Anderson Air Activities, Inc

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD official and the interests of the rank and file as embodied in the contract made for them by their chosen representative . The provision in the contract governing the transfer of an officer existed long before Britt took office, and she knew that as an officer she was subject to its restrictions . If she found them too irksome, she was free, as indeed Volckening reminded her, to give up her office. She could not, as she insisted upon doing, ride the best of both possible worlds-have her office and at the same time be as untethered as a rank -and-file employee . And while one need not go that far in disposing of the issue , it may be said that it is difficult to see how the Union could have failed to protest and try to undo the coup sprung by Britt without being derelict in its duty to the rank and file. It is accordingly concluded that the record does not support a finding that the Union acted out of other than an honest motive to protect its legitimate interests under the contract. It is further concluded that the Employer, in rescinding the transfer, did not discriminate against Britt, in violation of Section 8(a) (3), but was acting to rectify an acknowledged infraction of a valid contract with the Union. It is further found that the Union neither caused nor attempted to cause the Employer to discriminate against Britt, in violation of Section 8(b)(2) or 8(b)(1)(A) of the Act, as claimed. Upon the foregoing findings, and upon the entire record, there are hereby made the following: CONCLUSIONS OF LAw 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The contract between the Union and the Employer validly required notification to and discussion with the Union before the transfer of a union officer from one department to another. 4. The transfer of Mildred M. Britt took place without compliance with the fore- going provision of the contract. 5. In protesting the transfer becai se of noncompliance with that provision, the Union acted to protect its legitimate interests thereunder and its action was not discriminatory in intent or effect. 6. The Union did not cause or attempt to cause the Employer to discriminate against Britt in violation of Section 8(a) (3). 7. The Union did not engage in any unfair labor practice within the meaning of Section 8 (b) (2) or (1) (A) of the Act, as alleged. [Recommendations omitted from publication.] Anderson Air Activities, Inc. and International Association of Machinists, AFL-CIO. CaBe No. 14-CA-311P. August 16, 1960 DECISION AND ORDER On December 4, 1959, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that Anderson Air Activities, The, hereinafter called Respondent, had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain ^af'irmative 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 unfair labor practices alleged in the complaint,and recommended that these allegations be dismissed. Thereafter Respondent filed exceptions to the Intermediate Report ,and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a _ three- 128 NLRB No. 74. ANDERSON AIR ACTIVITIES, INC. 699 member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds 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 herein, and adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent that they are consistent with this Decision.' The complaint alleged and the Trial Examiner found that the Respondent, on or about December 9, 1958, had unlawfully interro- gated employee Gerald Brannan, in violation of Section 8(a) (1) of the Act, and on April 3, 1959, had unlawfully discharged him, in violation of Section 8(a) (3) of the Act. Respondent has excepted to these findings and we find merit in such exceptions for the reasons stated herein. 1. The interrogation of Brannan The only reference to any interrogation of Brannan in the Trial Examiner's report is in his findings of fact wherein the Trial Exam- iner found that Brannan "was called into Personnel Manager Storey's office on December 9, 1958, and interrogated about the union and why the employees needed outside help." The Board has rejected the theory that interrogation is, per se, unlawful, holding that interro- gation of employees concerning union or concerted activities must be judged in the perspective and context in which it occurs.' It is clear from the record that Respondent's personnel manager, Storey, on his return from a vacation, was apprised of "serious trouble" on the crew of Foreman McGruder. Brannan was a member of that crew. The trouble was so serious, arising out of insubordina- tion and other reasons, that McGruder voluntarily resigned because he had lost control of his crew. Storey personally interviewed sev- eral members of the crew to ascertain the cause of the trouble 3 Brannan testified that Storey prefaced his interview by stating that he (Storey) "wanted to discuss the problems he understood existed on McGruder's crew," and that Storey asked him, "Why don't you tell us about this union-what was wrong that we wanted a union and he said he would like to straighten it out and that we needn't go for outside help." Brannan testified further that he denied any knowledge of the Union, and that he and Storey then proceeded to discuss the problems of the crew for 11/2 hours without any further i The Respondent's request for oral argument is hereby denied as the record , including the exceptions and brief, adequately present the issues and positions of the parties. ' Blue Flash Express, Inc., 109 NLRB 591. 3 These interviews were held at night when Storey's office was usually closed We attach little weight to the fact that the interviews were held in the nighttime, because McGruder's crew worked a night shift. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mention of the Union. Riddle and Rogers, crew members and wit- nesses for the General Counsel, were interviewed, jointly, at about the same time as Brannan. Both testified that Storey told them at the outset that the purpose of the interview was to determine he nature of the dissension on the crew. The ensuing conversation was essentially about the crew and the reasons for the dissension. The only reference to the Union was when Storey stated that he knew union cards were "floating around," but "if the employees wanted a union, it was their own business." Viewing the alleged interrogation in the context in which it occurred, it is evident from the testimony of the participants that there was a situation of a grave nature existing on McGruder's crew, resulting in the latter's subsequent resignation; that Storey was vitally concerned with ascertaining the underlying causes; and that Storey's question as to why the employees sought "outside help" (presumably referring to the Union) sought merely to elicit from the employees their reasons for the dissension on the crew. The questioning occurred against a background free of employer hostility to union organiza- tion. We conclude that the Respondent's interrogation of its employ- ees under the circumstances of this case, including our dismissal of the 8(a) (3) allegation herein, did not violate Section 8(a) (1) of the Act, and we so find' 2. The discharge of Brannan Brannan was active in organizing the Union at Respondent's plant where he was employed as an aircraft and engine mechanic. How- ever, there is no proof in the record that Respondent had any knowl- edge of Brannan's union activity other than the fact that Brannan, together with another employee, was present in the Board's Regional Office at one or two meetings called for the purpose of entering into a consent election which subsequently was held on February 5, 1959. Consequently, we neither infer nor charge Respondent with knowl- edge of the fact that Brannan was `the leader of the union" and the "main union organizer" as found by the Trial Examiner. Nor is there proof in the record that Brannan was engaged in any union activity after the Board-conducted election, or that Respondent had any reason so to believe. No objections were filed to the election by the Union. The day after the election, Respondent publicly announced a policy of no recrimination or reprisals and "let's go back to work." It is against this background, free from union animus or hostility to the organizational rights of employees, that Brannan's discharge must be considered.5 ' N.L R.B. v. John S. Swift Co., 277 F. 2d 641 , 646 (C.A. 7 ), reversing in part 124 NLRB 394. 5 Like the Trial Examiner, we are unable to give any probative value to the state- ment found by the Trial Examiner to have been made by Foreman Bowen to Brannan, ANDERSON AIR ACTIVITIES, INC. 701 The Trial Examiner found that Brannan was discriminatorily discharged on April 3, 1959. He rejected Respondent's defense that the discharge was for Brannan's abuse of Respondent's sick leave policy. He found that Respondent's reason for the discharge was a pretext used by the Respondent to discharge the "leader of the union's organizational attempt." For the reasons stated herein, we do not agree. It is first necessary to advert to pertinent and material testimony not mentioned by the Trial Examiner. Respondent operates under a prime contract with the United States Air Force and trains flying officers on a cost-plus-fixed-fee basis. All its policies and procedures in the operation of its plant must be approved by the Air Force, and Respondent at all times must comply with such approved procedures. Respondent is subject to check by a resident auditor of the Air Force as to such compliance. The sick leave policy of Respondent is one of the policies thus regulated by the Air Force. In early March 1959, a new resident Air Force auditor, in the course of his annual audit, undertook to check on Respondent's sick leave procedures. After reviewing sick leave records, he called Re- spondent's attention to what he deemed to be abuses of sick leave. In particular, the auditor pointed out that certain employees con- sistently used up all their annual sick leave; that others, each time sick leave was taken, consistently took 2 days' leave which did not mandatorily require a doctor's certificate; and that still others invariably took sick leave before or after weekend periods. These matters were discussed with Personnel Officer Storey early in March 1959. Thereafter, on April 20, 1959, the auditor submitted to the Air Force his completed report on Respondent's payroll policies and procedures, from October 1, 1958, through March 31, 1959. The pertinent part of the report is as follows : c. Possible Sick Leave Abuse: A review was made of the sick leave records maintained in the Personnel Office for each con- tractor employee. Our review indicated a pronounced trend on the part of certain contractor employees to use sick leave in the exact amounts ac- cumulated, and generally in absences of three days or less, thus avoiding the requirement for a doctor's certificate of inability to perform duties. A list of the employees whose sick leave records indicated a possible abuse of sick leave privilege has been pro- vided to the Personnel Manager. to the effect that Brannan had better be careful-the "higher ups" were looking for any reason to discharge him. The "higher ups" denied so stating to Bowen, and the Trial Examiner did not discredit their denials. Consequently, we cannot give the statement any probative value with respect to the issue of Respondent motivation for the discharge of Brannan. See Orenduff & Kappel, Inc., 118 NLRB 859, 862, 863, and in particular, footnote 9, p. 862, where the Board distinguished Drico Industrial Corpo- ration, 115 NLRB 931. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recommendation VI: That the provisions of contractor's ap- proved procedure No. 22.27, paragraphs I A 2 and II A 6, per- taining to independent verification 6 of sick leave absences, be strictly enforced for those employees whose past histories indicate possible abuse of sick leave. Because of the discussions Storey was having with the Air Force auditor, Storey began a comprehensive check of the employees' sick leave records. He found that Brannan was the worst offender, in that Branan always used up all his annual sick leave, had taken most of it in increments of less than 3 days, and always took "long week- ends." 7 On March 16, 1959, requests for approval of sick leave came in from Brannan and another employee. Brannan's request involved sick leave for Friday, March 13. Storey approved it, but also ad- dressed an inter-office memorandum to Norris, director of aircraft maintenance. The memorandum stated that Brannan had been on sick leave on February 20 and March 13, each of which dates was a Friday, and pointed out that this fact raised a suspicion of taking long weekends. Storey suggested that Norris and Bowen, Brannan's foreman, talk to Brannan "about his health." s Norris, in accordance with his usual procedure of letting foremen control their own crews, did not speak to Brannan; instead, he showed Storey's memo to Bowen, and directed Bowen to talk to Brannan. As found by the Trial Examiner, Brannan was again absent on Thursday and Friday, March 26 and 27, 1959. On March 30, on his return to work, Brannan applied to Bowen for sick leave for these days.' On March 31, Bowen took up with Norris the question of Bran- nan's latest application. Bowen told Norris that he was not satisfied that Brannan had been actually sick, because "it did not look as if he had been sick and he was aware of Brannan's habit of taking week- ends." He asked Norris whether he should require Brannan to pro- duce a doctor's certificate. Norris replied that if Bowen was not satisfied, he could require the certificate in accordance with com- pany procedure.1° Bowen thereupon, on the night of March 31, told Brannan to obtain a doctor's certificate with respect to the absences in question. Later on that night, at the end of the shift, Brannan went to 0 "Independent verification" meant that whereas sick leave of 3 days or more manda- torily required a doctor's certificate , any lesser sick leave was subject to independent company verification. 7 It was conceded by the General Counsel that Respondent 's sick leave records support this fact. 8 Storey, at the same time, wrote a similar memo to the supervisor of the other employee who had applied for sick leave. e It was disputed whether Brannan at that time advised Bowen he had not been to a doctor. Though the application form for sick leave, which was signed by Brannan, included a question as to such medical attendance , no explanation was given by Brannan as to why the question was left unanswered. 10 The record does not support the Trial Examiner's finding that Norris suggested to Bowen the necessity of the certificate . We find that it was Bowen who first raised the question. ANDERSON AIR ACTIVITIES, INC. 703 Bowen's office and discussed the question of the certificate. The up- shot of the conversation was that Bowen, in Brannan's presence, wrote an official report of the result of the conversation, as follows: "Bran- nan said he did not go to a doctor for sickness on March 26, 1959 and March 27,1959." The following day, Bowen discussed the situation with Norris. He reported to Norris that Brannan said : "I will not bring in anything,- let them do whatever they can do about it." Bowen recommended that Brannan be terminated. He also told Norris that he had had various troubles with Brannan, testifying that his recommendation was also based on these factors. Norris subsequently discussed Bow- en's recommendation with Storey. So far as the record shows, Storey made the ultimate decision to discharge Brannan. Respondent's policy, without exception, was to follow the recom- mendations of its department heads with respect to the termination of employees. Bowen, Norris, and Storey each testified without con- tradiction that Brannan's union membership did not enter into the decision to discharge Brannan." However, because Brannan was a union member, Storey consulted with Respondent's attorney, Veryl L. Riddle.12 Riddle, after hearing the facts as presented by Storey, advised that, in his opinion, Respodent had justification for Bran- nan's discharge. 'Brannan was thereupon discharged. The Trial Examiner, in finding that "abuse of sick leave" was only a pretext, relied heavily on the fact that Brannan had not been warned about the matter before his discharge. However, the Trial Examiner failed to consider the essential fact, that Storey, who made the final decision to discharge Brannan, believed that Brannan had, in fact, been warned and had disregarded the warning. As the court of appeals has pointed out : 13 So far as an imponderable is presented depending upon what occurred in the mind of the one who did the discharging, the settlement of it must rest with the Board. But the question as to what facts were brought to the discharging agent's knowledge is of a different character. n Cf. Whirlpool Corporation, Marion Division , 126 NLRB 1117, where the Board stated : Although three supervisors testified that Adkins' union activities were not con- sidered at their meeting . . ., the Trial Examiner drew the inference that the committee's recommendation for Adkins' discharge must have been motivated by Adkins' union activities . We cannot agree with this inference which is in clear conflict with the testimony of three unimpeached witnesses. 12 This consultation was in accordance with Riddle ' s prior instructions to Respondent concerning its relations with known union members. 13 N L.R B. v. Hoffman-Taff, Inc, 276 F. 2d 193, 198 (C.A. 8). See also , N L.R B. v. John S Swift Co , 277 F. 2d 641, 645-646 (C A. 7), citing N L R 13 v A) thvr Winer, Inc., 194 F. 2d 370, 375, to the effect that if an employer has a lawful basis for a discharge, the discharge is not a violation , even if the information acted on is incorrect. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the circumstances of this case, we are not convinced that "abuse of sick leave" was a mere pretext or that the General Counsel sus- tained the burden of proof as required by law.14 at the very time when its sick leave procedures were being questioned by the Air Force, Re- spondent sought to warn Brannan, a chronic offender, as to abuse of sick leave. When Brannan again was absent for 2 days over a weekend and applied for sick leave to cover the absence, Respondent called on him to justify such sick leave, in accordance with its pro- cedures. The record shows that Brannan failed to do so. We therefore find, on the basis of the entire record herein, that Respondent did not violate Section 8(a) (3) of the Act by discharging Brannan.15 [The Board dismissed the complaint.] MEMBER JENKINS, dissenting : I dissent from my colleagues' reversal of the Trial Examiner's find- ing that Respondent interrogated employee Gerald Brannan in viola- tion of Section 8(a) (1) of the Act and subsequently terminated him in violation of Section 8(a) (3) of the Act. My colleagues justify Personnel Manager Storey's interrogation of Brannan as a mere attempt by Storey to ascertain the underlying causes for dissension among the employees. An employer is, of course, free to inquire into reasons for dissatisfaction among his em- ployees. But this Respondent's interrogation of Brannan plainly exceeded permissive bounds. While the majority opinion enlarges upon the facts reported in the Intermediate Report in this connection, there is still additional testimony which must be taken into account here. Thus, Brannan testified 11 that Storey's opening statement to him on the occasion in question was, "Gerald, we understand that you brought a union in here and are trying to organize this place and we would like to know a little bit more about it." Storey also informed Brannan that he had been seen soliciting signatures to cards and told him, "Gerald, we have been friends for a long time and we are not going to fire you or anything like that. Why don't you tell us all about this union." He also asked Brannan if promotions were "part of the trouble" why "outside help" was sought and added that he had "had his eye" on Brannan for a long time, that he thought Brannan was "foreman material," and that "if we could get this union thing straightened up, possibly . . . [Brannan] could go on up." Storey "kept coming back to that [the Union] two or three times." Through- out the interview, Brannan denied any involvement in union activity 11 Cf N L R B. v. Birmingham Publishing Company, 262 F. 2d 2, 8-9 (C A. 5). 15 Cf. Memphis Can Company, 127 NLRB 482. 19 Like the Trial Examiner and my colleagues , I accept Brannan's version of his questioning by Storey. ANDERSON AIR ACTIVITIES, INC. 705 for the reason that, "I thought that if I told him the truth, that I would no longer have a job." In addition, as was conceded by it at the hearing, Respondent was "openly opposed to the Union." 11 Apparently sometime in February 1959, Brannan was told by Foreman Bowen that the "higher ups" were looking for any reason to discharge him and that he had better be careful."' Finally, on April 9, 1959, as the Trial Examiner and I find, Brannan was terminated because of his union activity. As was held in the Blue Flash case, the legality of the questioning of employees regarding union matters depends upon "whether, under all circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." Applying this test to the factual situation herein, it does not appear that Storey's interrogation of Brannan about the Union was legitimately motivated. The eager, inquisitive nature of his questioning, coupled with a comment which could have been con- strued as a promise of benefit, demonstrates more than a mere inter- est in employee dissatisfaction as such. Viewed in context, it appears to me to be a patent attempt to secure information about the Union in a coercive manner prohibited by law.19 I would accordingly adopt the Trial Examiner's 8 (a) (1) finding. Turning to Brannan's discharge, the Respondent has advanced a variety of reasons therefor, none of which was convincing to the Trial Examiner, or is to me, and only one of which has impressed my col- leagues, namely, the abuse of sick leave reason given for the discharge. And I believe that they have arrived at the conclusion that Brannan was discharged for fictitious sick leave claims by way of a wholly unrealistic approach to the case. The facts and circumstances which compel me to agree with the Trial Examiner that Brannan was not terminated for this reason are as follows : When discharged, Brannan had been with Respondent for about 7 years, was a skilled mechanic, had earned merit increases, and was receiving maximum pay. He was discharged at a time when Re- spondent was short of skilled mechanics. When Storey moved against him in March 1959 for alleged suspected false sick leave claims, Brannan had made claim for only 2 days' sick leave. And the record which shows that Brannan used the 6 days of paid sick leave annu- ally allowed employees between 1955 and 1959 also shows that all such 1^ In the course of interrogating employee Riddle, Storey said that the "company doesn't wan't a union and I don't think the company can operate with one" 18 were the legality of this statement by a supervisor an issue in the case , I would under ordinary agency principles attribute it to Respondent and find that Respondent thereby violated the Act The use I have made of the remark here, which is not to provide discriminatory motivation for the discharge of Brannan , is also not barred by the Orenduff & Kappel case referred to in the main opinion. "A relevant consideration is Brannan 's reaction to Storey 's interrogation as evidenced by his false answers to the questioning. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leave was not taken immediately before or after a weekend and that Brannan found it necessary to take additional sick leave, for which he was not paid. His testimony that he was sick on March 26 and 27, and on earlier dates involved, is not contradicted. His wife called Respondent on March 26 and advised it of Brannan's illness and Bran- nan offered to prove he was sick on that day and the following one by statements from friends who called at his home on these days. This proof was not acceptable to Respondent and, although no doctor visited Brannan then, a fact which he explained to Respondent,20 the Respondent insisted that he produce a doctor's certificate and dis- charged him when he failed to do so. The request for a doctor's certificate was not in accordance with Respondent's usual practice, which was to request such a medical certificate where more than 2 days' sick leave was taken, and the discharge was made without any prior warning directed to Brannan on the subject of sick leave abuse 21 On the record facts, it could not be found and, significantly, my colleagues do not find, that Brannan was in fact guilty of any abuse of sick leave. Nor do the Trial Examiner and I find that this senior skilled employee of "foreman material" was abruptly terminated at a time when his services were needed because of any bona fide belief that he was abusing sick leave privileges. The real reason for discharge clearly emerges from the unpersuasive reasons assigned for the dis- charge, the fact that Brannan "brought" in the Union, that this fact was known to Respondent as appears from Storey's interrogation of Brannan, and that Respondent was opposed to the Union. The sum total persuades me that Brannan was discharged because of his prominent union activity, as Foreman Bowen intimated he would be. I would therefore also adopt the 8(a) (3) finding of the Trial Examiner. 2DForeman Bowen admitted being told this by Brannan u The majority finds that Storey, who had interrogated Brannan and subsequently ordered his discharge, believed that Brannan had been warned about the abuse of sick leave before his discharge and had disregarded the warning . This finding is based on Storey's self-serving testimony. The record does not show that Storey asked whether, or was told that, such a warning had been given. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard in Malden, Missouri , on September 1 and 2, 1959. The charge alleges that one Gerald Brannan was discriminatorily discharged on April 3, 1959. The complaint also alleges nine independent violations of 8(a )( 1). Respondent's motion to dismiss these allegations, because not specifically included in the charge, is denied.' The answer denies the allegations of unfair labor practices and alleges four reasons for Brannan's discharge which will be considered in some detail below. Upon consideration of the entire record, my observation of the witnesses, and briefs of Respondent and the General Counsel, I make the following: . I Jay Company, Inc, 103 NLRB 1645 ANDERSON AIR ACTIVITIES, INC. FINDINGS OF FACT 707 1. THE JURISDICTION OF THE BOARD AND NATURE OF THE RESPONDENT'S BUSINESS Anderson Air Activities, Inc., a Wisconsin corporation, operates in Malden, Missouri, under a prime contract with the United States Air Force, where it trains flying officers on a cost-plus-fixed-fee basis. The total amount of money received from the United States Air Force for this training exceeds $1,000,000 a year. Respondent is found to be within interstate commerce within the meaning of the Act and to have interstate operations bringing it within the jurisdiction of the National Labor Relations Board. H. THE LABOR ORGANIZATION INVOLVED As alleged in the complaint and admitted by the answer, the International Asso- ciation of Machinists, AFL-CIO, herein called Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary events and background Brannan, an aircraft and engine mechanic, was discharged by Respondent on April 3, 1959. In October 1958 he had gone individually to St. Louis to seek aid from the Union in organizing the employees of Respondent. He was then visited by a union representative and given authorization cards and literature for distribu- tion on or about November 5, 1958. He proceeded to distribute literature and cards among approximately 170 of Respondent employees, enlisting aid among other em- ployees in so doing. He participated in conferences in December 1958 and January 1959 in the office of the National Labor Relations Board preliminary to a representation election conducted in February 1959, which the Union lost. Respondent was outspoken in its opposition to the union organizational campaign. Its bulletins supported by the local newspaper expressed the view that the potential increased costs stemming from a union contract might eventuate in having the training program canceled by the Air Force and the closing of the base at Malden. B. Brannan's discharge Brannan's job title was assistant flight chief. He had about 7 years' service with Respondent and was receiving the maximum pay available to hourly paid employees. After the Union lost the election in February there was a general change of shifts and Brannan was put on the day shift in a crew where Foreman Brooks was in charge. Brannan told Brooks he would like to stay on the day shift in order to attend an evening college course. According to Brannan's uncontradicted testimony Brooks told him his skills were needed on the day shift and he could continue to work on the day shift. The following day, however, Brannan was transferred to the night shift under Foreman Joe Bowen. Cooper, the other employee who participated in the National Labor Relations Board conferences, was also shortly afterward trans- ferred into Bowen's crew. Reverting to events preceding the Board election, Brannan testified that he was called into Personnel Manager Storey's office on December 9, 1958, and interro- gated about the Union and why the employees needed outside help. Brannan said raises were one of the difficulties and Storey, according to Brannan, indicated that Brannan was being considered for a promotion to a supervisor Brannan denied any connection with the union because he was afraid of losing his job.2 Brannan's account of this interview is credited. 2 Storey's version is that Brannan volunteered he did not have anything to do with the Union and that he did not make the comments attributed to him by Brannan. When it is recalled that Brannan was called in at night when Storey's office was usually closed and that Respondent's witnesses emphasized that it was customary to channel adminis- trative action through the superyisors involved, it seems unusual on the basis of the facts presented by this record that Norris, director of aircraft maintenance and Brannan's supervisor, did not undertake the claimed mission of Storey in calling in Brannan, Rogers, and Riddle to discover what was wrong on McGruder's crew where they were working on December 9, 1959. Under these and the additional circumstances mentioned elsewhere in this record, it seems more probable that Stoiey would implement the policy of Respondent to avoid union organization by making statements to the effect recited by Brannan, that Brannan on being called into Storey's office would volun- 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brannan testified that after he was transferred to Bowen's shift, Bowen advised him that the "higher ups" were looking for any reason to discharge him, that Brannan had better be careful, and that he would deny this comment if it were attributed to him by Brannan.3 Brannan's testimony on this is also credited. On March 16, 1959, Storey addressed an interoffice memo to Norris, the director of aircraft maintenance, stating that Brannan had been on sick leave on February 20 and March 13, 1959, both Fridays, pointing out that this caused suspicion of taking long weekends , and suggesting that Norris and Brannan's foreman, Bowen, talk to Brannan about his health. Norris did not talk to Brannan on this subject. Bowen, Brannan's foreman, testified that he advised Brannan that he was being warned about abuse of sick leave. Bowen did not comply with the request to inquire into the state of Brannan's health. Brannan's testimony that he was not individually warned about sick leave abuse is credited . Bowen did not raise the question of sick leave when he first prepared Brannan's application for the March 26 and 27 claim. Instead, the next day, he discussed Brannan's application with Norris. Bowen testified that the question of getting a doctor's certificate would not have come up unless he discussed the matter with Norris, and Norris told him to get the cer- tificate. Bowen testified that he understood this to mean getting a certificate show- ing that Brannan had been to a doctor. Brannan's discharge followed advice by Bowen to Norris that Brannan had not gone to a doctor on March 26 and 27. Since his application was not approved, Brannan did not receive pay for March 26 and 27. Brannan appeared to be a more credible witness than Bowen and his testimony is credited as against Bowen's with respect to events where there is a conflict. Here Brannan told Bowen he had not been to a doctor, before Bowen asked him to get a doctor's certificate , although Bowen insisted on a medical certificate as essential to verify Brannan's illness. Assuming arguendo Brannan was warned, in the judgment of the Trial Examiner, Respondent did not establish Brannan necessarily abused his sick leave privilege by being absent from work the Thursday and Friday preceding his discharge. Flagrant and consistent abuse of sick leave privilege was a basis alleged by Re- spondent for Brannan's discharge. His records show that Brannan had consistently been absent on sick leave on a Friday or a Monday except when he was absent for three Tuesdays. After Storey's memo of March 16, 1959, Brannan was away from work on Thursday and Friday, March 26 and 27. When he reported to work on the following Monday evening, Bowen filled out his application for sick leave. In the daytime when the personnel office is open the leave slip applications are filled out in that location. On this occasion , Bowen said nothing about Brannan obtaining a doctor's certificate. However, the next evening Bowen informed Brannan that he was required to submit a doctor's certificate concerning his illness. In the early part of the evening Brannan informed Bowen that he would try to get one, although he had not been to a doctor, but before he left work in the evening he informed Bowen that since he had not been to a doctor he did not intend to get a certificate. Brannan then wrote a handwritten note to Norris stating that Brannan had not been to a doctor. Brannan offered to obtain statements from people who had seen him in bed on the days in question, but was informed by Bowen this was not sufficient. There was no additional probative evidence presented tending to prove Brannan was or was not ill on March 26 and 27. Respondent must rely on the past pattern of Brannan usually being absent on a Friday or a Monday to establish the illness of March 26 and 27 as not being genuine No employee had previously been requested to furnish a doctor's certificate unless he was claiming over 2 days' sick leave. teer he had nothing to do with the Union Louis Riddle, a witness called by the C,eneral Counsel, testified he also was called into Storey's office in early December 1958, and Storey told him that union cards were floating around and that he did not think the Company could operate with a Union and did not want one 3 This statement was denied by Bowen. Although a part of Brannan's testimony was something less than objective, an analysis of the alleged reasons for his discharge sup- ports Brannan's version against Bowen's. Brannan testified that at the Labor Board conference in St. Louis, when checking the eligibility list, Storey said, with ieference to Brannan, "that man has got to go." Storey denied this Union International Repre- sentative Cochoran testified it was his impression that Storey was joking . It is quite possible different interpretations could, reasonably , be given to this remark if made. Storey may have been referring facetiously to Brannan's place on the voting list. Brannan's perspective may well have been distorted by his position of openly identifying himself with 'a movement opposed by his employer. In any event on this occasion, this remark, if made by Storey was not a threat or prediction that Brannan would be discharged. ANDERSON AIR ACTIVITIES, INC. 709 Storey said Brannan's record was the most flagrant. However, he testified that he examined only 50 out of a possible 250 records. Within the previous few months a bulletin had been posted by Respondent reciting that 67 individuals had apparently been abusing their sick leave privileges. Brannan said he was usually absent on sick leave on a Friday or a Monday because he would work as long as possible to get the maximum time tor recovery on the weekend which sometimes included a Monday or a Friday. Bowen said it was common for men to get colds or allied ailments and he stated Brannan had been sick although he did not specify the time. During the time Brannan worked for Bowen he was transferred several times from inside to outside work, in February and March, on the night shift. Brannan's testimony is also un- contradicted and credited that he had previously been sick on days after he had used up his 6 days of sick leave with pay. In summary, the assertion that Brannan was fired for excessive absenteeism is not supported by evidence that Brannan was not actually ill on March 26 and 27. It is plain that Respondent equates excessive absenteeism in the case of Brannan with fictitious sick leave claims. In view of the previous policy of Respondent in not requiring a medical certificate for a sick leave claim of less than 3 days, it cannot be concluded that Brannan was violating any company policy if he were ill on March 26 and 27. In this connection, Storey testified that on occasion investigations were made to see if employees were absent because of illness. Brannan had sent word of his illness through his wife and Cooper. Under these circumstances and those men- tioned in connection with the other asserted reasons of Respondent for Brannan's discharge, his claim for sick leave on March 26 and 27, standing alone, does not seem to present a probable reason for his discharge. This asserted reason loses additional force when viewed in connection with the other reasons relied on by Respondent. Respondent asserts as a defense that Brannan unsatisfactorily performed his work. Brooks, Brannan's supervisor, said he did not recall making any reports on Brannan to Norris. Norris testified that Brooks had made adverse reports concerning Brannan to Norris. Norris related that the reports from Brannan's various super- visors were to the effect that he was a good worker but tended to be an agitator and was slow. Brannan's record of engine certification and qualification for merit in- creases to the top level suggests that he was at least a competent workman. Bowen testified he was a good worker and could be depended upon. The record is con- vincing that Brannan was a satisfactory workman and it is so found. Respondent also asserts the reason for Brannan's discharge was that he was in- subordinate. The only evidence relating to possible insubordination related to the period Brannan was on Bowen's shift. In this connection, Bowen testified that Brannan did what he was told to do just like everyone else. However, Respondent's witness, Stone, testified that on one occasion Brannan told Stone that Bowen was what may be euphemistically characterized as an unwashed individual of illegitimate origin. Stone was quite definite that he did not relate this to Bowen until after Brannan was discharged. Moreover, such an expression to a fellow workman would not necessarily, in the opinion of the Trial Examiner, constitute insubordination, even though Stone had reported this to Bowen before Brannan's discharge. It is also asserted by Respondent that Brannan's discharge was justified because without good cause he refused to remain at his place of work. The evidence relating to this cause also occurred when Brannan was on Bowen's shift. The mechanics under Bowen's supervision frequently had occasion to wait in the hangar preparatory to work or attendance on an aircraft landing at night. There is an assignment room and a few feet away what is called a lunchroom but which contained lockers and storage space for the mechanics' tools. After Brannan had been told by Bowen not to wait in the lunchroom he complied. On another occasion, when Brannan was sent to bring an aircraft from another part of the field, Bowen came upon him drinking coffee in another area. Brannan's testimony that this was his break time was not controverted by any probative evidence. Bowen's own testimony that em- ployees could leave the area for a smoke at times, and the confused testimony about the proper location for the break, makes it impossible to make a finding that Brannan was deviating from known company policy or disobeying any specific instruction A factor to be considered also in connection with Brannan's discharge is that Respondent's witnesses made it clear, at the time of Brannan's discharge particularly, that they were short of skilled mechanics. In view of the fact that Brannan had the highest mechanic's rating and several years' experience, and in view of the fact that about 4 months previously, Storey took occasion to call Brannan into his office for a private conversation, the circumstances of Brannan's discharge are not compatible with the conclusion that he was discharged for the reasons given by Respondent. 5 7 7 6 5 4--61-vol 128-46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norris testified that Storey had the final decision on discharge and that he recom- mended Brannan be discharged for excessive absenteeism, and also because, according to Norris, every one of Brannan's supervisors had made unfavorable reports con- cerning him. Storey testified Norris did not report specific defects concerning Brannan's asserted work deficiencies. Bowen, the last of Brannan's supervisors, stated that Brannan did everything he was asked to do. Bowen's complaints about Brannan that he related in his testimony develop on examination into the probability that Bowen's characterization of Brannan as an agitator is properly measured by Bowen's attempt to prevent Brannan from conversing with any employees out of Bowen's presence. It seems clear that Bowen was implementing a procedure to make working conditions difficult and unpleasant for Brannan and that Brannan's 2-day absence on March 26 and 27 was utilized as an ostensible lawful basis to discharge the leader of the Union's organizational attempt. Stating the proposition another way, absent his posture as the main union organizer, I am persuaded that an employee with the experience and skill of Brannan would not have been discharged for the reason claimed by Respondent. With the exception of the interrogation of Brannan by Storey on December 9, 1958, the balance of the allegations in paragraph VIII of the complaint are not sup- ported by any evidence or evidence of such an equivocal nature that no finding of an unfair labor practice can be made with respect to such allegation excepting the interrogation of Brannan by Storey. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent described in section III, above, occurring in connec- tion with the operations of the Respondent described in section I, above, have a close, intimate, and substatnial 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 thereof. 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. Anderson Air Activities, Inc., is engaged in commerce within the meaning of the Act. 2. International Association of Machinists, AFL-CIO, is a labor organization within the meaning of the Act. 3. The discharge of Gerald Brannan was caused because of his membership in and activities on behalf of the Union and because he engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection and in order to discourage membership in said Union. By said activity, Respondent has violated Section 8(a) (1) and (3) of the Act. 4. By interrogating Gerald Brannan with respect to his union activities and intimating that his advancement could be obtained by withdrawing his support from the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. 6. Except as herein indicated, the allegations of the complaint charging unfair labor practices have not been established. [Recommendations omitted from publication.] Willard's Shop Rite Markets, Inc. and Retail Grocery and Food Clerks Local No. 876, Retail Clerks International Association, AFL-CIO. Case No. 7-CA-2288. August 16, 1960 DECISION AND ORDER On April 18, 1960, Trial Examiner Henry S. Sahm issued his Inter- mediate Report in the above-entitled proceeding, recommending dis- missal of the complaint for jurisdictional reasons, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the 128 NLRB No. 81.