Trans Air Supply Company

National Labor Relations Board - Board Decisions

Jul 27, 1981

257 N.L.R.B. 253 (N.L.R.B. 1981)

TRANS AIR SUPPLY COMPANY 253
Trans Air Supply Company, Inc. and Charles W.
Ryan, Jr. Case 12-CA-9026
July 27, 1981
DECISION AND ORDER
On November 25, 1980, Administrative Law
Judge J. Pargen Robertson issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed an answering brief to the ex-
ceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent discharged the Charging Party, Charles
W. Ryan, Jr., on February 12, 1980, but that
Ryan's discharge was not unlawful because it was
not a result of activity protected by Section 7 of
the National Labor Relations Act. The General
Counsel has excepted to this finding, asserting that
Ryan was discharged because he engaged in pro-
tected concerted activities by complaining to Re-
spondent that fans needed to remain on in order to
ventilate the work premises, and that his discharge
was therefore violative of Section 8(a)(l) of the
Act. For the reasons set forth below, we find merit
in the General Counsel's exception.
Respondent is engaged in the business of selling
and overhauling airplane engines and parts at its
Miami, Florida, facility. Ryan was employed by
Respondent in June 1979, and worked as a machin-
ist in Respondent's master rod department from
that time until February 12, 1980, when he was dis-
charged by Respondent. At the time of his dis-
charge, Ryan was Respondent's leadman in the
master rod department, where he and three other
employees rebuilt master rods for commercial and
government aircraft engines. Ryan testified without
contradiction that employees in this department
work in a partitioned-off area measuring approxi-
mately 12 feet by 12 feet located in Respondent's
machine shop, which is otherwise an open area.
The partitions enclosing the master rod department
are about 4 or 5 feet high, except for the partition
on the west side which is about 8 feet tall. A small
fan, which is not an exhaust fan but is used for
cooling purposes in appropriate weather, is located
within the master rod work area.
Other fans, measuring approximately 4 feet in di-
ameter, are located on the east and west walls of
Respondent's machine shop. According to the testi-
mony of Respondent's machine shop foreman,
Clyde T. Hughes, two fans located on the east wall
257 NLRB No. 23
bring air into the shop, and five fans on the west
wall are exhaust fans, blowing air out of the shop.
Foreman Hughes stated that four of the five west
wall exhaust fans are directly above his shop, with
the switches located in his shop. Hughes further
stated that any movement of air in the building is
controlled by these fans.
As set forth by the Administrative Law Judge in
his summary of testimonial evidence, Ryan and
other master rod department employee witnesses
testified that, in late 1979 or early 1980, they began
to experience discomfort because of smoke or
fumes which built up in their work area when the
exhaust fans were not in operation. Ryan stated
that a welder was located behind one of the parti-
tion walls, and smoke from the welding operations
would rise and fall on the partitioned-off area; on
another side was a spray booth where kerosene
was being used, and fumes would emanate from the
spray booth towards the master rod department en-
closure. Fumes from coolants and other types of
fluids used to cool the metal being machined by
Ryan and his coworkers also sometimes built up.
Ryan stated that he and others began experiencing
sore throats, runny noses, and burning eyes. At
least three employees-Ryan, master rod depart-
ment employee John Austin, and machine shop em-
ployee Mike Divino-had gone home early on var-
ious occasions because the smoke or fumes made
them physically ill.
Ryan, as leadman in the master rod department,
was requested by fellow workers to speak to man-
agement about the necessity for keeping the ex-
haust fans on so that smoke and fumes would be
cleared from their work area. In November, Ryan
registered complaints with Foreman Hughes, Plant
Manager Kendrick, and Safety Director Hart. 1 As
colder weather approached, some employees at Re-
spondent's facility did not want the exhaust fans on
because their ventilating function caused the open
machine shop to be uncomfortably cold. Thus,
master rod department employee Nico Lauw testi-
fied that for approximately 2 weeks prior to Febru-
ary 12, when Ryan was discharged, as soon as ev-
erybody started work the master rod shop would
get very, very smoky, and one of the employees
would turn the fans on because there is no appoint-
ed person to do that. But, as soon as they were
turned on, the fans would be turned off again.
Lauw said that he had himself complained to Fore-
man Hughes about the conditions. Fellow master
1 There is some disagreement as to when Ryan first commenced his
complaints on the employees' behalf, and whether earlier complaints as-
serted to have been lodged by Ryan during the fall of 1979 related to the
smoky conditions in the work area or to the need to exhaust odors from
cleaning solutions used in other parts of the shop.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rod department employee John Austin testified that
he had complained to Respondent's plant manager,
John Kendrick, as well, and had twice asked lead-
man Ryan to go to Kendrick about the problem. In
any event, it is undisputed that the employees con-
sidered the smoke and fume conditions in the plant
to be a serious problem.
Respondent, according to the testimony of Fore-
man Hughes, had no policy concerning the oper-
ation of the fans. Hughes testified that he genera11y
left it up to the people in his shop to turn the fans
on and off as they saw fit. Ryan stated that Hughes
told him that he (Hughes) could not regulate the
fans because people would turn them off after he
turned them on, and that the employees would just
have to fight it out among themselves. Ryan fur-
ther testified that, when he complained to Ken-
drick about the fans in December, 2 Kendrick told
him there was no way he could regulate the fans
and then said, "Look, if you don't like it you can
leave. The fumes aren't that bad."
The controversy regarding the operation of the
fans came to a head in early February. Hughes tes-
tified that on February 5, 1980, Kendrick directed
him to canvass those working in the machine shop
to see if they wanted the fans on. The testimony of
Kendrick indicates that he caused the vote to be
taken in response to complaints of Ryan on that
date. Hughes stated that he asked a11 the employees
available in his shop at that time, who numbered
17, if they wanted the fans on. A majority of the
employees said yes. Hughes stated that he inter-
preted the employees' response to his February 5
poll to apply to that day only, inasmuch as he did
not specify "every day" when he asked the em-
ployees if they wanted the fans on. Following the
vote, Hughes turned on two fans on the east wall
and four on the west wall. Some of these fans were
subsequently turned off by someone. 3
Ryan was terminated on February 12 after a
heated discussion concerning the operation of the
fans occurred between Kendrick and himself.
Varying versions of the events of that day are set
forth in the Administrative Law Judge's Decision.
2 Ryan's recollection of the dates of some incidents described varied
from that of other witnesses. As noted by the Administrative Law Judge,
Ryan placed certain conversations in December 1979 on direct examina-
tion, but admitted on cross-examination that they could have occurred in
February 1980. In so doing, Ryan commented that it had been 6 months
since the occurrence of events to which he was testifying. The Ad minis·
trative Law Judge did not, however, find this a basis for discrediting
Ryan.
3 One machine shop employee, 78-year-old Domingo Fernandez, left
work early that day because of the cold. Hughes testified that he had re-
viewed a newspaper in preparation for his testimony, and that it indicated
the temperature on February S, when the vote was taken, to have been
42 degrees with a wind velocity approaching 50 knots out of the north-
east. Master rod department employees Ryan and Austin also left work
ill before the end of the workday.
According to the credited testimony of Respond-
ent's witnesses, Hughes and Kendrick, Ryan was
involved in a confrontation with employee Domin-
go Fernandez on that morning regarding whether
or not the fans should be on, and it was that inci-
dent which precipitated Kendrick's coming to the
machine shop area. Hughes testified that Ryan
wanted the fans operating because it was smoky, so
Hughes went to the weld shop and turned on the
fan immediately above Ryan. Hughes stated that
when he came back, Ryan and employee Domingo
Fernandez were "facing each other off." Fernan-
dez, according to Hughes, does not speak much
English, and there was a lot of loud talking be-
tween Fernandez and Ryan. Hughes told the two
employees to break it up and to go back to work.
Hughes further testified that Ryan wanted to carry
on a conversation with him, and that Ryan wanted
the fans on. While he was trying to get both em-
ployees to return to their work, Hughes stated,
Kendrick arrived and began a conversation with
Ryan. Hughes left at that point and returned to
some paperwork which he had to get completed.
Kendrick then told Ryan that only one fan would
be left on, that he had to consider older senior em-
ployees as well as Ryan's requests, and that he
"had had enough difficulty with the fans and {I]
was really pretty tired of hearing about them. "4
Kendrick accompanied Ryan back to Ryan's own
work area, where the actual discharge occurred.
Kendrick denied that Ryan was fired, claiming
instead that the Charging Party voluntarily quit.
The Administrative Law Judge rejected this con-
tention, noting that three employee witnesses were
present when Kendrick fired Ryan, that Foreman
Hughes' testimony regarding that issue was eva-
sive, and that Kendrick's testimony that he did not
fire Ryan was unbelievable. 5 He thus concluded
4 Kendrick testified specifically that neither Fernandez nor Ryan was
fired for threatening to fight, and that neither employee received a warn-
ing or a reprimand for the incident.
• Fellow master rod department employees Lauw and Austin each
overheard Kendrick's firing of Ryan. Thus, Lauw testified as follows:
Mr. Kendrick came in and starting {sic) talking to Charles (Ryan]
about how Charles was causing trouble again, and he was tired of
seeing Charles causing trouble.
He wanted to know what was going on this time, and Charles said
that last time that Mr. Kendrick would not turn the fans on, so he
had to go out and have a vote to have it done.
This time, he didn't even want to try and turn it on again.
Then Mr. Kendrick was telling Wes {Ryan) that if he didn't like it,
he could pick his toolbox up an leave and he'd be fired.
And Charles said he didn't want to leave because he liked working
there, and he was the only one doing good work for Clyde Hughes.
And after that, the next thing I heard was: Mr. Kendrick said
Charles was fired anyway.
Austin's recollection of the firing is as follows:
Q. What did you hear Mr. Kendrick and Charles talk about to the
best of your recollection?
Conrinued
TRANS AIR SUPPLY COMPANY 255
that Respondent discharged Ryan. He found, how-
ever, that the discharge occurred solely for the
reason that Ryan persisted in arguing with Ken-
drick after he had almost fought with another em-
ployee, and after he had been told by both Hughes
and Kendrick to return to work.
We agree with the Administrative Law Judge's
conclusion that Respondent discharged Ryan. We
cannot, however, agree with his conclusion that
the General Counsel failed to prove that Ryan's
concerted activities led to or contributed to his dis-
charge. Ryan's attempt to improve the common
conditions of himself and others working in unven-
tilated areas, in the face of Respondent's repeated
position that it could do nothing about the problem
complained of because employees turned the fans
off each time Ryan or other master rod department
employees turned them on, and that it had no way
to regulate the fans, 6 is clearly the exercise of con-
certed protected action. As recently stated by the
United States Court of Appeals for the Fifth Cir-
cuit in Brown & Root, Inc. v. N.L.R.B., 634 F.2d
816 (1981 ), "Employees' activities are protected by
Section 7 if they might reasonably be expected to
affect terms or conditions of employment." In light
of considerable testimony that the failure to oper-
ate exhaust fans resulted in smoke and fumes in the
master rod department, protests lodged by Ryan on
the master rod department employees' behalf un-
questionably concerned conditions of employment
and therefore constituted the exercise of protected
activity. 7 Further, based on the facts as found by
the Administrative Law Judge, the record supports
the finding that Ryan was fired precisely for en·
gaging in the above-described protected activity.
Thus, the week before Ryan's discharge Kendrick
told Ryan that he could not regulate the fans and
that Ryan could leave if he did not like it, and
Kendrick himself testified, with respect to the day
of Ryan's discharge, that he was "really pretty
tired of hearing about [the fans)" -thereby identify-
ing the determinative factor in Ryan's discharge as
his advocacy of the employees' concerns. In addi-
tion, as employee Lauw testified, Kendrick stated
A. They were talking about the exhaust fans.
Q. All right. Can you tell us the words that they used-as best as
you can remember-what each person said?
A. Well, Wes asked Mr. Kendrick to do wmething about it and
Mr. Kendrick said: If you don't like it, there's the door. And Wes
says: I don't want to leave; I want to see it corrected. Something
else was said. I'm not •ure. I had slipped with the master rod at the
time and hit my knee, and I was silting down in the chair. I'm not
sure what else was said, but I remember Wes says: So what does this
mean; am I fired? And Mr. Kendrick hesitated for a minute and said:
Yes.
• We paTticularly note in this regard that Hughes testified that the
switches to four of the five exhaust fans are located in the shop for which
he has supervisory responsibility.
1 Carpel Corpora/ion, 191 NLRB 892 (1971).
on the occasion of the discharge that he was tired
of Ryan causing trouble about the fans, and that if
Ryan did not like it he could leave and he would
be fired.
While Ryan, as found by the Administrative
Law Judge, persisted in arguing about the fans
after he was told to return to work, we note that
Ryan did in fact return to his workplace, followed
by Kendrick. It is thus apparent that this is not an
instance of an employee insubordinately disobeying
a direct order to return to his workplace after
being involved in a disagreement with another em-
ployee in which management had to intervene;
rather, this is a case in which management dis-
charged an employee for persisting in his advocacy
of certain employee concerns after the employee
had returned to his own work area. Indeed, Ken-
drick himself was largely responsible for prolong-
ing the controversy. Not only did he fail to resolve
the underlying problem which gave rise to the em-
ployees' concerns as voiced by Ryan, 8 but he con-
tinued to carry on the discussion with Ryan after
directing him to go back to work.
Finally, employee witness Austin testified that
Kendrick had previously made a speech to the em-
ployees in which he invited employees to come to
him directly with any problems which they might
have. Austin stated that Kendrick made this speech
when there was strife about a union coming in, and
that he told the employees if there were any prob-
lems to bring them straight to him and he would
handle it. Austin's testimony in this regard is unre-
butted. Kendrick had, therefore, clearly invited the
kind of discussion which Ryan was raising, and in-
disputably himself pursued the interchange in ac-
companying Ryan back to the master rod depart-
ment enclosure. In these circumstances, we find
that Ryan was still engaged in concerted protected
activity when discharged by Kendrick. 9 Accord-
ingly, we find that Respondent violated Section
8(a)(l) of the Act by discharging Ryan for engag-
ing in concerted protected activity by complaining
to Respondent that fans needed to remain on in
order to ventilate the work premises.
8 Ryan was, of course. continuing to press for resolution of the dispute
over working conditions which management had left to the employees l0
"light out among themselves."
• Nor would we find that the profanity engaged in by Ryan constitut-
ed insubordination removing him from the protecrion of the AcL Not
only did Ryan's use of a profane epithet to describe Kendrick occur fol-
lowing his discharge, but Ryan testified without contradiction that Ken·
drick had earlier referred to him with a variation of the very same epi-
thet. See Brown & Roor. Inc .. 246 NLRB 33 (JQ7Q), enfd. 634 F.2d 816.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Trans Air Supply Company,
Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By discharging Charles W. Ryan, Jr., on Feb-
ruary 12, 1980, because he engaged in protected
concerted activity for the mutual aid or protection
of himself and other employees, Respondent has
violated Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(l)
of the Act, we shall order that it cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It has
been found that Respondent violated Section '
8(a)(l) of the Act by discharging Charles W. Ryan,
Jr., because he engaged in concerted protected ac-
tivities for the mutual aid and protection of himself
and other employees. We shall therefore order Re-
spondent to offer Ryan immediate and full rein-
stat~J?ent t? his former or substantially equivalent
pos1t10n, Without prejudice to his seniority or other
rights and privileges, and to make him whole for
any loss of earnings suffered by reason of Respond-
ent's unlawful conduct. Backpay shall be computed
as provided in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon to be com-
puted in the manner set forth in Florida Steel Cor-
poration, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section lO(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations ~oard hereby orders that the Respondent,
Trans A1r Supply Company, Inc., Miami Florida
its officers, agents, successors, and assigns,' shall: '
1. Cease and desist from:
(a) Discharging its employees for engaging in
protected concerted activities in protest of condi-
tions of employment.
_(b) In a~y. like or related manner interfering
With, restrammg, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Charles W. Ryan, Jr., immediate and
full reinstate~ent to his former job or, if that job
n~ longer e~1st~, to a substantially equivalent job,
Without preJudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings suffered by reason of Respondent's unlaw-
ful conduct in the manner set forth in the section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
!he Board or its agents, for examination and copy-
mg. all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of back pay due under the terms of this.
Order.
(c) Post at its Miami, Florida, facility copies of
the attached notice marked "Appendix."1° Copies
of said notice, on forms provided by the Regional
Director for Region 12, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 12
in writing, within 20 days from the date of thi~
Order, what steps the Respondent has taken to
comply herewith.
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgme?t of the United _States Court of Appeals Enforcing an
Order of the Nauonal Labor Rel.attons Board." ·
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
~fter a hearing at. which all sides had an opportu-
mty to present evidence and state their positions,
~ the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge our employees be-
cause they have engaged in concerted activi-
ties protected by the National Labor Relations
Act.
WE WILL NOT in any like or related manner
inter!ere with, re~train, or coer-ce our employ-
ees m the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL offer Charles W. Ryan, Jr., imme-
diat~ and !ull reinstatement to his former job
or, 1f that JOb no longer exists, to a substantial-
TRANS AIR SUPPLY COMPANY 257
ly equivalent job, without prejudice to his se-
niority or other rights and privileges, and will
make him whole for any loss of pay he may
have suffered by reason of his discharge, with
interest.
TRANS AIR SUPPLY COMPANY, INC.
DECISION
STATEMENT OF THE CASE
J_. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard by me on June 30, 1980, in Coral
Gables, Florida. The charge was filed on February 15,
1980. The complaint, which issued on March 14, 1980,
alleges that Trans Air Supply Company, Inc. (herein
called Respondent), discharged Charles W. Ryan, Jr.,
?erein called the Charging Party, because Ryan engaged
m protected concerted activities, by complaining to Re·
spondent that fans needed to remain on in order to venti-
late the work premises, in violation of Section 8(a)(l) of
the Act.
Upon the entire record, my observation of the wit-
nesses, and after due consideration of the briefs filed by
General Counsel and Respondent, I hereby make the fol-
lowing:
Findings1
This case involves an allegation that employee Charles
Ryan was discharged because of his efforts to collective-
ly negotiate with management regarding his and other
employees' working conditions. During material times
Ryan worked as a machinist in a department with three
other employees.
According to Ryan's testimony, which was supported
by the testimony of the General Counsel's other two wit-
n~sses, he and th~ other employees in his area expressed
discomfort from t1me to time because of fumes or smoke.
Ryan testified that the problem, which first arose in the
~all of 1979, caused sore throats, runny noses, and burn-
mg eyes among the employees.
Because of the problem, Ryan was asked by some of
his fellow employees to speak to management and to
specifically request that the exhaust fans2 be l;ft on so
that the fumes and smoke could be cleared from their
area.
R:yan testified that he first approached management
durmg October or November 1979. According to Ryan
he co~pl~ined to Foreman Clyde Hughes about th~
f~mes m h1s ~ork area. Ryan testified there was a parti-
tJon, separatmg his work area from other areas, that
there was a welder behind that partition, and that smoke
. 1 R_espondent, which is engaged in the business of selling and overhaul-
mg atrplane engmes and parts at its Miami, Florida, facility, admitted
both the commerce allegauons and the supervisory allegations of the
complamt. On the basts of that admission, 1 find that Respondent is, and
h~s been at all times material herein, an employer engaged in commerce
wtthm the meaning of Sec. 2(6) and (7) of the Act.
. 2 The entire work area is serviced by several large fans, each of which
rs 4 feet tn dtameter. The fans on one side of the building are intake fans,
whtle the oppoSite wall contains several exhaust fans. One of the exhaust
fans was located m the Immediate area of Charles Ryan's work station.
from the welding would rise and fall in his work area.
Also, on the other side of Ryan's work area there was a
spray booth that used kerosene, and the fumes would
come out of the booth into his work area, plus fumes
from coolants and other types of fluids that were being
used to cool down the metal being machined by Ryan
and his coworkers.
Ryan testified that following his complaint to Hughes,
Hughes returned and indicated that another exhaust fan
was going to be installed as soon as possible. 3
Ryan testified that he again complained to manage·
ment around November. On this occasion, Ryan com-
plained to Plant Manager John Kendrick. Ryan testified
that Kendrick agreed that he would see what could be
done about the situation. Ryan testified that he also made
the same complaint to Safety Director Clifford B. Hart.
From the testimony of Ryan, it appears that these
or!ginal complaints which he lodged with Hughes, Ken-
dTJck, and Hart dealt with the installation of an addition-
al exhaust fan. However, during December 1979 accord-
ing to Ryan's testimony, a problem arose becaus~ the ex-
isting exhaust fans were not operating. Ryan testified
that during December4 he spoke to Foreman Hughes
about fumes which he felt were bad because the exhaust
fans were not operating. Hughes informed him that he
would talk to John (Kendrick) about the matter. Hughes
also indicated in his response to Ryan's December com-
plaint that some other employees had problems with the
fans because of the cold temperatures. Apparently, a
number of employees at Respondent's facility felt that
the exhaust fans should not be operated because when
they operated, the temperature or chill factor was ad-
versely affected resulting in those employees becoming
too cold to work comfortably.
Ryan testified that following his December conversa-
~ion with Hughes about the fans not operating, he went
m to talk to John Kendrick. While waiting for Kendrick
to conclude a telephone conversation, he spoke with
Fred Bensch. Bensch was stipulated to be a supervisor
by the par_ties. Ryan i~formed Bensch that he was going
to complam to Kendnck about the fans. Bensch replied,
"Look, if you don't like it leave."
When Kendrick concluded his telephone call, Ryan
asked him about leaving the fans on. According to Ryan
Kendrick replied that there was no way that he could
regulate the fans. Kendrick then made a statement similar
to that of Bensch, "Look, if you don't like it you can
leave. The fumes aren't that bad." During that conversa-
tion, Kendrick told Ryan that OSHA came by and dis-
covered that there was nothing harmful to the lungs and
OSHA discovered that the only problem Respo~dent
had was that one machine was making too much noise.
. Other testimony, which was generally unrebutted, in-
dicated that the controversy regarding the operation of
" This testimony convinces me that Respondent's witnesses' testimony
that the problem regarding the fans being left off did not arise until Feb-
ruary 1980. Hughes' response that another fan would be installed demon-
strates to me. that the problem during October and November involved, if
anythmg, a snuat10n where the existing fans were not adequate.
• Although Ryan placed this conversation during December, he ad·
mmed on cross-examination that the conversation could have occurred
on February 5, 1980.
I
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fans first surfaced on February 5, 1980, as a dispute
among employees. 11 February 5 was a cold, uncomfort-
able day. On that day, according to witnesses of Re-
spondent, Charles Ryan complained about the fans not
operating. Pursuant to a directive from Plant Manager
Kendrick, Clyde Hughes took a vote among the availa-
ble employees as to whether they wanted the fans off or
on. A majority of the employees voted to operate the
fans.
Following the vote, Hughes turned on two fans on the
east wall and four on the west walL However, some of
those fans were subsequently turned off by someone.
After the fans were turned on, three employees, includ-
ing Domingo Fernandez, John Austin and Charles Ryan,
went home prior to the conclusion of their workday.
Fernandez told Hughes that "it was too cold and he was
going home." Additionally, some other employees com-
plained to Hughes that it was too cold.
Charles Ryan's last day of employment was February
12. Foreman Hughes testified that the fans were on and
an employee came to him and complained that it was
cold. Hughes testified that he went into his office, and
when he came out, the fans had been turned off. Charles
Ryan told him that he wanted the fans on because it was
too smoky. Hughes testified that he went into the weld
shop and turned on the fan, which was immediately
above Ryan's work area. Hughes testified that when he
came out, Ryan "and Domingo [Fernandez] were facing
each other off; there was a Jot of loud talking." Hughes
testified that he told the two employees to return to
work. However, Ryan continued to contend to Hughes
that the fans should be turned on. Plant Manager Ken-
drick walked up and entered the conversation with
Ryan. Hughes testified that he left to finish some paper-
work at that point during the conversation.
Kendrick testified that it came to his attention that
"there was a big scene taking place outside between Do-
mingo and Wes; 6 and there were clenched fists and a
steel bar being brought into play." Kendrick testified that
he went to Clyde Hughes, and Hughes told him that the
fans have been off and on throughout the morning. Ken-
drick said that Hughes told him that he had tried to re-
solve it by turning on the fan that was adjacent to
Ryan's work area.
Kendrick testified that he did have a conversation
with Ryan, that he told Ryan that he had had enough dif-
ficulty with the fans, and that he was really pretty tired
of hearing about them. Kendrick said that he told Ryan
that he was going to leave the one fan on (apparently the
fan nearest Ryan's work station) and that he was going
to leave the other three fans off. According to Kendrick,
Ryan then asked, "Well, how about the vote?" Kendrick
said that he told Ryan that some of the older employees
were complaining about the cold, and he had to respect
their feelings as well as Ryan's. Kendrick said he told
Ryan a couple of more times that that was the way it
was going to be; and he suggested that Ryan go back to
work, that he could not tolerate Ryan walking off the
• On cross-examination Charles Ryan indicated that the events may
have occurred during February, rather than in December (see fn. 4,
supra).
• Charging Party Charles Ryan is also known as "Wes."
job anymore. 7 According to Kendrick's testimony, Ryan
continued to "harass me about the fans, and (Ryan] asked
me straight on: 'Are you firing me?"' Kendrick said that
he denied he was firing Ryan. Afterward, Ryan again
asked if Kendrick was firing him and Kendrick replied,
"No, he was not." According to Kendrick, at that point
Ryan gathered up his tools and proceeded out the door.
Kendrick testified that a few minutes after the above
incident Mr. Bensch came in and told him that "Mr.
Ryan was laying on the floor out there." 8 Kendrick testi-
fied that he went out and said to Ryan, "You're some-
thing else, aren't you?" According to Kendrick, Ryan
told him that he was "a big cock sucker." Ryan told
Kendrick that he was going to have to send him to a
doctor. Following further words between Kendrick and
Ryan, Ryan was escorted to visit the doctor by Foreman
Hughes.
Charles Ryan testified concerning the incidents of Feb-
ruary 12. According to Ryan, he was again asking John
Kendrick about the fans. Kendrick told him that there
was no way that they could regulate the fans, that the
employees would have to work it out between them-
selves. According to Ryan, Charles Hughes left the con-
versation. Shortly thereafter, he and Kendrick went over
to the end of Ryan's shop area, and Kendrick told him
that he was fired. Ryan testified that he asked Kendrick,
"Are you firing me because you can't turn the fans on?"
Kendrick replied, "Look, you're fired. Get out, you're
fired."
Former employee Nico Lauw testified that he worked
in the shop with Charles Ryan during times material to
these proceedings. Lauw testified that he overheard the
conversation between Ryan and Kendrick on February
12. Lauw testified that Ryan and Kendrick walked into
the master rod department and they were arguing over
the fact that one of the fans was not turned on with the
smoke building up inside the shop. Lauw testified that:
Mr. Kendrick came in and started talking to Charles
about how Charles was causing trouble again, and
he was tired of seeing Charles causing trouble. He
wanted to know what was going on this time, and
Charles said that last time that Mr. Kendrick would
not turn the fans on, so he had to go out and have a
vote to have it done. This time, he didn't even try
and turn it on again. Then Mr. Kendrick was telling
Wes that if he didn't like it, he could pick his tool
box up and leave and he'd be fired. And Charles
said he didn't want to leave because he liked work-
ing there, and he was the only one doing good
work for Clyde Hughes. And after that, the next
thing I heard was: Mr. Kendrick said Charles was
fired anyway. And Charles said that if he was fired,
he wanted his paycheck right now according to the
law.
7 According to Kendrick's testimony. he was referring to the February
5 incident, when Ryan left work early.
• The testimony reflected that as Ryan was leaving he slipped and fell
on the floor.
TRANS AIR SUPPLY COMPANY 259
Former employee John Austin also worked in the ma-
chine shop with Charles Ryan during material times.
Austin testified that he heard Charles Ryan and Ken-
drick talking about the exhaust fans on February 12.
Austin testified that:
Wes asked Mr. Kendrick to do something about it
and Mr. Kendrick said: "If you don't like it, there's
the door." And Wes says: "I don't want to leave; I
want to see it corrected." Something else was said.
I'm not sure .... I'm not sure what else was said,
but I remember Wes says: "So what does this mean;
am I fired?" And Mr. Kendrick hesitated for a
minute and said: "Yes."
On cross-examination, Austin admitted that, in his pre-
trial affidavit to the Board, he testified that during the
February 12 conversation he overheard Charles Ryan
say, "I don't want to leave, I want to see it corrected.
. . . If I turn the fans on, does that mean I'm fired? Ken-
drick answered yes."
Conclusions
I have concluded on the basis of the record evidence
that Charles Ryan was not discharged because of activity
protected by Section 7 of the Act.
In order to support the complaint allegations, the Gen-
eral Counsel must show that Respondent in discharging
Ryan was motivated by factors protected by Section 7.
Contrary to Respondent's contention, I am persuaded
that Ryan was discharged by Plant Manager Kendrick
on February 12. Three witnesses-Ryan, Lauw, and
Austin-heard Kendrick mention that Ryan would be, or
was being, discharged on that date. Moreover, when
asked if Ryan informed him on February 12 that Ken-
drick had fired Ryan, Foreman Clyde Hughes was eva-
sive in his answer. Hughes was asked, "Did (Ryan) ever
indicate to you that John Kendrick fired him?" Hughes
answered, ''On the trip to the doctor, he tried to discuss
it with me." Therefore, I am persuaded that Kendrick's
testimony that he did not fire Ryan cannot be believed.
Nevertheless, I find that the General Counsel failed to
prove that Ryan's concerted activities led to or contrib-
uted to hi~ discharge.
By Ryan's own testimony, he had, at various times
since October or November 1979, complained about
fumes in the work area. The record does not reflect that
those complaints upset anyone in management. In fact,
Ryan was told that Respondent was in the process of
trying to correct the situation.
However, when the weather turned cold around Feb-
ruary 1980, a controversy arose between various factions
of employees regarding the fans. Ryan and others were
bothered by fumes and smoke and wanted the fans on.
Other employees, including Domingo Fernandez, felt
that the running of fans contributed to the cold weather
in the plant to such a degree that they could no longer
work without being uncomfortable. That controversy re-
sulted in Ryan and Fernandez engaging in an argument,
which reached the verge of a fight on February 12.
The evidence is unrebutted that management was con-
scientiously trying to resolve the employees' conflict
during February regarding the fans. On February 5,
Clyde Hughes took a vote among employees to deter-
mine whether a majority favored running the fans or not
Subsequently, when Hughes turned on some of the fans,
someone, perhaps an employee, or employees, would
surreptitiously turn the fans off. As late as February 12,
Hughes was taking steps in the hope of resolving the
controversy. Hughes turned the fans on in Ryan's im;ne-
diate work area while leaving the fans off in other areas.
Therefore, I am convinced from the evidence that man-
agement was appreciative of the problem regarding the
fans .
However, after Clyde Hughes broke up the February
12 incident between Ryan and Fernandez, and directed
the two to return to their work, Ryan persisted in argu-
ing with Hughes. Thereafter, when Kendrick walked up,
Ryan continued to argue as he had apparently done with
Domingo Fernandez.9 According to Ryan's testimony,
Kendrick told him that there was no way they could
regulate the fans.
I am not convinced, on the basis of the entire record,
that Ryan was fired for any reason other than his persis-
tence in arguing with Kendrick, after he had almost
fought with another employee, and after he had been
told by both Hughes and Kendrick to return to work. It
is apparent that Respondent was doing its best to resolve
a situation that involved conflicting views among the
employees. There must be a point in such a situation
where an employer may, with impunity, take action re-
quired to restore order and resume its husiness oper-
ations. That appears to me to be the situation ilere. 10
CONCLUSIONS OF Lt\ w
I. Respondent Trans Air Supply Company, Inc., is an
employer engaged in commerce and activities affecting
commerce within the meaning of Section 2(2). (6), and
(7) of the Act.
2. Respondent has not engaged in any unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from pub·
lication.]
9 Although I have discredited Kendrick'' testimony that he did no1 fire
Ryan, I credit his and Clyde Hu~hcs· testimony that Ryan per:>i>tctl in
arguing with them after he was tnld to return to work. No rc,timonv was
offered in rebu!tal of their testimony in that regard. ·
1° Compare Napolt¥m Sl