Professional Air Traffic Controllers Organization

National Labor Relations Board - Board Decisions

May 14, 1982

261 N.L.R.B. 922 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Professional Air Traffic Controllers Organization
and Patco Employees Union. Cases 5-CA-
12341 and 5-CA-12506
May 14, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On December 29, 1981, Administrative Law
Judge Bruce C. Nasdor issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed 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, but not to adopt his recommended Order.:3
' Respondent has implicitly excepted to certain credibility findings
made by the Administrative l.aw Judge. It is the Board's established
policy nrot to overrule an administrative law judge's resolutiotns with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convrtinces us that the resolutions tare incorrect Standard Dry
Wall Productr, Inc. 91 Nl RB 544 (1950), enfd. 188 F2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re
versing his findings
In the subsection of his l)ecisioi entitled "The Discharges," para-
graphs 20 and 22, respectively. the Administrative l.asw Judge stated that
there was "not a scintilla of evidence tof union animus" on the part of the
employer in Rio-Del lool Mfg. Co., In.., 199 NL R 969 (1972). and that
the employer in Midland Contuiner Corp., 19t) Nl RH 328 (1971), had "no
kniowledge" of union activity. In both instances, the correct reference is
to the absence of any "direct" evidence of union animnus by the ertipll(y-
ers
We agree with the Administratie I aw Judge Judge that Respond-
ent's "no-distributiorn" rule violated Sec. X8(a)() of the Act because it was
overly broad and was discriminatorily enforced Chairman Van de Water
and Member Hunter find that the rule, which Respondent applied to the
distribution of union literature during "working hours," would be "inival-
id under Isser Inrernational. Inc., 211 Nl RB 749 (1974), as well as under
the broader restrictions set forth i I: R 1W Bearing Divivsion, a D)iviiion oJ
:R HW. Inc., 257 NL RB 442 (1981)."
In adopting the Administrative lIaw Judge's conclusion that Respond-
ent discriminatorily discharged employee Janies l yorns, we doi not rely
on the negative inference he drew from Respondent's failure to produce
certain subpoenaed documents. Inasmuch as the record reflects a subhstan-
tial degree of confusion concerning the iature, and indeed the very exist-
ence. of the dvocuments in question. we cannot. under the circumstances,
conclude that such an inference is warranted
Conclusions of Law 7 and 8 are redundant I'herefore. we will amend
the Administrative Law Judge's Cotnclusions of Ilaw by deleting Conclu-
sion of Law 7 and renumbering Conclusion of l.a, X8 as Conclusion of
Law 7.
:' We will issue an order in lieu of that recommended by the Adminis-
trative Law Judge so as to correct minor inadvertent errors.
Member Jenkins would provide interest on the backpay required herein
in accordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980)
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 7 and renumber Con-
clusion of Law 8 as Conclusion of Law 7.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Professional Air Traffic Controllers Organization,
Washington, D.C., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect
to wages, hours, and other terms and conditions of
employment with the PATCO Employees Union as
the exclusive bargaining repesentative of its em-
ployees in the following appropriate unit:
All staff employees employed by the Employ-
er at its national headquarters in Washington,
D.C., but excluding all confidential employees,
guards and supervisors, as defined in the Act.
(b) Discharging, or otherwise discriminating
against, employees because of their activities on
behalf of PATCO Employees Union, or any other
labor organization.
(c) Promulgating, maintaining, and discriminator-
ily enforcing a rule prohibiting distribution of
union literature during "working hours."
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
PATCO Employees Union, as the exclusive repre-
sentative of all employees in the appropriate unit
described above, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Offer James Lyons, James Miller, Fran Feld-
man, and Steven Hubscher 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.
(c) Make James Lyons, James Miller, Fran Feld-
man, and Steven Hubscher whole for any loss of
earnings and other benefits they may have suffered
due to the discrmination practiced against them, in
the manner set forth in the section of this Decision
entitled "The Remedy."
(d) Rescind its rule prohibiting distribution of
union literature during "working hours."
261 NLRB No. 132
922
PROFESSIONAL AIR TRAFFIC CONTROLLERS
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its premises in Washington, D.C.,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Respondent shall take reason-
able steps to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 lIabor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED) BY ORDER OF THE
NATI IONAL LABOR REL.ATIONS BOARD
An Agency of the United States Government
WE WIl.L NOT refuse to bargain collectively
with PATCO Employees Union as the exclu-
sive bargaining representative of our employ-
ees in the appropriate unit:
All staff employees employed by the Em-
ployer at its national headquarters in Wash-
ington, D.C., but excluding all confidential
employees, guards and supervisors, as de-
fined in the Act.
WE WILL NOT discharge, or otherwise dis-
criminate against, employees because of their
activities on behalf of PATCO Employees
Union, or any other labor organization.
WE WIl.I. NOT establish, maintain, or discri-
minatorily enforce a rule prohibiting distribu-
tion of union literature during working hours.
WE WILl NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL, upon request, bargain collectively
with the PATCO Employees Union as the ex-
clusive representative of all employees in the
unit described above, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WE WILL offer to James Lyons, James
Miller, Fran Feldman, and Steven Hubscher
immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or any other rights or
privileges previously enjoyed.
WE WIL L make whole James Lyons, James
Miller, Fran Feldman, and Steven Hubscher
for any loss of pay and other benefits they
may have suffered due to our discrimination
against them, together with interest.
WE WIl.L rescind our rule prohibiting distri-
bution of union literature during working
hours.
PROFESSIONAL AIR TRAFFIC CON-
TROLLERS ORGANIZATION
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
case was heard in Washington, D.C., on September 2, 3,
and 4, 1981.
The charges in this proceeding were filed by PATCO
Employees Union (hereinafter referred to as the Union
or PEU) on June 23 and August 6, 1980.1 The substan-
tive issues to be resolved are whether Respondent violat-
ed Section 8(a)(l) and (3) of the National Labor Rela-
tior.s Act, as amended (hereinafter referred to as the
Act), by discharging James Lyons, James Miller, Fran
Feldman, and Steven Hubscher. Also at issue is whether
Respondent unlawfully promulgated an overly broad no-
distribution rule. The complaint alleges that the Union
has been designated by a majority of Respondent's em-
ployees in an appropriate unit at all times material
herein, as their collective-bargaining representative for
the purpose of collective bargaining with Respondent.
Moreover the complaint alleges as an issue to be re-
solved that Respondent failed and refused to recognize
and bargain in good faith with the Union and has en-
gaged in a course of conduct designed to undermine the
Union's status as the collective-bargaining representative.
The complaint was amended at the hearing to reflect
that counsel for the General Counsel was requesting a
Gissel2 bargaining order as an appropriate remedy for
the alleged illegal conduct of Respondent. This is the
final issue to be resolved.
I All dates are in 1980, unless otherwise specified.
2 XL.R.B. v Gissel Packing Co. Inc.. et aL, 395 U.S 575 (1969).
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a labor organization with its national
headquarters located in Washington, D.C. It annually re-
ceives dues in excess of $50,000 from outside the District
of Columbia. I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZAT ION
Record testimony reflects that Respondent's employ-
ees decided to form a union to improve their wages,
hours, and working conditions, by collective bargaining
with Respondent. PATCO Employees Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
I1L. THE APPROPRIATE UNIT
The parties stipulated that all staff employees em-
ployed by the Employer at its national headquarters in
Washington, D.C., but excluding all confidential employ-
ees, guards and supervisors, as defined in the Act, is ap-
propriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
IV. THE Al iEGEI) UNFAIR I.ABOR PRACITIC.S
Respondent, a labor organization with national head-
quarters located in Washington, D.C., represented most
of the air traffic controllers employed by the Federal
Aviation Administration (FAA) throughout the country.
In February, Respondent's executive board appointee
Robert Poli and Robert Meyer to serve as interim presi-
dent and vice president, respectively, until the election
which was scheduled for April 1980. On January 31, Re-
spondent's general counsel for approximately 10 years re-
signed. For the next 3 months, until the election in April,
Poli and Meyer spent little time in the office because
they were campaigning, visiting Respondent's locals, and
attending seminars. During this period, Dennis Reardon,
director of operations, was the sole person in the national
office responsible for coordinating and making decisions
for the operation of the national office.
In February, James Lyons, an alleged discriminatee,
was hired as Respondent's director of research. In its
campaign literature, Poli and Meyer set forth that they
would implement programs to enhance certain areas in-
cluding effective use of our new research department to
enable PATCO to have up-to-the-minute knowledge of
developments affecting our jobs in the aviation industry;
communications with Congress and public will be sup-
ported by careful analysis and documentation.
In April, Respondent's membership at a convention in
Las Vegas elected Poli and Meyer as president and vice
president, respectively.
In February two of Respondent's employees, Steven
Hubscher and James Miller, began discussing the feasibil-
ity of seeking union representation for Respondent's em-
ployees. Thereafter they discussed the idea with other of
Respondent's employees but principally with Lyons,
who is an attorney.
On May 21, an employee meeting was held at a restau-
rant. All of the individuals who worked at Respondent's
office in Washington, D.C., were present with the excep-
tion of Poli, Meyer, Reardon, Michael Rock, John
Lapine, Kathy Tinkey, John Seddon, and Robert Collins.
According to the testimony of Lyons, he did not consid-
er Seddon or Collins to be employees of Respondent.
Rather, they would work on particular projects from
time to time. Rock and Lapine, although paid out of the
national office, normally worked in New York. At the
meeting, discussion revolved around the need for a union
to represent the employees for purposes of collective
bargaining with Respondent over their wages, hours, and
working conditions. The employees expressed an intent
to be represented because there were no written or ar-
ticulated personnel policies or practices. Therefore the
employees felt in the dark and insecure. Moreover, ac-
cording to the testimony of Lyons, no one had job de-
scriptions. During the campaign for national president,
Poli's opposition, who was then regional vice president
in New York, had commenced to launch attacks upon
the competency and the resources existing at the national
headquarters in Washington, D.C. This added to the em-
ployees' insecurity, in that they became privy to memo-
randums and campaign literature setting forth that the in-
dividuals at the national headquarters were incompetent.
If Poli's opposition was elected, he would "come down
there and clean house." At the meeting, Respondent's
employees decided that the unit should be combined
with both professional and nonprofessional employees. A
committee then was formed to consider the possibility of
affiliating with another labor organization. Union author-
ization cards were then distributed by Miller to all of the
18 employees in attendance. It was explained that the
cards authorized the PATCO Employees Union (herein-
after referred to as PEU) to represent the employees,
without the necessity of an election in the event that Re-
spondent recognized the Union. Miller then collected all
of the union authorization cards which were then exam-
ined by Lyons, who determined that each card had been
signed and dated by all of the 18 individuals who were
present at the meeting. Miller and Fran Feldman, the
dues rebate clerk, volunteered to present the cards to
Poli.
On the afternoon of May 23, Miller and Feldman pre-
sented the cards to Poli and told him that the employees
had met and decided to form a union. Poli looked
through the cards and objected to the inclusion in the
unit of James Scott, Respondent's comptroller, because
Poli considered him to be a supervisor. Poli stated that
he felt that the formation of a union was "great" and
would make his job "a whole lot easier." Miller told Poli
he was proud of the way that he, Poli, had accepted this.
Following this meeting Poli walked through the office
and shook hands with the employees. He also told Lyons
that he, Poli, would be a poor union president if he did
924
PROFESSIONAL AIR TRAFFIC CONTROLLERS
not recognize the right of his own employees to orga-
nize.
Miller testified that, after his meeting on May 23 with
Poli, his communication with management ceased, be-
cause no one talked to him thereafter.
On May 29, a meeting was held, where Feldman and
Miller apprised those in attendance of what had hap-
pened when they presented the cards to Poli. There
were approximately 14 employees in attendance at this
meeting, and they discussed the selection of PEU offi-
cers. It was decided to hold a secret-ballot election either
on June 9 or 10, and they talked about possible candi-
dates. Discussion also ensued regarding the formation of
committees to check into possible affiliation by PEU
with a national union and the adoption of bylaws. Two
more meetings were held on June 9 or 10, and the same
topics were under discussion. The Employees decided to
assess an initiation fee and monthly dues. They also de-
cided to have five officers, and nominations were then
made. The election on June 10 resulted in the selection
of Lyons as president; Hubscher, vice president of oper-
ations; Feldman, vice president of finance; Jack Maher,
vice president of grievances; and Scott, secretary-treasur-
er.
The next day, on June 11, Lyons met with Poli and
presented him with a letter which set forth the fact that
the PEU had elected officers the day before. The names
of the officers who are referred to above were set forth.
The document also contained the names of the employ-
ees in the bargaining unit. Lyons thanked Poli for ac-
knowledging and recognizing the Union. He also ex-
pressed his desire to have a fruitful collective-bargaining
relationship with him. Poli congratulated Lyons on being
elected president of the Union, and said he thought that
the employees had chosen a capable person, and that he
and Lyons would get along fine. Poli brought up the
issue of Scott's eligibility in the bargaining unit and
Lyons indicated that there might be some way to work
around that issue. This question was left open for further
discussion.
At approximately 4 p.m., on June 11, the employees
assembled and were introduced by Poli to an individual
named Manheim Shapiro. Poli stated that Shapiro was
there to do a study of the office, and that he had expert
credentials. The testimony reflects that Shapiro talked
about his credentials, including a PHD in social psychol-
ogy and his membership in several professional organiza-
tions. He explained that he was there to conduct a study
of how work got done in the office, how people worked
with one another, how they communicated with one an-
other, and what the product of that communication was.
Lyons asked whether any guarantees could be given that
jobs would not be abolished or downgraded as a result
of the study. Shapiro responded that he could not give
such guarantees. When the meeting ended, Lyons ad-
dressed Poli stating to him that the employees were
upset about the study, and that PEU needed to have
some role in the matter. Poli agreed to meet with Lyons.
In October 1979, there had been a management study
which came to be known as the "Kilgallon report."
After the meeting in the conference room with Sha-
piro, Lyons talked with Maher, Lapine, Miller, and some
other people. He then went back to his office, and some
time after 5 p.m. Poli entered. Poli commenced discuss-
ing the composition of the bargaining unit. Poli wanted
to exclude Rock, Long, Maher, Lyons, Scott, Donna
Ficik, Jan Finklea, and the individual who was to
become Meyer's secretary.3 Lyons responded that these
people were properly within the unit, and the matter was
left unresolved. Lyons requested that PEU have some
input in the Shapiro study and on the background of
Shapiro. Lyons further delineated, why in his opinion
the individuals Poli had referred to should be in the bar-
gaining unit, as they were not confidential employees or
supervisors. Poli insisted that the study did not involve
PEU in any way, and they had no right to have anything
to do with it, or have any input whatsoever, and man-
agement would conduct the study. Poli agreed to meet
with Lyons the next morning.
Poli did not meet with Lyons the next day, June 12,
and, as a result, Lyons drafted a letter which he present-
ed to Poli's secretary, and which was also posted on the
bulletin board. The letter requested that implementation
of the management survey be delayed until the Union
had an opportunity to respond with bargaining proposals
concerning the procedures, purposes, and impact of the
study. The letter also stated that PEU would view pro-
ceeding with the study without meeting its legal obliga-
tions to be an unfair labor practice by management.
That evening the Union held a membership meeting in
the library of the Marine Engineers Beneficial Associ-
ation, rather than in Respondent's library, where meet-
ings were normally held, because, according to the testi-
mony of Lyons, the atmosphere in Respondent's office
had gotten very tense. Some of the people at the meeting
took the position that they would flatly refuse to cooper-
ate with the study, while other people were frightened
and intimidated. After discussing alternatives with
Lyons, the membership determined that they would co-
operate with the study although they would demand that
a PEU representative be present. A card was drafted for
each individual to present to Shapiro or any other inter-
viewer.4 The card stated:
I consider you an agent of management.
My Union has requested that management meet
with it and consider proposals and requests for in-
formation with respect to the procedures, purposes
and impact of this study.
This request has not been complied with.
Therefore, while I have no information to volun-
teer, against my will I will answer direct questions
posed by you.
I also consider that I am entitled to have a union
representative present at this meeting if I so desired.
[sic.]
Finally, this interview is being conducted under
conditions which may lead to the filing of unfair
labor practice charges against management.
a At that time the individual had yet to be hired.
4 This was received into evidence as G C. Exh. 7.
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poli agreed that the individuals who participated in the
"Shapiro interviews" could have a PEU representative
present.
On June 16, Lyons met with Poli in Poli's office. They
again commenced to discuss Poli's position with respect
to the bargaining unit. They talked principally about
Scott, Long, and Maher. It was Poli's position that they
should not be included in the bargaining unit. Lyons had
previously talked to Scott and advised him that he
thought that Scott indeed should not be included in the
unit. Accordingly, Lyons agreed with Poli that Scott
should be excluded, but he disagreed with Poli as to
Long and Maher. Furthermore at this meeting, Lyons
specifically remembered in his testimony that Poli told
him they had big plans for him. Lyons testified that Poli
stated management was going to have him reporting di-
rectly to Robert Meyer, and he would have his own de-
partment with three or four people working for him.
Poli's testimony specifically refuted the testimony of
Lyons in this regard. It is noted, however, that the testi-
mony of Reardon reflects management's intent to expand
the research department and to increase the staffing of
same to aid Lyons in his mission. At the meeting be-
tween Poli and Lyons, Lyons reiterated the Union's posi-
tion that it should have input in the management study,
and Poli continued to deny the Union's right to this
input. The meeting concluded with Lyons stating that
unfair labor practice charges might be filed if things did
not improve, and he requested another meeting so that
Maher, Hubscher, Miller, and Feldman could attend.
During this period of time Lyons had heard comments
that Poli was making inaccurate references to their con-
versations. Therefore, Lyons testified that he no longer
trusted Poli, and he wanted witnesses at future meetings.
On June 17, a meeting ensued among Lyons, Feldman,
Hubscher, Meyer, and Poli. At this point, the status of
Scott had been resolved. He was to be excluded from the
unit. Poli took the position that Lyons, Ficik, and Fink-
lea should be excluded from the unit. After some discus-
sion, Lyons again brought up the management study. At
one point in the meeting, Meyer (Respondent's vice
president) asked a question and Lyons began to respond.
He was interrupted by Meyer who stated that as far as
he, Meyer, was concerned Lyons did not exist, and he
was addressing himsef only to Feldman and Hubscher.
Later during this meeting, Lyons stated that employees
were concerned about the study because of past events
and the atmosphere in the office. Poli responded that no
one would be hurt by the study, rather it was going to
help everybody. Lyons commented that if, management
wanted to fire someone for being disloyal, incompetent,
or whatever reason, all that had to be done was to use
that reason, and one did not need a study for this pur-
pose. Lyons asked Poli whether he would reduce to
writing that as a result of a study no jobs would be elimi-
nated or downgraded. Poli told Lyons to draft an agree-
ment. Lyons wrote a statement that PEU agreed to co-
operate fully with the study, and that Respondent agreed
that the study would not be used to demote or discharge
employees. Poli and Meyer left the office to caucus, and,
when they returned, announced that they could not sign
the agreement, and that there was nothing further to dis-
cuss about this study. On June 18 or 19, it was an-
nounced that there would be no further interviews, and
the study was aborted. Respondent posits by way of col-
loquy that Lyons prevented the study from taking place,
"it was cancelled in mid-stream." On June 18, Shapiro
came to Respondent's office to interview employees.
There were approximately four interviews, and each of
the four employees presented Shapiro with a card con-
taining the language I have referred to earlier. They
would not answer the questions posed by Shapiro.
On June 19, Poli sent a letter to all of the employees
stating that it was perfectly acceptable to him, that the
employees desired union representation for purposes of
collective bargaining, but that he felt that he was legally
required to exclude seven employees from the unit. He
named four individuals he felt were supervisors: Scott,
the comptroller; Finklea; Reardon; and Lyons. He also
named three individuals he felt were confidential em-
ployees: Seigel, Poli's secretary; Sherril Luff, Meyer's
secretary; and Ficik, Reardon's secretary. Of these seven
named individuals, the Union had already agreed that
Scott should be excluded and there was never any ques-
tion that Director of Operations Reardon should not be
included in the unit. It was stipulated by the parties at
the hearing that he was a supervisor within the meaning
of Section 2(11) of the Act. Seigel had previously ad-
vised Lyons that she did not want to be included in the
unit. The parties stipulated that she was a confidential
employee, and, as such, should be excluded from the
unit. Accordingly, of the employees that the Union
claimed to be unit employees, Respondent would exclude
4 or 20 percent of the unit. 5
The employees were required to affix their initials to
Poli's letter, so as to reflect that they had received copies
of the document. Lyons felt he was being undercut as
president of PEU. He therefore began to prepare a letter
which he intended to post on the bulletin board and dis-
tribute to the employees. Prior to doing this he ap-
proached Poli and asked him if Poli's letter meant that
he no longer recognized him as president of the Union.
Poli responded that he did not recognize Lyons as presi-
dent of PEU. Lyons then posted the letter on the bulle-
tin board and distributed it to the employees who were
in the office. The letter reflects, inter alia, what had oc-
curred at the June 17 meeting. It also sets forth that Poli
refused to recognize Lyons as president of the Union, be-
cause Poli considered him to be a supervisor within the
meaning of the Act and that Lyons would take appropri-
ate action. Moreover, according to Lyons' distribution,
he states that stories were circulating that he made state-
ments to Poli, which would reflect on his, Lyons', char-
acter.
On June 20, Lyons executed an unfair labor practice
charge, alleging that Respondent violated Section 8(a)(1)
and (5) of the National Labor Relations Act.
Lyons was in Oklahoma City from June 22 to 25,
working on a case he had been assigned by Reardon.
When he returned he was informed that Respondent had
I G.C. Exh. 5 lists 20 employees Scott should be excluded. Luff
(Roach), who was not in Respondent's employ on June 10, the date the
document was prepared, should be included in the unit
926
PROFESSIONAL AIR TRAFFIC CONTROLLERS
reduced the duties of Lapine, had cut back the labor
study school for 4 weeks affecting the jobs of Long and
Miller, and had changed the locks on the doors, thereby
eliminating free access to the office which, according to
Lyons, the employees had historically enjoyed. Thereaf-
ter, on July 1, Lyons transmitted a letter to Poli protest-
ing these things which Lyons viewed as retaliation for
union activities. Lyons protested these actions and de-
manded that Poli meet with the Union and the employ-
ees affected to "negotiate and/or discuss the same."
Meyer, Respondent's executive vice president, testified
that on July 2 Respondent's executive board met at the
Hyatt Regency hotel in Rosemont, Illinois, to discuss the
financial problems facing Respondent, particularly the in-
crease in monthly expenses caused in part by escalating
legal fees. The board, according to Meyer, unanimously
agreed to take certain action to cut back on expenses.
Meyer testified that the board did not discuss the Union.
The executive board proposed suspending classes at
the facility representative school for labor studies and
the termination of Miller. It proposed further terminating
Feldman, and closing the research department which
eliminates Lyons. Hubscher was also to be fired. On his
testimony, Poli referred to Miller as the junior instructor
at the school, because he had less seniority than the
other instructor.
On July 8, Poli placed a conference call to seven
members of the executive board. Meyer also participated
in this call and made minutes of same which were re-
ceived into evidence. Poli stated that the purpose of the
call was to discuss Respondent's financial picture. He
turned the meeting over to Meyer who testified that he
recommended closing the facility representative school
from August until the end of the year and eliminating
unnecessary positions. Meyer's testimony and the docu-
mentary evidence reflect that he expressed his concern
about rising legal fees and increased expenses of Re-
spondent's negotiating team due to inflation, plus the fact
that the April convention went over the $50,000 budget.
John Paolino, vice president of Respondent's Great
Lakes region, introduced the following motion: "In
order to maintain fiscal responsibilities and reduce oper-
ating costs at the National Office, the Executive Board
of the Professional Air Traffic Controllers Organization
directs its president, Robert E. Poli, to eliminate unnec-
essary positions and programs as necessary." During the
conference call, according to Meyer's testimony, he ex-
plained the closing of the school and the elimination of
certain positions which saved approximately $135,000.
The Board unanimously passed Paolino's motion. After
this conference call, Poli and Meyer discussed how to
make staff cuts, and it was determined that Feldman be
terminated, because in their opinion her work could be
absorbed by two other people in her department. Meyer
testified additionally that he recommended Lyons and
Hubscher be terminated, and their duties absorbed by
Reardon and himself. The final recommendation which
Poli acted on was that Miller be terminated because the
school was going to be closed. Respondent's witnesses
testified that Poli made the final decision as to which of
the employees were to be terminated.
Sometime during the third week in July, the PEU
members decided to engage in informational picketing. It
was explained to them that this was not a strike, rather it
was a method of informing the public that they were
having difficulties engaging in negotiations with Re-
spondent. Lyons was to draft the language for the plac-
ards. The placards bore the following legends: "PATCO
thinks union good for air traffic controllers, but not for
its own employees. PATCO calls employees' controllers,
but not for its own employees. PATCO calls employees'
union president a supervisor, tries to undermine unions.
PATCO unfair to employees." Picketing lasted for ap-
proximately 4 days and occurred on the sidewalk in front
of the Respondent's office before and after working
hours and during the lunch break.
On or about July 18, Poli ordered Hubscher not to cir-
culate union material during working hours. Hubscher
testified that, prior to that time, he knew of no policy or
rule maintained by Respondent with respect to the distri-
bution of personal literature. Hubscher testified without
contradiction that on several occasions employees had
sold raffle tickets, tupperware, and football pools.
On July 23, Lyons learned that the National Labor
Relations Board was going to dismiss his charges which
alleged, inter alia, that Respondent was attempting to un-
dermine the Union by characterizing him as a supervisor.
As a result of this and Poli's refusal to recognize him as
union president, Lyons held a meeting in the MEBA li-
brary that evening and informed the employees that he
could no longer serve any useful purpose as president.
He appointed Feldman to act as president, and stated his
intent to remain active in PEU. He advised the 13 to 14
people who were in attendance at the meeting to file a
petition for an election with the National Labor Rela-
tions Board. The membership agreed to conduct an elec-
tion for new officers on July 29. Lyons drafted a letter
which set forth what occurred at this meeting, including
the fact that there would be an election for new PEU of-
ficers on July 29. This letter was posted on the bulletin
board on July 24.
On the afternoon of July 28, Poli called Miller into his
office and informed him that due to financial reasons the
facility representative school was being closed, and
Miller was being terminated with severance pay. Miller
filed for unemployment compensation and gave as the
reason he was no longer in Respondent's employ, that
his position was abolished.
That same afternoon Poli informed Lyons that the ex-
ecutive board had decided to eliminate the research de-
partment to help cut the budget, and Lyons' position was
eliminated. Meyer offered to write a letter of recommen-
dation for Lyons who declined this offer.
The same afternoon Poli informed Hubscher that his
job had been eliminated for financial reasons. Hubscher
requested a letter of recommendation and Poli agreed
that he would give him one which Hubscher himself
could draft. Lyons wrote a favorable letter of recom-
mendation for Hubscher, which Poli signed. Poli also en-
tered into a written agreement with Hubscher to respond
favorably to any inquiries which he may have received
from perspective employers.
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, that afternoon Poli and Meyer informed Feld-
man that Respondent was having budgetary problems
and that Respondent would have to let her go.
All four of the alleged discriminatees were told that
they were to be out of the office by 5 p.m. that day July
28. None of them had been given any prior warning that
they might be terminated, and none of them were offered
an opportunity to remain in lesser positions or at reduced
salaries.
Poli testified that the final decision to terminate Feld-
man, Lyons, and Hubscher was made on July 28, and the
decision to terminate Miller was made in June although
he had discussed it with Meyer sometime in May.
Meyer's memo which was received into evidence as Re-
spondent's Exhibit 17, and is dated July 3, reflects that
Respondent's national executive board met on July 1 and
2 at the O'Hare Regency Hotel in Rosemont, Illinois.
The memorandum further reflects that the board agreed
on July 2 to discharge all four alleged discriminatees.
Poli testified, contrary to Meyer's memo, that there were
no recommendations as to which specific individuals
would be "cut or laid off."
Lyons, whose title was director of research, was the
in-house Federal employee labor relations expert in mat-
ters of collective bargaining, unfair labor practices, and
arbitration. Among his other duties, he helped the locals
with unfair labor practice cases and arbitrations, and pro-
vided interpretations to both the locals and the national
office, on a variety of Federal laws and regulations. He
also helped prepare congressional testimony. Respondent
witnesses testified that, after July 28, Lyons' duties were
performed by the director of operations and regional
staff personnel. His other duties, according to the testi-
mony, were discontinued. Between July 28, and Decem-
ber, the legislative testimony was prepared by Poli, Rear-
don, and Simons.
Feldman was the dues rebate clerk, and, according to
her testimony, she was the only employee in the dues
rebate department. She was in charge of rebating dues to
the approximately 400 and some odd locals of Respond-
ent. She had other duties, including the responsibility for
correspondence and telephone calls and special assign-
ments which she received from Scott. At one time she
edited a story for the 1980 convention book.
Feldman began in Respondent's employ on July 1, and
received a $2,000 raise some time in early July. In De-
cember she began using a computer to replace her
adding machine. She testified that otherwise her duties
were performed manually. At the time Feldman was ter-
minated, Respondent was preparing to consolidate the
locals' bank accounts from 400 some odd locals to either
7 accounts, I for each of Respondent's regions, or to I
account as the bank had advised. According to the testi-
mony, this would have increased Feldman's work, be-
cause after the consolidation, she would have been re-
sponsible for reconciliation of the accounts and for
breaking down the master account into some 400-odd
separate accounts so that each local would know how
much money it had in the account. At that time the bank
was responsible for reconciling the accounts. The pur-
pose of this consolidation was so that Respondent could
earn interest on a local union's money in the bank ac-
counts which totaled approximately $200,000. Scott, Re-
spondent's comptroller, testified that it was initially pro-
jected that Respondent would earn approximately
$30,000 annually, but that prior to consolidation it was
earning no interest whatsoever on the 400 and some odd
accounts. The projections were that this project would
be completed by November. Respondent at the time of
the hearing had still not completed this project.
Hubscher was titled a research assistant, and, as such,
he worked on a facility representative manual, a griev-
ance computerization program, and matters dealing with
labor relations research. He was also Respondent's repre-
sentative to the AFL-CIO public employee department.
Prior to May, Hubscher had been Reardon's assistant.
From February 1980 to June or July, he began perform-
ing a number of duties as an aide to Lyons. Miller,
whose job title was educational coordinator, was an in-
structor at the labor study school, located at the George
Meany Institute in Silver Springs, Maryland. Long was a
coinstructor with Miller. Miller also worked on the 1981
strike. The students at the school were air traffic control-
lers, who were taught labor history, labor law, arbitra-
tion, grievance handling, and successful strike tactics.
Miller testified that, when he was hired initially, he was
told by Reardon that Respondent had big plans for the
school, including putting it on the road. Miller testified
further that he had had discussions with Poli, Meyer,
Long, and Maher regarding the purchase of a building to
house the school, rather than continuing the outlay of
money to the institute for rental. Respondent was renting
the facilities at the George Meany institute. Although
when Miller was hired in January, he was told by Rear-
don that his salary would be reviewed in I year, he re-
ceived a $2,000 raise in May.
Paul Hadley commenced working for Respondent as a
summer intern on June 9. Respondent has not employed
a summer intern since the beginning of 1978. Hadley tes-
tified that his salary was $250 a week and that Respond-
ent also paid for his apartment which cost in excess of
$400 per month. During the first 4 days of Hadley's em-
ployment, Respondent paid for his stay at the Hyatt Re-
gency Hotel in Washington, D.C., at a cost of $75 per
night. Hadley had a bachelor's degree in English and a
master's degree in systems management, and at that time
had completed 1 year of law school. In the middle or
third week of July, he had a conversation with Reardon
wherein Reardon asked him if he would consider work-
ing full time for Respondent in lieu of returning to law
school. Hadley responded that he did not want to leave
law school.
Additional Evidence Relating to Respondent's
Economic Defense
For the 6-month period ending June 30, 1979, Re-
spondent spent $254,159 on salaries for the national staff.
For the 6-month period ending June 30, 1980, Respond-
ent spent $388,116 on the same item. For the 6-month
period ending December 31, 1980, salaries amounted to
$372,706.
As of June 30, 1979, Respondent's net worth was
$450,995. As of June 30, 1980, its net worth was
928
PROFESSIONAL AIR TRAFFIC CONTROLLERS
$189,957. By December 31, 1980, its net worth was the
deficit figure of $139,111.
According to Respondent's accountant, the significant
cause of the decrease in net worth was Respondent's
legal expenses, which totaled $605,996 for 1980, of which
$457,875 were incurred in the last 6 months of that year.
On July 28, the day of the discharges, an employee,
David Trick, commenced to work for Respondent at a
salary of $41,500 per annum.
In October, Poli received a raise of over $5,000,
Meyer received a raise of over $4,000, Rock received a
raise of $4,000, Maher a $4,000 raise, Long received a
raise of $4,000, Trick 6 received a raise of over $3,500,
Lapine received a raise of $4,000, and (Luff) Reoch re-
ceived a raise of $1,500. In July, Lundy received a raise
of $2,000 and 2 months later, in September, he received
another raise of $4,000. In September Klove received a
raise of $1,500, and Boyer received a raise of $1,000.
Within 3 months of the discharges, Respondent granted
raises amounting to $38,500.
Reoch was hired approximately June 16 and Wilson
began working for Respondent on June 2. Reoch's posi-
tion, secretary to Meyer, had been vacant since Novem-
ber 1979.
Respondent spent $12,736 more on travel, meals, and
lodging for the last 6 months of 1980 than for the same
period in 1979. Testimony by Meyer reflected that Re-
spondent in the past, and during the present, has paid to
house people at the Hyatt Regency at approximately $70
per night for extended periods7 of time, and will contin-
ue to do so in the future. Meals are also paid for.
The amount expended for national salaries for the 6-
month period ending June 30, 1980; $388,116; includes an
impressive amount of severance pay. Leydon, Poli's
predecessor, received approximately $50,000. Ferri re-
ceived over $13,000 in severance pay.
Therefore the $388,006 figure is reduced by approxi-
mately $63,000 amounting to $325,116, or an increase for
the last 6 months over the first 6 months, of almost
$50,000.
Documentary evidence reveals that in 1979, Respond-
ent spent $106,519oin "litigation costs--Judgment." The
figure for 1980 was $75,000 or $31,519 less.
Respondent witnesses testified that it faced the poten-
tial liability of a $5.5 million lawsuit. A judgment in that
action of $850,000 was rendered approximately I year
after the terminations. As of the time of this litigation it
was under appeal, so nothing has been paid.
Conclusions and Analysis
In my judgment the evidence amply demonstrates that.
on May 21, the Union had been designated as the collec-
tive-bargaining representative for the unit employees, by
19 of said employees, a clear cut majority. Siegel, a con-
fidential employee,8 Poli, Meyer, and Reardon should be
R He received this raise after working for Respondent approximately 3
months.
7 For example, Reardon was unable to sell his house. so Respondent
provided his quarters and paid for his meals.
R She was excluded by stipulation.
excluded from the unit. Although the status of Scott was
not litigated at the hearing, the evidence discloses that
Lyons ultimately agreed with Poli that Scott should be
excluded from the unit because of his supervisory status.
Record evidence clearly demonstrates that Lyons was
not a supervisor within the meaning of the Act. He
worked directly under Reardon and essentially was a
one-man research department. He neither assigned nor
reviewed work. He was not given any authority to hire
or fire employees. Reardon's statement during the course
of his examination, wherein he responded affirmatively
that he told Lyons he could hire people, is completely
contrived in my opinion. Reardon and Lyons were alleg-
edly discussing the status of Hubscher. For approximate-
ly 4 months, Hubscher, on a few occasions aided Lyons
in his duties. Reardon testified that he told Lyons if he
were not satisfied with Hubscher's work, or found him
inadequate, he, Lyons could arrange through Reardon to
interview another individual as a replacement for
Hlubscher. L yons may have, on one occasion, been asked
to evaluate a coworker (Hubscher). This hardly qualifies
him as a supervisor. I consider that Respondent acted in
bad faith by maintaining otherwise.
There is no question in my mind as to the validity of
the cards. I consider them valid in view of the fact that
the evidence discloses the employees were told that the
cards would be used by the Union to seek recognition
from Respondent as the exclusive collective-bargaining
representative of the employees. Hubscher's unrefuted
testimony is that Laine signed and dated his card in his
presence. Accordingly his card is valid although he did
not testify at the hearing. I find Tinkey's card to be
valid. She testified that Hubscher told her the purpose of
the card was to seek recognition from Respondent. That
she failed to fill in the name of the labor organization re-
sulted from the fact that the name of the labor organiza-
tion had not yet been determined. It is clear that Tin-
key's intent was to designate this Union as her collective-
bargaining representative.
The No-Distribution Rule
In my view, Respondent's no-distribution rule violates
Section 8(a)(1) of the Act for two reasons. First the rule
as stated was overly broad. The evidence discloses that
Respondent did not have any policy with respect to dis-
tribution of anything, including literature. Moreover, em-
ployees sold raffle tickets, football pools, and Tupper-
ware, with Respondent's countenance. Stoddard-Quirk
Manufacturing Co., 138 NLRB 615 (1969). Secondly, the
rule violates Section 8(a)(1) of the Act because it was
promulgated during the time that the Union was organiz-
ing the employees in an effort to gain recognition.
Therefore, I agree with counsel for the General Counsel
that, even if the rule were "lawful on its face," it would
independently violate Section 8(a)(1) of the Act. In
Montgomery Ward & Co., Incorporated, 227 NLRB 1170
(1977), the Administrative Law Judge stated with Board
approval that "this leads me to conclude that the pro-
mulgation of the rule herein in this manner was intended
to interfere with the employees' rights of self-organiza-
tion rather than to maintain production and discipline." I
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that the rule herein was promulgated as a
direct response to the employees' union activities. See
also Pedro's Inc., d/b/a Pedro's Restaurant, 246 NLRB
567 (1979).
The Discharges
The comment by the court in N.L.R.B. v. Hotel Con-
quistador, Inc., d/b/a Hotel Tropicana, 398 F.2d 430, 435
(9th Cir. 1966), rings true in the instant case. "Determin-
ing the actual motive behind the dismissal of an employ-
ee is of course often an extremely difficult task, depend-
ent principally upon circumstantial evidence and in-
formed estimates concerning the springs of human con-
duct."
This case is most extraordinary and a typical of cases
coming before the National Labor Relations Board. The
parties are articulate, convincing, well educated, in-
formed, and sophisticated in the field of labor law. This
serves to make ferreting out the truth even more diffi-
cult.
Respondent had knowledge that Lyons, Feldman,
Miller and Hubscher were the most active union adher-
ents, this is clear. The undisputed testimony is that these
four individuals were called into Poli's office on July 28,
a Monday, and summarily discharged the day before the
new election of union officers." Furthermore, the termi-
nations occurred a matter of days after the picketing, and
immediately after the Union and Respondent were in-
formed that the National Labor Relations Board was
going to dismiss Lyons' charges. It is equally undisputed
that these employees were given no advance warning,
were told to be out of the building by 5 o'clock, yet they
were offered severance pay. Moreover, none of these
employees were given an opportunity to work for Re-
spondent at a reduced salary. I agree with counsel for
the General Counsel that summarily terminating employ-
ees is normally done so that they will not arouse other
employees. It is highly suspicious here that they were
given severance pay, yet Respondent did not desire any
additional productivity as a quid pro quo.
The terminations of these individuals was so sudden
and abrupt, that it left no time for a transitional period in
Respondent's operation. Respondent was in the process
of consolidating the bank accounts of its locals from 450
to 7. Feldman, a dues rebate clerk and the only individu-
al in that position, would have had to have reconciled
these 7 accounts and maintained records which would
reflect the amount of each account belonging to each of
the 450 locals. Therefore her duties should have in-
creased substantially. As counsel for the General Counsel
points out, this project which was scheduled for comple-
tion in November was contemplated to earn Respondent
$25,000 to $30,000 annually, more than double Feldman's
annual salary. Yet in the face of her increased duties
which would have increased Respondent's income, Feld-
man was fired. As of the time of the hearing the consoli-
dation of these accounts had not yet been completed. No
changes were recommended with respect to Feldman's
duties or position in the management study, known as
9 A letter had been placed on the bulletin board on July 24, setting
forth, inter alia, that a new election was to be conducted on July 29
the Kilgallon report, which was published in the fall of
1979. Moreover, a few weeks prior to her discharge,
Feldman received a raise.
Reardon testified that economic reasons was only one
factor in his decision to close the facility representatives
school. He never did testify as to what other factors
were involved in his final decision to recommend to
Meyer that the school should be closed. Respondent as-
serts as its basis for the discharge of Miller the closing of
the school. Long, it is true, was the more senior instruc-
tor. There is no evidence that he was an active union
proponent, although he did sign a card. What was never
explained by Respondent is the fact that Long was given
additional duties while Miller was terminated. Further-
more, Miller was involved in preparation for the possible
strike, which did ensue, in 1981. He had also received a
$2,000-per-annum raise in May, which he was not due to
get until January 1981. Meyer testified that the school
cost Respondent $250,000 to $300,000 annually. Re-
spondent's records reflects it was $200,000 to $220,000,
and the result of closing the school was that Respondent
was forced to pay over $42,000 for what appears to be a
penalty for cancellation without sufficient notice. It is
also noted that one of Poli's campaign promises was a
commitment to education and research.
Respondent established its research department in the
fall of 1979. During their campaign, Meyer and Poli
committed themselves to the establishment and support
of a research department. Moreover, Respondent had
discussed with Lyons expanding the research depart-
ment. Respondent's increase in legal fees can be at least
partially attributed to the increase of unfair labor prac-
tice cases, an area in which Lyons performed. It would
thus appear to me that Respondent needed Lyons more
than ever. Furthermore Respondent's law firm per-
formed some of the duties which had been performed, or
would have been performed by Lyons who was an attor-
ney. Counsel for the General Counsel subpoenaed docu-
ments from Respondent in an effort to detail Respond-
ent's obligations growing out of having a law firm per-
form its legal duties. Respondent refused to produce
these documents. In International Wnion, United Auto-
mobile, Aerospace, and Agricultural Implement Workers of
America (UAW) [Gyrodyne Co. of America] v. V.L.R.B.,
459 F.2d 1329 (D.C. Cir. 1971), the court remanded with
instructions to the Board that unless within 30 days an
employer produces certain records to strike the employ-
er's defense that the terminations were for economic rea-
sons. The basis for this is that the Board had not ade-
quately explained its failure to draw an adverse inference
from the employers failure to produce its records. Judge
Wright commented in that case:
Indeed, it [the adverse inference rule] is more a
product of common sense than of the common law.
Simply stated, the rule provides that when a
party has relevant evidence within his control
which he fails to produce, that failure gives rise to
an inference that the evidence is unfavorable to
him. ...
930
PROFESSIONAL AIR TRAFFIC CONTROLLERS
Accordingly, based on the fact that Respondent did not
produce the subpoenaed records, I will infer that they
would be unfavorable to its defense.
The record is replete with undisputed evidence which
compels me to conclude that Respondent's economic de-
fense is a pretext. Indeed, it serves to convince me more
that these individuals were terminated solely for their
union and concerted activities. It is a matter of public
record that Respondent was having serious problems as a
labor organization during this period of time. I am con-
vinced that these four individuals and their Union
became a thorn in Respondent's side, which it would no
longer tolerate.
In the section of this Decision captioned "Additional
Evidence Relating to Respondent's Economic Defense,"
I have detailed flagrant expenditures of money by Re-
spondent, which fly directly in the face of its economic
defense. I will not reiterate that detailed analysis, but
will merely hit some of the highlights. For example,
within 3 months of the discharges of these individuals,
Respondent granted salary increases totaling $38,500.
The very same day that these employees were terminat-
ed, employee David Trick commenced to work for Re-
spondent at a salary of $41,500, per year. The record
also reflects that several individuals received raises up to
over $5,000 per year. This evidence falls far short of
convincing me that this Respondent was suffering any
economic hardship, calling for such drastic measures as
terminating these four individuals.
Another area which renders Respondent's defense in-
credible is the case involving the summer intern Hadley.
Respondent had not employed a summer intern since the
beginning of 1978. Hadley, a law student, was paid $250
per week by Respondent. Respondent also paid for Had-
ley's stay at the Hyatt Regency Hotel at a cost of $75
per night, and finally it paid for his apartment which cost
in excess of $400 per month. This does not sound like a
respondent anxious to save money. In midsummer at the
time Respondent had decided to fire the four individuals,
Reardon asked Hadley if he would like to work full time
for Respondent rather than to return to school. Hadley
turned down the job offer.
Respondent hired employees shortly before the termi-
nations. Luff (Reoch) was hired approximately June 16;
Wilson was hired approximately June 2.
Respondent spent $14,736 more in travel, meals, and
lodging for the last 6 months of 1980 than it had for the
same period in 1979. As set forth earlier in this Decision,
Meyers' response to curtailing expenses was to state tnat
housing people at the Hyatt Regency, at $70 per night,
for long periods of time, "has been done in the past as it
is currently being done and it will be done in the future."
I note specifically that Respondent's financial state-
ment for the 6-month period ending June 30 was not pre-
pared until September 30, 2 months after the discharges.
I agree with counsel for the General Counsel that Re-
spondent presented no evidence as to what financial data
is relied on when it decided to terminate the four indi-
viduals. What is relevant is Respondent's knowledge of
its financial posture as of of July 2110 and on what it
10 The date of the terminations.
based that knowledge. Respondent did not seek to intro-
duce such evidence or offer any explanation for this
omission.
Again, under the section in this Decision relating to
Respondent's economic defense, I have pointed out Re-
spondent's generous severance pay policy for the 6-
month period ending June 30, 1980. The records reflect
therefore that during the last 6 months the salary of the
national office increased over the first 6 months by
almost $50,000, specifically $47,932. during the course of
the hearing, counsel for Respondent averred on behalf of
its client, "We are not saying we did not have the
money. We are saying we had to put the money some
place else." There is a dearth of evidence in this record
as to where that someplace else was.
At first blush, the lack of union animus in this record
might appear to serve as the weak link in this case. To
bottom my Decision on that sole element would indeed
be a superficial approach. Testimony reflects that when
Poli was first presented with the union authorization
cards he was, for the record, delighted. He also told
Lyons that he thought the Union had made a fine selec-
tion of him as president, and that the two of them would
work well together. Shortly thereafter Poli did a com-
plete turnaround by refusing to even recognize Lyons as
the union president. In my opinion Poli's initial com-
ments about the Union and Lyons were hollow and spe-
cious.
The day after the Union held its election of officers,
Lyons met with Poli, who immediately wanted to ex-
clude seven of the unit employees from the unit. there-
fore Poli was attempting to exclude approximately one-
third of the unit, including a position which has not even
been filed; i.e., Meyer's secretary. After two more meet-
ings between Lyons and Poli, the only issue which has
heen resolved was that Scott should not be included in
the unit. The effort to exclude almost one-third of the
employees from the bargaining unit was totally inconsist-
ent with Poli's attitude of acceptance, and belies any
contention of good faith. It is noted that there was no
evidence presented of why any of these employees with
the exception of Scott and Lyons I should be excluded.
I can only conclude that Respondent had no legal basis
or good faith in pursuing this, but was simply engaging
in an effort to frustrate the Union's efforts.
The alleged discrimnatees were most aggressive. Ap-
parently, they exerted pressure to such an extent that the
Shapiro study was finally aborted. Despite Respondent's
efforts to undermine the Union, it decided to elect new
officers, file further charges and engage in informational
picketing. Throughout, management was cognizant of
the union activities and the fact this union was not going
to go away or cease to exist. Immediately prior to the
election for new union officers, the foremost active union
adherents were summarily discharged.
I resolve any conflicts in credibility and there are a
few in favor of Lyons, Hubscher, Miller, and Feldman.
They impressed me as reliable witnesses who testified
"' The evidence Respondent produced relating to Lyons' supervisory
status was trifling. I consider Resp. Exh 8. as a self-serving document of
absolutely no probative value
931
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credibly regarding events which they vividly recalled.
They did not attempt to embroider or establish facts
which were nonexistent. As witnesss, Poli, Reardon, and
Meyer were a marked contrast to the union witnesses.
They were glib in their efforts to set up a defense. Perus-
al of Reardon's testimony regarding his expenses and
Lyon's supervisory authority is graphically representa-
tive of the testimony of Respondent's witnesses. Al-
though Poli sought haven in his lack of union animus,
case law imparts that this element is not indispensible.
In Stockton Kenworth Co., 221 NLRB 800 (1975), the
question was whether an employee was fired for filing a
grievance. There was one incident, which because of its
remoteness, was of no value in evaluating Respondent's
motivation in discharging the employee. Respondent
took the position that, even assuming the reasons for the
discharge do not withstand scrutiny, the General Coun-
sel had not proven a violation of the Act because of lack
of evidence to show unlawful motivation; i.e., there was
no evidence of any other unfair labor practice committed
by Respondent or any evidence of union animus.
The Administrative Law Judge, with Board approval,
found a violation relying, inter alia, on the false reasons
given for the discharge and the surrounding facts. He
commented in effect that the presence or absence of
union animus is an aid in answering the ultimate ques-
tion, not an answer in itself. He drew his inference under
the rationale of Shattuck Denn Mining Corporation (Iron
King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir.
1966). "Nor is the trier of facts . . required to be any
more naif than is a Judge. If he finds the stated motive
for a discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where . . . surrounding facts
tend to reinforce that inference ... ."
The statement at footnote 8 in Westinghouse Electric
Corporation, 235 NLRB 356 (1978), further illuminates
the principal, "it is well settled that the element of
animus can be established on the basis of circumstantial
evidence." The case cites Ri-Del Tool Mfg. Co.. Inc., 199
NLRB 969 (1972), where it states "and the timing of the
discharge or separation abruptly after employer has
learned of an employee's union activities, as here, is one
incident of such probative circumstantial evidence." Al-
though the four discriminatees herein were not terminat-
ed immediately after Respondent learned of their union
activities, these were the four leading union proponents.
They continued to exert pressure on Respondent, which
finally resulted in picketing during a particularly sensa-
tive time when Respondent was faced with its own labor
problems vis-a-vis the FAA. They also continued to file
unfair labor practices charges. In Ri-Del Tool there was
not a scintilla of evidence of union animus. In what the
dissent characterized as a "fascinating feat of bootsrap-
ping," the Board found that the unlawful discharge in
and of itself supplied the animus.
Similarly, in Auto-Truck Federal Credit Union, 232
NLRB 1024 (1977), there was no direct evidence that the
discharges of two employees was motivated by their
union activities, but the Board nevertheless found a vio-
lation.
In Midland Container Corp., 190 NLRB 328 (1971),
there was no knowledge, yet the Board found a violation
concluding, inter alia, that the discharges were precipi-
tate not occurring at the end of a pay period, which is
the circumstance herein. The courts have stated repeat-
edly, "direct evidence of a purpose to violate the statute
is rarely obtainable." The sole issue in L. J. Folkins,
d/b/a Standard Oil Distributors, 206 NLRB 468 (1973),
was whether Respondent discharged an employee,
Smith, because of his union membership or activities, or
because he was only hired for a day or two straighten up
the warehouse in anticipation of an inventory audit. The
only explicit evidence of animus was a reference to the
president of the union characterizing him as a "hood-
lum." Despite the "meager explicit evidence of Respond-
ent's union animus," The Administrative Law Judge
found the discharge of Smith to be in violation of Sec-
tion 8(a)(1) and (3) of the Act. It is also interesting to
note that the Administrative Law Judge also concluded,
with Board approval, that the Union having presented
Respondent with three cards in a five-person unit, the
elimination of one signer effectively destroys the Union's
majority, unless the unit is reduced to three majority.
In Federated Publications Inc. d/b/a the State Journal,
218 NLRB 151 (1975), the Administrative Law Judge
was affirmed by the Board, when he concluded that the
lack of union animus is not controlling. That the infer-
ence of discriminatory motivation was sustained and but-
tressed by the fact that the explanation offered by Re-
spondent failed to stand up under scrutiny.
The Board has even considered the skill and sophisti-
cation of certain respondents. For example, in Stoffel
Seals Corporation, 199 NLRB 1084 (1972), the Adminis-
trative Law Judge found a violation of Section 8(a)(l)
and (3) of the Act with respect to two employees. The
Board affirmed the Administrative Law Judge and in ad-
dressing the dissent stated:
[I]n our opinion, such timing, which may refect
nothing more than a particular employer's superior
sophistication, is not a sufficient basis to disregard
otherwise substantial evidence of unlawful motivia-
tion . . . from all the proven facts, he [the Adminis-
trative Law Judge] inferred that there was no
reason, except the Smith's union activities, for their
discharges. We believe that his inference was factu-
ally sound, legally correct, and reasonably made.
[Emphasis supplied.]
Counsel for Respondent cite several cases in their
brief. Universal Camera, the Supreme Court case at 340
U.S. 474 (1951), stands for the proposition that the
Board's conclusions must be supported by substantial evi-
dence. N.L.R.B. v. Great Dane Trailers, Inc., which is at
388 U.S. 26 (1967),'2 was a situation where there was an
absence of proof of anitunion motivation. In that case re-
spondent refused to pay striking employees vacation
benefits, but paid their striker replacements, the returning
strikers, and nonstrikers. This was inherently destructive
of employees' interests, and the employer did not estab-
l2 11 is incorrectly cited as 388 US. 26.
932
PROFESSIONAL AIR TRAFFIC CONTROLLERS
lish evidence of legitimate and substantial business justifi-
cation. This case and American Shipbuilding Co. v.
N.L.R.B., 380 U.S. 300 (1965), as well as the case of
N.L.R.B. v. John Brown, et al. d/b/a Brown Food Stores,
et al., 380 U.S. 278 (1965), which involved a lockout situ-
ation, are hardly dispositive of the issues herein.
It is my judgment that the evidence heavily prepon-
derates in favor of finding that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act when it discharged Lyons,
Miller, Feldman, and Hubscher. Therefore, by terminat-
ing the four leading union proponents, the Respondent
was engaging in conduct so "serious, pervasive, egre-
gious and substantial" that a fair and free election would
be impossible. N.L.R.B. v. Gissel Packing Co., supra. Ac-
cordingly, Respondent, in my view, has violated Section
8(a)(1) and (5) of the Act and the policies and purposes
of the Act can best be effectuated by the imposition of a
bargaining order. The bargaining obligation began when
Respondent commenced its unlawful course of conduct
on or about July 18, when it unlawfully promulgated the
no-distribution rule.
CONCL USIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. A unit comprised of all staff employees, employed
by the Employer at its national headquarters in Washing-
ton, D.C., but excluding all confidential employees,
guards and supervisors, as defined in the Act, is appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. James Lyons is not a supervisor within the meaning
of Section 2(11) of the Act.
5. By promulgating and maintaining a no-distribution
rule which is overly broad, and which was instituted to
frustrate and undermine the Union, Respondent violated
Section 8(a)(l) of the Act.
6. Since on or about May 21, the Union has been the
only selected representative, for the purposes of collec-
tive bargaining of the employees in the unit described
above, and, my virtue of Section 9(a) of the Act, has
been, and is now, the exclusive representative of all em-
ployees in said unit, for the purposes of collective bar-
gaining with respect to rates of pay, hours of employ-
ment, and other terms and conditions of employment.
7. By refusing to bargain with the Union on and after
July 18, 1980, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
8. By refusing to bargain collectively with the Union
as the exclusive representative of all the employees in the
appropriate unit, Respondent has engaged in, and is en-
gaging, in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
9. By discharging James Lyons, James Miller, Fran
Feldman, and Steven Hubscher, Respondent has engaged
in conduct in violation of Section 8(a)(l) and (3) of the
Act.
10. Respondent's unfair labor practices are so "serious,
pervasive, egregious and substantial" that they preclude
the holding of a fair election.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I recommend that Respondent be ordered to bargain
with the Union as the exclusive representative of the em-
ployees in the appropriate unit with respect to rates of
pay, wages, and other terms and conditions of employ-
ment, and if an agreement is reached, to embody it in a
written signed contract.
I further recommend that Respondent be ordered to
rescind its unlawful no-distribution rule.
Having found that Respondent discriminatorily dis-
charged Lyons, Miller, Feldman, and Hubscher, I rec-
ommend that Respondent offer them immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges. In addition, I recommend that Re-
spondent make them whole for any losses they may have
suffered by reason of the discrimination against them by
payment to them of a sum of money equal to that which
they would normally have earned from the date of their
terminations, less net earnings during said period. Back-
pay shall be computed according to F .W. Woolworth
Company, 90 NLRB 889 (1950), and with interest com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). (See, generally Isis Plumbing
& Heating Co., 138 NLRB 716, (1962).)
[Recommended Order omitted from publication.]
933