Southern Airways Co.

National Labor Relations Board - Board Decisions

Aug 27, 1959

124 N.L.R.B. 749 (N.L.R.B. 1959)

SOUTHERN AIRWAYS COMPANY 749
ment the performance of any obligation of membership other
than the payment of "periodic dues and initiation fees uniformly
required." . . . Under our holding herein, we shall no longer
treat as bars to elections contracts . . . containing ambiguous
union-security provisions which may be interpreted as either
lawful or unlawful because the language employed is not clear or
is in general terms. . . . We have further decided that no ex-
trinsic evidence will be admissible in a representation proceeding
for the purpose of determining the validity of a union-security
or check-off clause in a contract for bar purposes.. . .
The Board has held that a contract containing a provision that "The
Employer agrees to discharge . . . any employee who has been ex-
pelled or suspended by the Union for . . . undermining the Union,"
threatens employees with loss of employment and is invalid because
it clearly exceeds the bounds of permissible union security,3 in that
it unlawfully restricts employees in the exercise of the rights guaran-
teed them by Section 7 of the Act 4
Similarly invalid are the contractual provisions in question here,
threatening as they do, loss of employment to any employee for any
conduct which may violate the terms of the agreement unless author-
ized or ratified by the Union's international president; or which may
be a disruptive influence tending to interfere with the relationship
between the Employer and the Union. Accordingly, we find that the
contract violates the rules of the Keystone case, and therefore, does
not bar the instant petition.5
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act: All production and main-
tenance employees at the Employer's Chicago, Illinois, plant, exclud-
ing foremen, office employees, clerical and professional employees,
guards and watchmen, and all supervisors as defined in the Act .6
[Text of Direction of Election omitted from publication.]
*Local 229 , United Textile Workers of America, AFL-CIO (J. Radley Metzger Co.,
Inc.), 120 NLRB 1700.
* See Kalof Pulp if Paper Corp., 120 NLRB 714, 731-732.
In view of our disposition herein, we find it unnecessary to pass on other issues raised
by the parties.
"The unit is consistent with that covered by the contract and is in accord with the
stipulation of the parties.
Southern Airways Company and International Association of
Machinists, AFL-CIO. Case No. 16-CA-1077. August 27, 1959
DECISION AND ORDER
On November 4, 1958, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
124 NLRB No. 93.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with our
decision herein.
1. In this matter the principal issue is the status of the dock chiefs
under the Act. We find, in agreement with the Trial Examiner, that
the dock chiefs are nonsupervisory leadmen 1 rather than supervisors,
as contended by the Respondent.' As it is clear that the flight chiefs
have authority and functions comparable to the dock chiefs, we fur-
ther find, in agreement with the Trial Examiner, that the flight chiefs
are also nonsupervisory leadmen.
Respondent operates a helicopter training school at Camp Wolters,
Texas, for the United States Army, providing maintenance and test-
ing service on the helicopters and other equipment used in the school.
It has three departments, training, administrative, and materiel.
I Chairman Leedom and Member Rodgers disagree with this conclusion and would find
on the record in this proceeding that the dock and flight chiefs are supervisors. See also
Southern Airways Company, Case No. 16-RC-2276, unpublished. Accordingly, they do
not join in so much of this decision as finds, infra, that the Respondent violated Section
8(a)(8) and (1) of the Act by discharging the three dock chiefs, Brooks, Coffee, and
Wilson, because of their refusal to abandon their union activities, and that the statements
of Director of Materiel Horton to the dock and flight chiefs violated Section 8(a) (1) of
the Act.
2 The Respondent argues that this issue has already been resolved by the Board in a
recent representation proceeding , Southern Airways Company, supra, the decision which
issued 2 weeks prior to the Intermediate Report herein, and, therefore, the issue should
not be reconsidered in the instant matter. We conclude, however, that the representation
proceeding did not finally and conclusively resolve the issue. In the representation pro-
ceeding the Respondent contended that the dock chiefs were supervisors, whereas the
Union left the determination of their status to the Board. As the record in that proceed-
ing showed that the dock chiefs had substantially the same duties as the flight chiefs,
who the parties agreed were supervisors, the Board there held that the dock chiefs.were
also supervisors . The additional evidence in the record in the instant case concerning the
duties of the dock chiefs convinces us, however, that the issue was not so fully litigated
in the representation proceeding as to preclude reconsideration herein. Nor do we believe
that the Union, in view of its position in the representation case, is estopped from assert-
ing in this proceeding that they are not supervisors. Moreover, as the events alleged as
violations in this matter occurred prior to the Board's decision in the representation
proceeding , the Respondent could not have relied to its prejudice on a Board determination
that the dock chiefs are supervisors.
The Respondent's contention that the dock chiefs are supervisors is, in the opinion of
a majority of Board members , based on conclusionary testimony which, like the Trial
Examiner, we do not find persuasive, to the effect that the dock chiefs are designated
supervisors by management, attend meetings with supervisors that are called "supervisory
meetings," "responsibly direct" the work of mechanics who work with them using inde-
pendent judgment ," in the process, "effectively recommend " transfers and discharges, and
upon testimony which the Trial Examiner did not credit.
SOUTHERN AIRWAYS COMPANY 751
M. R. Horton is the director of materiel, the division herein involved,
with the assistance of Wayne S. Schwalm, director of aircraft main-
tenance. Under Horton and Schwalm, there are three main divisions
of maintenance, including a division of periodic inspections under
the supervision of Hangar Chief Donald Tuck. Approximately 14
dock chiefs are under Tuck, leading the work of some 28 mechanics.
The dock chiefs are paid a minimum salary of $375 per month as
compared with the $310-$350 salary of mechanics. They work from
checklists, performing manual labor along with the mechanics, in the
routine maintenance of the helicopters under the scrutiny of Army
inspectors, who are involved throughout all operations and who must
be satisfied with the work. On occasions, the dock chiefs work under
other dock chiefs without any change in pay. They punch a time-
clock, whereas the foremen do not. All personnel matters must be
taken up with Tuck, and their recommendations are relayed to higher
officials who act on them after independent investigation. Upon the
basis of the foregoing, and the entire record, we are satisfied that the
dock chiefs neither responsibly direct the work of their crews in a
manner requiring the exercise of independent judgment nor possess
any of the other statutory indicia of supervisory authority. We note
that a finding that the dock chiefs are supervisors would result in an
abnormally high ratio of one supervisor to two employees. We find,
accordingly, that the dock chiefs are not supervisors within the mean-
ing of the Act.'
2. As we have found that Brooks, Coffee, and Wilson are employees
rather than supervisors, we further find, in agreement with the Trial
Examiner, that the discharge of these dock chiefs violated Section
8(a) (3) and (1) of the Act,' inasmuch as the evidence establishes,
as found by the Trial Examiner, that the discharges were based, at
least in part, on the chiefs' refusal to abandon their union activity.
It is therefore unnecessary to consider the Trial Examiner's additional
finding that the Respondent was further motivated by its belief that
these chiefs had refused to obey instructions to engage in unfair labor
s See West Virginia Pulp and Paper Co., 122 NLRB 738; Pennsylvania Power & Light
Company, 122 NLRB 293; Hawthorne School of Aeronautics, 98 NLRB 1098.
In West Virginia Pulp and Paper Co., the Board, in concluding that the evidence failed
to establish that certain individuals were supervisors, stated in language applicable here:
"Although in most instances they direct to some extent the work of others, the fact
that an employee may transmit orders, instruct or correct other employees, or set up jobs
and assign employees, does not necessarily give him supervisory status. Here . . . the
record established that their discretion is severely limited by the fact that they and their
crews work under the immediate, continuing supervision of salaried supervisors, who
closely oversee the work, are immediately responsible for its proper performance, and
exercise their discretion with respect to all phases of the work, excepting only in some
cases the on-the-job details."
4In view of Coffee's statement in his deposition that he did not desire reinstatement, we
do not, however, adopt the Trial Examiner's recommendation that he be reinstated, and,
consistent with our usual practice, we shall award back pay only to the date of the
disclaimer.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices, an unlawful motivation. As we do not find that the dock
chiefs are supervisors, we neither adopt nor pass upon that part of
the Intermediate Report in which the Trial Examiner finds that the
discharges of the dock chiefs would have violated Section 8(a) (1)
of the Act, even if they were supervisors, and that such a finding was
not precluded by Section 10 (b).
3. We find, in agreement with the Trial Examiner, that, by virtue of
the conduct of Director of Materiel Horton and Line Chief Morse, as
more fully set forth in the Intermediate Report,5 the Respondent
violated Section 8 (a) (1) of the Act. As it is unnecessary to our
decision herein, we neither adopt nor pass upon the Trial Examiner's
finding that, although the flight chiefs are not supervisors, the Re-
spondent was nevertheless responsible for their alleged 8(a) (1)
conduct 6
4. We agree with the Trial Examiner that the discharge of Hennes-
see, a mechanic, violated Section 8(a) (3) and (1) of the Act. We
find no merit in the Respondent's contention that Hennessee was law-
fully discharged because he violated a valid no-solicitation rule.
Apart from any other considerations, the record contains no evidence
to establish either that the company booklet containing the alleged
rule was distributed to the employees prior to Hennessee's discharge,
or that the employees were otherwise put on notice of the existence of
such alleged rule. In these circumstances, we find that there was no
valid rule in existence to justify the discharge of an employee for
engaging in conduct which, in the absence of such a rule , constituted
union and concerted activity protected by Section 7 of the Act.'
5. We agree with the Trial Examiner that Bradshaw was dis-
charged in violation of Section 8(a) (3) and (1) of the Act. We also
agree that Bradshaw ought not to be reinstated, but do not agree that
he should nevertheless be awarded back pay e As found by the Trial
Examiner, Bradshaw, prior to his employment by the Respondent,
had been convicted some 16 times, over a 5-year period, for various
criminal offenses; in addition, he falsely stated on his application for
employment that he had not been convicted of "violating any law,
other than traffic law." It is evident, therefore, that Bradshaw insin-
uated himself into the Employer's employ by materially false repre-
sentations of such character that the Employer would not have hired
6 we correct the inadvertent error in the Intermediate Report in which the Trial
Examiner states that Bradshaw was interrogated on February 10, 1958 , instead of
February 6, 1958, as established by the record.
8 Chairman Leedom and Member Rodgers do not find it necessary to concern themselves
with this finding, for the reason that, as set forth hereinabove , they would find that the
flight chiefs are supervisors.
' See N .L.P.R. v. Cambria Clay Products Company, 215 F. 2d 48 ( C.A. 6) ; compare
N.L.R. B. v. Avondale Mills, 242 F. 2d 669 (C.A. 5).
8 Member Bean would award Bradshaw back pay to the date of the disclosure of his
offenses , and Member Jenkins to the date of the Board ' s Order.
SOUTHERN AIRWAYS COMPANY 753
him if he had given truthful information. Accordingly, we shall
not order that Bradshaw be reinstated or awarded back pay.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Southern Airways Company,
Camp Wolters, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of
Machinists, AFL-CIO, or any other labor organization, by discrimi-
nating in regard to the hire and tenure of employment of its employees
or any term or condition of employment.
(b) Threatening its employees with reprisals to discourage union
or concerted activities, or interrogating them concerning such activi-
ties in a manner constituting interference, restraint, or coercion within
the meaning of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Association
of Machinists, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing and to en-
gage in other concerted activities for the purposes of collective bar-
gaining or other mutual aid and protection, or to refrain from any or
all of such activities except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Bill J. Hennessee, Houston Brooks, and Ira A. Wilson
immediate and full reinstatement to their former or substantially
equivalent positions in the Respondent's employ without prejudice to
their seniority or other rights and privileges and make each of them,
together with D. F. Coffee, whole for any loss of pay which he may
have suffered by reason of such discrimination against him in the
manner provided in the section of the Intermediate Report entitled
"The Remedy," as modified herein.
(b) Preserve and make available to the Board or its agents, upon
requests, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the reinstatement rights and
the amounts of backpay due under terms of this Order.
525543-60-vol. 124-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post throughout its installation at Camp Wolters, Texas, copies
of the notice attached hereto marked "Appendix." 9 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, upon being signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any.other
material.
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
B In the event that this Order is enforced by a decree of a United States Court of
Appeals, -there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that :
WE WILL NOT discourage membership in International Associa-
tion of Machinists, AFL-CIO, or any labor organization of our
employees, by discharging or refusing to reinstate any of them,
or by discriminating in regard to the hire, tenure of employment,
or any term or condition of employment because of their union
affiliation or activities.
WE WILL NOT threaten our employees with reprisals to discour-
age -union or concerted activities, or interrogate them concerning
such activities in a manner constituting interference, restraint, or
coercion within the meaning of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist the above-
named Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
SOUTHERN AIRWAYS COMPANY 755
WE WILL immediately offer to each of the employees named
below, immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority
or other rights and privileges previously enjoyed, and will make
each of them, together with D. F. Coffee, whole for any loss of pay
he may have suffered as a result of the discrimination against him :
Bill J. Hennessee
Houston Brooks
Ira A. Wilson
All our employees are free to become or remain, or refrain from
becoming and/or remaining, members of the International Associa-
tion of Machinists, AFL-CIO, or any other labor organization, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment, against any employee because of membership in, or
activity on behalf of, any labor organization.
SOUTHERN AIRWAYS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by International Association of Machinists, AFL-CIO, here-
inafter referred to as the Union or IAM, the General Counsel of the National Labor
Relations Board, herein called respectively the General Counsel 1 and the Board, by
the Acting Regional Director for the Sixteenth Region ( Fort Worth, Texas ), issued
its complaint dated May 21, 1958, against Southern Airways Company, herein
referred to as the Respondent, alleging that the Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( a) (1) and ( 3) and Section 2(6) and (7) of the Labor Management Rela-
tions Act, 1947, 61 Stat. 136, herein called the Act. Copies of the charges and the
complaint together with notice of hearing were duly served upon the Respondent
and the Union.
The Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice , a hearing thereon was held at Fort Worth, Texas, from June
30 to July 2, 1958, inclusive, before the duly designated Trial Examiner. All parties
appeared at the hearing , were represented by counsel or a representative , and afforded
full opportunity to be heard , to produce , examine and cross-examine witnesses, to
introduce evidence material and pertinent to the issues , and were advised of their
right to argue orally upon the record and to file briefs and proposed findings and
conclusions or both. A brief was received from the General Counsel on August 27,
1958.
' This term specifically includes the attorney appearing for the General Counsel at
the hearing.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the Respondent admitted, and the Trial Examiner finds,
that Southern Airways Company is, and has been at all times material hereto, a
corporation duly organized under and existing by virtue of the laws of the State of
Delaware, having its principal office and place of business at Brown-Marxs Building
in the city of Birmingham, Alabama, and is now, and has been at all times herein
mentioned, continuously engaged at the Army Primary Helicopter School, Camp
Wolters, Mineral Wells, Texas, herein referred to as the "facility," in the perform-
ance of a contract with the U.S. Army providing maintenance for helicopters and
operations of a helicopter training school. The Respondent in the course and
conduct of its business operations at its facility during the past 12-month period,
which period is representative of all times material hereto, supplied services consisting
principally of providing maintenance for helicopters and operations of a helicopter
training school for the U.S. Army, which services are valued in excess of $2,000,000.
The Respondent is, and was at all times material herein, engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, AFL-CIO, is a labor organization ad-
mitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICED
A. The facts
As noted heretofore, the Respondent operates a helicopter school under contract
with the U.S. Army for the training of helicopter pilots at Camp Wolters, Texas.
As an.integral part of this operation the Respondent maintains the helicopters used
in this training course in good operating condition. This case involves the mechanics
employed by the Respondent to do this maintenance work.
Respondent has in large measure broken this maintenance work into three separate
operations. The first department is known as "post flight," where after each day's
flying each helicopter is checked over by a mechanic, enjoying the job title of flight
chief, with his crew of two or three other mechanics who oil and grease the machine,
check into any "deficiencies" or repairs reported by the flyers or discovered in the
course of their own inspection of the machine. The second department is known as
"periodic inspection" where after a prescribed number of hours of flying, each
machine is given a prescribed specific check by a mechanic, enjoying the job title of
dock chief, with his crew of two or three other mechanics who make the necessary
periodic changes and substitutions in accordance with the Army specifications as
well as whatever "deficiencies" or repairs are necessary. The third department is
called "field maintenance" where major and larger repairs are made by specialist
mechanics, painters, etc., which cannot be done by either of the other departments.
Except for some work requiring specialists, the work in these three departments
is done by mechanics. These mechanics are graded in accordance with their ability
as either senior mechanics, mechanics first class, or mechanics second class. Flight
and dock chiefs are selected from the senior mechanics and receive a monthly salary
of $375 minimum whereas the salary of a senior mechanic ranges from $310 to $350
per month while the mechanics first and second class receive proportionately less.
M. Ramsey Horton, as Respondent's director of materiel, is in direct charge of
the maintenance work as well as of ground transportation. In direct charge of the
aforementioned maintenance work is Wayne S. Schwalm as director of aircraft
maintenance. The post flight department is headed by Earl Tyson, as line superin-
tendent, who has three line chiefs, Sid Morse, Jim Sargeant, and J. T. Kelly, working
under him in shifts in charge of some 12 flight chiefs with their crews. The periodic
inspection department is headed by Donald Tuck, as hangar chief, who has an
assistant hangar chief, Joel Pless, under him in charge of 14 dock chiefs.2 The field
maintenance is headed by Floyd Burns with some seven shop foremen working under
his direction.
2 By the time of the hearing herein Kelly and Pless had Interchanged jobs.
SOUTHERN AIRWAYS COMPANY 757
At the hearing the parties were in disagreement as to whether flight chiefs and/or
dock chiefs were supervisors within the meaning of the Act. The complaint herein
charged the Respondent with responsibility for some acts and statements of several
flight chiefs whereas the General Counsel contended that dock chiefs were non-
supervisory employees. Respondent on the other hand contended that both flight
and dock chiefs were supervisors within the meaning of the Act, and introduced
evidence to the effect that the Respondent considered each to be supervisors on its
own table of organization and had so advised said chiefs.3
The evidence, however, was quite conclusive that neither flight nor dock chiefs
exercised the authority required of supervisors by Section 2(11) of the Act. While
it is true that both flight and dock chiefs received at least $25 more per month upon
their promotion to the position of chief from senior mechanic and that they have
two or three less proficient mechanics assisting them in the maintenance work
involved, the flight and dock chiefs only authority was to lay out and distribute the
work among himself and his crew members. He has no authority to hire or fire,
transfer, promote, or even to grant permission to take time off, which had to be
secured from at least the line chief or the hangar chief. The flight and dock chiefs
do manual work with their tools alongside of their crew, were the more experienced
mechanics and, in addition, did whatever paper work was necessary on the inspection
checkoff sheets required by the Army. Unlike their immediate supervisors, the line
chiefs and,the hangar chief with his assistant, the flight and dock chiefs are required
both to do manual labor and to punch the timeclock as is required of the other
mechanics. Flight and dock chiefs are supervisors in the sense that they are the
leadmen in a three- or four-man crew dividing the routine maintenance work between
themselves and the other mechanics and in the sense that they are used by their
supervisors to relay instructions from higher supervision to the remainder of the
mechanical force.
Respondent made much of the fact that these flight and dock chiefs could and in
one or two instances had recommended the transfer or discharge of a mechanic in
the crew and supposedly exercised "independent judgment" in determining what
"deficiencies" or repairs had to be made in order to comply with Army regulations.
As to the recommendations, the evidence showed that the same were acted upon or
ignored as higher supervision saw fit in the particular instance. As for the so-
called use of "independent judgment," it is the same use of independent judgment
which any and all trained mechanics have to exercise in their trade-even as the
ordinary automobile mechanic uses it in the repair of a damaged automobile. Ac-
tually both flight and dock chiefs work in large measure according to routine
checklists provided by the Army.
Accordingly the evidence requires a finding, here made, that neither dock or flight
chiefs are supervisors within the meaning of the Act.
Respondent began operating its school at Camp Wolters about August 1956.
Apparently there had been no consideration given to the formation of any union
organization among its employees until the last days of January or the first days
of February 1958, when a mechanic named Garland Patterson began making
inquiries among his fellow mechanics about their interest in joining a union.
About the first of February, Patterson and a fellow mechanic named Richard Lee
Bradshaw, who had expressed interest in joining a union, drove to IAM headquarters
in Fort Worth where they discussed the possibilities of organizing the Respondent's
employees with two union organizers and brought back with them some IAM
authorization cards.
Soon after the Fort Worth visit mechanic Jack Hennessee secured some union
authorization cards which Hennessee distributed to any employee who might ask
him for one, both on and off company property. Dock Chief Thompson also dis-
tributed union authorization cards among his fellow dock chiefs. The same au-
thorization cards were also to be found during rest periods in the rest area where
the employees ate on company property.
One morning about February 5, a group of mechanics, including Patterson, Brad-
shaw, Hennessee, Walter Long, Cecil Brock, and Neil Woodard, met at Patterson's
home in Santo, Texas, with two TAM officials where, among other things, the possi-
bility of holding a meeting of the Respondent's employees in nearby Mineral Wells,
Texas, on Saturday night was discussed.
In accordance with a decision made at that meeting, Bradshaw and Hennessee
drove to Mineral Wells about 1 p.m. that day where they arranged with a city
official in the city hall for the use of the community center or USO hall for a
meeting of the Respondent's employees on Saturday night.
2 One dock chief denied receiving such advice.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At 2 p.m. that same day, Hennessee reported for work. About 4 o'clock Hangar
Chief Tuck sent Hennessee to see Schwalm who thereupon told Hennessee that the
Respondent had come to the conclusion that they did not need Hennessee any longer.
When Hennessee asked the reason for this decision, Schwalm stated that Hennessee
was "doing other activities on the job." Although pressed, Schwalm would only
amplify what activities he referred to by saying that he "thought" Hennessee knew
to what he referred and refused to discuss the matter further. Hennessee was
discharged.
Bradshaw reported for work at his regular scheduled time at 4:30 p.m. that day.
Bradshaw's timecard was missing from the rack. Tuck sent him into Schwalm's
office. When Bradshaw asked where his timecard was, Schwalm answered "You
have been terminated." When asked the reason for the termination, Schwalm
answered "Absenteeism." Bradshaw asked to see his leave slips but this request was
refused by Schwalm on the grounds that he had already put the slips away. Brad-
shaw was discharged.
Neither man has been reinstated since.
Either that same day or the previous day, Dock Chief Donald F. Coffee learned
that mechanic Sword, a member of Coffee's crew, had been fired by the Respondent
for, according to what Coffee heard from Sword and other employees, soliciting on
behalf of the Union. Coffee promptly went to Schwalm's office, inquired of
Schwalm why Sword had been discharged, and upon receiving no answer, informed
Schwalm that Sword had had nothing to do with the Union. Schwalm thereupon
stated that the Respondent had "proof" that Sword did have something to do with
the Union but added, after further exhortation from Coffee, that he would see
what could be done.
This conversation was not denied by Schwalm, who in fact confirmed the fact
that Sword had been suspended by the Respondent pending an investigation into a
charge that Sword had been soliciting on behalf of the Union. Sword was rein-
stated 2 days later with no loss of pay when, according to Schwalm, the investiga-
tion disclosed that Sword "had been handed some cards and was seen returning
these cards." 4
On the evening of Saturday, February 8, the union meeting for the Respond-
ent's employees was held at the USO or community center hall in Mineral Wells
and was attended by approximately 50 employees including Dock Chiefs Ira Wilson,
Houston J. Brooks, Donald F. Coffee, and Thompson.
Wayne Schwalm testified that about an hour before this union meeting, he received
a telephonic invitation to attend the same from Garland Patterson. Immediately
upon receipt of this invitation, Schwalm informed his superior, Horton, of the
meeting and of his invitation. Horton ordered Schwalm not to attend and expressed
the hope that no other supervisors would attend either. Schwalm then telephoned
Line Chief Sid Morse and instructed him not to attend. So far as the record shows,
no efforts were made to so inform any of the flight or dock chiefs.
On Monday, February 10, all the flight and dock chiefs were assembled in meet-
ings at either 2 p.m. or 5 p.m. where they were addressed by Horton in the presence
of Schwalm, Tuck, and Morse representing top management. These meetings
were similar and each lasted approximately 2 hours. Horton's own description of
these meetings is as follows:
A. Yes, I said precisely the same thing in both meetings . I stated that
Schwalm had received this call on Saturday evening and told them what the
telephone conversation was and that I had asked him to call a meeting for this
purpose.
I went on to tell all the supervisors that they should know and should remem-
ber from previous meetings what their position must be as a supervisor, but
for fear that they did not remember and also because of the fact that we had
some recent supervisors that I felt that I must go over the whole thing then.
I went on to state to them that as supervisors they could take no part in the
union pro or con. That was my exact words, and that I wanted them to be
familiar wtih our position so that in the event any of the people asked them
questions, that they could answer them accordingly.
I told them not to precipitate any conversations, but in case they were asked,
and I also went on to tell them I thought they-I was sure they would be asked
because they were closer to their people than any other supervisor, and when
4 This episode is important as it proved that the Respondent was almost immediately
aware of the existence of union activity among its employees despite the claim of some
of the Respondent's officials that they were unaware of any such activity until considerably
later.
SOUTHERN AIRWAYS COMPANY 759
they were asked, they should be able to state the position of our company in
regard to what had taken place on the Saturday evening.
Q. Did you elaborate on that at that meeting or those meetings?
A. Elaborate in what respect?
Q. What they should say if they were asked a question about the company's
position?
A. I told them-yes, I elaborated. I told them our position exactly, that
we did not have a union in our company, we didn't see the need for one, we
didn't want one, and that we would do what we could to prevent one from
coming in, we didn't feel like it was in the best interests of our employees or
the government or anyone else. We didn't see any reason why there was a
need for one and I wanted them, if anyone asked them what the company's
position was, to so state.
I also asked if any of our supervisors had been in attendance at this meeting
on Saturday night and there were no supervisors in the afternoon meeting who
had been in attendance.
At the afternoon meeting, when I asked that question, I think there were
four people, three or four people who raised their hands.
Q. Excuse me. Did you mean to say there were none who were present
who were in attendance at the morning meeting?
A. Afternoon, 2 o'clock meeting of the supervisors when I asked the question
if any of the supervisors had been in attendance in the union meeting on
Saturday night and no one acknowledged they had, so I asked the same question
in the afternoon meeting and four of our supervisors indicated they had been
in the meeting.
Q. That is the second meeting , that afternoon?
A. Yes.
TRIAL EXAMINER: Five o'clock meeting.
Mr. KARL MUELLER: I apologize to you and everybody. That's what threw
me. Thank you, sir.
The WITNESS: Shall I continue?
Mr. KARL MUELLER: Yes, if you will, please.
The WITNESS: I think that in substance that was most of it except I did go
on to say in the afternoon meeting that we would forget about the fact that
they were there, but they should not go any more, they should not attend any
union meetings of any type and that they were not free to discuss it in any
way with their employees unless their employees asked them questions and
then as supervisors they must express the position that I had outlined.
I even went so far as to say, "if any of you who are now here in attendance
do not feel you can express this opinion , then you should tell us, because as
supervisors you cannot openly advocate the union or anything else. If you do,
you will be in trouble."
In addition to the above remarks admittedly made by Horton, there is competent
evidence , which the Trial Examiner accepts over Horton' s sometimes not too positive
denials, that Horton also stated at these meetings that:
(1) The Respondent "was not going to have a union period."
(2) The Respondent had fired the ringleaders in the Union, it would spend
$10,000 before it would take them back, and that the Respondent anticipated no
further union trouble.
(3) If the Union got into the Respondent' s operations , it would close up and
return to Georgia [where it had other operations].5
5 Horton specifically denied having made the statements found in items 1, 2, and 3,
above . However , the Trial Examiner has made the above findings on these items from
the testimony of Dock Chiefs Wilson, Brooks, and Coffee who were in attendance and
who were three of the four men who acknowledged attending the union meeting on
Saturday . The Trial Examiner has accepted the testimony of these three dock chiefs
over the denials of Horton for a number of reasons in addition to the fact that Wilson
and Brooks , who testified in person , while Coffee testified by deposition , appeared to be
honest and reliable witnesses.
As Is obvious from I-Iorton ' s own testimony as well as from other acknowledged events
in this case , the purpose of these two meetings called by Respondent was twofold : (1) to
prevent the so-called supervisors from engaging in any activity favorable to the Union
on pain of loss of their own jobs, and ( 2) to force them into actively opposing the union
organizational campaign . Horton spoke for approximately 2 'hours extemporaneously-or
at least no transcript of his remarks was produced at the hearing. Obviously he said
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) The Respondent would not recognize the Union.
( 5) The supervisors were to work against the Union and to keep it out.
(6) The fact that the dock chiefs had attended the Saturday union meeting
"would not be held against" them but that they would be fired if they engaged in
any other union activity.
Following this meeting of the flight and dock chiefs , they, with or without Sid
Morse in attendance , began to question some of the mechanics regarding the Union.
In one instance , Flight Chief Edwards questioned all of the mechanics on the dock
in the presence of Morse about how they felt about the Union. After Bradshaw
had been questioned vainly about what he knew about the Union's organizing at-
tempt, Morse asked that if Bradshaw should learn anything about the Union to let
him, Morse , know. Morse made the same request of employee Cecil Brock.6
Dock Chief Carraway 7 informed the mechanics working with him that, if anyone
of them "cared for his job ," he would not attend any union meetings and that, if
they were caught attending a union meeting, they would be discharged . Carraway
also repeated to the mechanics Horton's statement that the Respondent would spend
$10,0100 before it would see the Union come in or those who had been discharged
already return to work. In addition Carraway also informed them that , if they
signed a union card, they would be "fired on the spot."
On Thursday , February 13, another meeting attended by all the employees on
the afternoon shift was called and addressed by Tuck. After speaking of house-
cleaning and other business affairs , he spoke against the Union and, after men-
tioning a number of individual strikes, told the employees that they could not gain
anything from having a union. Then he inquired if there were any gripes or ques-
tions. At this point Dock Chief Brooks spoke up and suggested that the night shift
was not being treated fairly , that there should either be a rotation of shifts or a night
shift differential , after which Coffee complained that Respondent 's wages were not
keeping up with the rise in the cost of living . After that the meeting adjourned.
About a half hour or so later Tuck escorted Dock Chiefs Wilson, Brooks , Coffee,
and Thompson to Schwalm 's office where Schwalm interviewed each of them
individually.
In the interview with Wilson , Schwalm asked Wilson which side he was on, the
Union or the Respondent 's, and informed him that he could not remain neutral, that
he would have to take one side or the other. As Wilson was doubtful as to his
position , he was dismissed with the instructions to think it over and to report back
the following day. The next day when Wilson reported, he stated to Schwalm that
he would have to express himself as being for the Union . Schwalm answered that
this was "insubordination" as loyalty to the Company required Wilson to restrict
himself to expressing the Company 's opinion and policy on union matters, regardless
of the fact that it might be contrary to Wilson's individual opinion. Schwalm then
stated that he was dismissed because of his "attitude " and the fact that work was
behind on Wilson's dock.
When Schwalm interviewed Brooks, he accused Brooks of having engaged in union
activities following the evening union meeting. Tuck inquired whether Brooks agreed
with his speech against the Union which Tuck had just made to the employees.
When Brooks voiced his disagreement to the sentiments there expressed , Tuck stated
that was "insubordination" and Brooks was discharged on the spot.
When Coffee appeared for his interview , Schwalm asked him what he thought
of the Union. Coffee stated that he would be neutral and would not work for or
against the Union . Schwalm said that Coffee could not remain neutral , that he
would have to be for the Respondent or for the Union and would have to make
speeches to the employees against the Union.8 Coffee answered that he could not
much more than he testified to as a witness . The testimony of the three dock chiefs
really only amplify remarks admittedly made by Horton. The three dock chiefs corrobo-
rated each other very closely , as was to be expected because after all they were the
individuals whose positions were most directly threatened by Horton' s statements. It is
further significant that Horton was the only witness for the Respondent to testify in
regard to the statements he made at the meeting.
E Morse denied the Bradshaw conversation but not the Brock conversation.
7 Carraway had left Respondent 's employ about 2 weeks before the hearing but Re-
spondent knew where he was then employed. He did not testify.
8 Schwalm denied in his 'testimony that he made any requirement that the dock chiefs
must make "speeches" against the Union. He acknowledged that he did instruct them
that, in the event that any employee should ask the opinion of a dock chief about union
matters , the dock chief was restricted to repeating the Company' s positions and saying
nice things about what the Company had done for them. Schwalm's denial here thus
SOUTHERN AIRWAYS COMPANY 761
do that, whereupon Schwalm replied that this constituted "insubordination" and dis-
charged Coffee forthwith.°
Thompson, who was also interviewed by Schwalm, and who, as developed at the
hearing, was the individual who had given Coffee the union card which Coffee had
signed, was not discharged. Nor was he a witness at the hearing.
According to Schwalm, he discharged Brooks and Coffee for "insubordination"
in expressing their request for more money in front of the employees assembled at
the Tuck meeting rather than reserving the expression of those desires for a private
conference with company officials. Schwalm also testified that in these interviews,
if there were any mention of the Union, it was not a "significant" topic of conver-
sation in either of these final interviews.
About 2 p.m. Sunday, February 16, another meeting of the Union was held at the
Carpenters' Hall in Mineral Wells. This time there were only about 15 employees
present. There is testimony to the effect that Schwalm, Tuck, Burns, Morse, and
Carraway, in automobiles, made numerous trips around the Carpenters' Hall as the
employees were assembling. This testimony was denied by all those mentioned
above except Carraway. At this meeting Neil Woodard was elected to the Union's
organizing committee along with a number of other employees. By letter dated
February 17, the Union notified the Respondent of the election of Woodard and the
others to this committee. The letter was admittedly received by the Respondent
either February 18 in the afternoon or on the morning of February 19.
When Woodard reported back to work on the evening of February 18, he was
sent to Tuck's office where Tuck informed him that he was being discharged because
of his fast and careless driving in leaving the post at the end of the previous day's
shift as had been reported to him by Morse. Tuck discharged Woodard telling him
to report the following day in order to get his last paycheck.
When Woodard reported the following day, Schwalm, after having learned from
Horton of the receipt of the letter naming Woodard as a member of the Union's
committee, informed Woodard that his discharge had been changed to a 2-week
suspension without pay. Schwalm testified that the penalty had been changed because
of the receipt of the Union's letter and in order to prevent any suspicion from arising
that Woodard had been discharged because of his union activities. Woodard
returned to work after his 2-week suspension and worked until a few days before
the hearing when he voluntarily withdrew from the Respondent's employ to take
another job.
B. Conclusions
1. Interference, restraint, and coercion
There is no doubt but that Morse, accompanied on occasions by either Flight
Chief Carraway or Flight Chief Edwards, illegally interrogated various mechanics
about the Union and sought assistance from them in ferreting out union activities.10
There is no denial of the fact that Flight Chief Carraway threatened all the
mechanics on the dock that they would be fired on the spot if they signed a union
card or were found to have attended a union meeting. It is also undisputed that
Carraway also repeated Horton's statement that the Respondent would spend $10,000
to keep the Union out and to prevent the return to work of the ringleaders for the
Union who had already been discharged.
While it is true that the Trial Examiner has heretofore found that flight chiefs were
not supervisors within the meaning of the Act, the Respondent is still responsible for
the acts and statements of Carraway and Edwards, even when not accompanied by
Morse, because they were acting as agents of the Respondent in carrying out the
instructions given them on February 10 by Horton that they were to work to keep
the Union out, repeat for the benefit of the employees the Respondent's "we were
against the union" policy, as well as the other coercive statements made by Horton
in that speech. Horton had made Carraway and Edwards his agents to do just exactly
what they were doing.
Furthermore the speech made by Horton on February 10 to the assembled dock
and flight chiefs was also coercive and in violation of Section 8(a) (1) of the Act due
appears to be based exclusively on a question of terminology and, therefore, not of sub-
stance. It is clear that the dock chiefs had been ordered to reiterate the Respondent's
position against the Union, a position which Schwalm himself stated to be: "We were
against the Union."
Only a short time previously the Respondent had given Coffee a 3-percent increase in
salary.
10 Unified Industries, Inc., 121 NLRB 1184.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the threats made against employees, including specifically the flight and dock
chiefs, who might engage in union activities. Even if the dock and flight chiefs should
be considered to be supervisors within the meaning of the Act, the speech was still a
violation of Section 8(a)(1) because Horton threatened them with loss of their jobs
if they engaged in any further union activities or attended any union meetings or
failed to assist in carrying out the Respondent's coercive campaign to force the em-
ployees to abandon their union activities. The law is that an employer may require
his supervisors to remain neutral in regard to the Union but it is a violation of Section
8 (a) (1) of the Act for an employer to require his supervisors to engage in antiunion
unfair labor practices."
The above statements and acts of the Respondent and its agents amount to inter-
ference, restraint, and coercion in violation of Section 8 (a)( I) of the Act and the
Trial Examiner so finds.12
2. The discharges
a. Bradshaw and Hennessee
Within a matter of hours after having secured the use of the USO Hall in Mineral
Wells for a meeting of the Respondent's employees to consider unionization, both
men responsible therefore, Bradshaw and Hennessee, were summarily discharged by
the Respondent, one allegedly for "absenteeism" and the other for "doing other ac-
tivities on the job." The timing of these events alone creates a suspicion that the dis-
charges were caused by the men's efforts to abet union organization among the Re-
spondent's employees, which, of course, was made explicit in the Hennessee case
because the Respondent informed him at the time of the discharge that he was being
fired for "engaging in other activities on company time." However, there is no evi-
dence in this record that the Respondent had knowledge that the USO Hall was to be
used for the union meeting or that Bradshaw or Hennessee had anything to do with
making the arrangements therefor.
In fact the Respondent's witnesses created the impression throughout the hearing
that the Respondent's first knowledge of union activities came when ex-employee
Patterson telephoned to invite Schwalm to attend the meeting at the USO Hall about
an hour before it was scheduled on Saturday, February 8.
But regardless of this impression, the discharge of Sword, or, as Schwalm preferred
to phrase it, the "suspension pending investigation of solicitation" on behalf of the
Union by Sword, on or before February 5 when Schwalm told Dock Chief Coffee
that the Respondent "had proof" of such solicitation by Sword,13 is proof that the
Respondent not only had knowledge of the attempted union organization almost from
its inception but also was keeping a close and wary eye upon such activity.
There is no question but that both Bradshaw and Hennessee were two of the more
active protagonists of the union move. They were both active in instigating and pro-
moting the activity. In addition, Hennessee was also active in distributing union
cards both on and off the Respondent's property.
In Hennesee's case Schwalm was quite frank in telling Hennessee that he was
being discharged for "doing other activities on the job" or "for using company time
for other than company business." Although Schwalm refused to disclose what ac-
tivities he referred to at the time of his discharge, he was frank at the hearing and
admitted that Hennessee was discharged by the Respondent because Schwalm had
received a report from Carraway that Hennessee was "soliciting" for the Union.
Hence it is clear from Schwalm's testimony that the Respondent discharged Hen-
nessee for having engaged in such union activities.
But the Respondent contends that it had a "no solicitation" rule at the plant and
points to rule 6(L) contained in a general information booklet received by the Re-
spondent on or about January 6, 1958, and, according to Schwalm, distributed by
him to his immediate subordinates in sufficient quantities for distribution to all the
u Talladega Cotton Factory, Inc., 106 NLRB 295.
"Although the Trial Examiner is inclined to believe the evidence of the witnesses for
the General Counsel that the Respondent by its supervisors and agents engaged in sur-
veillance of the union meeting of Sunday, February 16, 1958, no finding to that effect will
be made in this report.
"In view of this last statement by Schwalm to Coffee, it would seem that Sword's
original report that he had been "fired" was more accurate than Schwalm's "suspension
pending investigation." Schwalm himself testified that Sword was reinstated with back
pay after 2 days when further investigation showed that Sword had been seen receiving
union authorization cards and returning them.
SOUTHERN AIRWAYS COMPANY 763
employees. Proof of the distribution thereafter to the employees is lacking and, in
fact, denied.
Rule 6 under "Separation" in this booklet provides as follows: "The school re-
serves the right to discharge without advance notice an employee guilty of any of the
following: . The use of school time for other than school business ." Rule 6(L)
when read in conjunction with rule 6(d) and (h) which respectively provide for
dismissal "for sleeping or loafing" and "for gambling on school time," can be in-
terpreted by an astute legal mind into a no-solicitation rule. A really astute mind
can make rule 6(L) into practically anything one wants or may need at the time.
Rule 6(L) is thus a catchall and definitely indefinite. A no-solicitation rule to be
valid and enforceable must be clear, definite, and understandable by the employees
whose actions are to be governed thereby. Rule 6(L) is not. Furthermore in order
to be valid and enforceable as a no-solicitation rule, the rule must also be non-
discriminatory and uniformly enforced.14 The undenied evidence here proves that
rule 6(L) has not been enforced by the Respondent in solicitations for charitable
organizations, individual charitable donations, or business solicitations. So far as
this record shows the Respondent has attempted to enforce it only when the solicita-
tion was on behalf of the Union. Accordingly the Trial Examiner must hold that
rule 6(L), even assuming it to have been distributed to the employees which is highly
doubtful, is void and unenforcible here because of indefiniteness and because dis-
criminatorily enforced and, hence, constitutes no defense for the Respondent in this
case.
Therefore, as admittedly the Respondent discharged Hennessee because of his
activities for and on behalf of the Union and in order to discourage union activities
in accordance with the Respondent's "we were against the union" policy, the Trial
Examiner must find that the Respondent discharged Hennessee on February 7 in
violation of Section 8(a) (3) of the Act.
The Bradshaw case is slightly more complicated, largely because Schwalm at-
tributed his discharge to "absenteeism" and not to solicitation as in Hennessee's case.
Bradshaw, if anything, was even more instrumental in instigating the union organiza-
tion than Hennessee although his activities appear to have occurred away from the
plant.
The Sword and Hennessee cases proved beyond cavil that the Respondent was
keeping close surveillance over any and all union activities of its employees and
promptly discharging those employees it suspected of engaging therein. Patterson,
with whom Bradshaw had gone to Fort Worth to make the initial union contact,
and Hennessee, with whom Bradshaw had just made arrangements for the use of the
USO Hall in Mineral Wells, had both been preemptorily discharged. It is fair
assumption from the discharges of these two that the Respondent knew or suspected
Bradshaw's participation with them in their activities.
But the Respondent here explains Bradshaw's discharge on two other grounds:
(1) excessive absenteeism, and (2) some 16 convictions in local justice courts or
local district courts for such offenses as "fighting in a public place," "leaving the
scene of an accident," "swindling," or "swindling by passing worthless checks," a
majority of which carried the usual penalties of $1 fine plus costs.
As Schwalm originally based the discharge of Bradshaw on "excessive absentee-
ism," it is necessary that that charge be considered first. On November 12, 1957,
Schwalm admittedly warned Bradshaw for "apparent excessive absenteeism."
On January 31, 1958, the contracting officer at Camp Wolters wrote Respondent
in official army manner as follows:
1. Audit of payroll timecards glaringly indicate that sick leave privileges are
being abused by some, not all.
3. Request renewed action be taken to limit the taking of SL for sickness only.
Following that endorsement is a second endorsement from the director of admini-
stration to Horton as director of materiel dated February 3, 1958, and reading as
follows "A review of the above situation has been made and it was found that the
personnel affected are in your department. Corrective action should be taken
immediately."
Vice President and General Manager Thomas of the Respondent in charge of
the Camp Wolters' operation testified that, upon receipt of the above request from
the Army contracting officer, he ordered the personnel department to search the
files for absentee violations and ordered his supervisors to correct or terminate the
guilty parties. He also testified that the Retail Credit Association of Mineral Wells
14 Old King Cole, Inc., 117 NLRB 297.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been "hounding" the Respondent regarding Bradshaw's credit and expressing
amazement that he had ever been hired. Thomas testified that he then learned from
the personnel department that Bradshaw had been absent for 5 days during the
month of January.
Robert O. James, director of personnel, testified that he checked on the absentee
records of the employees, that when he came to Bradshaw's card, he recalled that
he "had been informed" that Bradshaw had a number of debts and, upon calling
the Retail Credit Association, "was advised" to check Bradshaw's "criminal record"
and thus discovered the convictions mentioned above which he promptly reported
to Thomas.
It is to be recalled that when Bradshaw requested to see his leave slips Schwalm
refused the request. Nor, although requested, did the Respondent produce Brad-
shaw's absentee record at the hearing. There is no proof that Bradshaw's record
of absences was excessive-nor would the director of personnel testify that Bradshaw
had even exceeded the amount of earned leave he had accumulated. Thus, as the
Respondent chose to leave the record, there is no proof that Bradshaw was guilty
of anything more than using some, perhaps all, of the leave he had previously
earned. This hardly qualifies as "absenteeism"-much less as "excessive
absenteeism."
As for the Respondent's second asserted ground for Bradshaw's discharge, his
criminal record, it is true that he had numerous convictions on record which ap-
parently contradicts the statement on his application form to the effect that he had
never been convicted of "violating any law, other than traffic law," although most of
the convictions apparently dealt with bad debts, a few appeared to have involved
minor criminal offenses such as "fighting in a public place" and "assault." Thus it
appears that Bradshaw had in fact falsified his application form.
But the fact that, while pursuing a study of the absentee records, Personnel Direc-
tor James should "happen" to recall that the Retail Credit Association had previ-
ously complained about Bradshaw's debts, and that, while verifying these debts
which of course had nothing to do with absenteeism, the Retail Credit Association
should just "happen" to suggest that Bradshaw had a criminal record, thereby
causing James to take further time out from his study of absenteeism in order to
check on Bradshaw's criminal record and then promptly report to Thomas, leads
rather conclusively to the conclusion that Thomas and the Respondent were for
some reason searching for a reasonable pretext upon which to discharge Bradshaw.
It so happened that the Respondent's search for such a pretext coincided perfectly
in time with the commencemen of Bradshaw's assistance in instigating the move
to unionization.
The reasonable inference from the chronology of events, plus the falsity of the
"excessive absenteeism." excuse given by the Respondent, lead definitely to the
conclusion that the Respondent discharged Bradshaw on February 7, 1958, because
of his known or suspected activities for and on behalf of the Union which was
contrary to the Respondent's company policy and in order to discourage such union
activities in violation of Section 8(a) (3) of the Act, and the Trial Examiner so finds.
It is obvious that Bradshaw did in fact falsify his application for employment
form. It is obvious that under ordinary rules of law such falsification could
justify the Respondent in discharging Bradshaw even despite the fact that he had
been a satisfactory employee for a period of just over a year. But here it is clear
that the Respondent had been searching for a legitimate-looking pretext on which
to discharge Bradshaw as a coverup for the fact that actually it was discharging
Bradshaw, because of his known or suspected activities on behalf of the Union.
However, as such falsification of employment applications does constitute a legit-
imate reason for discharging Bradshaw when not employed as a pretext, the Trial
Examiner will not recommend that Bradshaw be reinstated and will recommend
that Bradshaw's backpay period be ended upon the date of the issuance of this
Intermediate Report.
(b) The discharge of Wilson, Coffee, and Brooks
The facts in these three discharges speak for themselves and require no amplifica-
tion as they clearly prove that the Respondent, by its own statements and actions,
discharged all three of these employees because they engaged in union activities
by attending the union meeting at the USO Hall, because the Respondent feared
that they had or would engage in further activities on behalf of the Union, and
further because Respondent considered that all three had refused to obey the
Respondent's instructions that they engage in unfair labor practices in order to
keep the Union out of the Respondent's installation as required by both Horton and
SOUTHERN AIRWAYS COMPANY 765
Tuck. As pointed out earlier herein an employer may legally require a supervisor
to remain neutral in regard to the union but it is a violation of 8(a) (1) of the Act
to require that supervisor to engage in unfair labor practices in order to help defeat
union organization. 15
Schwalm's testimony makes it all too clear that the Respondent required all three
of these dock chiefs, because of their supposed supervisory capacity, to agree to
engage in unfair labor practices in order to corece their fellow employees into
abandoning their activities on behalf of the Union. According to this same testimony
the Respondent considered it "insubordination" for the dock chiefs to refuse such
orders. This is the first time in this Trial Examiner's career where an employer
has so boldly defended a discharge on the principle that a company order supersedes
an Act of Congress as well as the first amendment to the Constitution of the United
States.
Furthermore, as these dock chiefs have been shown not to be supervisory em-
ployees, the Respondent's requirement that they suppress their own opinions, refuse
to engage in union activities, reiterate the company policy of "we were against the
Union," and threaten fellow employees with the loss of their jobs if they violated
the company rule was made to employees-and not to supervisors-and hence is
a clear violation of Section 8(a)(3) and (1) of the Act, and the Trial Examiner
so finds. I
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and a substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated against Richard L. Brad-
shaw, Bill J. Hennessee, Houston Brooks, D. F. Coffee, and Ira A. Wilson by
discharging the first two on February 7, the second two on February 13, and the
last on February 14, 1958, the Trial Examiner will recommend that the Respondent
offer to each of them, except Bradshaw, immediate and full reinstatement to his
former position or substantially equivalent one without prejudice to his seniority or
other rights and privileges, and make each of them whole for any loss of pay he
may have suffered by reason of said discrimination by payment to him of 'a sum
of money equal to that which he would have earned as wages from date of the
discrimination against him to the date of the offer of reemployment, except in the
case of Bradshaw where the back pay shall end on the date of the issuance of this
Intermediate Report, less his net earnings during said period, in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife, which burdens and obstructs commerce, and thus effectuate the policies of
the Act, it will be recommended that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By discharging Richard L. Bradshaw and Bill J. Hennessee on February 7, 1958,
Houston Brooks and D. F. Coffee on February 13, 1958, and Ira A. Wilson on
February 14, 1958, thus discriminating in regard to their hire and tenure of em-
ployment, thereby discouraging membership in International Association of Ma-
chinists, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
5Talladega Cotton Factory, Inc., supra.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of Section 8(a)(I).
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6).and ( 7) of the Act.
[Recommendations omitted from publication.]
Arrow Gas Corporation and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local Union No. 492. Case No. 33-CA-462. August 27, 1959
DECISION AND ORDER
On January 27, 1959, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other alleged
unfair labor practices.' Thereafter, the Respondent filed exceptions
to the Intermediate Report, and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only insofar as they are consistent
with the findings, conclusions, and order hereinafter set forth.
1. We find, in agreement with the Trial Examiner that: (a) about
December 18 or 20, 1957, Robert E. Glass, the Respondent' s manager
at its Gallup, New Mexico, terminal, asked Gerald Tucker, a truck-
driver at the terminal, whether he had signed a union card, and that,
when Tucker admitted that he had, Glass asked Tucker why he had
signed; (b) in early January 1958, Glass asked Jack Todd, another
driver at the terminal, whether he had signed a union card and where
and why he had done so; and, in connection therewith, Glass told Todd
that the Respondent was providing benefits as attractive as those to
be found elsewhere, and warned Todd that "we would all be sorry";
and (c) on or about February 15, 1958, Glass told Tucker and two
other drivers, in substance, that he could promise nothing but would
The, Trial Examiner found that the Respondent did not violate Section 8 ( a)(3) by
laying off Bill Wilson or by forcing Charles A. Phillips and Daniel Clifton to quit, and that
the Respondent did not violate Section 8 (a) (1) by giving less work to employees, thereby
lessening their earnings . As no exceptions were taken to these findings , we adopt them
pro forma.
124 NLRB No. 88.