Beiser Aviation Corp.

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beiser Aviation Corporation and Millwright and Machinery Erectors Local Union No. 2219, United Brotherhood of Car- penters and Joiners of America, AFL-CIO. Case No. 23-CA- 1072. January 23, 1962 DECISION AND ORDER On May 26, 1961, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that Respondent Beiser had engaged in and was engaging in certain un- fair labor practices, and recommending that it cease and desist there- from and take certain affirmative action as set forth in the Intermedi- ate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices as alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to 'a three-member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner only to the extent consistent herewith. 1. We are presented here with the last in a series of three unfair labor practice cases 1 involving the Respondent Company and the Union Charging Party. While the two earlier cases, also decided to- day, concern a wide range of unfair labor practices, the instant pro- ceeding is much more limited in scope. We need only resolve one major issue: Did the Respondent Company discriminate in the work assignments of, and cause the termination of employment of, James Cowan because he gave testimony under the Act? On May 4,1960, employee James Cowan, who had earlier been recom- mended for discharge by Respondent's supervisor, Sprayberry, be- cause of his activities on behalf of Local 2219, appeared as a witness on behalf of the General Counsel in the first of the above-mentioned companion cases. Cowan's testimony that errors in assembling air- craft engines were commonplace was corroborated by another em- ployee, David Byrd, and indicated that the Respondent's discharge of employee Keas was not attributable to Keas' alleged incompetence See also 135 NLRB 399 and 135 NLRB 433 We take official notice of these decisions herein i35 NLRB No. 35. BEISER AVIATION CORPORATION 451 but rather to his union activities, thereby violating Section 8(a) (3) of the Act .2 The record shows that Cowan became seriously ill immediately after testifying in May and did not return to work until sometime early the next month. It appears, from the earlier cases, that David Byrd reported for work as usual on May 6,3 only to be relieved of his mechanic's duties and assigned to prepare a full report of all instances where his fellow employees were responsible for faulty engine assem- bly. As established in the companion decision,4 Byrd was unlawfully discharged 3 weeks later, on May 30, because of his testifying in a Board proceeding and because of his union activities. Upon returning to work in June, Cowan was subjected to the same treatment accorded Byrd and was directed by the Respondent to pre- pare the same type of report. The Trial Examiner found on the record in the instant case, and we agree, for the reasons explained more fully below, that this assignment violated Section 8(a) (4) and (1) of the Act.' Thus, the record discloses that, because he had testified, Cowan was forced to spend 3 days (in June) at a table placed in the center aisle of the jet engine room while attempting to carry out what the Trial Ex- aminer found to be an "impossible assignment." 6 The record further shows that the Respondent was aware that Cowan had created ani- mosity among its employees because of the nature of his testimony. In spite of this fact, the Respondent selected this "prominent" I locality for Cowan to perform his "impossible assignment" knowing that Cowan would, and indeed he did, become the object of ridicule and harassment. On these facts, the Trial Examiner concluded, and we agree, that the Respondent deliberately placed Cowan on display among his fellow employees, about whose errors he was to report, as a reprisal for testifying in the Board proceeding, and that such conduct violated Section 8(a) (4) 8 Moreover, by subjecting Cowan to this discriminatory treatment, Respondent was, in effect, reminding its entire work force of the ex- tremely unpleasant consequences awaiting all who might at some future date give testimony against the Respondent's interests. To that extent, the Respondent's conduct also coerced and restrained every other Beiser employee. Accordingly, we find, in agreement with the Trial Examiner, that the Respondent thereby violated Section 8 (a) (1) of the Act." 2 See 135 NLRB 399 at p. 407. 3 See 135 NLRB 433 at p. 435. 4Ibid at p. 436. 5 It is significant that the Respondent filed no exceptions to the Trial Examiner's findings. 8 See Intermediate Report, p 46'0 7 Ibid. 8 Southern Bleachery and Print Works, Inc., 118 NLRB 299. 0 Ibid. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. We do not agree, however , with the Trial Examiner's further conclusion that the Respondent's unlawful conduct was not instru- mental in causing Cowan to resign his position in further violation of Section 8 (a) (4) and (1). Cowan's earlier testimony in question was not offered for the pur- pose of criticizing other employees' work, but to attempt to show that the production of jet engines with missing parts was not so uncommon an occurrence as to have justified the Respondent 's dismissal of employee Keas. While such testimony may not have endeared Cowan to some of his coworkers, there is little reason to believe that it would have generated the intense ill feeling toward him that it did except for the Respond- ent's subsequent unlawful conduct in placing Cowan in the middle of the plant to do an impossible assignment. Indeed, the Trial Examiner found that in inflicting such reprisal on Cowan, the Respondent ex- pected that Cowan "would and did become an object of ridicule and not sympathy." io We can only conclude that the ridicule , which the Respondent thus deliberately generated as punishment for Cowan's testimony, contributed substantially to Cowan's ultimate decision to quit his job. The Respondent's subsequent conduct further supports this conclu- sion. Even after Cowan was finally returned to his regular engine maintenance job on June 7, the Respondent took steps clearly designed to create additional tensions for Cowan and to accentuate the un- friendly atmosphere in which he was already working. Thus, Cowan was required to work alone on a "contrived " 11 dock separated from his fellow employees. This was contrary to the normal plant practice of having mechanics work in pairs 13 and also in disregard of the fact, known to the Respondent, that certain of its employees expressed a willingness to work with Cowan .13 He was also deprived of the services of the regular inspector and his work was made subject to the inspection of Chief Sprayberry,14 who, we note, had already recom- mended the dismissal of Cowan for the alleged distribution of pro- union cards and soliciting on company time. Sprayberry also recom- mended the discharge of Byrd and Keas who, along with Cowan, were the principal protagonists for Local 2219. In a word, the outcome of this case depends upon whether Cowan quit because of the intolerable atmosphere which the Respondent 10 See Intermediate Report. n Employee Ralph Edwards, a credited witness, described Cowan 's June 7-9 work sta- tion in the above manner. 12 The record disclosed that, as a general rule, there were 2 employees assigned to each of the 14 to 15 docks. 13 Employee Rosser specifically volunteered to work with Cowan while Rosser's partner was on vacation . Employee George indicated a willingness to work with Cowan and Sprayberry admitted that other employees he questioned were similarly disposed. 14 The Board found in a companion case that Sprayberry had engaged in unlawful surveillance activity. BEISER AVIATION CORPORATION 453 helped engender or for another reason not attributable to the Respondent. President Beiser testified that Cowan in an exit interview stated to Beiser that "he felt it was impossible for him to win back the friends he lost and rather than work under those conditions he had at that time another job which he felt was adequate to take care of him.715 Even apart from the other evidence which seriously contradicts Beiser's claim that Cowan quit to accept another job,18 we do not re- gard this aspect of his testimony as necessarily inconsistent with a finding that Cowan's resignation was precipitated by the Respondent's conduct in creating an atmosphere which made it impossible for Cowan to work under normal or reasonably normal conditions. The record discloses that there was no other job waiting for Cowan when he left the Respondent's employ on June 9, and we find that he would not have left but for the Respondent's unlawful conduct. Under these circumstances, we therefore find, contrary to the Trial Examiner, that Cowan was in effect discriminatorily discharged in violation of Section 8(a) (4) and (1) of the Act.l' THE REMEDY Having found , in agreement with the Trial Examiner, that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . Having also found, contrary to the Trial Examiner, that the Respondent discrim- inatorily discharged employee Cowan , we shall provide that the Re- spondent offer Cowan immediate and full reinstatement to his former or substantially equivalent position. We shall also order the Re- spondent to make Cowan whole for any loss of earnings suffered as a result of the discrimination against him . In accordance with our usual practice, where a Trial Examiner. dismisses a discrimination allegation, the period from the date of the Intermediate Report to the date of the Decision and Order will be excluded in computing the amount of backpay due Cowan." 15 See Intermediate Report. 1a Thus, Beiser's own notation on Cowan's exit interview form reads "[ Cowan] would not state definitely that there was a suitable job available on the outside " Furthermore, because of the undisputed error in the Texas Employment Commission unemployment compensation claim form signed by Cowan which indicates that he quit his job in May 1960 instead of June 9, 1960 , we can not accept such form as conclusive evidence that Cowan quit to accept another job. 17 Member Leedom is of the view that the preponderance of the evidence does not sup- port a finding that Cowan was constructively discharged and therefore , like the Trial Examiner, would find no violation here. is Although the Intermediate Report indicates that the Employer's operations at Moore Air Force Base ceased on December 31, 1960, the record does not definitely establish that fact. Accordingly, we shall leave the question of the possible effect of this cessation on the Respondent's reinstatement and backpay liability to the compliance stage of the proceeding. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Beiser Aviation Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Changing the working conditions of, discharging, or other- wise discriminating against any employee because of any testimony he has given or may give under the Act. (b) In any other manner 30 interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Millwright and Machinery Erectors Local Union No. 2219, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer James Cowan immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges in the manner set forth in the "Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts due under the terms of this Order. (c) Post at the Respondent's plant located at Moore Air Force Base, Mission, Texas, copies of the notice attached hereto marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being signed by the Respondent's authorized representative, be posted by it immediately upon receipt thereof and maintained for 60 consecutive days thereafter in conspicuous places at said base, 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) Send a signed copy of the notice attached hereto marked "Ap- pendix" to all employees who were in its employ between May 5, 1960, 19 The Respondent 's overall conduct including the commission of unfair labor practices described in the companion cases decided today indicates a general attitude of opposition to the purposes of the Act which justifies a broad cease-and-desist order. 20 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." BEISER AVIATION CORPORATION 455 and June 30,1960, if it has ceased operations at Moore Air Force Base. (e) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE TO ALL OUR EMPLOYEES WORKING AT THE MOORE AIR FORCE BASE 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, as amended, we hereby notify you that : WE WILL NOT change the working conditions of, discharge, or otherwise discriminate against any employee because of any testimony he has given or may give under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self- organization, to form labor organizations, to join or assist Mill- wright and Machinery Local Union No. 2219, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection, and to refrain from any and all such activities. WE WILL offer to James Cowan immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges and make him whole for any loss of pay he may have suffered as a result of his discharge. All our employees are free to become or remain, or refrain from becoming or remaining, members of Millwright and Machinery Erec- tors Local No. 2219, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. BEISER AVIATION CORPORATION, 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. Employees may communicate directly with the Board's Regional Office, 650 M & M Building, Main Street, Houston, Texas (telephone number Capitol 2-7201), if they have any question concerning this notice or if they have any information that its provisions are being violated. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on August 17, 1960, by Millwright and Machinery Erectors Local Union No. 2219, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein referred to as the Union, the Regional Director of the National Labor Relations Board for the Twenty-third Region, on September 30, 1960, issued his complaint against Beiser Aviation Corporation, Respondent herein, alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act (29 U.S C. Sec. 151, et seq.), herein called the Act. In its duly filed answer Re- spondent, while admitting certain allegations in the complaint , denied the commis- sion of any unfair labor practice. Pursuant to notice , a hearing was held before me at Edinburg, Texas, on Novem- ber 30 and December 1, 1960. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Parties waived oral argument and in lieu thereof briefs were filed on January 23, 1961. Upon consideration of the entire record and the briefs of the parties , and upon my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Beiser Aviation Corporation , Respondent herein , is an Arizona corporation with its principal office and place of business located at Tucson, Arizona, and an installa- tion at Moore Air Force Base, Mission, Texas, where , under contract with the United States Air Force, it provides cadet flyer training and such aircraft main- tenance, repair, and overhaul as is required to safely and efficiently provide the afore- mentioned training. In addition to the foregoing facts admitted in the pleadings, it was stipulated at the hearing that the minimum value of the services rendered by Respondent at Moore Air Force Base under the contract was in excess of $300,000. Upon facts which thus describe an enterprise that unquestionably exerts an impact on national defense I conclude and find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that its operations are such as warrant the Board's assertion of its jurisdiction in this proceeding.' Furthermore, although it would appear from the record, and from a general understanding expressed by the parties, that Respondent's Moore Air Force Base operations were scheduled to cease on December 31, 1960, by virtue of the Air Force's cancellation of its contract with Respondent and its closing of Moore Air Force Base, both effective on that date, I do not consider that the Board's jurisdic- tion would thereby be affected. As there is no claim that the facts upon which juris- diction is based herein were not otherwise than stated above when the alleged un- lawful conduct was committed , subsequent circumstances may not be relied upon to deprive the Board of its jurisdiction? II. THE LABOR ORGANIZATION INVOLVED The Union filed with the Board its petition in Case No. 23-RC-1462 wherein it claimed to represent certain of Respondent's employees and requested an election to determine its majority status. An election was thereafter conducted by agents of the Board on November 5, 1959. Under such circumstances it is clear that the Board, acting through its responsible agents, has already determined , and necessarily so, that the Union exists for the purposes set forth in Section 2(5) of the Act. In accordance therewith I conclude and find that it is a labor organization within the statutory meaning. Furthermore, as it appears in the record that the Union currently maintains con- tractual relations with the South Texas Chapter Associated General Contractors of America, Inc., as the representative of the employees of contractors who are 1 Gray, Rogers, Graham t Osborne, 129 NLRB 430 2 Cf. Eugen Pedersen v N.L R.8 , 234 F 2d 417, 420 (C A 2) ; Coca Cola Bottling Com- pany of Stockton, 110 NLRB 840. BEISER AVIATION CORPORATION 457 members of the South Texas Chapter, the Union's employee representative status is conclusively established, and I so find. III. THE ISSUES INVOLVED 1. The absence of facts necessary to establish a constructive discharge. 2. The discriminatory effect of assigning an employee to conspicuous and em- barrassing tasks because of testimony given in a Board hearing. 3. The effect of the foregoing assignment upon other employees. IV. THE UNFAIR LABOR PRACTICE A. Background The subject matter of this proceeding represents Chapter Three in a running ac- count of Beiser Aviation's incursions into the arena of labor relations. Its diffi- culties first crystalized in Case No. 23-CA-970, where, in an Intermediate Report still pending before the Board, Trial Examiner Vincent M. Rotolo found that Re- spondent had interfered with, restrained, and coerced its employees in certain speci- fied respects and had unlawfully contributed assistance and support to the formation and administration of any organization of its employees. Additionally, with respect to Respondent's discharge of an employee, Keas, for the stated reason that he had committed acts of carelessness in the assembly of an aircraft engine, the Trial Ex- aminer concluded that the General Counsel had not established on the record that Respondent had in fact discharged Keas for his union membership and activity, and that the reason of carelessness assigned by Respondent had not been disproven. In his effort to establish discrimination as to Keas, General Counsel produced the testimony of two employees, David Byrd and James Cowan, both of whom testified, in substance, that Keas' mistakes were commonplace and that other aircraft engines had been assembled with like carelessness. Immediately upon his return to Re- spondent's shop following his appearance at the hearing and following his testimony concerning the faulty assembly of engines, Byrd was engaged in numerous con- ferences with Respondent's supervisory staff. These conferences resulted in his assignment to the preparation of a full report of all the instances of employees leav- ing parts out of engines they had worked on and especially those in which the en- gines had been sent to the flight line before the error was discovered, and to give the names of employees involved in these incidents. Byrd was assigned to a table placed in the center of the jet engine room where he spent 3 days reading materials given him to assist in making his report. Trial Examiner Rotolo found Respondent's handling of the situation in this manner to constitute interference, restraint, and coercion of Byrd and other employees as alleged by the General Counsel in an amendment to the complaint during the hearing.3 A subsequent proceeding was instituted against Respondent when it thereafter dis- charged David Byrd on May 30, 1960. After a hearing in this new case, 23-CA-1036, Trial Examiner Sidney S. Asher, Jr., issued his Intermediate Report, presently pend- ing before the Board. There it was found that Byrd was discharged following Re- spondent's receipt of a petition signed by the employees, stating they did not "want to work with or for David Byrd any longer." Finding the evidence inconclusive as to any connection between this employee petition and Byrd's testimony at the earlier hearing, Trial Examiner Asher concluded that the General Counsel had failed to establish that Respondent's acquiescence in the petition, by discharging Byrd, was connected with activities protected by the Act, or constituted a violation of the Act. B. Sequence of events With the foregoing set forth herein to place this third proceeding in its proper perspective, we come to James Cowan, who testified at the first hearing in a vein similar to Byrd. Immediately following his appearance before Trial Examiner Rotolo on May 4, in Case No. 23-CA-970, Cowan became ill and was thereafter hospitalized for a period of approximately 2 weeks. For a further period of 2 weeks he remained away from work, either recuperating or working in a local welding shop, a disputed fact I need not resolve at this time. Finally, on June 1, Cowan reported for work "As will be described in detail hereafter James Cowan, who also testified of improper engine assembly , became ill immediately following his appearance at the hearing and was hospitalized for a period thereafter 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Respondent's shop.4 After a brief conference with Paul Slack, superintendent of aircraft maintenance , he was assigned by Supervisor Sprayberry, and with Slack's approval, to a table that had been placed at the intersection of the two center aisles in the base shop. Cowan was given Respondent's work records of jet engines that had been worked on in the jet engine field maintenance shop (frequently referred to as the JEFM shop) and was directed to locate, by serial number, the engines which Cowan had previously testified had been improperly repaired. This assignment, identical to the one previously given to Byrd, and directed to be performed at the same table located in the same center aisle location of the shop, was made at the direction of Respondent's president, Beiser, for the stated purpose of determining the identity of the improperly reassembled motors and, as Superintendent Slack described it, "so that we could determine whether or not and do something about it." Cowan sat at his center aisle table for the first 3 days following his return, which, according to Respondent's undisputed payroll records, was June 1, 2, and 3, 1960. During this period he busied himself with the records given him by Sprayberry but was unable to recall the critical engine serial numbers. Cowan conceded at the hearing, however, that he actually remembered the engines and the people who were involved in the incident but rather than get anyone else involved he refrained from saying anything further when questioned about the engines by Sprayberry at the time. Cowan's 3 days at the table involved little more than leafing through records-an occupation which became understandably boring. During this interlude he inquired of both Slack and Sprayberry if he were scheduled to be fired or if they thought he should quit, knowing, as he had grown to know, that his fellow-employees were not kindly disposed to him for the unfavorable testimony he had given concerning their workmanship. Both individuals assured Cowan he would not be fired, but offered him little comfort and no advice as to improving his popularity or quitting his job. Finally, on Monday, June 6, after again protesting to Slack and Sprayberry, Cowan went to President Beiser and told him that the men in the shop were refusing to work with him and the inspectors had refused to inspect his work. He then asked Beiser if management wanted him to quit; but Beiser assured him that they had no desire that he quit and suggested that the passage of time would undoubtedly solve the whole problem. Beiser further suggested that arrangements could be made for Cowan to perform his regular duties, with Sprayberry performing the necessary inspection. On this note Cowan was assigned to a repair dock in the JEFM shop where, for the next 3 days, specifically until June 9, Cowan worked at his regular job , the 100-hour maintenance of jet aircraft engines. Cowan quit his job on June 9.5 President Beiser credibly described Cowan's exit interview, including Cowan's statement that "he felt it was impossible for him to win back the friends he has lost and rather than work under those conditions, he had at that time another job which he felt was adequate to take care of him." 6 4 The factual account which follows constitutes a synthesis of the testimony of President Frank Beiser, employees Rosser and Edwards , and David Byrd , all of whom I credit insofar as their testimony relates to the events described , and of the uncontroverted testi- mony of Supervisor Houston Sprayberry and Maintenance Superintendent Paul Slack, neither of whom I otherwise credit. Nor do I credit James Cowan except insofar as his testimony is corroborated by the testimony of credible witnesses. I observed Cowan, Sprayberry, and Slack on the witness stand, and I have considered the numerous in- stances of equivocation and contradiction appearing throughout their testimony Cf. Bryan Brothers Packing Company , 129 NLRB 285 . I do not , except as qualified above, credit or otherwise rely upon their testimony. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1. 6 All dates and times relating to Cowan's tenure and termination are based upon com- pany timecards and personnel records offered in evidence and found by me to be accurate. Accordingly, I reject Cowan's statement that he actually quit on June 8. 6I do not credit Cowan's explanation that in addition to the attitude of his fellow workers he was impelled to quit because of an error he had committed in an engine re- assembly, having been warned on his return to work of the dire consequences of one mistake Neither do I credit Cowan's insistence that he had no plans to go into the welding business at that time. In addition to Beiser's credited quotation of Cowan on this subject, together with Beiser's notation on Cowan's exit interview form, I credit the testimony of two employees of the Texas Employment Commission, Graves and Farces, and the supporting documentary evidence in the form of a claim signed by Cowan, all to the effect that Cowan quit his employment to accept another job That Cowan refused to give a straightforward answer on this very subject is one of the compelling reasons for my refusal to credit him generally. BEISER AVIATION CORPORATION 459 C. Analysis and conclusions 1. The so-called constructive discharge As an item of first consideration, attention must necessarily be focused upon James Cowan's resignation and the several possible causes contributing to it. In so doing, Cowan's unfavorable testimony at the previous hearing must be viewed as having created two undenied results: Respondent's chagrin for the implications flowing from Cowan's testimony, and the employees' resentment for the reflection thus cast upon their workmanship. It is the General Counsel's position that Respondent' s treatment of Cowan upon his return to work compelled lain to quit and thereby converted his resignation into a constructive discharge, and that the treatment was motivated by a determination to punish Cowan for his damaging testimony. Such a course of conduct, it is contended, specifically discriminated against Cowan for his efforts in behalf of the Union as charging party in the earlier case. In support of this position numerous instances are cited of Respondent's expressed displeasure with Cowan's testimony. Cowan's public statement at the previous hearing that Respondent was turning out finished aircraft engines with missing parts was certainly not an expression calculated to endear him to either Respondent, its officials and supervisors, or to his fellow employees who were allegedly responsible for the sloppy work. Indeed, President Beiser made perfectly clear his annoyance and anxiety over the embar- rassment Cowan had caused his organization. Nor is there any doubt from the credited testimony of fellow employees of their general feeling toward him. But none of this is to say that Respondent, by its feelings or by its treatment of Cowan upon his return, thereby generated a feeling of animosity toward him for the express purpose of punishing him for his connection with the Union. While it may require that we explore at least superficially the mental processes of Respondent's officials, it is not difficult to conclude that the reprisals they visited upon Cowan by seating him so prominently in the middle of the plant were directed not so much to his membership or activity in behalf of the Union, but simply to the trouble he had caused them Indeed it is not at all difficult to find, as I do, that President Beiser and his staff were far more agitated over the prospects of explaining to the Air Force authorities the absence of parts in assembled engines than they were over the prospects of union activity in their plant. Upon such a finding, I would therefore conclude that Cowan's termination, if be it viewed as forced at all, was not motivated by his union membership or activity, and accordingly could not con- stitute a discrimination by Respondent for such reasons. The foregoing, of course, proceeds upon the premise that Cowan did quit his job because of the pressures placed upon him by Respondent's table assignment. This is a dubious assumption and presents two possibilities that warrant further consideration: (1) that Cowan quit as a result of ridicule not necessarily generated by his table assignment or indeed; (2) that he quit for other employment and hence the resentment and ridicule may have had nothing at all to do with his decision. With respect to the first consideration, the record establishes that the men were not disposed to work with Cowan nor were the inspectors disposed to inspect his work. Thus when employee George was asked if he would work with Cowan he said he could stand Cowan if Cowan could stand him; employee Rosser, testifying that it was rumored that no one would work with Cowan, volunteered to do so; Superintendent Slack testified without contradiction that Supervisor Sprayberry was particularly assigned to inspect for Cowan to solve the problem so far as the other inspectors were concerned; and Sprayberry testified without contradiction of nu- merous employees who were resentful toward Cowan, and of employee Dalton's refusal to inspect his work. It is clear from the record, therefore, that the ani- mosity of the men, a condition not in dispute, existed independently of Cowan's table assignment , and Respondent's responsibility for assigning Cowan was thus entirely unrelated to the employees' continuing resentment toward him. In a word, Cowan, because of his alleged indictment of his fellow employees' work habits, would have been equally unpopular with them wherever he was seated, or whatever he was doing; and I so find. With respect to the second consideration noted above and totally apart from my finding that Cowan resigned because of the strained relationship existing between himself and the other employees, there is the credited testimony that Cowan left his employment to go into the welding business, and that he so advised President Beiser and the employees of the State employment office .7 While it is clear from 7 When questioned on this matter at the hearing Cowan's replies could hardly be classified as straightforward. Thus he testified that he "may have" told the State officials that he quit to accept another job. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record that Cowan did express an intention of going into business upon quitting at Beiser, the evidence is not sufficient to assess Cowan's state of mind at that time to conclude that it was the existence of this new job opportunity that alone prompted him to quit. Suffice it to say that on June 8 or 9, when Cowan decided to quit, it appears from the record that the tension of working in an unfriendly atmosphere and the opportunity for other employment were both responsible for his ultimate decision. Having thus concluded that Cowan quit his job for a composite of two reasons, both unrelated to anything Respondent may have contributed by way of assigning him to a table in the middle of the shop, it follows, as has been previously demon- strated, that Respondent's action in placing him at this table could not under any circumstances have been the proximate cause of Cowan's termination so as to classify it as a constructive discharge . I shall, therefore , recommend the dismissal of so much of the complaint as alleges that Respondent, by assigning James Cowan to a work assignment that effectively caused his resignation, constructively discharged him for any reason, including his union membership or activity. 2. The reprisal for testifying Respondent's actions as they relate to other alleged misconduct present an entirely different situation. Thus it is alleged that Cowan's assignment to a center aisle table in the shop to recollect several numbers of six or more digits constituted a discrimina- tion against him because he testified at the hearing in Case No. 23-CA-970. Unlike the alleged misconduct considered above, this has nothing whatever to do with Cowan's union membership or activity or a constructive discharge. It does relate, however, to his participation in the official processes of the Board and to any retaliation he may have suffered as a result of such testimony. In other words, proof of General Counsel's case in this respect requires simply a showing that Cowan's assignment resulted from his testimony and that the assignment did constitute dis- criminatory treatment. I find that both elements have been shown. In the first place, Cowan's assignment to the table and the direction to him to find out the engine serial numbers are concededly the aftermath of his damaging testimony. For, as President Beiser himself stated, the supervisors were instructed by him to "have those persons (Cowan and David Byrd) searching the records and finding out what engines were being referred to, so that the work of tearing down would be confined to those engines." 8 Irrespective, therefore, of the means employed, Respondent's purpose for assigning Cowan admittedly bore a direct relationship to the testimony Cowan gave at the previous hearing. Respondent's right, or indeed its obligation, to make a detailed investigation of the alleged carelessness is certainly not in dispute. What is in dispute is the means employed by Respondent in obtaining the information it deemed essential to its investigation. In assessing these means the selection of a work place for Cowan and the particular task assigned him requires special scrutiny. And in this con- nection Cowan's position among his fellows cannot be underestimated. Cowan's testimony of careless workmanship was not, as we have previously noted, something that would earn him a brotherhood award among his fellow workmen, and of this Respondent was admittedly well aware. It does not require undue speculation, therefore, to conclude that when Cowan was assigned to a promi- nent spot to do an impossible assignment 9 he would and did become an object of ridicule, and not of sympathy. Under such circumstances as these I have no hesi- tancy in equating this assignment with the species of discrimination contemplated by Section 8(a) (4) of the Act.1° Nor am I persuaded to the contrary by Respondent's insistence that the conspicuous location of the table at which Cowan was to perform his task was dictated by space limitation. Added to employee Rosser's credited testimony that other work space was available, it is a fair inference from all of the evidence descriptive of the base shop that Respondent, had it chosen to do so, could certainly have located a less prominent and bustling spot for Cowan to do the thought-provoking task assigned him. That Respondent chose as it did satisfies 8 Supervisor Sprayberry testified that this assignment was made at Beiser'8 direction B Employees testifying at the hearing, when questioned as to their ability to remember engine serial numbers, testified without exception that they could not. 10 Bolan Hancock Mutual Life Insurance Company v h L li R , 191 F 2d 483, 485 (CADC) BEISER AVIATION CORPORATION 461 me that it was punishing Cowan for the testimony he gave." Inasmuch as such treat- ment was inflicted as it was because Cowan's testimony at a Board hearing had been unfavorable to Respondent, I find and conclude that it has thereby violated Section 8(a) (4) of the Act. 3. Interference, restraint, and coercion As Respondent's action in placing Cowan at a conspicuous spot in the plant and its assigning him the impossible task of recollecting serial numbers constituted a discrimination against Cowan , so also did this conduct constitute an infringement of the rights of every other employee in the plant. It is not enough to say that Cowan's punishment served to ridicule him in the eyes of the employees. It did more. It also served to remind those employees of the consequences of testifying in a Board proceeding. To the extent that this reminder served as a caution to them that such would be the consequence of any employee's testimony to which Respond- ent might object, it is clear that to such an extent they have been interfered with, restrained, and coerced in their right to exercise one of the guaranteed rights of the Act-the right to assist a labor organization ; in this case, by appearing and testifying in support of the charge filed by the Union. By such action, therefore, I find and conclude that Respondent has violated Section 8(a) (1) of the Act.12 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with their business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY It has been found that Respondent , by assigning James Cowan to an unusual and conspicuous location in the shop to perform a virtually impossible task because of testimony given at a previous Board hearing , discriminated against Cowan and interfered with, restrained, and coerced him and Respondent's other employees in the exercise of rights guaranteed by the Act. I shall, therefore, recommend that Respondent cease and desist therefrom and from infringing in any like or related manner upon the rights of employees guaranteed in Section 7 of the Act.13 I have found that James Cowan's termination was in no sense a constructive discharge but rather a voluntary action motivated both by his desire to undertake other employment, and by the ill feeling toward him that existed among his fellow employees. Accordingly, I shall not recommend that he be reinstated to his former position. I shall recommend, however, that if and when he should return to Respond- ent's employ he be offered a position substantially the equivalent of the position held by him at the time he gave testimony in Case No. 23-CA-970, on May 4, 1960.14' Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent occurred in commerce within the meaning of Section 2(6) and (7) of the Act. "Considerable evidence was offered to support Respondent's contention that Cowan willingly accepted the location in the center aisle crosswalk and refused an opportunity to work in the privacy of Supervisor Sprayberry's office I do not credit Sprayberry's testimony as to this offer and Cowan 's willingness to remain at the table as located In any event, the test is not the employee's feelings but whether the Employer's conduct had the natural and probable tendency to produce the discriminatory effect N.L.R.B v. Wilbur H Ford d/b/a Ford Brothers, 170 F. 2d 735, 738-739 (CA. 6). 'a Cf. Duralste Co , Inc, 128 NLRB 648; Alterman Transport Lines, Inc , 127 NLRB 803; Arlington Hotel Company, Inc., 127 NLRB 736; Petroleum Carrier Corporation of Tampa, Inc, 126 NLRB 1031, footnote 1. "Communications Workers of America, AFL-CIO, et al ( Ohio Consolidated Telephone Co.) v. N.L.R B , 362 U.S. 479. 14 From certain statements In the record as well as from other reliable sources of in- formation I am aware that Respondent 's operations at Moore Air Force Base have ceased by reason of a cancellation of Its contract with the Air Force, effective December 31, 1960, 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against James Cowan because of his testimony given at a Board hearing Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a) (4) of the Act. 4. By the foregoing conduct Respondent has also interfered with, restrained, and coerced James Cowan and its other employees in the exercise of rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. James Cowan voluntarily terminated his employment and therefore Respondent did not violate Section 8(a) (3) of the Act. [Recommendations omitted from publication.] and the closing of the base on or about the same date . As such considerations do not relate to the period during which the unfair labor practices herein were committed I deem them to be irrelevant at this time . They are properly matters for the compliance stage of the proceedings . F G. & W. Company, Inc, 129 NLRB 1105, footnote 1. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 525, AFL-CIO and Federated Em- ployers of Nevada, Inc. Case No. 20-CB-864. January 03,1962 DECISION AND ORDER On October 9, 1961, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices, and. recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 entire record in this case, including the Intermediate Report, the exceptions,, and the brief, and hereby adopts the findings, conclusions and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Re- 135 NLRB No. 40.