Southern Airways Co.

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