Serv-Air Aviation

SERV-AIR AVIATION 689 Union during his own and his workmates' working hours. When Thomas learned that Sellers still planned to arrogate to himself the power to decide whether or not he was violating company rules in the course of indulging in union activities at the plant and that he intended to carry on as before and continue to engage in what were, to any reasonable man, even if not to Sellers, the breaking of regulations, Thomas' conclusion that co-existence was intolerable is understandable and his consequent decision against rehire has justification. Viewing the evidence in the light most favorable to the General Counsel's con- tention, it could be found that the allegation of discrimination has been established. Assuming that a prima facie case was made out, it then became incumbent on Respondent to go forward with the introduction of testimony tending to meet or control the General Counsel's evidence. This I conclude Respondent has success- fully done. Therefore I am unpersuaded that the weight of the evidence adduced is sufficient to support the allegation that Sellers was either discharged or denied reinstatement either on account of his having given testimony under the Act on behalf of the General Counsel at a hearing of a case in which Respondent was a party or because of his membership in, and activities on behalf of the Union. On, the contrary I am convinced that Sellers was discharged and denied reinstatement for cause. Accordingly, I conclude that the allegations respecting Sellers should be dismissed. Therefore, on the record as a whole I shall recommend dismissal of the allega- tions of the complaint that Respondent discriminated against Burris L. Sellers in violation of Section 8 (a) (3) and (4) of the Act. CONCLUSIONS OP LAW 1. The operations of Delta Finishing Company (Division of J. P. Stevens & Co., Inc.-Plant No. 3) Wallace, South Carolina, constitute and affect trade, traffic,, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) (3) and (4) of the Act. [Recommendations omitted from publication.] SERV-AIR AVIATION, STALLINGS AIR BASE and CLYDE H. HARTMAN SERV-AIR AVIATION, STALLINGS AIR BASE and SAVOY NELSON SERV-AIR AVIATION, STALLINGS AIR BASE and HARVEY L. WINSTEAD SERV-AIR AVIATION, STALLINGS AIR BASE and MARGARET STRICKLANDD SERV-AIR AVIATION, STALLINGS AIR BASE and ALFRED L. TucKER. Cases Nos. 11-CA-659, 11-CA-660, 11-CA-662, 11-CA-681, and 11-CA-7f6. February 18, 1955 Decision and Order On August 4, 1954, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 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 a statement of exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 111 NLRB No. 112. 1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in the case and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.' 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 the Respondent, Serv-Air Avia- tion, Stallings Air Base, Kinston, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its erployees concerning their membership in or activities on behalf of United Brotherhood of Carpenters and Joiners .of America, AFL, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Sec- tion S (a) (1). (b) Threatening to discharge its employees for organizational activities and to close the plant if an organizational attempt succeeds. (c) Discouraging membership in United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and 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. We note and correct the following factual inaccuracies in the Inteiniediate Report which do not affect our concurrence with the Trial Examiner's ultimate conclusions and recommendations in this case: (1) The Trial Examiner found that employees Winstead and Deal made grades of 58 and 60, respectively , on the cockpit check quiz , whereas Winstead's glade was 57 , and it was Harris, instead of Deal, who made 60 on the quiz, as Deal slid not take the quiz at that time , (2) the Trial Examiner found at one point that employees Tucker and Dail were discharged on March 26, 1953 , whereas they were dis- charged on March 26, 1954; (3) the Trial Examiner found that employee Leonard was not asked , and his testimony did not show , whether employee Tucker was among a group of employees whom Supervisor Neal observed loafing on a certain day, whereas Leonard was asked and testified that employee Tucker was in that group of employees ; and (4) the Trial Examinem found that Mrs Strickland admitted crying the day her husband was dis- charged but denied that she otherwise went through periods of crying during working hours piioi to her discharge, whereas Mrs. Strickland was never questioned concerning whether or not she otherwise went through periods of crying during working hours. 2 We agi ee with the Tual Examiner that the Respondent' s interrogation of employee Leonard on November 20, 1953, and April 10, 1954, was violative of Section 8 (a) (1) of the Act Chair man Faiinei and Member Rodgers do so, however , because it occurred in context with other unfair labor practices and appears to be a further act implementing the Respondent 's disciirninatory policy See Blue Flash Express, Inc, 109 NLRB 591. SERV-AIR AVIATION 691 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Clyde H. Hartman, Harvey L. Winstead, Savoy Nel- son, Margaret Strickland, and Alfred L. Tucker immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy."' (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the right of rein- statement under the terms of this Order. (c) Post at its base at Stallings Air Base, Kinston, North Carolina, copies of the notice attached hereto and marked "Appendix A." I Copies of such notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by an authorized rep- resentative of the Respondent, be posted by the Respondent immedi- ately upon receipt thereof 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 Eleventh Region, in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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 A 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, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their mem- bership in or activities on behalf of United Brotherhood of Car- penters and Joiners of America, AFL, or any other labor organ- ization, in a manner constituting interference, restraint, or coer- cion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with discharge or threaten to close the plant because of their organizational activities. WE WILL NOT discourage membership in United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of our employees. 344056-55-vol 111 45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join the aforesaid labor organiza- tion, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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. WE WILL offer the following persons immediate and full rein- statement to their former or substantially similar positions without prejudice to their seniority and other rights and privi- leges and make them whole for any loss of pay suffered as a re- sult of the discrimination against them : Clyde H. Hartman Margaret Strickland Savoy Nelson Alfred L. Tucker Harvey L. Winstead All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except as that 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. We will not discriminate in regard to the hire or tenure of employment or any term or condition of em- ployment against any employee because of membership in or activity on behalf of any labor organization. SERF-AIR AVIATION, STALLINGS AIR BASE, 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 Charges having been filed by Clyde H. Hartman, Savoy Nelson, Harvey L. Win- stead, Margaret Strickland, and Alfred L. Tucker against Serv-Air Aviation, Stall- ings Air Base, herein called the Respondent, in the above-captioned duly consoli- dated cases, the General Counsel issued complaints alleging that the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136. The Respondent filed answers to the complaints, containing general denials of the allega- tions imputing to it the commission of unfair labor practices, and also placing in issue the question of whether the Respondent is engaged in commerce within the meaning of the Act. Pursuant to notice, a hearing was held on May 26, 27, and 28, 1954, at Kinston, North Carolina, before Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented at the hearing by counsel. Full opportunity was afforded all parties SERV-AIR AVIATION 693 to examine and cross-examine witnesses, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. At the hearing, the Respondent moved to dismiss the complaint on the ground that it was not engaged in commerce within the statutory meaning. The motion was denied. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Jurisdiction is disputed. The Respondent, Serv-Air Aviation, a North Carolina corporation, maintaining its principal office and place of business at Stallings Air Base, Kinston , North Carolina , is engaged in the training of United States Air Force pilot-trainees under a contract with the United States Air Force. At the times material herein, the Respondent employed approximately 650 employees at the Stallings Air Base, of whom about 200 were in its aircraft maintenance department. The Respondent's contract with the United States Air Force is on a cost-plus- fixed-fee basis . Its fee is computed on the basis of $1.05 per flying hour, and it expects that in a typical 12-month period its trainees will fly approximately 100,000 hours, so that its fee would amount to approximately $105,000. All property on the base-except the land and buildings which are leased from the city of Kinston, county of Lenoir, for $1 per year-is owned by the United States Government. The Respondent makes no purchases of material or equipment used on the base„ other than as agent for the United States Government. The value of the material and equipment on the base when the Respondent first commenced operations in 1951 was approximately $375,000; but the record does not reveal its present value, or the annual value of material consumed or new equipment used in connection with the base's operations, such information having been withheld by the Respond- ent assertedly for security reasons. Nor does the record disclose the geographical point of origin of the material or equipment used, except that it does disclose that in 1953 the Respondent in connection with its operations on the base used airplanes manufactured in States other than the State of North Carolina, having a value in excess of $2,500,000. In Case No. 1 1-RC-576 , on the basis of a record containing the facts set out above, the Board, on April 12, 1954, issued a Decision and Direction of Election finding, inter alia, that Serv-Air Aviation Corporation was engaged in commerce within the meaning of the Act, and asserted jurisdiction in that case over the Respondent.' I deem the Board's decision in Case No. 11-RC-576 a binding precedent , and on that authority,2 as well as the Board's recent announcement of its new jurisdictional stand- ards,3 I overrule the Respondent's objection to the jurisdiction of the Board, and find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organ- ization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues The Respondent began its operations at Stallings Air Base in the latter part of 1951. There is no evidence of any organizational activity among the employees prior to the summer of 1953. Organizational activity began about August 20, 1953, after Savoy Nelson, one of the complainants in this case , contacted the Carpenters' Union to enlist its aid in organizing the Respondent's aircraft maintenance department employees then numbering some 210. On September 18, 1953, the Union filed a petition for certification as representative for employees in that department. Following hearings held on October 12, 1953, and February 9, 1954, the Board, on April 12, 1954, issued ' The jurisdictional facts appearing in the record in Case No 11-RC-576 , were incorpo- rated by reference as part of the record of this proceeding, pursuant to a stipulation of the parties i See also Westport Moving and Storage Company, 91 NLRB 902 and Hawthorne School of Aeronautics, 98 NLRB 1098, cited by the Board in support of its jurisdictional finding in Case No 11-RC-576. 3 NLRB press release, dated July 15, 1954. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its Decision and Direction of Election in the representation proceeding. The elec- tion was held on April 29, 1954. The Union lost by a vote of 114 to 21. The instant proceeding is unconcerned with any question related to the Union's representative status. It is concerned solely with certain alleged unfair labor prac- tices claimed to have been committed by the Respondent following the commence- ment of the Union's organizational campaign .4 More specifically, the unfair labor practice issues to be decided are as follows: 1. On September 8, 1953, shortly after the commencement of organizational activities, the Respondent discharged Savoy Nelson, Clyde H. Hartman, and Harvey L. Winstead, employees in its maintenance department. The General Counsel claims they were discharged because of their union membership and activities. The Respondent denies this and asserts that they were terminated as part of a reduction in force. 2. Along with Nelson, Hartman, and Winstead, the Respondent on September 8, 1953, also discharged Nade Strickland, assertedly as part of the same reduction in force. Nade Strickland filed a charge alleging that his discharge was violative of Section 8 (a) (1) and (3), and service of the charge was effected on the Respond- ent on September 22. On September 30, 1953, the Respondent discharged Nade Strickland's wife, Margaret, who was employed in another department of the plant. At the time of his discharge, Nade Strickland was a supervisory employee in the maintenance department. Because of his supervisory status, the charge filed by him was subsequently administratively dismissed by the General Counsel, and the legality of his discharge is therefore not directly involved as an issue in this case. However, the discharge of his wife, Margaret, is alleged as a violation of Section 8 (a) (1) and (3). The Respondent denies that Margaret Strickland's discharge was illegally motivated and asserts it was for cause. 3. On or about March 26, 1954, the Respondent discharged Alfred L. Tucker, the vice president of the Union's organizational committee, along with Ralph Dail who was also an officer. No charge was filed by Dail and the complaint does not allege discrimination against him. It is alleged, however, that Tucker's discharge was Motivated by antiunion considerations. The Respondent denies that to be true and asserts that Tucker was discharged for cause. 4. It is alleged by the General Counsel, and denied by the Respondent, that the Respondent through supervisory and management officials engaged in various acts of independent interference, restraint, and coercion, including surveillance of union meetings, interrogation of employees concerning their union membership and activi- ties, and threats of reprisal. This aspect of the case will be considered first, before we turn to a consideration of the alleged discriminatory discharges. B. Interference, restraint, and coercion 1. Alleged surveillance (a) Organizational activity began about August 20, 1953. On Thursday evening, September 3, an organizational meeting was held at the union hall, attend by about 30 employees. The employees were asked to assemble before the meeting at the post office, located on one of the principal streets of Kinston, so that-they might be directed from there to the meeting place by employees Savoy Nelson and Clyde Hartman. The General Counsel introduced evidence to show that, while the em- ployees were assembling at the post office steps, Foreman J. P. Waldrop drove by on two occasions, spaced at a 10-minute interval. It appears that he was proceeding at a usual rate of speed, and there is no evidence that he engaged in any untoward conduct. Although Waldrop's presence in the area was not explained, I am of the opinion, and I find, that the evidence adduced does not substantially support the General Counsel's assertion that Waldrop was engaging in surveillance of union activities at the time. (b) Evidence was also offered to show that Foreman William B. Johnson was observed in the vicinity of the post office on the same evening. Johnson denied that he was engaged in surveillance and gave a satisfactory explanation for his presence in the area. The claim that Johnson was engaged in illegal surveillance is found unsupported. 2. Interrogation (a) Employee Jacks Taylor testified: On November 10 a union meeting was held at Kinston. Taylor, who lives 23 miles from Kinston, attended it. The following 4 The consolidated complaints are based upon chaiges filed by the complainants long before the holding of the election-by Clyde H Hartman and Savoy Nelson on September 14, 1 953 , by Harvey L Winstead on September 18, 1953; by Margaret Strickland on November 20, 1953; and by Alfred L. Tucker on March 29, 1953. SERV-AIR AVIATION 695 morning while at work, Foreman Waldrop asked him whether he had not seen him in Kinston the night before. When Taylor said , "No" Waldrop observed, "You better stay out of this mess and keep your nose clean ." About 2 or 3 weeks later, on the morning following another union meeting , Waldrop again asked Taylor whether he had not seen him in Kinston the night before . This time, Taylor answered , "Yes" and Waldrop said nothing further. Those were the only occasions Waldrop ever questioned Taylor about seeing him in Kinston. For that reason, and because of Waldrop 's reference to "this mess ," the General Counsel would have it concluded that Waldrop was obliquely questioning Taylor about his presence at union meetings . Though such a construction is possible , I am not entirely satisfied that it is the only reasonable one to be drawn from Waldrop 's at best equivocal remarks Consequently, I make no finding of unlawful interrogation on the basis of Taylor's testimony. (b) As more fully appears below , Savoy Nelson , Clyde Hartman, and Harvey Winstead-all members of the Union-were discharged on September 8, 1953. On the following day, as they were "clearing " the base, they were interviewed by William J. Reynolds , the Respondent's vice president . According to them, the interviews were requested by Reynolds ; according to Reynolds the interviews were solicited by the employees. The basic subject of discussion was the reason for their discharge, with Reynolds insisting that their discharge was attributable to a reduc- tion in force, and with the employees questioning that as the real reason for their termination All are agreed that during the meeting the Union and its activities came up for discussion. According to the employees , the discussion along those lines was initiated by Reynolds ' questioning. Reynolds, on the other hand, denied that he interrogated the employees about the Union and its activities . According to him, the discussion about the Union was provoked by the employees. On the basis of my appraisal of all the evidence , I think it more likely that the inter- views were solicited by the employees and the subject of the Union was raised by them with a view toward forcing an admission from Reynolds to confirm their belief that their discharge was traceable to their union activities . Accordingly, I credit Reynolds on the conflicts noted , and find unsubstantiated the claim of unlaw- ful interrogation based on that incident. (c) E. L. Leonard , an employee hired about November 20, 1953, testified with- out denial, and it is found, that when he applied for work at the Respondent's personnel office, he was questioned by Personnel Director Allen Nelms as to whether he had ever belonged to a union . After Leonard told Nelms that he had never belonged to a union, Nelms referred him to the maintenance department head for further interview. It is found that by such questioning, the Respondent violated Section 8 (a) (1) and of the Act. (d) Leonard quit his job on April 10, 1954. He testified that while clearing the base, he was directed to see Pompey A. Combs , the chief of police of the Respondent's plant protection force , and that Combs questioned him concerning his knowledge of union activities in the plant , the places where union meetings were held, and the connection of a certain individual with the Union. Combs admitted having a talk with Leonard on the subject of the Union on the occasion in question, but asserted that Leonard came to him of his own accord and offered to supply information concerning the Union . Combs' testimony in that respect was unconvincing, and so, too , was the testimony of Foreman William B . Johnson who testified that Leonard told him he had a statement he wished to make to the chief of police, without, however, disclosing to him the nature of the statement. To the extent that Leonard's testimony conflicts with that of Combs and Johnson, I credit Leonard. I find that Combs' questioning of Leonard concerning union activities was violative of Section 8 (a) (1) of the Act. 3. Threats Although the complaints allege that a number of the Respondent's management and supervisory employees threatened employees with economic reprisal for union membership and activities , credible record evidence establishes such threats by only one-Shop Foreman William B. Johnson .5 Thus, E. L. Leonard testified that Johnson discussed the Union with him on numerous occasions , and stated on one c Theie is undemed testimony that another supervisor , J P. Waldrop , warned an em- ployee, J P Best, who was the Union 's president and its observer at the election , that he and other outstandingly active union adherents were "under observation" and had better find other jobs while the finding was good The record indicates , however, that Waldrop may have already terminated his own employment before he made those comments. In view of the fact that theie is doubt as to Waldrop 's agency relationship to the Respondent at the time, I do not attribute to the Respondent responsibility for his remarks 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or more occasions that if the Company could find out who its ringleader was, it would discharge him at once. Employee Alfred L. Tucker testified that on one occasion, when he inquired of Johnson whether the Company could fire him for distributing union application cards during lunch hour, Johnson told him, "You are God damn right they can." And when Tucker pointed out that he did not think the Company could interfere with such activities during the employees' free time, Johnson commented that "that is what they fired those other four down at the other hangar for." 6 Johnson added in that connection that although he would not himself fire Tucker for engaging in such activity, "if it gets to Mr. Neal [the director of aircraft maintenance] why that will be it right then." Tucker further testified that later that same day, Johnson approached him, and after advising him "in a rather fatherly sort of manner" that "it was the wrong thing to do to try to fool around with the Union," Johnson told him "that the Company could not operate with the Union integrated into it, and said that he didn't think the Company would stand for a union being in there and that they would close up if they came in." Leonard and Tucker impressed me as telling the truth in the respects set out above, and although Johnson denied making the statements they attributed to him, I do not credit his denials. I find that the statements made by Johnson to Leonard and Tucker as aforesaid were violative of Section 8 (a) (1) of the Act. C. The discriminatory discharges of Clyde Hartman, Savoy Nelson and Harvey Winstead 1. Employment history and union activities of the complainants Hartman, Nelson, and Winstead were mechanics in the Respondent's aircraft maintenance department which at the time of their discharge contained a total of about 200 employees. That department is headed by W. T. Neal, the Respondent's director of aircraft maintenance. The particular unit of the department in which the three employees in question worked immediately before their discharge was the inspection hangar. That hangar had about 30 employees at the time. J. P. Waldrop was the hangar chief and Nade Strickland, the assistant hangar chief. At the time of their discharge, Hartman, Nelson, and Winstead were among the oldest and most experienced mechanics in the department-Hartman having been hired on April 3, 1952, Nelson on April 10, 1952, and Winstead on January 21, 1952. Hartman and Nelson were classified as crew chiefs, a nonsupervisory classi- fication, the occupants of which acted as head mechanics of crews ranging in num- ber from 3 to 5. Winstead was classified as an aircraft and engine mechanic, but for some time prior to his discharge had been working as an acting crew chief, though at the mechanic's rate of pay. As appears from their efficiency records which are in evidence, Hartman, Nelson, and Winstead were rated as satisfactory em- ployees-and the Respondent does not contend otherwise. As has been noted above, organizational activities on behalf of the Union began in late August 1953, and a meeting, attended by about 25 employees, was held at the union hall on the evening of September 3, 1953, the Thursday before Labor Day. The Respondent's management officials, including Neal, were admittedly aware- through "rumors," according to them-of the existence of organizational activities and of the holding of the meeting. Hartman, Nelson, and Winstead joined the Union, or at least signed union desig- nation cards, before their discharge. The former two appear to have been par- ticularly active on the Union's behalf. Nelson was the employee who first con- tacted the Union and arranged to set up the first meeting. In addition he personally contacted before his discharge about 12 employees in an effort to get them inter- ested in the Union. Hartman also was active before his discharge in soliciting em- ployees to join the Union. Nelson and Hartman were among those who attended the union meeting on the Thursday before their discharge. As for Winstead, there is no evidence that he engaged in any organizational activity, nor does the record show whether or not he was present at the Thursday night meeting. U Tucker understood that Johnson's reference was to Winstead, Hartman, Nelson, and Strickland, for, as he testified, "there had only been four [fired] that anybody knew about." Since it does not appear that Johnson had any supervisory authority over the four mentioned or that he had anything to do with their discharge, Johnson's statement is not considered here as an admission against interest binding upon the Respondent on the issue of whether the discharges of Winstead, Hartman, and Nelson were in fact motivated by unlawful considerations That, however, does not detract from the coercive force of the statement, since the clear implication of the statement was that the Respondent would not hesitate to take reprisal action against employees engaging in union activity protected by law. SERV-AIR AVIATION 697 2. The statements by Graham to the Stricklands foreshadowing the discharge action James C. Graham is the Respondent's director of supply and procurement, and as such attends weekly meetings of company department directors at which company policy and methods of effectuating it are considered. On September 6, 1953, the Sunday following the Thursday union meeting adverted to above, Graham and his wife visited the home of Mr. and Mrs. Nade Strickland. Shortly after his ar- rival, Graham turned the conversation to the subject of the Union. There is a con- flict in the testimony as to what he said. Nade Strickland testified that Graham questioned him at length as to what was going on in the inspection hangar with particular reference to union activities, and as to Strickland's connection, if any, with the Union. After Strickland disclaimed any knowledge of the Union,7 Graham told him that on the following Tuesday (Monday was Labor Day) Strickland and a number of other employees were to be discharged. Graham gave as the reason, according to Strickland, "the up-stir and the union activities and the trouble in the hangar." Graham mentioned the names of a number of other employees who he said were to be discharged at the same time-among them were Clyde Hartman and Savoy Nelson. Concerning her recollection of the conversation with Graham that Sunday night, Margaret Strickland testified as follows: The best I remember, I forgot how this conversation came up or began, but very shortly after Mr. and Mrs. Graham arrived at our house, Mr. Graham asked my husband if he knew anything about a Union out on the field and my husband told him "no," he knew that there was something brewing, but he didn't know what it was, he could just feel the unrest of the men, and Mr. Graham asked him if he had told Mr. Neal about it and he said "no," he didn't know what to tell him . . . and he [Graham] said, "Well, Tom Neal came Ott to my house this afternoon and told me he was going to fire you for being head of the Union, organizing the Union, and that he was going to fire about 30 more," and the reason he was telling Mr. Graham was because I worked for Mr. Graham, and, therefore, if he [Nade Strickland] was fired I would be involved, it would affect me, and therefore, affect Mr. Graham. According to Mrs. Strickland's further testimony, Graham referred to a number of employees by name as included among those who were to be fired for union activity; in her testimony she mentioned three of them, none of whom were later discharged. Mrs. Graham was not called as a witness. Graham admitted that on the Sunday night in question he had discussed the Union with the Stricklands and had advised them that a number of employees were to be released by Neal the following Tues- day, Strickland among them. He also conceded that he might have mentioned the names of certain employees who were to be let out with him, and he did not specifically deny Strickland's testimony that Hartman and Nelson were among those mentioned. Graham denied, however, that he told Strickland he was to be termi- nated for union activity. He testified that he gave as the reason a need for a re- duction in force in the maintenance department. The conflict here is an important one, and I have given much consideration to its resolution. Although I believe that Mrs. Strickland might have embellished her account somewhat in certain respects, her husband impressed me by his overall testimony and demeanor as a forthright witness, careful to report the facts exactly as he recalled them. Graham, much of whose testimony was evasive, did not simi- larly impress me. I have considered the possibility that Graham might have dis- cussed the Union and a forthcoming reduction in force as separate subjects, and that the Stricklands might have mistakenly blended the two together. But after evaluating all the testimony, I have rejected that as a possibility. Certain testimony of Graham's appears to me to refute his assertion that he assigned as a reason for Neal's contemplated discharge action a necessary reduction in force. Thus he did not deny, in fact he admitted, that in the course of the discussion the question came up as to what effect Mr. Strickland's discharge would have on Mrs. Strick- land's job status. On that point he testified: The fact that her husband was to be reduced in force the following day, or soon, would not have anything to do with, but depended on what developed. As is commonly known, a man and his wife work for the same firm, a man is 4 Strickland, as appears from his testimony, never joined the Union or participated in any of its activities. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminated for any reason, it is logical to assume that his attitude may not be conducive to good working conditions . Also, it is logical to assume in the event that his attitude toward his employer was not good, that his wife would be the same way, and for that reason, in reply to her question, she was led to believe that it could affect her. [Emphasis supplied.] It seems to me that if Graham's statement concerning the discharge of Strickland and others had reference only to a necessary reduction in force, as Graham says, then any comment concerning Strickland 's attitude toward the Company and its effect on Mrs. Strickland 's job status would have been completely irrelevant to the discussion . Under all the circumstances . and considering also other record facts to be reported below, I am persuaded, and I find, in accordance with Strickland's testimony which is credited , that Graham's remarks relating to discharges to be effected the following Tuesday, including his references to Hartman and Nelson, were made in the context of a discussion concerning the Union , and were intended by him, and understood by the Stricklands, to convey the thought that the contem- plated discharges of which he spoke were related to union activities in the plant. 3. The discharges On Tuesday, September 8, 1953, Hartman , Nelson , and Winstead were discharged, and, along with them, Nade Strickland. They were told by Neal when terminated that they were being released because it was necessary for the Respondent to reduce its force , and that was the only reason given No other employees were terminated at or about that time for that assigned reason. Following the discharge of the four mentioned , a notice was posted at the guardhouse gate, stating that Hartman, Nelson, and Winstead were to be prohibited from entering the base for any reason, and that Strickland might be allowed to enter only for the purpose of going to the supply department to pick up his wife and returning immediately . Witnesses for the Gen- eral Counsel testified that they had never seen such a notice posted before. The Re- spondent offered no evidence to explain the notice or its significance. William J . Best, a crew chief in the inspection hangar who was then working on the night crew, testified credibly and without contradiction that when he found out that Strickland, Hartman, Nelson, and Winstead were laid off, he inquired of Hangar Chief Waldrop as to "what was the deal around here on this lay-off," and was told by Waldrop, "You just keep your nose clean and keep out of this mess and you will be all right." Waldrop did not specify what he meant by "mess." Nelson testified without contradiction , and it is found , that on the day following his discharge he called at the State employment office in Kinston to register for work; that he was asked what work he had been doing; and that when he stated he had been working as a mechanic on airplanes , he was told by the official at that office that he could go to work for the Respondent as it was requesting mechanics at the time. According to Best, the employees who were discharged on September 8 were imme- diately replaced in their positions as crew chiefs by other mechanics in the Respond- ent's employ, and new mechanics were hired shortly thereafter to fill vacancies created. Best's testimony to that effect was disputed by Vice-President Reynolds of the Respondent who asserted that the discharged employees were never in fact replaced. Documentary and other reliable record evidence emanating from the Respondent tends in the main to support Best's version. Thus, Neal testified that in August the inspection hangar had 8 crews, totalling 31 men, with the following crew chiefs : David Ingles, Lee Cameron , Savoy Nelson, William J. Best, Harvey L. Winstead, Lee Newton, Clyde Hartman, and W. G. Eubanks. According to Neal , in September, following the asserted reduction in force, the inspection hangar had only 6 crews, totalling 23 employees , with the fol- lowing crew chiefs: Ingles, H. T. Harris, J. A. Deal, Newton, A. B. Hardy, and T. A. Banks. Best's credited testimony that he was then working as a crew chief on the night shift, coupled with Neal's testimony elsewhere that Best might have been put on the night shift at about that time, reflects that there was also a seventh crew which Neal overlooked in his testimony. In any event, it appears that immediately fol- lowing the discharge of the complainants four new crew chiefs were added. The vacancies filled by the 4 new crew chiefs are accounted for as follows : Of those act- ing in that capacity prior to September 8, Cameron was moved up to replace Strick- land, Eubanks was given another assignment , and Hartman , Nelson, and Winstead were discharged-thus making a total of 5 vacancies, which was, however, reduced by 1 because of the reduction in the number of crews It is obvious, of course, that but for the discharge of Hartman , Nelson , and Winstead 3 of the 4 vacancies would not have occurred . It follows, therefore, that 3 of the 4 new crew chiefs must be regarded as replacements for the 3 employees mentioned and the fourth as a replace- SERV-AIR AVIATION 699 ment for Cameron who in turn replaced Strickland Of the 4 new crew chiefs, it appears that at least 3-Harris , Banks, and Deal-were not classified as crew chiefs prior to the time they were promoted to fill the vacancies ; as to the fourth, Hardy, the record is unclear as to his earlier status. While the record shows that the total number of employees was fewer in the aircraft maintenance department and in its inspection hangar unit in September than in August, the record also discloses that there was an inordinate amount of voluntary terminations in August and early September . Confirmation of Best's testimony that new mechanics were hired by the Respondent shortly after the discharge of the em- ployees in question is to be found in the Respondent's hiring records , which disclose that during the week following that in which the discharges occurred the Respondent put on its payroll two newly hired aircraft and engine mechanics. As appears from the testimony of Reynolds , the Respondent normally follows a policy of giving preference in employment to former employees who have been re- duced in force. Admittedly, it never offered reemployment to the complainants. Reynolds explained that the Respondent did not contact them when new jobs opened up because it did not pursue a practice of looking up people who had been reduced in force, but expected them to keep in touch with the personnel director. He did not explain why, if that were so, orders had been left at the guardhouse not to admit Hartman, Nelson , and Winstead to the field for any reason. 4. Analysis of the Respondent's defenses ; conclusions The Respondent's original position at the hearing was that it released the three complainants for no other reason than to effect a necessary reduction in force in its aircraft maintenance department . Although the Respondent never wholly aban- doned its original position, it shifted ground during the presentation of its case to allege as an additional reason for the release of the complainants a desire to elimi- nate dissatisfaction in the inspection hangar. The Respondent offered credible evidence to show that as a result of a reduced Air Force budget for the fiscal year beginning July 1 , 1953, and a consequent re- duction in the number of aircraft assigned to the base, it became necessary to curtail the complement of manpower at the base in general and in the aircraft maintenance department in particular. According to Vice-President Reynolds, the Respondent started to reduce its em- ployee complement in the latter part of July or the early part of August . The Re- spondent's employment and termination records, which are in evidence , bear out Reynolds' testimony as to the decrease in personnel about the time mentioned. Thus, it appears that during the period between July 15, 1953. and the end of August 1953, there were 15 terminations in the department , about half of them mechanics and crew chiefs. During the same period, there were no new hires in the department, at least of mechanics. It is significant, however, that none of the terminations in the period just referred to are accounted for on the Respondent 's records as reduc- tions in force. Of the 15 terminations noted above, occurring between July 15 and the date of the complainants' discharge, 10 were voluntary terminations, 2 were due to employees being drafted into the Army, and 3 are attributed to excessive absenteeism . Thus it appears that the Respondent prior to September 8 at least, was following a policy of allowing normal attrition to reduce its employee com- plement to budgetary requirements . The only employees shown on the Respond- ent's records to have been reduced in force between July 15, 1953, and the date of the hearing were the three complainants and Nade Strickland . At about the time such terminations were made turnover in the department was still continuing at a relatively high rate-to such an extent as to make it necessary for the Respond- ent to leave a request with the State employment office for mechanics , and to actu- ally hire the week following the discharge of the complainants two mechanics to perform work for which the complainants were qualified. In these circumstances- and bearing particularly in mind that the Respondent had followed a policy of attrition and had refrained from affirmative layoff action for a period of about 6 weeks after the need for reducing its complement of employees had become ap- parent-the Respondent's explanation , that an affirmative reduction of force was essential to it at that particular time for economic reasons, leaves much to be desired. But even if the Respondent's explanation in that regard be accepted , it still leaves open the question of whether the Respondent was guided by nondiscriminatory considerations in selecting the complainants rather than others for such reduction. It has already been observed that the complainants were among the older and more experienced employees in the department, and that their work performance had in the past been rated as satisfactory by the Respondent. It is obvious that 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they must have been regarded as among the more highly skilled mechanics in their unit, for two of them were classified as crew chiefs, and the third, while not so classified, had been placed in the position of an acting crew chief. At the hearing, the Respondent did not explain why it chose to select crew chiefs rather than less skilled employees for purposes of reduction. Certainly, it cannot be accounted for on the theory that crew chiefs were expendable while others were not, for, as found above, it became necessary for the Respondent to move others up by promo- tion to replace the crew chiefs who were discharged. Nor can it be accounted for on theory that the complainants, or at least two of them, were drawing higher rates of pay than ordinary mechanics, a factor that might result in greater savings by their release, for those promoted to the vacated positions presumably also ad- vanced to their rates of pay. Although the Respondent did attempt to explain why, as among crew chiefs in the inspection hangar, Hartman, Nelson, and Winstead rather than others were selected for reduction, its explanation in that regard was far from convincing. Neal, who made the selection, testified on direct examination that the selection was made "on the basis of going over their appearance record and also an examina- tion we gave them." Neal did not elucidate on what he meant by "appearance record," and the Respondent offered no evidence to show that the complainants' attendance records-if that is what Neal meant-were deficient or compared un- favorably with that of others. It was developed that the examination to which Neal adverted was a "cockpit check quiz" that had been given most of the crew chiefs in the inspection hangar and certain other aircraft maintenance personnel some time before. On that examination, Winstead, who was not classified as a crew chief but was acting as such, was the only one of the complainants who had failed to meet the passing grade of 60-his grade having been 58. Despite his failing grade Winstead had nevertheless been retained in his acting crew chief capacity. Nelson's grade was 60 and Hartman's 65. Only one of the crew chiefs in the inspection hangar (Newton) exceeded Hartman's grade. Of the others who took the examination and were not affected by the discharge action, 2 received grades of 60 and 1 a grade of 62. Of those who were advanced to the vacated positions of crew chiefs in the hangar after the complainants' discharge, only two (Deal and Hardy) had taken the same examination, and their grades were 60, equal to that of Nelson, lower than that of Hartman. On cross-examination, Neal conceded that on the basis of the grades which he had originally claimed was one of the principal criteria for the selection, it would have been difficult to make a choice, except for Winstead whose grade was below par, and Hartman and Newton whose grades were clearly above par. At that time, Neal shifted his position and conceded that the decision to discharge Hartman, Nelson, and Winstead was influenced by additional factors to which he had not earlier averted. He now testified that they were selected for discharge with a view toward eliminating unrest and dissatisfaction among employees in the inspection hangar. Neal was vague and vacillating in his testimony about what he meant by dissatisfaction and unrest. When pressed for an explanation, Neal testi- fied that dissatisfaction evidenced itself by "people talking instead of working, wasting time and things like that"; he now stated that what he had in mind was "people . . . not performing their work efficiently." He made no claim, however, that the complainants were guilty of talking when they should have been working, or of not performing their work efficiently, nor did he claim that they had caused others to be derelict in that regard. Though Neal denied that he connected the "unrest" and "dissatisfaction," which he now assigned as a principal factor for his selection of complainants for discharge, with the union organizational activities then going on in the plant, of which he was then admittedly aware, I do not credit his testimony. Graham's remarks to the Stricklands on the Sunday preceding the discharge convince me that the Respond- ent's management officials not only viewed with alarm the union activities then going on in the plant, but equated employee unrest and dissatisfaction with such activities. And my conviction in that regard is reinforced by the comments of President Miller of the Respondent in his interview with Margaret Strickland fol- lowing the discharges-to which reference will be made below in the section of this report treating with the issue of discrimination against Margaret Strickland. To sum up-Graham's comments to the Stricklands not only reflect management's concern over the organizational activities in the plant and a disposition to take reprisal against those believed to be responsible therefor, but disclose, moreover, that the so-called reduction in force which was planned for September 8 was directly related to and was on account of such union activities. The Respondent's efforts to explain the selection of the complainants for discharge on a nondiscriminatory basis has been found unpersuasive. On the other hand, Neal's testimony that they SERV-AIR AVIATION 701 were selected in an effort to eradicate "unrest" and "dissatisfaction," coupled with other convincing evidence indicating that in the eyes of management employee "unrest" and "dissatisfaction" were joined with union activities , confirm the conclu- sion here reached that Neal, who effected the discharge of the complainants, was in fact motivated in his decision to discharge the complainants at least in substan- tial part by antiunion considerations, as had been indicated by Graham to the Stricklands Upon consideration of the record as a whole, and on the basis of what I am persuaded is a fair preponderance of the credible evidence, I reject as implausible the nondiscriminatory reasons assigned by the respondent for the dis- charges of Hartman, Nelson, and Winstead; conclude that the underlying motiva- tion for their discharge was the Respondent's belief that the said complainants were at least in part responsible for the union activities in the plant , which the Respond- ent equated with unrest and dissatisfaction; and find that by discharging said com- plainants, and thereafter failing to reinstate them , the Respondent discriminated with regard to their hire and tenure of employment, thereby discouraging member- ship in the Union, and interfering with , restraining, and coercing employees in the exercise of the rights guaranteeed in Section 7 of the Act. D. The discharge of Margaret Strickland Margaret Strickland was employed by the Respondent in early 1952. She worked as a cost and inventory clerk in the supply and procurement department which is headed by James C. Graham. Her progress reports are in evidence. They show that her supervisors had always rated her satisfactory or above average on all items evaluated. The last report, dated August 25, 1953, and signed by Graham, contains this handwritten comment, "Mrs. Strickland has satisfactorily completed her assigned tasks and has shown ability to progress." Reference is made to the preceding section of this report, particularly to those por- tions of it treating with Graham's comments to the Stricklands on the occasion of his visit to their home on Sunday, September 6, 1953, and with the question then raised as to the effect Nade Strickland's discharge would have on his wife's job status. On the day following Nade Strickland's discharge, Mrs. Strickland had a further conversation with Graham concerning her own status. As appears from Mrs. Strick- land's undenied and credited testimony, Graham in the course of that conversation remarked, "I still don't believe Nade is guilty of being involved in the Union," but in response to her specific query stated nevertheless that she was to be reduced in force later that day. Mrs. Strickland told Graham at that time that she preferred to re- sign rather than to be released. That afternoon Mrs. Strickland sought and obtained an interview with President Miller of the Respondent. Mrs. Strickland testified without denial, and it is found, that during the course of that interview Miller questioned her as to what, in her opinion, "was the cause of the unrest and why the men on the base wanted a union, and who was in it and how many, etc." Mrs. Strickland, according to her testimony, did not know the answers to the specific questions concerning union activity, for she herself was not identified with the Union, and all she knew of the Union and its ac- tivities was what certain men apparently connected with it had told her at her home the night before. She told Miller what she knew, and stated that if, as she under- stood from the men, company officials had spied on union activities , the Respondent should have known that her husband was not at the meeting but at home. She as- sured Miller that neither she nor her husband was in the Union, and expressed the thought that it was unfair for the Respondent to reduce in force her husband and her- self while retaining less experienced and qualified people. Miller remarked that on the basis of what she had told him it appeared to him that an injustice had been done her husband, but stated that as long as Neal was in charge of the aircraft maintenance department he had no choice but to back up Neal in his decision. Miller promised, however, to investigate the matter. Up to the time of the close of her interview with Miller, Mrs. Strickland had not yet resigned. As she rose to leave, Miller told her, "Mrs. Strickland, if I were you I would not make a hasty decision." Mrs. Strickland interpreted Miller's remark to mean that he did not think it necessary for her to resign. She did not do so, and no action was taken against her-at least not until September 30. Later that month, Nade Strickland filed with the Board' s Regional Office a charge against the Respondent alleging that he had been discharged because of his member- ship and activities on behalf of the Union. The charge was served on the Respondent on September 22, 1953.8 8 Sometime later-after the events narrated in this report-the charge was administra- tively dismissed by the Regional Office on the ground that Nade Strickland was a super- visor, and, as such, not an employee within the meaning of the Act. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A week later, on September 30 to be exact, the Respondent discharged Mrs. Strick- land. The discharge was effected by Graham . As appears from Mrs. Strickland's undenied and credited account, [Graham] came up and said, "Margaret, I hate to say this, but you are fired," and I said, "Why?" and he said "disloyalty" and I said, "The only thing I am guilty of is working hard and trying to do my job" . . . and he said, "If I came out here and told you I was firing you because your work was not satisfactory, you would know I was lying," and he said, "That is just the way it has got to be, I have my orders and I have to pass them on." The discharge was reported in Mrs. Strickland 's personnel file as well as on the form sent to the State unemployment office as based upon the following ground: The attitude of the employee toward Company policy is detrimental to the De- partment and the Corporation as a whole. Mrs. Strickland testified credibly, and it is found, that prior to her discharge she had never been criticized about her attitude toward the Company. Although it was not usual for Graham to consult his superiors about the discharge of a subordinate, he admittedly conferred with Reynolds before the decision to dis- charge Mrs. Strickland was made. According to Reynolds, Graham indicated to him that he was having difficulty with Mrs. Strickland because "she was keeping a disturbance going in the office among other female employees ." But when pressed for details, Reynolds appeared uncertain of the nature of the disturbance; he "thought" Graham mentioned something about Mrs. Strickland going to "various other peo- ple's desks" and talking to them and "constantly crying, and so on ," but about what Graham, according to Reynolds, did not say .9 Reynolds made no effort to explain why, if that were the reason for Mrs. Strickland's discharge, no mention of it was made to her at the time of her discharge, nor on the termination forms that were sub- sequently filled out. Later in the course of his examination , Reynolds shifted ground when asked to specify the precise reasons motivating the discharge decision , and now asserted two different reasons, seemingly inconsistent with each other and with the one he gave before, namely, that Mrs. Strickland was discharged in order to effectuate a neces- sary reduction in force, and that she was discharged because of "the attitude she dis- played in the job she was in." The additional reasons assigned by Reynolds, how- ever, were no more convincing than his earlier one. As the record reveals, no other employees were reduced in force that day, nor, for that matter, was Mrs. Strickland's termination noted on the Company's records as a "reduction in force." Reynolds' as- sertion concerning Mrs. Strickland's attitude in her job was made in the form of a conclusionary declaration , wholly unsupported by detail. As found above, Mrs. Strickland prior to her discharge had never been criticized about her attitude in her job. Nor was any mention of it made to Mrs. Strickland when she was discharged, unless Graham's vague reference to "disloyalty " he considered such . Though Mrs. Strickland's termination notice does refer to her attitude , the reference there is not to her attitude in the job, but "toward Company policy." Just what that policy is was not there set out, nor was it defined by any witness for the Respondent in this record. Graham, who, according to Reynolds, initiated Mrs. Strickland's discharge and who was called as the Respondent's principal witness to defend it, gave an entirely different reason for that action-one that was at odds with any of the three reasons asserted by Reynolds On direct examination Graham testified that he discharged Mrs. Strickland only because her work performance was unsatisfactory. But this added reason also fails to convince. As found above, Graham had rated Mrs. Strickland's work performance satisfactory on her last progress report in late Au- gust. Graham while testifying did not deny that Mrs. Strickland had been a good worker before her husband's discharge. He claimed, however, that her efficiency suddenly and sharply deteriorated thereafter. But when asked to specify, his testi- mony was vague, evasive, and generally unimpressive. Significantly, he did not deny telling Mrs. Strickland when she was discharged that he was not firing her because her work was unsatisfactory, but because he was obliged to do so under orders he 9 The Respondent called three employee witnesses to testify that Mrs. Strickland was nervous and cried frequently during the last 3 weeks of her employment. But when asked for details on cross-examination, one of them could specify only two occasions when she actually observed Mrs. Strickland crying-once when her husband was discharged and again when she was discharged Mrs Strickland admitted that she cried the day her hus- hand was discharged, but denied she otherwise went through periods of crying during working hours prior to her discharge, and I credit hei testimony in that regard SERV-AIR AVIATION 703 had received, and he made no effort to explain the obvious inconsistency between his assertion then and his assertion at the hearing. Though Graham in his direct examination asserted-incredibly, as has been found-that he discharged Mrs. Strickland because of unsatisfactory work perform- ance, he later conceded that his discharge decision was affected by another consider- ation-the fact that Mrs. Strickland 's husband had filed an unfair labor practice charge against the Respondent . The filing of that charge made him feel , he testi- fied, that Mrs. Strickland was antagonistic toward the Respondent , and that factor was taken into account in reaching the decision to discharge her. On redirect examination , Graham testified that he also felt that Mrs. Strickland was not loyal to the Company after her husband 's discharge . When asked, how- ever, in what way she manifested disloyalty , his answer was confused and evasive At one point he testified that he could point to no overt action of disloyalty on her part, but in the next breath he spoke of Mrs. Strickland "interfering in a certain extent with other employees of the Corporation." His testimony was vague when asked to describe the character of the interference he had in mind, but he indicated along the line that hearsay information had come to him in the form of "rumors" that Mrs. Strickland was engaging other employees in discussions and "that as things progressed she had new information to discuss with them . Questioned as to the type of information , Graham answered , "As I say, and I cannot give specific statements or instances ; it was pertaining to the fact that her husband was bringing_ action against . the Corporation." On all the evidence , and on my appraisal of the credibility of the witnesses, I do' not believe that Mrs. Strickland was discharged for creating a disturbance among fellow employees, or for her attitude in the performance of her job, or in order to effect a necessary reduction in force, as variously stated by Reynolds, nor do I be- lieve Graham's version that he discharged Mrs. Strickland for unsatisfactory work performance. None of the reasons so assigned are consistent with Graham's as- sertion to Mrs. Strickland contemporaneously with her discharge that he was dis- charging her on orders from above for "disloyalty," or with the statements on Mrs. Strickland's termination forms that are practically to the same effect, that her dis- charge was due to her opposition to company policy. The key to the Respondent's true motivation must be sought elsewhere . It is to be found, I am convinced, in the sequence of events leading to Mrs. Strickland 's discharge . As has been found above, Mrs. Strickland 's husband -was in effect advised by Graham prior to his discharge that he was believed by the Respondent to be interested in the Union and that he was to be discharged along with others because of union activities . At that time, too, Graham, indicated to Mrs. Strickland , as he himself admitted, that Mrs. Strick- land's job status might also be thereby affected, on the theory that if a husband's "attitude toward his employer was not good, that his wife would be the same way." In the context of that conversation , Graham's reference may only be read as im- plying that union sympathy or interest was incompatible with a proper attitude toward the Company. Consistent with Graham's prognostication , Mrs. Strickland was told shortly after her husband's discharge that she , too, was about to be termi- nated. However, after she had assured the Company 's president that neither she nor her husband were interested in the Union , and had convinced him that a mis- take had been made in terminating her husband , she was allowed to remain on. The situation changed when her husband filed a charge alleging that he was dis- charged for engaging in union activities . The nature of the charge was such as to indicate to the Respondent that there was in fact substance to its original opinion that Strickland had been identified with the Union, and to revive its belief that if Strickland harbored union sympathies , so, too, might his wife, thereby reflecting upon her loyalty and attitude toward the Company in the sense noted That the Respondent connected Strickland 's filing of a charge with its conclusion that Mrs. Strickland's attitude toward the Company was not a proper one need not , however, rest on inference alone It is revealed by Graham's admission that because of that circumstance the Respondent felt that Mrs . Strickland was antagonistic to the Com- pany. That the Respondent in Mrs. Strickland 's case equated "disloyalty" with union sympathy or support is at least suggested by Graham's testimony that he felt Mrs. Strickland to be disloyal largely as a result of the rumors reaching him that Mrs Strickland was engaging in discussions with other employees and advising them of the progress of the unfair labor practice proceedings pending against the Re- spondent . In view of the Respondent's failure otherwise credibly to explain its de- cision to discharge Mrs. Strickland , I believe the inference inescapable from the sequence of events and other considerations expressed above that the Respondent drew the conclusion that Mrs. Strickland was "disloyal " because of its belief that she shared the supposed sympathy of her husband for the Union, and , additionally, be- 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause her husband had filed an unfair labor practice charge against the Respondent, and that it discharged Mrs. Strickland for such reasons. I so find. Clearly, the discharge of Mrs. Strickland for the reason that she was believed sympathetic in her attitude toward the Union was violative of Section 8 (a) (1) and (3) of the Act. It is unimportant that in point of fact Mrs. Strickland never joined the Union or engaged in union activities. It is enough that the Respondent believed that to be true. The Board has "always held that when an employee is discharged because his employer believes him to be engaged in [union] activity, the discharge is violative of the Act, whether or not such belief is well founded." New York Tele- phone Company, 89 NLRB 383; Griffin Manufacturing Company, 103 NLRB 732, 739. The additional reason intertwined with the aforesaid belief, and which has been found to have contributed to the Respondent's discharge decision-the filing of an unfair labor practice charge by Nade Strickland-was no less an unlawful one within the meaning of Section 8 (a) (1) and 8 (a) (3), and would have been so even had it stood alone. The Board has held that participation in proceedings be- fore the Board, such as the filing of charges and the giving of testimony, is a right of employees embraced within the coverage of Section 7, protected against employer coercion and restraint. Personal Products Corporation, 108 NLRB 743. It is un- necessary in this case to decide whether Nade Strickland, who had been a supervisor prior to his discharge but was no longer such at the time he filed his charge, was himself exercising a statutory employee right when he filed his charge.i° What we are concerned with here is whether the discharge of Margaret Strickland, a nonsuper- visory employee, for the reason that a charge had been filed against the Respondent, had the natural and forseeable consequence of restraining and coercing the Re- spondent's ordinary employees in their future exercise of their protected right to utilize the Board's processes as part of the employee safeguards of Section 7. If such employee restraint and coercion was a natural and forseeable consequence of the Respondent's action the Respondent must be presumed to have intended that result. Radio Officers' Union of the Commercial Telegraphers Union, AFL V. N. L. R. B., 347 U. S. 17. I think it clear that the discharge of Margaret Strick- land because her husband filed a charge had the natural and forseeable tendency and effect of causing the Respondent's nonsupervisory employees reasonably to fear that they, too, might be met with reprisal action should they find it necessary in implementation of their Section 7 rights to utilize the Board's processes, and as such operated to restrain and coerce them in the exercise of such statutory rights in violation of Section 8 (a) (1).1i Moreover, I am of the opinion, and I find, that the discrimination against Mrs. Strickland, because her husband had charged the Company with unfair labor practices related to union organization, was of such a character as inherently to discourage union membership , and as such was also violative of Section 8 (a) (3) of the Act. Radio Officers case, supra. I conclude and find that by discharging Margaret Strickland on September 30, 1953, and thereafter refusing to reinstate her, the Respondent discriminated in regard to her hire and tenure of employment, discouraging membership in the Union, and also interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. E. The discriminatory discharge of Alfred L. Tucker Alfred L. Tucker, an aircraft and engine mechanic , worked for the Respondent from July 15, 1952, to March 26, 1954, when he was discharged, according to the General Counsel for union activities , according to the Respondent for cause. Orig- inally Tucker worked in the aero repair section of the aircraft maintenance depart- ment, but in November 1953 he was transferred to the engine buildup section of the same department, and was still in that section at the time of his discharge. In engine buildup Tucker worked under the immediate supervision of Shop Foreman W. B. Johnson; the supervisor above Johnson was Hangar Chief William Reynolds (who had also been Tucker's supervisor in aero repair); and W. T. Neal was the director of the department. Another name that figures in the account below is Ralph Dail, an engine mechanic, who at the time of Tucker's discharge was acting as crew chief of the crew to which Tucker was attached. Dail was discharged simultaneously with Tucker, and, according to Johnson, for the same reason. Dail, however, did not file a charge alleging discrimination and is not named in the complaint. 10 Cf Briggs Manufacturing Company, 75 NLRB 569, 572 ; John Hancock Mutual Life Insurance Company, 92 NLRB 122, enfd . 191 F . 2d 483 (C. A., D. C.). 11Cf. Talladega Cotton Factory, Inc , 106 NLRB 295, enfd . 213 F. 2d 208 ( C. A. 5) ; Inter-City Advertising Company, 89 NLRB 1103, enfd. as mod. 190 F. 2d 420 ( C. A. 4). SERV-AIR AVIATION 705 Tucker's progress and performance rating reports are in evidence. They show he had always been rated by his immediate supervisors as satisfactory and above average on all rated items. His last performance report prior to his discharge is dated November 10, 1953, and is signed by Johnson and Reynolds as rating supervisors. In light of the reasons advanced for his discharge, to be adverted to below, it is par- ticularly to be noted that on the factor of cooperation, he is rated as one who "works in harmony with others" and is "a very good team worker." 12 On the factor of reliability and personal responsibility, he is noted as one who "completes all assigned tasks promptly and in an acceptable manner." On overall evaluation he is checked as a "dependable and typically effective employee." Tucker joined the Union about the beginning of the organizational campaign. He was active in employee solicitation activities on its behalf, signing up, according to his testimony, some 15 employees. At the second union meeting held some- time in September officers were chosen. Tucker was then elected vice president, and Dail either secretary or treasurer. Both remained officers of the Union until their discharge. The Respondent's knowledge of Tucker's membership in the Union is clearly established. Johnson admitted it while testifying. Although Neal denied such knowledge, he conceded that he had heard "rumors" to that effect. Moreover, at one point of his testimony Neal mentioned in passing that he could have fired Tucker earlier, but did not, because of his "attitude," referring in that connection to an occasion several months before Tucker's discharge when Tucker had caused "dissen- sion of an employee" by giving him a union card. Reference has been made earlier in this report, in the section entitled "Inter- ference, restraint, and coercion," to Tucker's conversation with Johnson in which Johnson told Tucker he could be fired for distributing union application cards during lunch hour, and that although he would do nothing about it, he believed Neal would if it got to him. Reference has also been made to Johnson's advice to Tucker later that day not to fool around with the Union, and to his contemporaneous coercive remarks reflecting, inter alia, upon the Respondent's opposition to union organization. Employee E. L. Leonard, who worked under Johnson's supervision and was friendly with him, testified that a couple of weeks before Tucker and Dail were dis- charged, Johnson informed him that both Tucker and Dail would have to go be- cause they were connected with union activities and were troublemakers. Leonard further testified that following the discharge of Tucker and Dail, Johnson com- mented with reference to them, "I told you we were going to let them go." Leonard's testimony to that effect, although denied by Johnson, is credited. As stated, Tucker was finally terminated, along with Dail, on March 26, 1953. The final termination was preceded by an interview with Neal the day before. Tucker's account of what occurred is not substantially disputed. On March 25, Tucker and Dail were summoned to Neal's office. Neal presented them with the choice of voluntarily quitting or being discharged. Neal gave as his reasons for requiring their termination that they were constantly sitting down on their jobs without working and that they were unable to get along with anyone. He also accused them of taking the maximum amount of sick leave to which they were entitled under the Company's regulations, whether they were sick or not. Tucker took issue with Neal's accusations, claimed they were false or exaggerated, and charged Neal with seeking his discharge for reasons other than those asserted. Both he and Dail refused to quit, stating to Neal that if he desired their termina- tion he would have to discharge them. The interview ended with Neal giving them 1 week's notice of termination, subject to the understanding that if they failed to accomplish their work and cooperate with their supervisors in the meantime they would be released sooner. Tucker understood-correctly I find-that he was dis- charged as of then with only the effective date postponed. The next day both he and Dail came to work. Dail got into a verbal altercation with Neal-the details of which are confused on the record and are unimportant here in any event-and Neal told Dail he was fired, effective at once. At that point, Tucker, who had been standing by but was not himself involved in the altercation, told Neal that he preferred to have his own termination made effective immediately rather than to wait out the week and possibly find that he had been recorded as having quit. Neal obliged. Neal testified that he discharged Tucker because "there was not any place that we could put him that he would get along with the people." According to Neal, Tucker for a considerable period of time-dating back to August 1953-had shown "On the form there are 5 alternative items, 1 of which must be checked, on the factor of cooperation That noted is the second highest. The lowest alternative, left unchecked on Tucker's report, states, "Inclined to create friction. Does not get along well." 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a chronic inability to get along with those under whom and with whom he worked, leading to friction on that account. As a result it had been necessary, testified Neal, to transfer Tucker to various sections of the department to see if a place could be found for him where he could work out. That was the reason, Neal indicated, for transferring Tucker from aero repair to engine buildup in November 1953. Neal testified that Tucker was unable to get along with Foreman Johnson in engine buildup and was later-apparently about February 1954-transferred to another hangar to do sanding under the supervision of Jack Withers, but did not work out there either, and so was brought back to engine buildup where his trouble with Johnson started all over again, culminating in his discharge. According to Neal, he did not discharge Tucker sooner for that reason only because Tucker's family had been involved in a serious accident in 1953 and he attributed Tucker's conduct to nervous tension. Tucker denied that he had been transferred to various sections because of his inability to get along with those under whom he worked, and I accept his testimony over that of Neal. As has been found above, Tucker was highly rated by Reynolds and Johnson on his last performance report, dated November 10, 1953, particularly on the factors of cooperation, reliability, and dependability. At the time of that report, Tucker was already working in engine buildup. It is difficult to believe that if, as Neal asserted, Tucker had since August 1953 exhibited the chronic failings ascribed to him, and had just been transferred to another section for that reason, Reynolds would have subscribed his name to a report characterizing Tucker as one who "works in harmony with others" and is "a very good team worker." More- over, Neal's testimony as to the reason why Tucker was transferred from engine buildup to work in another hangar under Withers and then back to engine buildup is refuted by other clear record evidence, including certain other portions of Neal's own testimony. That evidence shows conclusively that, not only Tucker, but the entire crew of which he was part was temporarily transferred to Withers' hangar, and that the purpose of the transfer was to perform a special job required at that hangar. The discharge of Tucker, although made by Neal, was effected at the recom- mendation of Johnson, according to the Respondent. As to what led him to make his recommendation, Johnson testified as follows: For a good while after Tucker came under his supervision, Tucker had been a good employee. There came a time, however, when "all the boys got slack." As a result, Johnson called a meeting of his men sometime in February to speak to them about it, not singling out any for criticism but addressing all in general. At that meeting Tucker ex- pressed violent resentment. After the meeting, the men in his section continued coming in late and taking overlong smoke breaks, with the result that Johnson found it necessary to "get on" the men in his section again, and to threaten them with discharge if they did not improve. Finally, Johnson recommended the dis- missal of some eight employees in his group, making his recommendation as to Tucker and Dail on one day, and as to the others the next morning.13 Neal followed Johnson's recommendation with regard to Tucker and Dail. The others whom Johnson says he recommended for discharge were not dismissed, although according to Johnson, they were subsequently transferred to another section of the department. Tucker, whose testimony I credit generally, admitted that there had been some criticism of his crew by Johnson for taking excessive breaks, but testified that the criticism was for the most part unwarranted, and that while there had been a few infractions on his own part, they had not exceeded a few minutes. The Respondent adduced no testimony to show the contrary. Moreover, Tucker testified without denial that about 2 days before his discharge he and the crew of which he was part had been complimented by Johnson for the dispatch and efficiency with which they had got out an emergency job. Johnson while testifying made no claim that Tucker and Dail were more guilty than others under his supervision of the conduct which he says led to his discharge 13 Johnson in his testimony did not claim that there was any particular occurrence in- volving Tucker and Dail that directly precipitated the discharge decision Nor did Neal in his testimony Tucker's personnel file contains a note, signed by Neal, prepared after Tucker's discharge, stating that on the day before the discharge, Tucker was observed by Neal sitting around doing nothing before it was actually time to punch out. Neal did not testify concerning any such incident Howevei, Leonard, a witness for the General Counsel, was questioned on cross-examination concerning such an incident. Leonard's testimony reveals that there were about 5 or 6 employees in the section who were sitting around unoccupied foi sonie time prior to quitting time on the day preceding the discharge He was not asked, and his testimony does not show, whether Tucker was among them. SERV-AIR AVIATION 707 recommendation. His basis for recommending the dismissal of the six others who were not discharged, he testified, was exactly the same as that on which he recom- mended the discharge of Tucker and Dail. The record shows that long before their discharge, Tucker and Dail had been singled out by Neal for special attention in other ways Thus Neal admitted at one point-in contradiction to earlier testimony he had given-that Tucker and Dail had" been under "observation" for a considerable time before their discharge. Where an employee was under "observation," his supervisors were required to keep a special check on him and report to Neal in writing any derelictions or infractions in his work or conduct, major or minor That was done with respect to Tucker and Dail, but not as to any of the other employees in the engine buildup section, who, according to Johnson, had been similarly guilty of the conduct of which he was critical. Neal fixed the time when Tucker and Dail were placed under observa- tion as in August 1953. He conceded that action was taken about the same time that he began to receive "rumors" of union organization. Neal was not questioned as to why Dail was placed under "observation" at that time. According to Neal, Tucker was placed under "observation" in August 1953, and thereafter retained under "observation," because he had been advised by Supervisor Reynolds that Tucker was "causing friction among employees and self " Neal's testimony, that the "friction" consisted of Tucker's inability to get along with others, was not con- vincing, particularly in the light of the ratings made on Tucker's progress and performance reports, as set out above. Other record circumstances suggest that the connection between Tucker's placement under "observation" and the start of union organization in which he was active was one more of consequence than of coincidence I regard as highly significant Johnson's testimony that Tucker and Dail were the only two employees whom he knew to be connected with the Union, and, more spe- cifically, that he had no knowledge of any union identification of any of the six others, who though they engaged in like conduct were not discharged. In this case-to sum up-the reason given by Neal for his decision to discharge Tucker has been found not credible. The reason given by Johnson fails adequately to explain why Neal should have treated Tucker differently from other employees who, according to Johnson's own account, engaged in identical conduct but were retained. Absent such an explanation, I am convinced on all the evidence that the true reason for the disparate treatment is to be found in the Respondent's identifica- tion of Tucker, but not of the others, with the Union, to which, as the record as a whole shows, it was opposed. The Respondent's predilection, and Neal's in particu- lar, for making union membership a basis for discrimination is revealed by the other cases discussed above. In the case of Tucker, the conclusion here reached is, more- over, specifically supported and confirmed by Johnson's prediction to Leonard about 2 weeks before Tucker's discharge that Tucker was one of those who would have to go because he was connected with union activities, and by his statement to Leonard after the discharge that what he had predicted had now come to pass. Upon con- sideration of the record as a whole, and on the basis of what I am convinced is a fair preponderance of credible evidence, I conclude and find that the Respondent's underlying motivation for discharging Tucker lay in Tucker's known union member- ship and activities and the Respondent's opposition thereto. I further find that by discharging Tucker on March 26, 1954, and thereafter refusing to reinstate him, the Respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coerc- ing employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 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, I shall recommend that the Respondent be ordered to cease and desist therefrom, and take certain affirmative action in order to effectuate the policies of the Act. Having found that the Respondent discriminated with regard to the hire and tenure of employment of Clyde H. Hartman, Savoy Nelson, Harvey L. Winstead, Margaret Strickland, and Alfred L. Tucker, I shall recommend that the Respondent offer them 344056-55-vol 11146 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and each of them immediate and full reinstatement to their former or substantially equivalent positions 14 without prejudice to their seniority or other rights and privi- leges, and make them whole for any loss of pay suffered as a result of the discrimina- tion against them, by payment to each of them of a sum of money equal to the amount he or she would have earned from the date of his or her discriminatory discharge to the date of the offer of reinstatement less net earnings 15 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in any one particular quarter shall have no effect upon the back-pay liability for any other such period . It will also be recommended that the Respondent make available to the Board, upon request , payroll and other records to facilitate the checking of back pay due. As the unfair labor practices committed by the Respondent were of a character striking at the roots of employee rights safeguarded by the Act, and disclose a propen- sity on the part of the Respondent to continue , although not necessarily by the same means, to defeat self-organization of its employees , it will also be recommended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Brotherhood of Carpenters and Joiners of America, AFL, is a labor or- ganization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Clyde H. Hartman, Savoy Nelson, Harvey L. Winstead, Margaret Strickland , and Alfred L. Tucker, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in un- fair labor practices within the meaning of Section 8 (a) (1) of the Act. 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.] 14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 15 Crossett Lumber Company, 8 NLRB 440, 447-498; Republic Steel Corporation v. N L R B., 311 U. S. 7. ARMSTRONG TIRE AND RUBBER COMPANY, TIRE TEST FLEET BRANCH and UNITED RUBBER, CORK, LINOLEUM AND PLASTIC W ORKERS OF AMERICA, CIO. Case No. 39-CA-359. Feb ruary 18,1955 Decision and Order On April 8, 1954, Trial Examiner Stephen S. Bean issued his In- termediate Report in the above-mentioned proceeding, finding that the Respondent had engaged 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, and recommended that the compaint be dismissed with respect to such allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 111 NLRB No. 116.