Sierra Academy of Aeronautics, Inc.

National Labor Relations Board - Board Decisions

May 20, 1970

182 N.L.R.B. 546 (N.L.R.B. 1970)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sierra Academy of Aeronautics , Inc. and Rolland Weller
and Jerry Weller d /b/a Transamerican Employers
Group , Inc.' and Brotherhood of Teamsters & Auto
Truck Drivers , Local 70 , International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers
of America . Case 20-CA-5447
May 20, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On January 19, 1970, Trial Examiner Maurice Alexan-
dre issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recom-
mending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that the
Respondents had not engaged in certain other unfair
labor practices alleged in the complaint and recommend-
ed that such allegations be dismissed. Thereafter, the
Respondents filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General Counsel
filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and the briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the Board hereby adopts as
its Order the Recommended Order of the Trial Examiner,
as modified herein, and orders that the Respondent,
Sierra Academy of Aeronautics, Inc., Oakland, Califor-
nia, its officers, agents, successors,- and assigns, and
the Respondents, Rolland Weller and Jerry Weller, d/b/a
Transamerican Employers Group, Inc., their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order,
as so modified:
1. Delete paragraph A, 2(a) of the Recommended
Order and substitute therefore the following:
"Offer to Edward A. Lloyd immediate and full rein-
statement to his former job, or if his job no longer
' Although at the hearing, the Trial Examiner granted the Respondents'
motion to amend the caption, he inadvertently failed to do so in his
decision We hereby amend the Trial Examiner's decision to reflect
that the correct name of the firm under which the Wellers do business
is Transamerican Employers Group, Inc
exists, to a substantially equivalent position, and make
him whole for any loss of earnings he may have suffered
by reason of Respondent's discrimination against him,
in the manner set forth in The Remedy section of
the Trial Examiner's Decision."
2. Delete the seventh indented paragraph of Appendix
A and-substitute the following:
WE WILL offer to take back Edward A. Lloyd
to his old job, or if that job no longer exists,
to a substantially equivalent position, and pay him
for all the wages he lost because of his discharge.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case was
heard in San Francisco, California, on September 9,
1969, upon a complaint issued June 24, 1969,' alleging
that Respondents had violated Sections 8(a)(1) and (3)
of the National Labor Relations Act, as amended, by
engaging in unlawful interference, restraint, and coer-
cion, and by the unlawful discharge of Edward A.
Lloyd. In their respective answers, Respondent Sierra
and Respondents Rolland and Jerry Weller denied the
commission of the alleged unfair labor practices.
Upon the entire record, my observation of the witness-
es, and the brief filed by Sierra on behalf of the Respond-
ents, I make the following:
FINDINGS AND CONCLUSIONS'
1. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent Sierra is a California corporation with
its place of business located in Oakland, California,
where it is engaged in providing aeronautical pilot training
services to individuals. At the time material herein,
Sierra employed about eight rank-and-file flight instruc-
tors, and its admitted supervisors included the following:
President Norris N. Everett, Sr. (hereafter referred to
as Everett), Vice President Norris N. (Skip) Everett,
Jr., Director of Flight Operations Burgess, and Chief
Flight Instructor Cohen. Respondents Rolland and Jerry
Weller, doing business as Transamerican Employers
Group, Inc., are engaged in providing counseling services
in labor relations to various employers throughout the
State of California, and admittedly were the agents
of Respondent Sierra at all times material herein.
Beginning on or about November 1, 1968, Respondent
Sierra's rank-and-file flight instructors held a series of
meetings at the home of Employee Lloyd to discuss
' Based on an original and an amended charge filed on February
19 and April 7, 1969, respectively.
4 No issue of commerce is presented The complaint alleged and
the answers, by their failure to deny, have admitted facts which,
I find, establish that Respondent Sierra is an employer engaged in
operations affecting commerce within the meaning of the Act I further
find that Brotherhood of Teamsters & Auto Truck Drivers, Local 70,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (hereinafter called the Union) is a labor organiza-
tion within the meaning of the Act
182 NLRB No. 82
SIERRA ACADEMY OF AERONAUTICS 547
their grievances relating to salaries and days off. On
or about December 1, 1968, and again about two weeks
later, the employees met with a representative of the
Union. At the latter meeting , union authorization cards
were signed by employees. Thereafter, the Union filed
a petition for certification and a Board election was
scheduled for February 18, 1969.3
B. Interference, Restraint , and Coercion
1. By Everett and Burgess
Employee Lloyd testified without contradiction that
at a weekly meeting of instructors with Burgess and
Cohen held about 2 or 3 weeks after the authorization
cards were signed , the instructors stated that they felt
the need for representation in order to be effective;
and that Burgess suggested that they seek representation
by the Pilots' Association which represented the employ-
ees of a number of airlines. Lloyd further testified
without contradiction that at another weekly instructors'
meeting with Burgess and Cohen held about the end
of January, after the notice of election had been posted
on Sierra ' s bulletin board , Burgess asked the employees
why they had selected the Teamsters; that Burgess
expressed the opinion that the Teamsters, who were
engaged in picketing at the college attended by his
son, were not the union which the employees needed
to represent them; and that he also stated that Everett
had stated that if the employees did not like their condi-
tions of employment ,, they could leave and obtain jobs
elsewhere . Employee Hart testified without contradiction
that Burgess stated that he would not want to be associat-
ed with the Union. Employee Hart further testified
without contradiction that sometime between the time
the authorization cards were signed in December 1968
and the election held on February 18, he was told
by Burgess that the latter did not feel that the employees
should be represented by the Teamsters ; and that during
the same period, Everett told him that he would not
resist the Union if the employees wanted it, but that
it would not be his choice if he were in their position.
The complaint alleged that Burgess and Everett unlaw-
fully told employees which union they should choose
to represent them . Respondents contend that the record
contains no testimony supporting the allegation relating
to Everett. The contention is without merit. I credit
Hart's uncontradicted testimony and find that Everett
made the statement attributed to him . Respondents do
not deny , and I find , that Burgess made the statements
attributed to him. Respondents ' position is that in
expressing disapproval of the Union , Burgess was
expressing only his personal opinion . I reject the conten-
tion and find that since Burgess was an admitted supervi-
sor, Respondent Sierra is responsible for unlawful con-
duct on his part.4
All dates referred to hereafter relate to 1969 unless otherwise stated.
The record does not support Respondents ' claim that Burgess "was
originally included-in the bargaining unit " Even if it did, that circum-
stance would be irrelevant
I further find that the disapproval expressed by Bur-
gess and Everett respecting the employees ' selection
of the Union interfered with their statutory right to
select a collective -bargaining representative of their own
choosing, thereby violating Section 8(a)(1) of the Act.
Although Everett told Hart that he would not oppose
the Union if the employees wanted it, that reassurance
was belied by his statement, disclosed to the employees
by Burgess, that they could leave if they did not like
their conditions of employment. Viewed in such a coer-
cive context and in the additional light of Respondents'
other violations, discussed below, Sierra's attempt to
persuade the employees to withdraw their support of
the Union conveyed to them the idea that they might
suffer economic consequences if they selected the Union
as their bargaining representative. Cf. Vernon Steel Prod-
ucts Co., Inc., 146 NLRB 1115.
2. By Vice President Norris N. (Skip) Everett, Jr.
During the second or third week in January, employee
Shepson , who had signed a union authorization card,
informed Everett and Vice President Newcomb that
he opposed the Union , that he had made his feelings
plain to the other employees, that the employees were
divided, and that the vote might be unfavorable to
the Union. On January 28, as a result of his negligence
while piloting one of Sierra ' s airplanes , Shepson was
involved in an accident which resulted in damage to
the aircraft . Shepson admitted his responsibility and
offered to pay the $500 deductible on Sierra's insurance
policy. Everett did not accept the offer. On February
14, Shepson and Vice president Everett drove to a
coffeeshop where the latter told Shepson that he would
not be required to pay the deductible and need not
worry about any letter concerning the accident which
might be received from the Federal Aviation Agency.
Everett, Jr., then asked Shepson what he thought would
be the outcome of the election scheduled for February
18. When Shepson expressed the view that the Union
would win, Everett, Jr., asked which employees were
in favor of the Union. After Shepson named those
supporting the Union, Everett, Jr., thanked him and
said , "I think in the next weekend there may be some
things that will take place that may be a little bit unusual,
but we don't want you to get upset."
Later that day, Shepson learned from employee Lloyd
that the latter had been discharged. About 8 p.m. that
night, Everett, Jr., telephoned Shepson and said that
although Sierra had told Lloyd that Shepson's case
was still pending before the FAA, Shepson had nothing
to worry about. On the day of the election, President
Everett asked Shepson to act as Sierra's observer, but
he declined. About a week or 10 days after the election,
Shepson told Everett Jr. that he had voted for the
Union because of Sierra's action in discharging Lloyd
for supporting the Union. Everett, Jr., replied that there
was good cause for the discharge. When Shepson then
pointed out that he had not been a union supporter
and had not been discharged, Everett, Jr., replied that
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sierra was still waiting for a letter from the FAA regard-
ing the outcome of Shepson's case.
The complaint alleged that Vice President Everett
unlawfully interrogated Shepson, promised benefits to
him if he would oppose the Union, and threatened
him with disciplinary action because of his support
of the Union. Respondents do not deny, and I find,
that the foregoing conversations took place as Shepson
testified without contradition. Respondents assert, how-
ever, that Shepson "volunteered" his comments and'
views, and that Vice President Everett made no unlawful
promises of benefit or threats. The record clearly estab-
lishes that Vice President Everett interrogated Shepson
concerning the expected outcome of the election and
the names of the employees who favored the Union.
It is equally clear from the record that in advising
Shepson that he would not be required to pay the
deductible and in reassuring him that his. job was not
in jeopardy despite his accident, Everett, Jr., was
attempting to persuade Shepson to adhere to his
expressed opposition to the Union. No other conclusion
is reasonably compatible with Sierra's revocation of
the promised job assurances after it learned that Shepson
had voted for the Union. I find that the coercive interro-
gation, promises of benefit, and the withdrawal of assur-
ance that Shepson would not be discharged constituted
unfair labor practices prohibited by Section 8(a)(1) of
the Act.
3. By Respondents Jerry and Rolland Weller
a. The conversation with employees Buttler and Ward
On February 15, Respondent Jerry Weller went to
the home of employee Arlis Buttler to see him pursuant
to arrangements made during a telephone conversation
with the latter's wife on the preceding day. Those present
were Buttler, his wife, and employee Ward. Buttler
and Ward testified that Weller stated that he wished
to obtain information for an insurance plan that he
was preparing on behalf of Sierra which would be entirely
paid for by the latter and was to be effective April
1; that Weller further stated he had been trying to
reach Ward and another of Sierra's employees; that
he removed from his briefcase an insurance booklet
containing Sierra's current insurance plan; that Weller
began to discuss unfavorable union experiences which
he had had; that in response to Buttler's inquiry as
to how he should vote in the forthcoming election,
Weller stated that he would not vote for the Union
because his insurance plan was far better than anything
the Union could offer; and that when Ward expressed
doubt that the Union would win the election, Weller
asked, "how come is that?" According to Ward, the
conversation lasted about an hour and a half.
Chief Flight Instructor Cohen testified that he was
told by Everett that the Wellers planned to discuss
the Union with each of Sierra's instructors, and that
the subject of insurance would be used as a means
of beginning the conversation. Weller testified that he
had made the telephone call to Buttler's home in response
to a message instructing him to call a number regarding
insurance; that it turned out to be that of Buttler;
that when he arrived at the latter's residence, he learned
that Buttler and Ward were employed as flight instructors
by Sierra; that Buttler directed the course of the conver-
sation; that they talked briefly about insurance; and
that when union matters were brought up, Weller excused
himself and left within 15 minutes after his arrival.
The complaint alleges that Respondents, through Jerry
Weller, unlawfully interrogated , employees regarding
their support for the Union, and unlawfully promised
employees increased insurance benefits if they aban-
doned their union activity. Respondents contend that
the record fails to support these allegations since Weller's
visit was for the purpose of discussing insurance and
the subject of unions was raised by Buttler and Ward.
I do not credit Weller's testimony. He was evasive
about the extent to which he has been active in represent-
ing employers; he admittedly had discussed a business
matter with Sierra only two or three days before his
visit to Buttler's home; he did not deny having a Sierra
insurance brochure with him at the time of the visit;
nor did he deny that he had attempted to reach Ward
and another Sierra employee. In view of these facts,
it strains credulity for Weller to say that he was not
aware of Buttler's employment by Sierra prior to the
visit. And since he did not specifically deny any of
the remarks attributed to him by Buttler and Ward,
both of whom testified in a straightforward manner,
I credit their version of conversation and find that Weller
made such remarks.
Contrary to the General Counsel's contention, I find
that Weller did not engage in unlawful interrogation
when, in response to Ward's volunteered opinion that
the Union would not win the election, he merely asked
why he so believed. However, I find -that by holding
out to Buttler and Ward the possibility of increased
insurance benefits in order to induce them to vote against
the Union, Jerry Weller engaged in conduct prohibited
by Section 8(a)(1) of the Act. . . ,
I further find that Respondents are all. responsible
for such conduct. Since Jerry Weller was an admitted
agent of Sierra, it was bound by his conduct. Clarke
v. N.L.R.B., 410 F.2d 756 (C.A. 4). Moreover, it is
clear from Cohen's - testimony, which constituted an
admission binding on Sierra,-, that Sierra knew about
Weller's plan to use the subject of insurance as a method
of attempting to influence employees to oppose the
Union. The record contains nothing to show that Sierra
took any steps to stop or disavow Weller's plan. Sierra
is thus liable for such conduct. Lake Butler Apparel
Co., 158 NLRB 863,.874. As for the Wellers, doing
business as Transamerican Employers Group, their liabil-
ity for such conduct is predicated on their agency rela-
tionship with Sierra, their inclusion in the complaint
as named Respondents, and the allegation in the com-
plaint that Jerry Weller personally committed the unlaw-
' Drico Industrial Corp , 115 NLRB 931, Port Drum Co , 170 NLRB
No 51, fn 3; Associated Divers and Contractors, Inc , 180 NLRB
No 62, fn I
SIERRA ACADEMY OF AERONAUTICS 549
ful conduct . Henry L. Spiegel Co ., Inc., 172 NLRB
No. 88 ; Dean Industries , Inc., 162 NLRB 1078,
1100-1101.
b. The Hart incident
Employee Hart testified as follows. Sometime prior
to the election , he told Everett that it was he who
had been the one who first communicated with the
Union , and not another employee as had been rumored.
On or about the Wednesday before the election scheduled
for Tuesday , February 18, Hart found a note on his
desk stating that he had received a call from one Hepin-
stall of the Transamerica Corporation regarding possible
employment . Hart returned the call , but was told that
Hepinstall would return shortly . About five minutes
later , Hart received a call from an individual who iden-
tified himself as Hepinstall , Vice President of Transamer-
ica, stated that he had a job vacancy for a , pilot and
that Hart had been highly recommended , and arranged
to meet with Hart on February 17. Hart mentioned
the conversation to Director of Flight Operations Bur-
gess, who said that it did not " sound quite right"
to him and that he would look into the matter. On
the following day, Burgess told Hart that he had not
had time to make the investigation. ,
On Friday or Saturday , Hart received a telephone
call from an individual who identified herself as Hepin-
stall's secretary , postponed the meeting until Tuesday,
February 18, and requested Hart to send a resume
immediately to "Transamerica" at 436 10th Street, Room
609, Oakland , California , because she understood that
he was to be hired . Rolland Weller testified that this
had been his prior business address, but that he knew
of no one named Hepinstall associated with his business.
Hart testified that on Saturday Chief Flight Instructor
Cohen told him that he knew about the interview, and
that the Wellers had arranged the job interview as a
ruse to keep Hart from voting at the election. Cohen
corroborated Hart ' s testimony regarding their conversa-
tion . According to Hart , Cohen also told him that Burgess
had requested Cohen not to say anything about the
matter . According to Cohen , he also told Hart that
the Wellers were working for Sierra as consultants
respecting union activity , and that the employees should
be careful and watch what they were doing . As a result
of this conversation , Hart cancelled the job interview,
and he voted at the election.
The complaint alleged that the Respondents, through
the Wellers , unlawfully attempted to prevent an employ-
ee from voting at the election . Respondents ' sole defense
is that the record fails to establish that any employee
was prevented from voting . This defense overlooks the
fact that an attempt to prevent an employee from voting
at a Board election , even if unsuccessful, constitutes
interference , restraint , and coercion violative of Section
8(a)(1) of the Act . Holly Hill Lumber Co. v. N. L.R.B.,
380 F . 2d 838 (C.A. 4). The question is whether the
record establishes such an attempt . I find that it does.
I credit the uncontradicted testimony of Hart, who
appeared to be a credible witness. However , the record
contains no direct evidence that either of the Wellers
was involved in the matter of the job interview and
resume . The principal indirect evidence of their involve-
ment consists of Cohen ' s testimony regarding his state-
ment to Hart . Since there is nothing to show that Cohen
had any reason to lie to Hart , I am satisfied that Cohen
did not concoct the information he gave to Hart. The
record does not disclose how Cohen acquired the infor-
mation . But since Cohen testified credibly that prior
to his conversation with Hart , he had "only seen"
the Welters and had never heard a conversation between
them and anyone else (see fn . 9, infra), he must have
received the information from a source other than the
Wellers. Cohen 's testimony concerning the Wellers thus
constitutes hearsay as to them. Other evidence which
tends to indicate that the Wellers were involved is
Hart ' s testimony that he was told by Cohen that Burgess
had requested Cohen not to say anything about the
matter .'' But like that of Cohen , Hart 's testimony consti-
tutes hearsay as to the Wellers . All of this hearsay
was received without objection . Moreover , although both
of the Wellers testified , neither denied involvement in
the matter of the job interview . Cohen did not contradict
Hart ' s testimony relating to Burgess, and the latter
did not testify . In such circumstances , the hearsay testi-
mony of Cohen and Hart may be given its natural
probative effect . Monroe Auto Equipment Co., 153
NLRB 912, 913, fn. 1.
In Monroe , a former supervisor testified that he had
been informed by other supervisors that the employer's
labor relations consultant had outlined a plan for defeat-
ing the union by discharging one Slack and other active
union adherents shortly before the election . The Board
held that although such hearsay testimony was unobject-
ed to and undenied , it was not sufficiently probative
"without further corroboration " to justify a finding that
the consultant was equally guilty with the employer
in the unlawful discharge of Slack . Applying this princi-
ple to the instant case , it is apparent that the testimony
of Cohen and Hart , standing alone , is not sufficient
to justify a finding , binding upon the Wellers , that they
were involved in an unlawful plot to prevent Hart from
voting . However, the record contains corroboration;
i.e., Rolland Weller 's admission that his former business
address, including the room number , was identical with
the address to which Hart was instructed to send his
resume . No explanation for this remarkable indentity
of addresses has been given . Indeed , as already noted,
the Wellers did not deny their involvement in the matter,
and their brief merely argues that the attempt was unsuc-
cessful . In the light of this evidence as well as the
evidence showing other unlawful conduct by the Wellers,
it is difficult to escape the conclusion , and I find, that
the Wellers were involved in the arrangement for Hart's
job interview , and that it was for the unlawful purpose
of attempting to prevent Hart from voting at the election.7
I credit Hart's testimony that he told Burgess about the job interview
It is immaterial that the record does not disclose the method by
which the Wellers intended to accomplish their purpose Perhaps they
had no fixed plan and merely hoped that they could somehow succeed
in eliminating Hart's vote For example, they may have thought that
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further find that for the reasons stated in connection
with Jerry Weller's conduct at employee Ward's home,
Respondents are all responsible for the unlawful conduct
toward Hart."
C. The Discharge of Lloyd
1. Sierra's motivation
Edward A. Lloyd was employed by Respondent as
a flight instructor in mid-1968. He testified without con-
tradiction that he had averaged 100 hours a month
of flying time, that he had been told by Everett that
this was somewhat higher than that of other instructors,
and that Everett had stated that he was pleased with
Lloyd's utilization of aircraft and wished that other
instructors had his attitude and worked as hard as he
did. As noted, the employee meetings all took place
at Lloyd's home. At the meeting of instructors and
supervisors held in late January, referred to above,
Lloyd made known his support of the Union.
On February 14, i.e., 4 days before the Board election,
Sierra discharged Lloyd following two incidents in which
he was involved. In the first incident, which took place
on February 13 while Lloyd was making an approach
at Oakland Airport during a training flight with a student,
Lloyd admittedly landed the plane on the, pavement
about 15 or 20 feet short of the line which represented
the beginning of the runway. Director of Flight Opera-
tions Burgess was very disturbed by the incident and
told Lloyd in the presence of Chief Flight Instructor
Cohen that if he ever repeated such a landing, he would
lose his job. Lloyd apologized and assured Burgess
that it would not happen again . Shortly thereafter when
the two met, Burgess asked while smiling , "Ed, have
you made any more short landings today?" Lloyd smiled
back and replied, "No, because I know better."
Later the same day, a meeting was held in Everett's
office. Those present included Everett, Vice Presidents
Everett and Newcomb, Burgess, and Cohen. The record
contains no direct evidence as to what was said at
the meeting other than Cohen's testimony that the possi-
bility of Lloyd's discharge was discussed. Cohen further
testified without contradiction that he informed a Board
investigator that Everett stated at the meeting that the
Wellers had asked him which employees were supporters
of the Union, had told Everett to watch those employees
and discharge any who made a mistake, and had also
told Everett that he could discharge Lloyd. In addition,
Cohen in effect testified that he told the Board investiga-
tor that at the meeting Burgess had expressed opposition
to discharging Lloyd on the ground there was insufficient
if he had not yet voted before he arrived for the job interview, they
could delay his return to the polling place long enough to prevent
his voting, or that they could chill his desire to vote by offering
him a spurious job, or that they might be able to challenge his ballot
if he accepted such a job
" Cohen's testimony respecting what he told Hart concerning the
Wellers, and Hart's testimony respecting what Cohen told him concerning
Burgess, constituted competent evidence of an admission by Cohen,
binding upon his principal, Respondent Sierra, that Sierra knew of
the plot See cases cited in fn 5, supra
cause and because he had already talked to Lloyd about
the short landing incident. Employee Hart testified with-
out contradiction that he was told by Cohen that at
the meeting Everett requested Burgess to discharge
Lloyd because of the short landing, but that Burgess
declined, saying: "I have already talked to the, man
about the incident, it would look kind of bad now
to go back and fire him for something that we have
already resolved."9
Everett testified that he was informed of the incident
and reprimand by Burgess, and that the latter recom-
mended that nothing be done at that point. On the
same day, February 13, Burgess told Lloyd that Everett
wanted Lloyd to prepare a written report on the short
landing. When Lloyd protested, Burgess replied, "I
can't tell you how to word your letter but-be 'very
careful what you say. All I can tell you is you have
to write a letter, that's all I can say. Just write it
and be careful about how you word it."
On the next day, February 14, the second of the
above-mentioned incidents took place. Early that morn-
ing, after landing his plane following his first flight
of the day, Lloyd taxied to the end position of the
so-called tie-down area and parked the craft. About
9 a.m., Burgess called Lloyd to his office and complained
about his short landing and about taking the plane to
the tie-down area under ^ power rather than pushing it
manually. When Lloyd stated that he had taxied several
times before, Burgess asked him whether he had not
read the sign posted by Sierra prohibiting the taxiing
of planes into a tie-down. Lloyd replied that he had
not read it, but that he knew that students were forbidden
to taxi, in because of frequent mention of this rule
at meetings. In addition, Burgess told Lloyd that he
had better get his report up to Everett. Sometime later,
Lloyd prepared the report and took it to Everett's office.
Lloyd told Everett that he was then scheduled for a
flight, and Everett instructed him to return when he
was finished.
Everett testified that on the same day, at an undis-
closed hour subsequent to the parking incident; he called
a special meeting of Sierra's three board of directors,
and they unanimously agreed to discharge Lloyd. The
minutes of the meeting, which are in evidence, state
that it took place at 3 p.m., that written reports had
been made by Burgess and by Lloyd concerning,the
short, landing, that Burgess had also made a written
report concerning the parking incident, that the directors
regarded Lloyd's conduct as dangerous, and that it
was unanimously decided to discharge him.
When Lloyd completed his flight, he went to Everett's
office where he found Everett and Newcomb. Everett
was examining Lloyd's report, stated that he did not
like "this," and informed Lloyd that he was discharged.
Lloyd asked why he 'was being discharged for doing
" Cohen credibly testified that the Wellers arrived at the meeting
after Lloyd had been discussed, that Everett asked him and Burgess
to leave, and that prior to his conversation with Hart, he had "only
seen" the Wellers and had never heard a conversation between them
and anyone else
SIERRA ACADEMY OF AERONAUTICS 551
"these two things" when other instructors had not been
terminated for the same conduct. Everett replied, "Well,
perhaps we 'should have started becoming a little stricter
a long time ago." When Lloyd then outlined the high
quality of his work and made a plea for suspension
rather than discharge, Everett turned to Newcomb to
ask what he thought. Newcomb replied that it was
hard for him to change his decision. When Lloyd then
pointed out that Shepson had not been discharged
although he had damaged a plane, Everett replied that
no one could tell him whom to fire, and that Shepson
might very well be discharged. He then added, "Well,
perhaps later in the future we will reconsider your
application for employment."
The complaint alleged that Respondent Sierra, acting
on the suggestion, counsel, and advice of Respondents
Rolland and Jerry Weller, discharged Lloyd because
of his support for the Union and other protected activi-
ties. Respondents' brief admits that the discharge was
made after consultation between Sierra and the Wellers
but asserts that it was motivated solely by the short
landing and parking incidents.
I find the asserted reasons for the discharge to be
unpersuasive. Everett was not a credible witness"' and
I reject his testimony that the two incidents were the
sole basis for Lloyd's discharge. In addition, the evidence
shows that Burgess did not deem the two infractions
to be sufficiently serious to warrant discharge. Although
Everett could have felt otherwise, it is significant that
when Burgess relayed Everett's request for a written
report on the short landing, he warned Lloyd to word
it carefully and mysteriously stated that he could say
no more. This suggests that something more was involved
than mere evaluation of the short landing." It is also
significant that Everett did not order Lloyd to discontinue
flying even after the second incident, a circumstance
which suggests that Everett himself did not'regard the
infractions as serious. This conclusion is buttressed by
the fact that Everett momentarily wavered in his decision
to discharge Lloyd and that, despite his professed belief
"' Everett testified that the short landing was "absolutely forbidden"
by the FAA regulations In support of his testimony, Respondents
introduced an FAA advisory circular relating to runways Without
attempting to analyze its highly technical contents which are not explained
'in the record, I note that the circular is dated April 29; i.e , some
10 weeks after the discharge-a fact that must have been known to
Everett when he gave the quoted testimony Everett further testified
that the buildings and land used by Sierra are leased from the Port
of Oakland, which has issued rules and regulations governing tenants
at Oakland Airport Among other things, the rules provide that no
aircraft shall be operated in a manner which endangers or is likely
to endanger persons or property. Everett testified that , shortly before
May 12, he requested Coleburg, the operations officer of the Airport,
for his opinion respecting the short landing , and that he received a
letter from Coleburg regarding the matter On interrogation by the
General Counsel, he testified three times that the letter was received
in the mail However, when it was pointed out that the letter was
not folded, he admitted that Coleburg had been to Sierra's office,
that the letter may have been typed in the office, that Coleburg's
signature was in green ink, and that Sierra used green ink
" Cohen apparently sensed this for, as Hart testified without contra-
diction, he was told by Cohen that the latter knew that Lloyd would
be discharged, but did not know on what grounds
that Lloyd's conduct was serious, he told Lloyd that
he might consider reemploying him in the future.
Everett's testimony also shows that despite the posted
sign forbidding the taxiing in of aircraft, Sierra's instruc-
tors frequently disobeyed the notice. However, I do
not credit either his testimony that he first learned
of such disobedience after Lloyd's discharge, or his
testimony that Burgess and Cohen assured him at the
time of the second Lloyd incident that the instructors
were obeying the notice. In view of the small number
of instructors employed by Sierra, the ease with which
Burgess was able to observe Lloyd's two infractions,
and the frequency of the disobedience, I find it difficult
to believe that Burgess and Cohen were unaware of
the situation or that they withheld the information from
Everett. In addition, when Lloyd pointed out at the
time of his discharge that other instructors had not
been discharged for conduct like his, Everett did not
contradict him. On the contrary, he tacitly admitted
his knowlege that other employees had engaged in the
same conduct by stating that perhaps he should have
become stricter earlier. Of course, Everett was not
required to tolerate rule infractions indefinitely. Howev-
er, his defense would be considerably more plausible
if he had explained why a previously overlooked infrac-
tion should have become intolerable 4 days before the
Board election when committed by a known union sup-
porter.
Further evidence relating to Sierra's motive may be
found in Cohen's testimony that he disclosed to a Board
investigator Everett's statement that he had been advised
by the Wellers to seize on any mistake made by a
union supporter, and Lloyd in particular, as a basis
for discharging him. Such testimony constitutes compe-
tent evidence of an admission, binding upon Sierra,
that Everett received such advice.12 Finally, Sierra's
treatment of employee Shepson suggests that Everett
carried out the advice received from the Wellers. As
already found, Everett, to whom Shepson had expressed
antiunion views, declined Shepson's offer to pay the
deductible following his negligence which resulted in
damage to one of Sierra's aircraft, and reassured Shepson
that his job was not in jeopardy. Such action was
in direct contrast to the treatment of Lloyd, whose
infractions had resulted in no damage. Moreover, after
Sierra learned that Shepson had changed his mind and
voted for the Union, the job reassurance was revoked.
For the above reasons, I reject Respondent's explana-
tion for the discharge of Lloyd as pretextual and find
that it was motivated by his prounion views and activity.
I therefore find that by discharging Lloyd, Respondent
Sierra engaged in unlawful discrimination, thereby violat-
ing Section 8(a)(3) and (1) of the Act.
2. The Wellers' responsibility
Employee Hart testified that he was told by Chief
Flight Instructor Cohen that at the above mentioned
meeting in Everett's office on February 13 the Wellers
'Z See cases cited in fn 5, supra
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Everett for the names of the employees supporting
the Union, suggested their discharge for the slightest
provocation, and recommended the discharge of Lloyd
because of the short landing incident. Cohen testified
that he did not recall making such statements to Hart,
that he told Hart that he had been present when the
discharge of Lloyd was discussed, and that he also
informed Hart that the Wellers were working for Everett
in connection with union activity and that the employees
should be careful. As already noted, Cohen also testified
that he had never heard a conversation between the
Wellers and anyone else and that he told a Board investi-
gator Everett informed him about the discharge advice
given by the Wellers.
The General Counsel contends that the record is
sufficient to justify a finding, binding on the Wellers,
that they advised Everett to use the short landing as
a. pretext to discharge Lloyd because of his union sup-
port; that the Wellers thus aided Sierra in violating
the Act; and, that an agent who so'aids an employer
is himself guilty of an unfair labor practice and subject
to the Act's remedial process. It is the General Counsel's
theory that Hart testified that he was told by Cohen
that the latter was present when the Wellers gave the
advice in question to Everett; that, Cohen's statement
to Hart constituted a prior statement inconsistent with
'Cohen's subsequent testimony at the hearing; that under
Section 1235 of the new California Evidence Code the
prior statement is admissible for the purpose of proving
the fact stated; that Cohen told Hart the truth and
testified falsely at the hearing; and hence that Hart's
testimony establishes that the Welters, who did not
deny giving the advice, did in fact give it.
I find it unnecessary to resolve the conflict between
Hart and Cohen regarding their conversation. For even
if Hart's version is accepted, I find no conflict between
that version and Cohen's testimony that he never heard
a conversation between the Wellers and anyone else.
Contrary to the General Counsel, Hart did not testify
that Cohen said he was present when the Wellers made
the statements. He merely testified that Cohen said
that the Wellers made the statements. On the record
before me, I am satisfied that Cohen was not present
at the meeting after the Wellers arrived and that, as
he told a Board investigator, he obtained his information
as to what the Wellers said from Everett. It follows,
and I find, that Cohen's testimony as to Everett's disclo-
sure of the statements by the Wellers constituted hearsay
as to the latter.
The General Counsel further argues that Cohen's
testimony may properly be used as evidence under the
admission exception to the hearsay rule. His theory
is that the Wellers, being Sierra's agents, are "employ-
ers" within the meaning of Section 2(2) of the Act;
that Respondents' answers admit the allegation in the
complaint that Sierra and the Wellers constitute a single
employer; that as a consequence, Cohen and Everett
were agents of the Wellers as well as of Sierra; and
that Cohen's testimony as to Everett's disclosures con,-
cerning the Weller statements constitute probative admis-
sions binding upon the Wellers.
Paragraph III of the complaint alleged as follows:
Respondents , at all times material herein, have
constituted an employer engaged in commerce and
in operations affecting commerce within the mean-
ing of Section 2(2), (6) and (7) of the Act.
I interpret the quoted language as an allegation that
Respondents are one employer for' jurisdictional purpos-
es only . I do not construe it as alleging a single employer
for all purposes . If the General Counsel desired to
litigate the question whether Respondents constituted
a single employer for purposes other than jurisdiction,
a more explicit allegation was required . I do not consider
paragraph III of the complaint sufficient to raise that
question . In any event , the question involves a mixed
question of fact and law . To the extent that the answers
may be regarded as admitting a conclusion 'of law,
they are not dispositive ' of the question . And were
I required to decide whether or not the record establishes
that Respondents are a single employer for the purpose
sought by the General Counsel , I would conclude that
it does not.
The issue then boils down to whether Cohen ' s hearsay
testimony , unobjected to and undenied , is sufficient to
justify a finding, binding upon Respondents Rolland
and Jerry Weller , that they made the statements in
question to, Everett . Standing alone , such testimony
is not sufficient . Monroe Auto Equipment Co., supra.
Since there is no corroboration , I find ' that the record
does not warrant such a finding . 13 I therefore find that
the General Counsel has failed to establish the Wellers'
statutory responsibility for the discharge of Lloyd.
CONCLUSIONS OF LAW
A. Respondent Sierra violated Section 8(a)(1) of the
Act by coercively attempting to persuade employees
to withdraw their support from the Union, by unlawfully
interrogating an employee, by unlawfully promising ben-
efits to him, and by unlawfully revoking its promised
assurance that he would not be discharged.
B. Respondent Sierra and Respondents Rolland and
Jerry Weller violated Section 8(a)(1) of the Act by
unlawfully, holding out to employees the possibility of
increased insurance benefits in order to induce them
to vote against the Union and by unlawfully attempting
to prevent an employee from voting at the Board election.
C. By unlawfully discharging Lloyd because of his
union views and activity, Respondent Sierra violated
Section 8(a)(3) and (1) of the Act.
D. The aforesaid unfair labor practices affect com-
merce within the meaning of the Act.
E. Respondents did not violate the Act by any conduct
not found herein to constitute an unfair labor practice
by them.
'1 For this reason , it is unnecessary to reach the question whether
a labor consultant is subject to the Act' s remedial process where
he advises his principal to commit an unfair labor practice I note
in passing that the cases relied on by the General Counsel involved
direct conduct by the employer's agent vis-a-vis the employees, e g ,
interrogation Natiohal Welders Supply Co , 132 NLRB 660, Guild
Industries Mfg Corp , 133 NLRB 1719, amended in 135 NLRB 971
SIERRA ACADEMY OF AERONAUTICS
THE REMEDY
I shall recommend that Respondents cease and desist
from their unfair labor practices and that they take
certain affirmative action designed to effectuate the poli-
cies of the Act Specifically, I shall recommend that
Sierra offer to Lloyd immediate and full reinstatement
to the position which he held at the time of the discrimina-
tion against him or to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges I further recommend that Respondent Sierra
make Lloyd whole for any loss of earnings he may
have suffered by reason of the discrimination against
him, by paying to him a sum of money equal to that
which he would have been paid by Sierra absent such
discrimination , less net earnings during the said period
The loss of earnings shall be computed in the manner
set forth in F W Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co , 138 NLRB 716
RECOMMENDED ORDER
A Respondent Sierra, its officers, agents, successors,
and assigns, shall
I Cease and desist from
(a) Unlawfully interrogating or threatening its employ-
ees, promising them possible benefits in order to induce
them to vote against unionization, or unlawfully attempt-
ing to prevent employees from voting at a Board election
(b) Unlawfully discharging employees or otherwise
unlawfully discriminating in regard to their hire, tenure
of employment, or any term or condition of employment
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of any right
guaranteed in Section 7 of the Act
2 Take the following affirmative action
(a) Offer to Edward A Lloyd immediate and full
reinstatement to his former or a substantially equivalent
position, and make him whole for any loss of earnings
he may have suffered by reason of Respondent's discrim-
ination against him, in the manner set forth in the
section herein entitled "The Remedy "
(c) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due and the right of reinstatement under the terms
of this Recommended Order
(e) Post at its place of business in Oakland, California,
copies of the attached notice marked "Appendix A "'"
79 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
553
Copies of said notice , on forms provided by the Regional
Director for Region 20 after being signed by Respond-
ent's representatives , shall be posted by the Respondent
immediately upon receipt thereof and maintained by
them for 60 consecutive days thereafter in conspicuous
places where notices to employees are customarily post-
ed Reasonable steps shall be taken to insure that said
notices are not altered , defaced , or covered by any
other material
(f) Post at its place of business in Oakland , California,
copies of the attached notice marked "Appendix B"
after signed copies thereof shall have been delivered
to it The same conditions shall be observed with respect
to the posting of Appendix B as with respect to Appendix
A
(g) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt
of this Decision and Recommended Order, what steps
have been taken to comply herewith iS
B Respondents Rolland and Jerry Weller, doing busi-
ness as Transamerican Employers Group, their officers,
agents, successors, and assigns, acting directly or indi-
rectly as agents of Sierra Academy of Aeronautics,
Inc , shall
I Cease and desist from
(a) Unlawfully promising possible benefits to the
employees of Sierra Academy of Aeronautics, Inc ,
in order to induce them to vote against unionization
(b) Unlawfully attempting to prevent the employees
of Sierra from voting at a Board election
(c) In any 'like or related manner interfering with,
restraining, or coercing employees of Sierra in the exer-
cise of rights guaranteed by Section 7 of the Act
2 Take the following affirmative action
(a) Deliver signed copies of the attached notice mark
ed "Appendix B" to Sierra Academy of Aeronautics,
Inc , for posting at its place of business in Oakland,
California "' Copies of such notice will be furnished
by the Regional Director for Region 20
herein shall as provided in Section 102 48 of the Rules and Regulations
be adopted by the Board and become its findings conclusions and
order and all objections thereto shall be deemed waived for all purposes
In the event that the Board s Order is enforced by a judgment of
a United States Court of Appeals the words in the notice reading
Posted by Order of the National Labor Relations Board shall be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
15 In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 20 in writing within 10 days from the date of
this Order what steps it has taken to comply herewith
" In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 102 48 of the Rules and Regulations
be adopted by the Board and become its findings conclusions and
order and all objections thereto shall be deemed waived for all purposes
In the event that the Board s Order is enforced by a judgment of
a United States Court of Appeals the words in the notice reading
Posted by Order of the National Labor Relations Board shall be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of the receipt
of this Decision and Recommended Order, what steps
have been taken to comply herewith."
" In the event that this Recommended, Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 20, in writing, within 10 days from the date of
this Order, what steps it has taken to comply herewith."
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining
or other aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT unlawfully discharge employees
or otherwise discriminate against them because of
their union activities.
WE WILL NOT unlawfully question or threaten
our employees.
WE WILL NOT unlawfully offer possible benefits
to employees to induce them to vote against unioni-
zation.
WE WILL NOT unlawfully attempt to prevent
employees from voting at a Board election.
WE WILL offer to take back Edward A. Lloyd
to his old job and pay him for all the wages he
lost because of his discharge.
SIERRA ACADEMY OF
AERONAUTICS, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Edward A. Lloyd if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 13050 Federal Building , 450 Golden Gate Avenue,
Box 36047, San Francisco, California 94102, Telephone
556-0335.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify the employees of Sierra Academy
of Aeronautics, Inc., that:
WE WILL NOT unlawfully offer possible benefits
to Sierra ' s employees to induce them to vote against
unionization.
WE WILL NOT unlawfully attempt to prevent
Sierra's employees from voting at a Board election.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce Sierra's employ-
ees in the exercise of their rights guaranteed by
the National Labor Relations Act.
APPENDIX B
ROLLAND WELLER AND
JERRY WELLER, D/B/A
TRANSAMERICAN
EMPLOYERS GROUP
(Employer)
Dated By
(Representative ) Title)
This is an official notice and must not be defaced
by anyone.
This Notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 13050 Federal Building , 450 Golden Gate Avenue,
Box 36047, San Francisco, California 94102, Telephone
556-0335.