The Ohio Aviation Co.

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1142 (N.L.R.B. 1955)

1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
system without first broaching the Union about this matter) in the circumstances
of this case do not warrant a finding that thereby Respondent unlawfully refused to
bargain with the Union.
The negotiations with the union steward and the employees after the vote to oust
the Union was not a refusal to bargain with the Union unless Respondent is re-
sponsible for the vote to oust the Union and this was Respondent's means of avoid-
ing its responsibility to the Union. As noted above, the Trial Examiner believes
Respondent, gave considerable impetus to this vote but the Trial -- Examiner- believes
this impetus insufficient to warrant a finding that thereby Respondnet violated Sec-
' tion 8 (a) (5) of the Act insofar as the Union is concerned.
This record reveals very little about the meeting with the employees in January
or February 1955. From the evidence available it appears this meeting was, for the
most part, a meeting where minor grievances were aired and was not the type of
meeting generally considered a negotiation meeting. While Respondent would have
been more prudent not to have engaged in such conduct while the RD case was
pending, the Trial Examiner believes such conduct insufficient, under the circum-
stances, to warrant a finding of violation of the Act thereby.
In view of the foregoing, the Trial Examiner recommends that all allegations of
the complaint that Respondent engaged in unfair labor practices, except those
alleging interference with the formation of the committee and alleging assistance
and support to the committee, be dismissed.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The Multi-Color Company is engaged in commerce within the meaning of the
Act.
2. Truck Drivers Local Union No. 299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., and the Employees
Committee of The Multi-Color Company are labor organizations within the-mean-
ing,of the Act.
3. All of Respondent's drivers, foot and bicycle messengers, and trimmer ship-
pers, excluding office employees and clerical employees, confidential employees, pro-
fessional employees, guards, and supervisors as defined in the Act, employed at
Respondent's places of business in Detroit, Michigan, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of the Act.
4. For many months prior to November 1954 the Union was the representative
for the purposes of collective bargaining of a majority of the employees in the unit
specified in this report.
5. By the activities outlined in this report, Respondent interfered with the forma-
tion of the Employees Committee of The Multi-Color Company and gave it assist-
ance and support in violation of Section 8 (a) (2) and (1) of the Act.
6. The aforesaid unfair labor practices occurring in connection with the operation
of Respondent's business, have a close, intimate, and substantial relation, to trade,
traffic, and commerce among the several States, and tend to -lead to labor -disputes
burdening and obstructing commerce and the free flow of, commerce.
7.-Tl evidentce,. add ed-'does •pathestablish -that s d4tAdominated the
aforementioned committee.
8: The evidence adduced does not establish that Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) and (1) of the Act.
[Recommendations Omitted from publication.]
The Ohio Aviation Company and District Lodge No . 13, Inter-
national Association of Machinists , A. F. L. Case No. 9-CA-830.
Novembe?116,1955
DECISION AND ORDER
On April 26, 1955, Trial Examiner Lee J. Best issued his Interme-
diate Report in the above-entitled proceeding, .finding that the Re-
'114 NLRB" No. 171. - - -
THE OHIO AVIATION COMPANY 1143
spondent 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 Inter-
mediate 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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case, , and, for the reasons set forth herein, finds that the record -fails
to support the Trial Examiner's conclusion that the Respondent vio-
lated Section 8 (a) (1) and (3) of the Act.'
1. We` do not agree with the Trial Examiner that the Respondent,
through the statements of its supervisory employees, interfered with,
restrained, and coerced employees within the meaning of Section 8
(a) (1) of the Act. As separately discussed below, these statements,
when viewed, as they must be, in the context and circumstances in
i hich they were `made, did not contain any threats or other, coercive
implications to employees for exercising their self-organizational
rights but, on the contrary, amounted to privileged expressions of
opinion. Thus, in disagreement with the Trial Examiner, we find
that the following statements were not, in the circumstances of this
case, violative of the Act.
(a) Service Manager Hale's remark at a meeting of employees
that it looked "like we are going to have a union shoved down our
throats, whether we want it or not" and his designation of employee
McMahon,as the "instigator" of union activities.
As shown in the Intermediate Report, these remarks were made after
Hale advised the employees that the Respondent- would not stop them
from selecting a union if they wanted one; that the Respondent was
impartial; and that they should consider both sides of the argument
before making a decision. In addition, Hale's characterization of
,,1VIc1 I*hon -as an instigator was made when, upon being questioned by
an employee at the meeting as to what benefits could be -expected if
the Union got in, Hale replied that as McMahon was the instigator
of the Union, he was more qualified to answer the question. McMahon
thereupon stated that he could not answer the question because "it
would all have to be worked out later." In our opinion, Hale's fore-
going remarks were innocuous expressions of opinion.
(b) Assistant Service Manager Groff's alleged statement to em-
ployees Blalack and McMahon to the effect that union activities were
going to hurt a lot of people.
1 Member Murdock , however, is of the opinion that the Trial Examiner 's findings are
supported by the record evidence. He would, therefore, sustain the Trial Examiner's
--findings in their-entirety.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The' evidence discloses, as the Trial Examiner found, that at the
time of the incidents here involved, the Respondent was experiencing
a decline in business resulting in a series of layoffs 2 Because of this
insecurity, employees Blalack and McMahon and another employee in-
terested the Union in organizing the plant. Against this background,
it is clear that in the conversation between Groff and Blalack and
McMahon, in which the remark in question was allegedly made, senior-
ity in-connection with layoffs was one of the subjects discussed. Ac-
cording to Blalack's credited testimony, Groff stated that if the Union
got in, "it was going to hurt a lot of people" and that he (Blalack)
replied that "a lot of people had already been hurt by being laid off
without regard to seniority." [Emphasis supplied.] In these cir-
cumstances, it appears to us that Groff's remarks were intended to,
and did, convey the idea that, if the Union were the recognized bar-
gaining representative, seniority in layoffs would control and that a
number of employees would thereby be adversely affected. Such
statements obviously do not contain any threat of reprisal prohibited
by the Act.
(c) Respondent's -instructions to McMahon to stay away from the
premises and orders given to stockroom clerks not to sell McMahon
goods at discount because he was no longer employed by the
Respondent.
The record discloses that approximately 2 weeks after McMahon
had voluntarily resigned from the Respondent's employ, on April 9,
1954, he returned to its premises, as McMahon phrased it, "just [to]
look around" and "visit." While on the premises he encountered
Service Manager Hale who requested him to leave. About 2 months
thereafter, McMahon, in connection with some work he was perform-
ing for another aircraft company on the field, returned to purchase
some parts from the Respondent's storeroom. On this occasion, the
Respondent's general manager, Farrell, observed him standing at the
stockroom window and inquired as to what he was doing on the
premises. McMahon replied that he was there on business to pick up
some material that had been ordered for him. Thereupon Farrell told
him to leave. When McMahon protested that he was there on busi-
ness, Farrell told him to go back and tell the party who had ordered
the material to come after it. In view of the foregoing, we find that
the Respondent was acting entirely within its prerogative in request-
ing McMahon, a former employee, to leave its property and instruct-
ing its stockroom clerks not to sell McMahon goods at a discount.
(d) Parts Manager Luciano's statement to customers at the stock-
room window within the hearing of two employees that, if he had his
way, he would discharge anyone who voted for the Union.
2 The first layoff occurred about March 12, 1954 , which was about 2 weeks before the
conversation involved herein.
THE OHIO AVIATION COMPANY 1145
The evidence discloses that during the course of a conversation with
two customers Luciano was asked his. opinion about the, union cam-
paign. Luciano admittedly replied, "I J I had my way, I would fire
anyone who voted for the union." [Emphasis supplied.] This conver-
sation took place within earshot of two stockroom employees. While
under other circumstances such a statement could be construed to be
violative 'of 'the Act, the particular facts of-this case warrant a con-
trary result. It is undisputed that the Respondent had advised its
employees of their. statutory right to join the Union. Indeed, it had
permitted its employees to engage in union organizational activities
on its premises. In these circumstances, Luciano's prefatory remark
thaf if he had This way, plainly indicated that he lacked: the ,power to
discharge employees for voting for the Union, particularly since such
discharge would be contrary to the Respondent's policy.' We there-
fore find that, under the special facts in this case, Luciano's remark
was merely an expression of his own personal opinion incapable of
fulfillment.
,(e) Luciano's suggestion to employee Mick concerning the disposi-
tion Mick could make of his7union committeeman's badge.
It is obvious from the evidence that this was a gratuitous remark
made in jest without any accompanying threats or, intention that it
he'taken seriously and therefore was not violative 'of the Act.
(f) Foreman Mitchei.l'sstatement to Mick that if the Union came
in he would leave his job.
We are unable to see how this statement can conceivably be regarded
as interference with, restraint, or coercion of employees in the exercise
of their self-organizational rights.4
2. We also do not agree with the Trial Examiner that the pre-
pouderance of the evidence establishes that the Respondent, in viola-
tion of 8 (a) (3) and (1) of the Act, discharged employee Blalack for
union activities rather than for unsatisfactory work, as the Respond-
ent contends. It appears that Blalack in the course of his duties on
one occasion failed to fasten securely an engine cowling of an airplane,
and on -another occasion had misapplied parkerlube to an oxygen
system ©f` an airplane.' The-latter incident immediately precipitated
hiss discharge. It is also clear that these errors created a dangerous
condition in the airplane. In these circumstances, and in view of the
absence of any other unfair labor practices committed by the Respond-
ent, we find that, although the evidence is not entirely free from doubt,
the record does not establish that the Respondent was motivated by
"It is noted that the Respondent had also instructed its foremen that they were not to
express any opinions either for or against the Union.
4 Atlanta Metallic Casket Co ., 75 NLRB 208.
5 Blalack subsequently corrected the parkerlube situation.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory considerations in discharging Blalack, rather than by
permissible concern over the careless nature of his work.
Accordingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding authorized by Section 10 (b) of the National Labor Relations Act,
61 Stat. 136, as amended , 29 USC, Supp . 5, Section 141, et seq., herein called
the Act, is based upon a charge filed on July 23, 1954, by District Lodge No. 13,
International Association of Machinists , A. F. L., herein called the Union , against
The Ohio Aviation Company, Vandalia, Ohio, herein called Respondent. On or
about December 1, 1954, the General Counsel of the National Labor Relations Board,
separately designated as General Counsel and the Board , issued a complaint alleging
that Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and ( 3) of the Act, and affecting commerce `within'the'
meaning of Section 2 (6) and (7) of the Act. Copies of the charge , the complaint,
and other pertinent processes were duly served upon Respondent , who in due course
filed an answer admitting that it is engaged in commerce , but denying all allegations
of unfair labor practices.
With respect to unfair labor practices , the complaint alleges in substance that Re-
spondent ( 1) interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act by threats of discharge , changes in
working conditions , and other reprisals , and (2 ) discriminatorily discharged and re-
fused to reinstate Harold Blalack (employee ) because of his membership in and con-
certed activities on behalf of the Union . To the contrary , Respondent affirmatively
avers in its answer that it discharged Blalack for negligence and inefficiency in the
performance of his duties as an employee.
Pursuant to notice , a hearing was conducted at Dayton , Ohio , on March . l and 2,
1955, before the Trial Examiner duly designated by the Chief Trial Examiner. All
parties were represented by counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence pertinent to the issues
involved . At the close of the hearing, all parties were authorized to file written
briefs and/or proposed findings and conclusions with the Trial Examiner. Oral
argument was waived . Written briefs thereafter filed by counsel for the General
Counsel and the Respondent have been given due consideration.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The Ohio Aviation Company is a corporation organized and existing under and by
virtue of the laws of the State of Ohio , maintaining its principal office and place of
business at Vandalia , Ohio , where it is engaged in the manufacture , sale, service,
maintenance , and distribution of aircraft and aircraft parts. Its manufacturing opera-
tions consist primarily of the conversion of airplanes from one functional type to an-
other . In the course and conduct of its business during the year 1954, Respondent
sold, shipped , and delivered products valued in excess of $100,000 from its plant at
Vandalia, Ohio, to persons , firms, and corporations located outside the State of
Ohio, and during the same period purchased and transported substantial quantities of
materials , supplies, and equipment to its said plant from other States. It is admitted,
and I find , that Respondent is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 13, International Association of Machinists , A. F. L., is a
labor organization within the meaning of Secton 2 (5) of the Act, admitting to
membership employees of the Respondent. _
THE OHIO AVIATION COMPANY
III., THE UNFAIR LABOR PRACTICES
1147
A. The plant organization
Operations of the Respondent are conducted in hangars at the Municipal Airport,
Vandalia, Ohio, under the overall supervision and control of Joseph E. Farrell, vice
president and general manager. At all times pertinent to this case , Respondent's
business organization consisted of an office department under the supervision of
Frank F. Schrage , treasurer ; a service department under the supervision of Jack W.
Hale, vice president in charge of production and service manager, and Charles T.
Groff , assistant service manager; a parts department under the supervision of Alex-
ander J . Luciano , Jr., parts manager; and an aircraft sales department under the
supervision of Dan Stanley . The service department was divided into a hangar
service crew under Foreman James Speer , two conversion crews under Foreman
James Robert Mitchell and Foreman Robert Coleman , respectively , an engine
overhaul crew , and a radio crew. James Paul was classified as electrical foreman.
Respondent employed approximately 50 men including , in the service department,
Harold R . Blalack, John B . McMahon , Earl F . Mick , Bonnie Fuson, John Dunkle,
Leon Rhodes , and Lee Young; and in the stockroom of the parts department John O.
Abney, James Morrison , Joe Weisner , and Wilbur Werling.
B. Interference, restraint , and coercion
By reason of declining business , Respondent initiated a series of layoffs beginning
in March 1954 . Concerned about their job security , certain employees engaged in
concerted activities to form a labor organization . Harold R . Blalack conferred
with a representative of the International Association of Machinists , obtained mem-
bership application cards, and in concert with John B. McMahon and Bonnie Fuson
solicited employees of Respondent to join the Union . On or about March 24, 1954,
Representative Harold Benedict addressed a letter to Respondent requesting that
the Union be recognized as bargaining representative , and thereafter filed a petition
with the National Labor Relations Board for an election . Thereupon , Service
Manager Jack W . Hale called a meeting of employees , and made to them a prepared
statement , as follows:
The Company has received notice from the IAM regarding your desire for
representation . We have called this , meeting to tell you this fact , and also
advise you that if you want a union the Company will not in any way try to
stop you. The Company is impartial as to your wishes in this matter. While
the Company is not objecting in any way to your activities , I think it would
be wise for all of you to remember one thing . We do not sell a product. Our
only sale is in service. Our only sale in the service department is the labor.
This I think you should consider very strongly . We have no more to say on
the matter , except to advise you to consider both sides of the argument before
making a decision.
In addition to his prepared statement , Hale remarked that "it looks like we are
going to have a union shoved down our throats , whether we want it or not"; and
when questioned concerning benefits to be expected from a union asserted that Mr.
McMahon was the instigator of this, and could probably answer that better than
he could.
Apprehending that Respondent might retaliate against other employees by reason
of the organizational activities , Blalack and McMahon approached Assistant Service
Manager Charles T. Groff on or about March 26, 1954 , and told him that they and
Bonnie Fuson were solely responsible for the organizational activities , that the
men wanted a union , and that they were trying to get one in the plant. Groff
expressed disapproval of the sneaking manner they had engaged in such activities
without consulting Respondent about it and voiced the opinion that it would hurt
a lot of people . Shortly thereafter Bonnie Fuson was laid off, and about 1 week
later at a meeting in General Manager Farrell 's office Blalack and McMahon
accused Respondent of terminating Fuson on account of his union activities.
After this meeting, Harold R. Blalack , John B . McMahon , Earl F . Mick, and
John Dunkle were appointed as a committee to represent the Union . Thereafter in
the plant they wore a badge on their coveralls entitled "IAM Committeeman."
Foreman James R. Mitchell admitted that he approached Earl F . Mick while at work,
inquired whether he was one of these union guys, and asserted that if the Union
came in he would leave his job . Mick in turn asserted that he would quit if the
Union did not come in . Parts Manager Alexander J. Luciano , Jr., also approached
Mick at or near the Coca-Cola vending machine, and remarked "Oh, you are one
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of those committeemen too." Luciano reached out to take hold of his badge, and
told Mick to take that badge and shove it up McMahon. Mick voluntarily left the
employment of Respondent on May 12, 1954. Luciano admitted that he also made
a statement to customers at the stockroom window in the presence of his employees
John O. Abney and Wilbur Werling, that "if I had my way I would fire anyone
who voted for the Union."
John B. McMahon voluntarily left the employment of Respondent on or about
April 9, 1954, but thereafter returned to its premises several times to make purchases
at the stockroom. On one occasion when he purchased a spool of thread from
John O. Abney (stockroom employee), Parts Manager Luciano and Treasurei
Schrage instructed Abney not to sell McMahon anything at a discount, because he
was no longer employed by Respondent. On another occasion Service Manager
Hale requested McMahon to leave the hangar because he did not want him around
there. At another time General Manager Farrell saw McMahon at the stockroom
and told him that he had caused enough trouble and they did not want him on com-
pany premises any more.
Throughout the spring of 1954 operations of Respondent were gradually cur-
tailed, and its personnel was reduced considerably by successive layoffs: At the
election of July-7; 1954, Harold R. Blalack' acted'as an observer for the-Unidn; and,
as a result of the balloting the Union was defeated. General' Manager Joseph E.
Farrell credibly testified that Respondent was fully aware of the organizational
campaign including the activities of Blalack, McMahon, Fuson, Mick, and others, and
that on several occasions he instructed all of -the supervisors to remain absolutely
neutral-that he had no knowledge of the statements attributed to and now -ad-
mitted in part by Parts Manager Luciano and Foreman Mitchell. -
C. Discharge of Harold R. Blalack
Service Manager Jack W. Hale hired Harold R.' Blalack in the classification of a
mechanic helper on June 4, 1952, and he continued in the'employment of Respondent
until discharged on July 15, 1954. Prior t6'this employment Blalack attended Embry
Riddle School of Aviation in Miami , Florida, for a period of'several months, but did
not complete his course of instruction. While attending school he also worked for
U. S. Airlines, an unscheduled air freight carrier, for a period of 6 or 8 months.
While' in Florida he was a member of the International Association of Machinists,
A. F. L. He started work for Respondent at a wage of $1.45 per hour, -received a
wage increase of 5 cents per hour about 1 month later, and-in 1953 was granted an
additional general increase in wages of 15 cents per hour along with other em-
ployees. Respondent promised him an additional increase of 10 cents per hour
whenever he obtained an aircraft and engine license from the Civil Aeronautics
Authority. In support of his application for a license from CAA, the Respondent
on May 25, 1954, by J. W. Hale, vice president, furnished a certificate, as follows:
To whom it may concern:
Mr. Harold R. Blalack has been employed by The Ohio Aviation Company
since June 4, 1952. He is presently employed as an aircraft engine mechanic,
and his duties in his present position include maintenance , overhaul , and major
repair of medium and heavy aircraft. Mr. Blalack has been working under the
supervision of several qualified mechanics.
Thereupon, Blalack stood a practical examination before an examiner of the CAA,
and received an engine rating as a mechanic. On or about the same date, Fore-
man James R. Mitchell assigned Blalack to work on an airplane of the Ohio Oil
Company-Job No. 8108, Lockheed Ventura PV-1, License N5778N. On this job
Blalack reported by workcard dated May 25, 1954, that he worked for 5 hours "in-
stalling cowling ring." On May 26, 1954, he reported 8 hours' work " installing
cowling, cowling ring, magazine filters, and hydraulic windshield valve." On an un-
identified date shortly after May 26, 1954, pilots of the Ohio Oil Company in com-
pany with personnel of Respondent flew this airplane on a test flight. Among those
present on the flight were Assistant Service Manager Charles T. Groff, Foreman
James R. Mitchell, and Electrical Foreman James Paul. On the takeoff from the
field, Foreman Paul noticed that a piece of cowling covering the right engine was
not securely fastened, and that it was raised about 2 inches in flight because 2
interior dzus buttons were loose. He indicated that fact to Foreman Mitchell
who in turn reported it immediately to Assistant Service Manager Groff. Groff
also perceived that the propeller governors were improperly adjusted. Without
reference to the cowling, Groff instructed the pilot to land immediately to adjust
the governors. Groff. admitted that (except to adjust the governors) no emergency
THE OHIO AVIATION COMPANY 1149
landing would have been ordered by him unless and until the loose cowling began
to vibrate . After circling the field the airplane landed , whereupon personnel of
Respondent adjusted the governors and also securely fastened down the cowling.
Thereupon, the test flight was.resumed within half.an hour. Harold R. Blalack was
not'present , and the incident was not timely called to_ his attention . At a later.
date Foreman Mitchell included the cowling incident in a written report to As-
sistant Service Manager Groff attributing the discrepancy to negligence of Harold
R. Blalack for failure to securely fasten all dzus buttons on the .cowling. The dis-
crepancy was brought to the attention of Service Manager Hale, and General Man-
ager Farrell. Farrell advised that no disciplinary action be taken, and the matter
was dropped without bringing it to the attention of Blalack. Thereafter, on or about
June 8, 1954, additional work was performed on this airplane , and then it was re-
leased to the customer owner. Job No. 8108 in its entirety constituted the 100-
hour inspection and overhaul customary in the maintenance of aircraft.
On July 15, 1954, Foreman Mitchell assigned Harold R. Blalack to work on the'
oxygen system of an airplane. Electrical Foreman James Paul assisted him in the
work, because certain electrical installations were involved at the same time on
a small panel behind the cockpit. Blalack had never before performed or been
assigned to work of that precise nature. The job required the assembly of a female
cup link with a male fitting having a flaired end on it to hook up with the oxygen
line. Blalack admittedly knew that a particular type lubricant called oxyseal, with-
out a petroleum base, should be used in connecting the female cup link with the
male fitting to avoid the possibility of explosion when coming in contact with pure
oxygen. He obtained from the toolbox of a fellow employee (Lindy Rhodes) an
unlabeled box of lubricant designated to him as oxyseal, and applied it to the fittings
which he assembled. In doubt, that the lubricant used by him was oxyseal, he
asked Foreman Paul if it was oxyseal and Paul did not know. Thereupon, Foreman
Mitchell stopped in passing, and Foreman Paul exhibited the unlabeled can of
lubricant and inquired what it was. Mitchell informed him in the presence of
Blalack that the lubricant in question was parkerlube, and without further ado
proceeded elsewhere. Thereupon, Blalack obtained from a bench nearby a can
of oxyseal identified by label-then he thoroughly cleaned the parkerlube from his
fittings, discarded the female cup link for a new one as a precautionary measure,
reassembled the fittings, and completed his job of hooking up the oxygen line. In
some unexplained manner it came to the immediate attention of Service Manager
Hale that Blalack had used the wrong type lubricant, and about 1 hour later he
called Foreman Mitchell to his office and inquired whether the rumor was true.
Although Mitchell had made no report of the incident, and without explanation of
the circumstances, he admitted to Hale that "as far as he could tell, it had been
done." Without further investigation, Service Manager Hale said very briefly "Are
you going to fire him, or am I?" Thereupon, Foreman Mitchell found Blalack in
the welding shop and presented him with a white discharge slip without making any
inspection of the job concerning which he was being fired. Blalack inquired why
he was discharged, and Mitchell said, "Well, the oxygen deal this morning didn't help
any. That was the reason we decided to let you go." For the first time he then
mentioned the prior cowling incident and referred to the "doings" that had been going
on around here. Service Manager Hale then called Blalack into his office to get
his paychecks, told him that he was being discharged for his generally unsatisfactory
work and a series of events including both the cowling incident and the oxyseal in-
cident, and that he was to understand that it was not on account of his union activi-
ties. General Manager Joseph E. Farrell was absent from the plant and was not
consulted with respect to the discharge.
In support of his decision to discharge Harold R . Blalack , Service Manager Jack
W. Hale testified that he originally hired this employee either as an apprentice or
mechanic 's helper with the understanding that he had a complete course at the Embry
Riddle School of Aviation and had not officially applied to the CAA for license, but
that he thereafter observed his work, and reached the conclusion that he was rather
slow and not too eager to get a job done; that various foremen of Respondent com-
plained about his work, which resulted in his transfer from one work crew to another;
that the cowling incident was dangerous to life and property and could have resulted
in serious damages; and although Blalack was not disciplined, he still had that in-
cident in mind . He considered it especially serious from a customer relation stand-
point, because it was a good indication of having around mechanics who are not very
careful , and in the aviation business that is a major sin. Ordinary care in fastening
down the dzus buttons would have prevented the occurrence of the loose cowling.
He thought that anyone with experience in the business for a while, who had fastened
many cowlings , would fasten all the dzus buttons-then stand -back , take another
look, and beat on the cowling, because a loose cowling will cause fatal - accidents.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He also thought that any experienced person could distinguish oxyseal from parker-
lube . Parkerlube has a petroleum base , and will cause a flash explosion if it comes in
contact with pure oxygen in the oxygen system of an airplane. That fact is common
knowledge , and is one of the first things a person in the aviation business becomes
acquainted with. The records and reports to him indicated that Blalack was
negligent in failing to secure the cowling by fastening down all the dzus buttons, and
Foreman Mitchell told him that Blalack made the mistake of using parkerlube instead
of oxyseal in the oxygen system of an airplane. Under all the circumstances he
made the decision to discharge him, and did not discharge him on account of his
union activities.
Concluding Findings
Notwithstanding its avowal of neutrality, Respondent demonstrated open hostility
to the organizational activities of employees . Service Manager Hale asserted in an
open meeting with employees that it looked like a union would be shoved down their
throats whether they wanted it or not and designated John B. McMahon as the in-
stigator of the union activities. Assistant Service Manager Groff accused Harold R.
Blalack and John B . McMahon of engaging in their activities in a sneaking manner
without consulting him, and asserted that it was going to hurt a lot of people. After
McMahon had voluntarily resigned his employment, both General Manager Farrell
and Service Manager Hale instructed him to stay away from the premises, because he
had caused enough trouble. Treasurer Schrage and Parts Manager Luciano instructed
clerks in the stockroom not to sell McMahon anything at a discount because he was
no longer employed there. Luciano admittedly told customers at the stockroom in
the presence of employees that if he had his way, he would discharge anyone-.that
voted for the Union. Luciano also accosted Earl F. Mick concerning the "JAM
Committeeman" badge he was wearing on his coveralls, and told him to shove that
badge up McMahon. Foreman Mitchell admittedly told Earl F. Mick that he would
leave his job as a supervisor if the Union came in. It is obvious that the foregoing
conduct of Respondent's supervisors, individually and collectively, tended to dis-
courage membership in a labor organization and interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed in Section 7 of the Act.
For that reason such conduct occurring as it did pending an election for the deter-
mination of a bargaining representative cannot in good faith be attributed to isolated
instances or to the expression and dissemination of any views , argument , or opinion
free of a threat of reprisal or force or promise of benefit contemplated and allowed
by Section 8 (c) of the Act.'
Approximately 1 week after the Union lost the election, Respondent discharged
Harold R. Blalack, who had been most active in promoting the organizational ac-
tivities and had acted as observer during the election on July 7, 1954. Service
Manager Jack W. Hale allegedly reached his decision to discharge Blalack by reason
of unsatisfactory service for more than 2 years including negligence in the installa-
tion of the engine,cowling on an airplane in May 1954, and the misapplication of a
lubricant on the fittings of'anoxygen system'on July 15,1954. There, is-no-evidence
that Respondent had ever complained or previously notified Blalack of his alleged
inefficient work. Evidence that he was negligent in failing to fasten the cowling
securely is not conclusive, and in any event the Respondent withheld from him any
complaint about it and took no disciplinary action at that time. In fact, when the
incident had been brought to his attention by Service Manager Hale and his Assistant
Service Manager Groff, General Manager Joseph E. Farrell advised his subordinate
supervisors to drop the matter. In the meantime, Service Manager Hale furnished
-the CAA with a certificate of experience to enable Blalack to apply for an examina-
tion by the CAA, as the result of which he was issued a license as an engine mechanic
in June 1954 More than a month later on July 15, 1954, Blalack from an unlabeled
can applied parkerlube instead of oxyseal to fittings on which he was working in
`the, presence of Electrical Foreman James Paul. Realizing his own mistake, Blalack
made inquiry of the foreman and corrected the situation before-any damage ` resulted.
Fully advertent to this incident, Foreman Mitchell, presuming that the mistake had
been corrected, took no disciplinary action and made no report until called into the
office of Service Manager Hale about 1 hour later to verify a rumor received by
him that the wrong type lubricant had been employed. Upon an incomplete veri-
fication of the circumstances and without further investigation, Service Manager Hale
used the oxyseal incident as a pretext, and ordered that Blalack be discharged. From
a preponderance of the evidence and the entire record in this case, I am con-
1 Republic Aviation Corp v. N. L. R B , 324 U. S. 793, Graber Manufacturing Company,
Inc, 111 NLRB 707; Safeway Stores, Incorporated , 110 NLRB 1718 ; The DeVilbise
Company, 102 NLRB 1317; Century Cement Mfg. Co., 100 NLRB 1324, 1339.
AMERICAN RADIATOR & STANDARD SANITARY CORPORATION 1151
,strained to find that the discharge was ill-advised and effectuated .by reason of Bla-
lack's protected concerted activities with other employees for the purpose of collec-
tive bargaining or other mutual aid or protection. The Respondent thereby dis-
criminated in regard to the tenure of employment of its employees to discourage
membership in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set, forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom, and that it
take certain affirmative action designed to effectuate the policies of the Act.
I shall recommend that Respondent offer immediate and full reinstatement to
Harold R. Blalack to his former or substantially equivalent position '2 without prej-
udice to his seniority or other rights and privileges, and make him whole for any
loss of pay resulting from the discrimination against him by paying to him a sum of
money equal to the amount he would have earned from the date of his discharge
to the date when a proper offer of reinstatement is made by Respondent, less his
net earnings 3 to be computed on a quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and N. L. R. B. v. Seven-Up Bottling Company
of Miami, Inc, 344 U. S. 344. Earnings in one particular quarter shall have no
effect upon the back-pay liability for any other such period. It will be further
recommended that Respondent make available to the Board and its agents, upon
request, all timecards, payrolls, and other records necessary to analyze, compute,
and determine the back pay and other emoluments herein awarded.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case„ Irmake the following
CONCLUSIONS OF LAW
1. The Ohio Aviation Company is engaged in commerce within.the meaning of
Section 2 (6) and (7) of the Act.
2. District Lodge No. 13, International Association of Machinists, A. F. L., is a
labor organization within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Harold
R. Blalack, thereby discouraging membership in a labor organization, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) and (3) of the Act.
5. 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.]
See : The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
3 See: Crossett Lumber Company, 8 NLRB 440, 497, 498.
American Radiator & Standard Sanitary Corporation , Louisville
Plant, Plumbing & Heating Division and General Drivers,
Local Union No. 89, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL,
Petitioner . Case No. 9-RC-3538. November 16, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before William G. Wilkerson,
114 NLRB No. 156.
1