopter to look for any potential
problems. During Respondent's case Clay identified the
personnel status form (Resp. Exh. 19) as the company
document reflecting the reason for Mitchell's discharge.
The reason stated on the form reads:
Terminated-Found to be very deficient in his
knowledge of aerodynamics and of the aircraft to
which assigned. Refused to fly A/C deemed airwor-
thy by maintenance and area manager.
The foregoing personnel form is dated (Monday) No-
vember 10, 1980, and was approved by "CD." The ini-
tials apparently are those of Vice President Carl Dough-
erty.
Clay testified that after his arrival at the Houma base
in midafternoon, it was decided in discussion with Shu-
gart, Dougherty, and Director of Personnel Michel (the
latter two apparently by telephone) that Mitchell should
be suspended "until we did a more thorough investiga-
tion and before we made a final decision on his actions."
Clay testified that Mitchell's termination was rescinded
and he was placed on suspension, and that Mitchell was
brought into Shugart's office so that Clay and Shugart
could explain this to Mitchell.33 Clay testified that he
asked Mitchell to describe the vibration and problem that
he had in his investigation of the matter.
According to Clay, Mitchell admitted that he did not
look under the cowling at the components which might
have caused the vibration nor did he inspect any of the
alleged defective equipment. Clay testified in conclusion-
ary fashion that when he asked Mitchell several ques-
tions concerning vibrations in the helicopter, Mitchell
3" Clay also testified that although he asked Mitchell for a report at
the time of the suspension, he did not recall Mitchell submitting such a
report. I credit Mitchell's version that he in fact submitted a written
report.
8s Mitchell asked for the reason, and Shugart replied, "Well, Stan Clay
felt that [It was] due to your lack of knowledge of the aircraft."
"I Director of Personnel James I. Michel testified that he entered the
Mitchell case after Shugart's initial contact with Dougherty and Dough-
erty's instructions to terminate Mitchell. Michel recommended that, be-
cause the immediate discharge was not within PHI's standard procedure.
Mitchell should be suspended pending a further investigation.
appeared to have a very great lack of knowledge of the
helicopter and its mechanics as well as vibrations. When
asked for more detail, Clay testified that he did ask
Mitchell specific questions such as the amplitude and fre-
quency of the vibrations. "I don't remember the words
he used, but it was very obvious that he didn't under-
stand what caused, apparently, what caused the vibra-
tions in the helicopters, or this helicopter. And especially
the fact that he made no effort to inspect the helicopter
to see what could have been worn, or damaged that
might have caused this vibration."
Clay testified that Mitchell apparently had a lack of in-
terest in helicopters and:
I think this man shouldn't even be flying a helicop-
ter. He admitted that he had never looked under the
cowling of that helicopter, when the cowling's been
removed, since he was first initially qualified in that
helicopter.
Clay explained that the "cowling" is the thin metal mate-
rial which covers the area of the transmission and
engine.
Clay testified that he "may" have asked Mitchell about
the Coriolis effect because he did ask Mitchell some ques-
tions on aerodynamics in which Mitchell appeared defi-
cient. When asked on direct examination what the Corio-
lis effect is, Clay answered:
Well, Coriolis effect is the-is the-as an example,
if you shot a cannon ball from the equator of the
earth towards the North Pole, it would not traverse
a straight course. It would travel in a curved
course. And this affects helicopter rotor systems
and the vibrations that occur in helicopter rotor
systems. A Coriolis effect.
Q: Was he able to explain to you what the Corio-
lis effect was?
A: No.
One must question whether Clay would have been satis-
fied with this "definition" had it been expressed by
Mitchell.
One definition of the Coriolis effect appears at page
107 of the FAA's Basic Helicopter Handbook, AC 61-13B
(1978):
The tendency of a mass to increase or decrease its
angular velocity when its radius of rotation is short-
ened or lengthened, respectively. 34
A more lucid description of Coriolis, as it pertains to
the example Clay was attempting to cite, appears at
Volume 5, "How It Works," The Illustrated Encyclope-
dia of Science and Technology, page 664 (1978):
3" And at p. 15:
CORIOLIS EFFECT might be compared to spinning skaters. When
they extend their arms, their rotation slows down because their
center of mass moves farther from their axis of rotation. When their
arms are retracted, their rotation speeds up because their center of
mans moves closer to their axis of rotation.
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coriolis and the laws of motion. According to
Newton's first law of motion, a body continues to
be at rest or in a state of uniform motion (that is,
moving in a straight line with constant speed) unless
acted upon by a force. If a body appears to move in
a curved path to an observer, then, to that observer,
there must be a force acting on the body to produce
that effect.
When a man throws a ball, he does not allow for
the fact that the Earth is rotating beneath him. By
the time the ball reaches its destination the Earth
has rotated slightly and the ball lands a little to the
side of where it was aimed. If the effect were large
enough to be seen, it would appear to the man as if
an unknown force had made the ball swerve from
its course: this is the Coriolis force. It is not so
much a "real" force as an apparent force which
only exists because of the rotating frame of refer-
ence-in this case the Earth.
On cross-examination Clay made another effort to ex-
plain the Coriolis effect when asked how it applied to the
Bell 206L-1:
A helicopter in forward flight tilts its rotor system
forward of the mast. That is the mast-assuming the
mast is vertical. The rotor tip path plane would tilt
forward to pull the helicopter forward. As-be-
cause the blades in a hover are in what we call a
coning position, that is the tips of the blades move
upward and are a little bit closer to the center of
mass, when they're under lift than when they're
sprayed out, that means that there has to be accel-
eration and deceleration force caused by Coriolis
effect. Whereas, the blade moving in the high por-
tion of the plane, that is, over the rear of the heli-
copter, would have to travel-the blade tip at the
rear of the helicopter would have to travel at a
slightly faster rate than the blade tip on the forward
half of the rotor disc.
What Clay was attempting to say seems to be that at
different stages of flight the tip path plane of the blades,
if pictured as a circle, disc, or inverted cone, will tilt for-
ward, or away from, the mast. That portion of the tip
path plane which is tilted up closer to the mast will be
turning slightly faster than the tip of the blade which is
sweeping lower and away from the mast. At times the
(downward) tilt will be forward (and the blade tip at the
front of the aircraft will be going slower while the rear
tip will be in a higher plane or arc and sweeping faster
because it has a closer angle or distance to the mast), and
at other times the tilt will be to the rear.
While this discussion of physics is very interesting, the
relevant point is that Chief Pilot Clay revealed his dis-
criminatory motivation regarding Mitchell by his own in-
ability to present a simple, lucid testimonial description
of what on earth he was talking about regarding the Co-
riolis effect. He asked Mitchell for a definition of some-
thing which Clay could not himself either (1) define or
(2) describe (in any understandable way), and then fired
him because, in part, he could not recite it. Moreover, it
does not appear, and Clay certainly made no attempt to
explain, just what practical relevance this knowledge
(that the blade tip spins faster when it is closer to the
mast) has to do with one being a competent and safe hel-
icopter pilot.3 5
None of the record evidence regarding discharges of
pilots reveals a single instance of a pilot outside his pro-
bationary period being discharged, even in part, because
he did not answer a question regarding aerodynamics to
management's satisfaction. Indeed, there is no evidence
that management has ever quizzed an experienced pilot
in such a fashion-even when pilots have damaged air-
craft through pilot error.
Conclusion
In Mitchell's case there is no witness I credit com-
pletely, but I do credit Mitchell in general. Moreover,
Respondent's own records reveal that an important com-
ponent in relation to vibration-the "wishbone" transmis-
sion mount-was replaced on the very day Mitchell was
fired for refusing to fly the particular helicopter because
he in good faith felt that it had a serious vibration prob-
lem. As both testimony and exhibits reflect, it is not un-
usual for there to be differences of opinion about vibra-
tions or even imagined "excessive" vibrations. Even if
Mitchell was wrong, he still, I find, was in good faith.
It is clear that Respondent discharged Mitchell in
major part because of his "insubordination" in refusing to
fly the helicopter in question.3 s However, Director of
Safety Cadoret acknowledged that under Part 91.3 of
FAA regulations (G.C. Exh. 22; 14 CFR sec. 91.3), the
pilot has the final authority to ground an aircraft he feels
is not airworthy. Cadoret expressly stated that section
91.3 includes the pilot's assessment that an aircraft is not
worthy to take off.3' He testified that when maintenance
clears the craft as airworthy, the pilot must again operate
the craft before he may again ground it. As a practical
matter, Cadoret testified, eventually the pilot and mainte-
nance (sometimes with the assistance of another pilot)
agree. In short, Cadoret asserts that a stalemate does not
occur.
Yet a stalemate did occur in Mitchell's case. Mitchell
testified that not only did he rely upon his commonsense
in refusing to fly the particular helicopter, but he also
relied upon section 91.3. Indeed, during his conversation
with Area Manager Shugart at the completion of the test
flight by Shugart, Mitchell referred to the safety factor
as one reason as well as "professionally" that he was re-
fusing to fly the helicopter. I find that Mitchell was
acting upon the good-faith belief that the helicopter was
unsafe because of a vibration problem. It is well settled
as Actually, it would be unfair to say that Mitchell lacked knowledge
about the faster spinning principle. He had momentarily forgotten the
definition of a physics term. He was not asked by Clay to explain why
the tip path of the blades moves faster when closer to the mast, nor was
he asked what practical impact that has (if any) in flying a helicopter.
S5 Mitchell's credited testimony that he repeatedly asked for another
helicopter, saying that he was not refusing to fly generally, is undisputed.
When Respondent declined to assign Mitchell the other available helicop-
ter, it revealed its animus toward him because of his PHPA activities
37 14 CFR sec. 91.3 provides:
(a) The pilot in command of an aircraft is directly responsible for,
and is the final authority as to, the operation of that aircraft.
70
PETROLEUM HELICOPTERS, INC.
that Mitchell's concern need only have been grounded in
good faith. He did not have to be objectively correct for
his refusal to fly the helicopter to be protected.3 8
And it is clear that the other pilots expressed concern
and disbelief in the pilots' lounge that very day on learn-
ing of the reason for Mitchell's discharge. Thus, accord-
ing to Mitchell's credited testimony, pilots were saying
to each other, "'Did you hear what Mitchell got fired
over?' And they were going crazy."
In these circumstances, Mitchell was engaged in pro-
tected concerted activity in exercising the safety rights
granted to all pilots by 14 CFR section 91.3(a), and Re-
spondent violated Section 8(a)(I) of the Act in discharg-
ing him for his exercising that safety right. Alleluia Cush-
ion Co., Inc., 221 NLRB 999 (1975).39
I also find that a major reason Respondent discharged
Mitchell was the pilot's PHPA sentiments and activities.
Indeed, Chief Pilot Clay went out of his way to seek a
basis for discharging Mitchell-after earlier firing him
prematurely and contrary to PHI's own policy of suspen-
sion pending an investigation. The grounds Clay invent-
ed and used as pretexts were (other than the insubordina-
tion-refusal), first, ignorance of aerodynamics and,
second, a lack of interest a normal pilot would have in
looking at the suspected components.4 0 I find the second
to be factually false, and Clay demonstrated the first is
ludicrous by virtue of his own ineptitude in answering
the same question he posed to Mitchell.
Accordingly, I shall order that Respondent reinstate
Mitchell and make him whole, with interest.
F. Robert J. Davies
A pilot for 20 years, Davies started flying with the
Civil Air Patrol when he was 14 years of age. In 1967 he
entered helicopter flight training in the United States
Army. He thereafter flew for 1,000 combat hours in
Vietnam. Upon his return to the United States, Davies
was assigned as an instructor pilot at Fort Rucker, Ala-
bama, for approximately 14 months. After leaving the
military he worked for a year as a ferry pilot under con-
tract with the Iranian government flying helicopters
from Milan, Italy, to Tehran, Iran. Following that expe-
rience, he entered Emory Riddle Aeronautical Universi-
ty where he enrolled in aeronautical engineering. At the
same time he enrolled in flight lessons for fixed wing air-
craft. He ultimately received his commercial airplane
pilot license, his airplane instrument license, and a mul-
tiengine airplane license. Following completion of his
flight training, he was employed in Southeast Asia with
as There may even have been an objective basis for Mitchell's concern
when one recalls that on November 5 the transmission pylons were re-
placed (Reap. Exh. 10(a), item 3), and on November 6 the transmission
isolation (wishbone) mount was replaced (Resp. Exh. II(a), item 3). The
wishbone mount was replaced the same day Mitchell was fired, but after
his termination (Mitchell).
50 In effect, Mitchell was engaged in a strike with respect to his heli-
copter, and his strike was protected by 14 CFR sec. 91.3(a). Respondent
could not lawfully fire an employee engaged in a protected strike.
40 Respondent seeks to have it both ways on the second point. On the
one hand Clay faults Mitchell for not trying to "make like" a mechanic.
yet on the other hand it faults him and Davies when they sought to exer-
cise their mechanical knowledge and experience (i.e.. Mitchell that his
craft was unsafe to fly, and Davies that his helicopter was safe to fly).
Air America Incorporated as a contract pilot for the
United States Government. He thereafter became em-
ployed with PHI on October 30, 1974, until his termina-
tion on November 26, 1980. At the time of his termina-
tion, Davies was assigned as a line pilot at the Sabine
Pass, Texas, base where Byron Stone was the area man-
ager. Davies flew the Bell model 212 helicopter for PHI.
In May or June 1979, Davies became vice president of
PHPA, and thereafter distributed leaflets and handbills
and mailouts to pilots at different bases within PHI. He
attended the December 1979 representation hearing in
Case 15-RC-6578, although he did not testify.
One evening in July 1980, Davies had a discussion
with two other pilots in which Davies contended that
there were inequities in Respondent's check ride system.
This was at the Intracoastal City, Louisiana, base of
PHI. The following morning, Intracoastal Area Manager
Lee Bundy engaged Davies in conversation. After
making reference to the topic that Davies and the other
pilots had discussed the previous evening, Bundy said he
thought at first that Davies was just misled by the people
with PHPA, but that now he thought that Davies was
vicious and a cancer and he would try to get Davies out
of the Company any way he could including, if neces-
sary, kicking Davies "in the balls" to do it. Davies re-
plied that he was happy flying for PHI and intended to
stay with the Company.41
Complaint paragraph 8(a) alleges that in September
1980 Area Manager Lee Bundy, at Respondent's Intra-
coastal base, informed employees that wage increases
would be withheld because of their union activities.
Complaint paragraph 8(b) alleges that in September 1980,
at the same location, Lee Bundy "impliedly denied future
wage increases because of the Respondent's financial
resistance to the Union."
Davies explained that at the beginning of each hitch
the base manager has a meeting with the pilots to inform
them of what has happened during the last hitch, to de-
scribe weather conditions, and to notify them of other
problems or notes from the Company. On one Monday
in September 1980, following a Friday supervisors' meet-
ing which he had attended, Bundy began his discussion
with the pilots by telling them what had happened the
previous week and described weather conditions and
other company matters. He then stated that there would
be no 5-percent raise in the near future because PHI was
not sure how much money it was going to make that
quarter. When Davies smiled at this, Bundy seemed to
become upset, pointed to Davies and said, "Yes, you."
Bundy then stated, "You and the Union are the reason
that we're not going to get a raise because we had to
spend so much money on you." In the presence of some
30 to 35 pilots in the room, Davies rose and told Bundy
that he did not want him to speak to him in that fashion
in the presence of his peers. Bundy told Davies not to
laugh while he was talking. Davies responded that he
had not made a sound and there were 30 witnesses there
to prove it. At this, Bundy turned and walked back into
his office.
41 The General Counsel offered the evidence only for the background
purposes of knowledge and animus.
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davies testified that in the 6 years he was with PHI
the Company generally gave two 5-percent pay raises
each year, one near the beginning of the year in Febru-
ary or March and the other near the end of the year in
September or October.
Warren H. Bahlke, a line pilot with PHI for nearly 7
years at the time of his testimony, gave a similar account
of the statements by Bundy and Davies as described
above.
Bundy denied having any conversation with Davies in
which he allegedly told Davies that the pilot was vicious
and a cancer and that Bundy was going to get rid of
him, and Bundy further denied telling the pilots in Sep-
tember that they were not going to get a raise. In fact,
Bundy testified that in September he told the pilots that
they were going to receive a 5-percent raise effective in
November. 4 2 As the General Counsel did not offer any
evidence rebutting the assertion by Bundy that the pilots
were going to receive the raise in November 1980, I con-
clude that PHI did in fact announce the raise on Septem-
ber 2 and did in fact grant a 5-percent pay increase in
November 1980.43 However, this does not necessarily
resolve the issue of whether Bundy made the remarks at-
tributed to him by pilots Davies and Bahlke. Because of
their superior and convincing demeanor, I credit Davies
and Bahlke over Bundy. Moreover, it is entirely possible
that at one point in August PHI might not have known
whether it was going to grant its usual 5-percent pay in-
crease, and Bundy so told the pilots; and yet at a later
point in August PHI determined that it could grant such
a pay increase at which point, on or about September 2,
Bundy so told the pilots.44
As described by Chief Pilot Clay, the personnel status
notification form describes the basis for the November 25
discharge of Davies as follows (Resp. Exh. 17):
Terminated-Damaged aircraft landing gear be-
cause of improperly positioning of aircraft on land-
ing pad, then after observing that the aircraft was
damaged he took it upon himself to fly the aircraft
back to the base without a maintenance release.
On November 20, Davies flew a Bell 212 helicopter to
the helipad of Sun Gas Oil Company, located about 4
miles from the Sabine Pass base, to pick up passengers.
The Sun Gas helipad was not an offshore location. It is
undisputed that Davies improperly positioned the heli-
copter on landing at the pad so that the rear of the left
skid was not completely on the pad. The skid of the Bell
212 helicopter is made of a hollow aluminum tube ap-
proximately 3 inches in diameter. The helipad was ele-
vated about 12 inches above the surface of the surround-
ing ground and skids are about 8 to 10 feet long. As the
passengers began loading baggage on the helicopter, the
aircaft began to tilt back. Davies immediately increased
42 Director of Personnel James I. Michel testified that the announce-
ment (apparently companywide) was made on September 2.
43 Accordingly, I shall dismiss complaint par. 8(b).
44 However, I shall dismiss complaint par. 8(a) because of the variance
between the allegation that Bundy's remarks occurred in September and
my finding that he made them in August. It is not surprising that Davies
and Bahlke were off as to the month of the remarks yet still be correct,
as I find, that the incident occurred.
the power of the helicopter, had the passengers disem-
bark, moved the aircraft fully onto the pad, and notified
the Sabine base tower that he suspected some damage to
the aircraft and that he was going to shut it down, check
it out, and call them back when he found out what was
wrong. After shutting down the engine Davies inspected
the aircraft and discovered a fracture just forward of the
aft left cross-tube on the left-hand main skid gear ap-
proximately 20 to 30 percent of the diameter of the skid.
Davies testified that the skid was not bent from its hori-
zontal plane. 4 5 On determining that there was no major
structural damage to the skid, Davies returned to the air-
craft, called the tower operator, and told him to tell the
base supervisor and the lead pilot that he had cracked
the skid and was bringing the aircraft back to the Sabine
Pass base. Davies then lifted off and flew the approxi-
mate 2- to 3-minute flight (4 miles) back to the Sabine
Pass base.
On landing at the Sabine Pass base, Davies permitted
the engines to cool down. While that process was being
accomplished, Area Manager Stone, lead pilot Scott, and
an unidentified mechanic walked to the left side of the
aircraft and inspected the damage. Stone came to the left
side of the aircraft as Davies was getting out, and Davies
commented that he would just pack his bags and keep on
walking. Stone said no, that he would not worry about
it, that it was just another incident as far as he was con-
cerned.4 6 When Davies asked if he should fill out an in-
cident report then, Stone replied in the negative because
they were running late. Stone assigned Davies another
helicopter and Davies returned to the Sun Gas pad,
picked up the passengers, and completed the assigned
flight.
As earlier noted, both Stone and Scott testified that
the skid not only was fractured, but also was bent from 8
to 12 inches off its horizontal plane. While the witnesses
described this as a "V" bend in the horizontal tube, it
seems that they actually meant an inverted "V." This is
so for two reasons: first, Stone did say that the skid had
been bent "up" some 8 to 12 inches approximately 3 feet
forward of the aft cross-tube; secondly, if the skid in fact
was bent, it would seem to have occurred by the process
of the edge of the concrete pad acting as a fulcrum at
the point of the fracture with the weight of the baggage
and passengers toward the rear from the fracture point
applying weight and downward force toward the rear
45 As we shall see, this is disputed by Respondent's witnesses, Area
Manager Byron Stone and lead pilot Jim Scott
46 Davies testified in a persuasive fashion, and I credit his testimony
that he did permit the engines to cool down for the required 2-minute
period, and I do not credit the testimony of Stone and Scott that Davies
quickly jumped out of the aircraft on landing and made his remark about
packing his bags and leaving.
Davies explained that his remark about packing his bags and leaving
had to do with a standing joke among the pilots that everytime one of
the pilots associated with PHPA was terminated, there was a beer party
at the Lafayette headquarters I interpret this to mean that Davies was
stating that he figured he would be discharged over the incident because
of his PHPA association. Stone testified that although Davies made some
remark about being terminated on leaving the aircraft, he, Stone, did not
recall making any answer to that comment. Instead, he simply told
Davies to take another aircraft and finish the flight assignment. I credit
the version of Davies, including the portion that Stone told him not to
worry about the incident.
72
PETROLEUM HELICOPTERS, INC.
and behind the fracture point. While this is certainly a
logical possibility, it also seems possible that Davies cor-
rectly testified that the skid itself was not bent from the
horizontal plane in the sense that the ends of the skid
were horizontal. That is, any bend of the skid was con-
fined to the one location of the skid and did not affect
either end of the skid. This would be so because each
skid is attached to the helicopter by two cross-tubes, one
fore and one aft. Because the location of the fracture ap-
peared between the two cross-tubes, it is quite possible
that some bending did occur (although perhaps not the
full 8 to 12 inches as described by Stone and Scott) at
the fracture site. Although Scott also described the bend
as 8 to 12 inches, he also described it as a curve. In syn-
thesizing the testimony of the witnesses on this topic, I
find that in addition to the fracture, there was some
curve indentation at the fracture site, but significantly
less than the 8 to 12 inches off horizontal described by
Stone and Scott, and that the major portion of the skid
remained on a horizontal plane.
Stone and Scott testified that about 1,500 pounds of
fuel were unloaded from the helicopter. This was done
for two reasons. The first was safety and the second was
in order to lighten the load that a crane at the nearby
Michigan-Wisconsin facility would have to lift when lift-
ing the helicopter in order for the damaged skid to be
removed and a new skid bolted on. With respect to the
safety factor, Stone and Scott testified that in their opin-
ion the helicopter, with its load of fuel, would create a
dangerous safety problem in the event the pilot had to
do a run-on landing. This is explained as becoming possi-
bly necessary in the event that one of the two engines
became inoperative during flight. Thus, had one of the
engines gone out of service on the short flight back to
the Sabine Pass base, Respondent contends that pilot
Davies would have been in the dangerous position of
trying to do a run-on landing with a damaged skid and a
load of fuel. The helicopter could not be hover-landed
with only one engine, and the run-on landing would in-
volve a landing similar to that of a fixed wing aircraft
flying in at a relatively low speed and sliding to a stop
with one engine working. The danger factor would exist
if the skid were to collapse during such a run-on landing.
If the skid were to collapse, this in turn could cause the
whirling rotor blades to strike the ground, possibly re-
sulting in further substantial damage to the helicopter or
injury or death to the pilot. Although Davies disputed
the fact that the damaged skid would be in any danger of
collapsing, it appears that Stone and Scott make the
better argument with respect to the potential hazard. On
the other hand, I find that Davies was of the honest
opinion that there was no danger of the skid collapsing.
In short, I find that Davies committed pilot error by
mistakingly landing the helicopter in an incorrect posi-
tion on the helipad at the Sun Gas Oil Company loca-
tion. As will be seen, I find an additional pilot error in
Davies' failing to recognize the potential danger of
having to land with a damaged skid and, therefore, dis-
cussing this with supervision or maintenance before leav-
ing.
Chief Pilot Clay testified that after seeing the incident
report filed by Davies on the matter, he conducted an in-
vestigation. He first contacted Area Manager Stone and
then discussed the incident with Director of Personnel
Michel. Davies was then interviewed on Tuesday, No-
vember 25. According to Davies, he met with Clay and
Vice President Carl Dougherty. 4 7 Davies testified that
the conversation began with Clay saying he thought this
was a very serious incident and wanted to know how
Davies could make such a poor error in judgment with a
pad that size. Clay stated some measurements for the
pad, and Davies said the measurements did not sound
right to him. He then asked Davies why he moved the
aircraft with the passengers on board. Davies informed
him that the passengers had disembarked before he repo-
sitioned the helicopter. This seemed to surprise Clay, for
he said that such fact was contrary to what he had
heard. Clay again reiterated his statement that he consid-
ered it a very serious incident and asked Davies to step
outside so that he and Dougherty could make a decision.
About 5 or 10 minutes later, Dougherty left and
Davies was called in so that just he and Clay were in the
latter's office. Clay said he felt it was a very serious inci-
dent and that he was going to terminate Davies for it.
Davies said he could not believe that and asked to see
his flight file. Clay showed the file to him, and Davies
observed that there was nothing contained therein be-
sides normal progress and aircraft checkout reports along
with a slip saying he was late for work I day approxi-
mately 4 years previously. Davies then said he could not
believe that Clay was going to fire him over the incident
when there was nothing else against his record.
Clay repeated his position that it was serious enough
to terminate Davies. He then asked Davies if he had an
airframe and power plant license. (This is the license
which a mechanic is required to possess before he may
work on an aircraft.) Davies said he did not, and Clay
asked how Davies could make the judgment that the hel-
icopter was airworthy. Davies answered that his judg-
ment was based on his experience working with that
type of aircraft, that the damage appeared to be minor,
and that is why he flew it back to the Sabine Pass base.
Clay also wanted to know why Davies did not wait for
Stone and a mechanic to come to the aircraft. Davies re-
sponded that on neither of the calls he had made to the
Sabine tower was any message given to him that a main-
tenance team was coming to the site of the incident.4 8
Clay made no response to this that Davies could recall.
While a pilot for PHI, Davies received a 2-year safety
award, another safety award after 5 years, and in Octo-
ber 1980 he received a certificate from the FAA com-
mending him on his professionalism and safety as a pilot
47 Clay's testimony suggests that it was Michel who was present rather
than Dougherty. There is no specific rebuttal to this testimony of Davies
that Dougherty was present even though Clay. Dougherty, and Michel
testified after Davies. (Clay additionally testified as the first witness for
the General Counsel.) In his own testimony Michel did not assert that he
was either present or involved in any way with respect to the discharge
of Davies. Clay specifically testified that he consulted with Michel. I
credit Davies that both Clay and Dougherty were present.
4' Stone testified that, when Davies first reported that he suspected
damage. Stone conferred with Scott and they decided that Stone and a
mechanic would go to the Sun Oil location to inspect the damaged heli-
copter and that Scott would take another helicopter and complete the
mission
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following an instrument check ride with an FAA inspec-
tor.
Testifying that he was primarily responsible for the de-
cision to discharge Davies, Clay testified as follows:
Q: Would you describe, please, the reasons you
made that decision?
A: He violated a regulation. He flew a helicopter
that was not-released the helicopter after it [had]
been damaged without the authority [to release] the
aircraft for flight.
Q: And who would have that authority?
A: A licensed mechanic qualified on the aircraft.
Conclusion
Although Respondent argues that Davies should have
obtained a "maintenance release" before he flew the heli-
copter to the Sabine Pass base, and further argues that
such a requirement is part of its policy, at no point did it
identify any section of its operations manual (Resp. Exh.
6) which describes such purported policy, nor has it
identified any other documentary support that such a re-
lease is required. Pilot Dutson testified that deciding to
fly an aircraft which has sustained some damage is a
question of judgment depending upon the particular situ-
ation. Warren J. Cadoret, Jr., director of safety for PHI,
testified that there is no document captioned a "mainte-
nance release," and that it is a term referring to a me-
chanic approving the helicopter as airworthy. Further-
more, Cadoret testified he is not sure if PHI's policy,
that a pilot is to contact maintenance if he sustains
damage to a helicopter while in the field, is specifically
set forth in any PHI manual provision.
Pilot Bahlke similarly testified that it is a matter of
pilot judgment, although Bahlke testified that if there
was damage of any extent to the aircraft beyond, for ex-
ample, a broken window or a broken door latch, then he
would call maintenance. 49
Respondent introduced several issues of its safety
newsletter, Rotor Tips, in which various incidents are
described in which the pilots called maintenance. How-
ever, in none of these articles is there a flat statement
that the pilot is required by any rule of PHI or the FAA
to call for maintenance. Instead, examples are set forth
apparently on the basis of educating pilots as to the types
of situations in which they should call for maintenance.
In other words, it appears that it is a matter for the edu-
cated judgment of the pilot as to when maintenance
should be called.
Respondent, of course, may disagree with a pilot's
judgment decision that a release by maintenance is un-
necessary. Such a disagreement, however, would not be
based on "a willful violation of regulations" which is one
of PHI's four grounds for discharging one of its employ-
ees. Thus, at page 9 of PHI's policy manual (Resp. Exh.
9(a)) the four examples of employee termination are: res-
ignation, release (for inability to perform the job, not
adaptable for the job, or insufficient initiative for further
49 The implication of Bahike's testimony is that he might well call
maintenance if his helicopter were to sustain a fractured skid as did that
of Davies.
advancement), layoff (reduction in force), and discharge.
The item for discharge reads:
Discharge: An employee may be discharged if he
breaches Company standards of conduct, honesty,
work habits, performance, attendance, willful viola-
tion of regulation, or knowingly falsifying official
records such as expense vouchers, timesheets, flight
records, maintenance records, etc., or for insubordi-
nation. [Emphasis supplied.]
Davies specifically testified that in his opinion he
thought clearance from maintenance was unnecessary for
him to fly the helicopter back to the Sabine Pass base,
and on rebuttal he expressly testified that he never inten-
tionally violated company policy.
The General Counsel argues that if Davies had violat-
ed a rigid and inflexible company regulation by not call-
ing maintenance, then surely Stone or Scott would have
at least asked him why he had not called maintenance
when he returned to the Sabine Pass base. As the Gener-
al Counsel points out, the testimony of Davies is undis-
puted that the first time Clay mentioned a n.maintenance
release was after Clay had informed Davies that the deci-
sion had been made to terminate him. In the discussion
which followed it became clear that Clay was under the
erroneous impression that Davies had moved the heli-
copter while passengers were on board after initially sus-
pecting damage. Davies was then asked to step outside
to allow Clay and Dougherty to discuss the incident. It
was on Davies' return to Clay's office when the mainte-
nance release justification was put forward by Clay.
I find that the'reasons advanced by Respondent for the
discharge of Davies are pretextual in nature and reveal
Respondent's unlawful motivation. Moreover, it seems
clear that Respondent would not have discharged Davies
in the absence of this unlawful motivation. This is so be-
cause pilot error, in the absence of an intentional viola-
tion of regulations, is not in keeping with Respondent's
admitted policy nor is it consistent with Respondent's
written policy manual on discharge quoted above. Exam-
ples of discharges of pilots by Respondent in the past
wherein pilot error was involved almost invariably in-
volve a combination of a pilot error plus an intentional
violation of PHI rules or FAA regulations. Conversely,
pilots have not been discharged where only pilot error
was involved even though such error caused expensive
damage and endangered the safety of the pilot and pas-
sengers. A good example of the latter is the 1975 inci-
dent in which pilot Bahlke caused $15,000 damage to a
helicopter and barely missed crashing the helicopter,
with its passengers, into the Gulf of Mexico when he
landed hard on the offshore site helipad of a PHI cus-
tomer. At the hearing, Bahlke admitted that he used
poor technique, but that he did not violate any company
regulations or FAA regulations. Even though his inci-
dent was investigated by Respondent's accident board,
he received no discipline whatsoever. Although Bahlke
was an open supporter of the Union during the cam-
paign, his demeanor was persuasive, and I credit his testi-
mony.
74
PETROLEUM HELICOPTERS, INC.
In light of the foregoing, I find that Respondent, by
discharging Davies, violated Section 8(a)(3) of the Act,
and I shall order it to offer him reinstatement and to
make him whole, plus interest.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. At all relevant times, the Union was a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by unlawfully notifying an employee that he was being
transferred, and thereafter transferring him, in reprisal
for his union and/or protected concerted activities; in-
forming an employee that his transfer opportunities were
being withheld as punishment for his union activities and
contemporaneously denying him preferred transfer op-
portunities because of his union sentiments and activities;
and informing an employee that job transfer opportuni-
ties would be continually withheld because of his union
and/or protected concerted activities.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging Richard N. Dutson on June 26,
1980; Robert C. Mitchell on November 6, 1980; and
Robert J. Davies on November 25, 1980.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent has not violated Section 8(a)(1) of the
Act as alleged except as set forth above.
THE REMEDY
Having found that Respondent has engaged in the
unfair labor practices set forth above, I shall recommend
that it be ordered to cease and desist therefrom, to take
affirmative action designed to effectuate the policies of
the Act, and to post signed and dated copies of an appro-
priate notice to employees.
In view of the foregoing, I shall recommend that Re-
spondent be ordered to offer Richard N. Dutson, Robert
C. Mitchell, and Robert J. Davies immediate and full re-
instatement to their former jobs and to make them whole
for any loss of earnings, plus interest, which they may
have suffered. Backpay shall be computed in the manner
established by the Board in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 5 0
The Respondent, Petroleum Helicopters, Inc., Hara-
han, Louisiana, its officers, agents, successors, and as-
signs, shall:
5O 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
1. Cease and desist from:
(a) Notifying employees that they are being transferred
in reprisal for their union and/or protected concerted ac-
tivities, and thereafter transferring them because of such
activities.
(b) Informing employees that their transfer opportuni-
ties are being withheld as punishment for their union ac-
tivities, and denying them transfer opportunities because
of such union activities.
(c) Informing employees that job transfer opportunities
will continue to be withheld because of their union
and/or protected concerted activities.
(d) Discouraging membership in Professional Helicop-
ter Pilots Association, or any other labor organization,
by unlawfully discharging employees or discriminating
against them in any other manner with respect to their
hire or tenure of employment in violation of Section
8(a)(3) of the Act.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
Professional Helicopter Pilots Association, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, to act together 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 will ef-
fectuate the policies of the Act:
(a) Make Richard N. Dutson, Robert C. Mitchell, and
Robert J. Davies whole for any loss of pay that each
may have suffered by reason of Respondent's unlawful
discharge of each in accordance with the recommenda-
tions set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its bases at Cameron, Houma, Intracoastal
City, and Lafayette, Louisiana, and Rockport and Sabine
Pass, Texas, signed and dated copies of the attached
notice marked "Appendix." 5 ' Copies of such notice, to
be furnished to Respondent by the Regional Director for
Region 15, and after being duly signed and dated by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and shall be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to ensure that such notices are not altered, defaced,
or covered by any other material.
by Sec. 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
5' In the event that this 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 Pursu-
ant to, a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
75
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 15, in IT IS ALSO ORDERED that the complaint be dismissed
writing, within 20 days from the date of this Order, what insofar as it alleges violations not specifically found
steps Respondent has taken to comply herewith. herein, including complaint paragraphs 8, 9, and 10.