Mooney Aircraft, Inc.

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps Respondents have taken to comply herewith.lo 10 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director , in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA AND LOCAL 15173, DISTRICT 50, UNITED MINE WORKERS OF AMERICA Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL, upon request, bargain collectively with Central Soya Company, Inc., in the following unit of employees with respect to rates of pay, wages, hours of work, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement: All production and maintenance employees, including the scheduling clerk in the feed mill, employed in the Employer's plants at Decatur, Indiana, and the lecithin, elevator, maintenance, solvent, feed mill, yard, steam power , trucking departments , and laboratories (including the analyti- cal, feed research, and technical sections thereof), exclusive of office clerical employees, plant clerical employees , sales personnel, guards, pro- fessional employees, agricultural laborers, temporary employees, supervisory foremen, assistant superintendents, and all other supervisors as defined in the Act. WE WILL NOT seek to include in the unit excluded employees such as agricul- tural laborers. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated---------- --------- By------------------------------------------- (RALPH COURTLEY , Assistant Regional Director) LOCAL 15173, DISTRICT 50, UNITED MINE WORKERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (I{ENNETH HIRSCHY , President) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana, 46204, Telephone No. Mel- rose 3-8921 , if they have any questions concerning this notice or compliance with its provisions. Mooney Aircraft, Inc. and Lodge 725, International Association of Machinists, AFL-CIO. Case No. 23-CA-1475. June 5, 1963 DECISION AND ORDER On March 25, 1963, Trial Examiner Laurence A. Knapp issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 142 NLRB No. 106. MOONEY AIRCRAFT, INC. 943 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-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 and the excep- tions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 'As part of its brief, the Respondent filed a request for leave to adduce certain addi- tional evidence . This request is hereby denied for the season that, assuming the truth of the evidence sought to be adduced, it would not be sufficient to alter our decision herein. For the seasons set forth in the dissenting opinion in Isis Plumbing d Zleatiug Co, 138 NLRB 716, Member Rodgers would not award interest on backpay. The notice appended to the Intermediate Report is hereby modified by inserting the phrase "and the Universal Militaiy Training and Service Act of 1948, as amended ," after the phrase " Selective Service Act" which appears in the "Note" thereof. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case originated with a charge duly filed, following which the complaint issued on November 15, 1962, alleging that Respondent had discharged one George E. Mays because of his union membership and activities , in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended , herein called the Act. Re- spondent filed an answer denying the commission of these alleged unfair labor prac- tices and the case was heard before Trial Examiner Laurence A. Knapp at Kerrville, Texas, on January 29 and 30, 1963 . Although the parties were afforded opportunity to do so, none filed a brief with the Trial Examiner. On the entire record, as corrected on notice to the parties, and on my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT, AND THE LABOR ORGANIZATION INVOLVED As alleged in the complaint and admitted in the answer, and as found by the Board in the two earlier proceedings referred to hereinafter, Respondent, a manufacturer of small aircraft at Kerrville , Texas, is engaged in commerce , and the Charging Party, Lodge 725, International Association of Machinists, AFL-CIO (sometimes here- inafter called the Union ), is a labor organization, within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES : THE DISCHARGE OF GEORGE E. MAYS 1. Events leading up to Mays' discharge Mays, an employee with 4r/4 years of continuous service with Respondent, was a class A mechanic employed in Respondent's maintenance department at the time of his discharge on August 10, 1962. At this time he was recording secretary of Lodge 725 and for a lengthy period had been its shop steward for the maintenance depart- ment. In one or another of these union capacities , he was a participant in collective- bargaining negotiations between Respondent and the Lodge (the certified bargaining representative of Respondent's production and maintenance employees ), and attended one such session shortly before his discharge ; he had also posted notices, on the Union's bulletin board in Respondent 's plant. While on a fishing trip on Saturday, August 4, and part of Sunday , August 5, 1962, with his father-in-law, R. B. Fikes (then also an employee of Respondent), Mays 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered a sunburn of his feet and lower legs. Because of the ill effects of his burns, particularly those of the foot and lower leg areas, Mays remained away from work during the week beginning August 6.1 That the burns were sufficiently severe to war- rant his absence is amply established by the evidence, including medical reports 2 Upon concluding early Monday morning that he was unable to go to work, and aware that work absences were required to be reported to the Company,3 Mays took two courses of action on Monday to have his absence reported to Respondent. First, since he regularly rode to work with his father-in-law, he requested Fikes to report his absence to his foreman, Charles G. Cox, Jr. It is undisputed that when Fikes reached Respondent's plant, he proceeded directly to Cox's office shortly before the 7 a in. starting time, where, according to the combined accounts of Fikes and Cox, he informed Cox that Mays had received a bad sunburn on the fishing trip, was very sick and running a fever, and would not be at work that day. Second, Mays sought to report directly to Foreman Cox at Respondent's plant by telephone, was connected with Cox's office, and upon being informed that Cox was away from his office, talked with Crenwelge, Cox's clerk. He informed Crenwelge of his illness and inability to work and asked Crenwelge to give the message to Cox, which Crenwelge later did through a note to Cox.4 Mays requested Fikes to report him absent again on Tuesday, Wednesday, and Thursday, and on this subject Fikes testified that: (1) around 9 a.m. on Tuesday he informed Cox that Mays was badly burned and still in bad shape, and told Cox that Mays would not be to work that day; (2) in the course of the morning on Wednesday he told Cox that Mays was still in bad shape, he did not know when Mays would be back, and would try to keep Cox further informed each day; and (3) on Thursday he told Smith, Cox's leadman, that Mays was feeling a little better. In his testimony, Cox admitted that Fikes told him on Tuesday that Mays had a "very bad sunburn" and that he understood from Fikes' account that Mays was "burned pretty good," but denied that Fikes specifically told him Mays would not be to work that day. As to Wednesday, Cox flatly denied having had any conversation that day with Fikes with respect to Mays. Upon careful consideration of the Fikes and Cox testimony as to these 2 days, and their respective demeanors on the stand, I find that on Tuesday and Wednesday Fikes did report to Cox that Mays would be absent from work on each of those days, on the same lines of the report Fikes concededly made to Cox on Monday 5 1 With the exception of about 2 hours on Monday evening, Mays stayed within his house and mainly in bed from Sunday evening until Thursday afternoon treating his burns with the preparation known as Unguentine. On Monday evening, Mays tested his ability to wear boots, his normal work attire, by attending a National Guard drill and wearing his military boots. The result, including skin loss and added irritation, was an aggravation of his burns 2 As a result of queries by Respondent's president on August 11 as to why he had not theretofore consulted a doctor, Mays had medical examinations on that day and on August 15. The corresponding reports state that on August 11, Mays was still unable to wear boots, but that on August 15 his burns were sufficiently healing to permit him to return to work then. From testimony at the hearing, Respondent appears to have enter- tained doubt, after discharging Mays, whether Mays' burns were significant, but I see no basis for such doubt on the evidence or any relevance of the postdischarge scrutiny Re- sponden,t gave to this matter. 3 The appropriate or permissible methods of reporting such absences are a basic issue in this case considered infra. 4 According to Crenwelge, his note to Cox stated merely that Mays would "not be in that day." Mays testified that after describing his burns and inability to work 'to Crenwelge, he told ^Crenwelge that he would return to work as soon as he "was able to." At the hearing, iCrenwelge first testified that Mays merely said that he would "not be in that day," later testified that this is what he "understood" Mays to have said, and finally made no response to the question whether he was certain that Mays had not also said he would be in further touch as soon as he felt better. For reasons later apparent, it is unnecessary to decide whether Maya limited this report to that day's absence. 5 It follows from this finding that I accept Fikes' testimony , and reject that of Cox, on the narrow question whether on Tuesday Fikes stated explicitly ( after admittedly and, vividly describing to Cox the severity of Mays' burns ) that Maya would not be at work that day. But whether Fikes used such explicit words would seem immaterial because Cox admitted at the hearing that , at the time of his Tuesday conversation with Fikes, he knew that Mays had not reported to work ; that be understood from what Pikes was telling him that the latter was explaining Mays' absence ; and that he assumed from this con- MOONEY AIRCRAFT, INC. 945 Moreover, Cox testified that when the Company had been notified that a prolonged sickness 6 existed, it was unnecessary for the affected employee to report his absences on a day-to-day basis. In this case, and certainly by Tuesday morning, Cox knew or had every reason to know from Fikes' reports on Monday and Tuesday that Mays was suffering from a disability of a continuing character. In the circumstances, I consider and find that Mays was relieved, under the company practice attested to by Cox, of any necessity to make daily reports subsequent to Tuesday, August 7. For this reason, it is immaterial whether Fikes reported to Cox on Wednesday although I have found that he did, or whether Fikes' conversation with Smith, Cox's leadman, on Thursday (the occurrence of which is not disputed) should or should not be considered a report to Respondent of Mays' absence from work on that day. 2. Mays' discharge At the end of the day on Thursday, August 9, Cox made out a notice of termina- tion i.e., discharge, of Mays on Respondent's regular termination form, and put on the form as reasons for the discharge the words: Excessive Absenteeism Failure to Report in as Required Under Provisions of Employees Guide This document, bearing the signatures of Cox and Tonnessen, the factory supervisor, and then signed "approved" by the personnel manager, Duderstadt, was transmitted to Mays by certified mail early on Friday, August 10, and was received by Mays in the midafternoon of that day. Counsel for the General Counsel rested his case after introducing proof along the foregoing lines and, as his proof of antiunion motivation, referred me to and re- quested me to take official notice of two earlier decisions of the Board involving the same parties, in which the Board found such an animus on Respondent's part. I deal with this request below, after considering Respondent's explanation at the hearing of Mays' discharge. 3. Respondent's explanation of the discharge at the hearing While Foreman Cox listed "excessive absenteeism" first on Mays' termination no- tice as a reason for his discharge, and while, as will be seen, Respondent's "Employees Guide" states that "frequent," as well as "unexplained" or "unreported," absences will "probably" result in termination, at the hearing Cox did not rely on excessive absenteeism, as such, as a reason for his decision. Rather, Cox (1) testified that Mays' total absences from work were about average; and (2) whenever the subject of Mays' discharge was approached, directly or indirectly, bottomed his decision on the ground that Mays had 3 consecutive days (those of Tuesday, Wednesday, and Thursday) of "unreported" absences? The provisions of the "Employees Guide" (Respondent's Exhibit 1, page 2) to which Respondent refers read as follows: (We depend on you to be on time and regular in attendance so that we can meet production schedules. Frequent or unexplained absence from work or lateness in reporting for work will impair the value of your services to the Company and will probably result in termination. If you must be absent for all or part of a day, please notify your supervisor as far in advance as possible. If versation that Mays would not be at work that day. In the circumstances, I find that Cox understood from the Fikes report that Mays would be absent for the whole day, whether Fikes used such precise words or not. 01 interpret the words "prolonged sickness" as used by Cox with reference to the re- quirements for reporting absences, as encompassing an illness of several days' duration In this connection, the provisions of the Employees Guide hereinafter set forth call upon an absent employee to report "the probable length of time [he] will be absent," thus in- dicating that one reported explanation of an absence, whether of 1 day's duration or indefinitely longer, is sufficient. 7As is evident from an exhibit prepared by Respondent (General Counsel's Exhibit No. 4) and from the testimony of Cox and Duderstadt, "excessive absenteeism" figures in this case only as an expression Respondent used to describe its practice of discharging employees who accumulate 3 successive days of "unreported" absence. Thus, for purposes of this case, the term represents Respondent's definition of the number of consecutive "unreported" absences which Respondent considers sufficient to cause discharge, a number, incidentally, not stated in the Guide. 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for any reason you are unable to report for work, telephone the Company Operator (CLearwater 7-4043) after 8 :AM and state, "I wish to report an absence." The operator will connect you with the Personnel Office. Explain the reason for your absence, the probable length of time you will be absent, and other information relative to your absence which you feel should be passed on to your foreman. Unreported absences will probably result in termination.)8 At no point in the hearing did Foreman Cox or Respondent's counsel state explicitly the respects in which Cox concluded that Mays' absences were not re- ported, as required" under these provisions, so that these precise specifications must be deduced from the testimony of Foreman Cox,9 who made the discharge decision and put the corresponding inscription on Mays' dismissal notice. From an analysis of Cox's testimony, it appears that he reached his conclusion that Mays' absences on Tuesday, Wednesday, and Thursday were "unreported" because (1) no reports of any kind were received concerning Mays' absences on Wednesday or Thursday, (2) because Fikes did not specifically state in the Cox-Fikes conversa- tion on Tuesday that Mays would be absent that day, and (3) because, in any event, Cox did not consider a report of an absence made solely through a co-rider, such as Fikes, as permissible. Taking Respondent's asserted policy of automatically discharging any employee having three successive "unreported" absences as a start- ing point, Cox thus classified Mays' absences on Wednesday and Thursday as, in fact, totally unreported, and that of Tuesday as "unreported" in fact, or, if reported by Fikes, as not properly reported under the Guide. With respect to all factual links of this chain, I have found, contrary to Cox's testimony, that Fikes did inform Cox both on Tuesday and Wednesday that Mays would be absent on those days, and have further found that, under the company practice attested to by Cox, Mays was relieved from reporting his absences on Wednesday and Thursday because of Cox's awareness on Tuesday that Mays' dis- ability was of a persisting character. In the light of these findings, the chain of three successive "unreported" absences falls apart on factual grounds, leaving for consideration Respondent's contention that any reports communicated through Fikes were impermissible under the Guide. On this subject, Respondent sought at the hearing to portray the pertinent sentences of the Guide previously quoted as laying down fixed rules prescribing the exclusively permissible procedures for reporting absences, namely (1) absences foreseen a day or more in advance may be reported to the appropriate supervisor; but (2) any absence first reported on the day of absence must be reported exclu- sively by the procedure of post-8 a.m. telephonic call to the personnel department. On these premises, Cox at some points, and Duderstadt generally, testified (with particular reference to Fikes' testimony concerning his reports to Cox) that they did not treat or consider absences notified to Respondent by fellow employees- riding companions-as "reported." But Foreman Cox did not adhere to the con- cept that the second procedure represents the sole acceptable method for reporting on the day of absence. Thus, he variously testified that: (1) he treated Mays' absence on Monday as "reported" because of Mays' attempt to reach him directly that morning; (2) employees in his department could report, and in some cases had reported, absences by direct calls to him on the day of absence; (3) that telephonic reports of absence given to the plant guard, and relayed directly to him before the plant switchboard opened at 8 a.m., were acceptable; and (4) an employee could send Cox word of his absence through "whoever he rides with," the method he stated "most boys" used 10 These various avenues of reporting not set forth in the Guide but nevertheless acceptable to Cox were accompanied by his further acknowledgments that the im- 8 For reasons evident from my report, no material significance can be attached in this case to a notice Respondent posted in February 1962 calling attention to these procedures for reporting absences 9 Respondent's general position that Mays was discharged for not reporting his absences in accordance with these Guide provisions was several times stated by Rachal at the hear- ing, but without the particularization which became requisite under the specific circum- stances of the case. 10 Cox gave this testimony about reporting through "co-riders " without qualification during questioning by the Trial Examiner , and subsequent to his testimony on examination by Respondent that he did not classify an absence as "reported " on the basis of word sent in by other employees unless such word was followed by a telephonic report to the personnel department. MOONEY AIRCRAFT, INC. 947 portant thing is that he receive word, regardless of the reporting channel used, concerning which of his staff were to be absent.il In the light of this factor and the variety of reporting methods Cox permitted, and the tenor of other pertinent testimony by him and Duderstadt, Respondent's other witness on absence-reporting procedures,12 it is clear that the Guide is by no means the sort of clear, authorita- tive, and all-embracing statute on the subject of permissible procedures for re- porting absences which Respondent sought to depict it as at the hearing. In this connection, it is particularly noteworthy that the pertinent passages of the Guide (1) do not clearly state that the two methods of reporting are mutually exclusive, i.e., through the supervisors for anticipated absences, and the personnel office for unanticipated ones; (2) do not state that these methods are the only permissible ones; and (3) of particular importance, do not state that utilization of one as against the other, or any other method, would be cause for discharge.13 Moreover, as is self-evident and as Cox recognized, these methods do not cover all possible situations (e.g., that of an ill employee lacking a telephone or one not in working order). In the light of all the foregoing circumstances, I am unable to credit Respondent's contention that it discharged Mays because of a failure to report his absences "as required under provisions of the Employees Guide," and hence I find that Re- spondent discharged Mays for some other reason. I am the more impelled to this conclusion by a consideration of other testimony, not yet adverted to, concerning efforts made by Mays in the period closely preced- ing his discharge to pin down what were appropriate procedures for reporting absences. Mays testified that as a result of one occasion when he had reported an absence to Personnel Manager Duderstadt, he was informed by Cox that this was not the proper procedure and that he should report to Cox; and that a bit later (apparently only about 2 or 3 weeks before his discharge), having heard that the absence of another employee had been reported to Cox through a co-rider, he in- quired of Cox whether this procedure was permissible and was told that it was. While, in apparent reference to this testimony by Mays, Cox denied that he had ever told Mays to report to him rather than the personnel department and asserted that, on one occasion when he was advising Mays concerning proper reporting procedure, he told Mays to "be sure" to telephone the personnel department, in other testimony perhaps but not necessarily referable to the particular occasions involved in Mays' testimony, Cox admitted that he had told Mays that the latter could report to Cox if he could not "get a hold" of the personnel department.14 "As the Guide states and the testimony shows, absences reported through the per- sonnel office are relayed to Cox or other appropriate foremen Cox utilizes such informa- tion for two purposes: (1) arranging daily work assignments of his staff; and (2) keep- ing records in his department, and making corresponding reports to the personnel office, concerning department employees on duty and absent (with those absent classified as "reported" and "unreported"). As to his staff, he determines whether an absent em- ployee should be classified as "reported" or "unreported," making this decision at the end of the day as to any employee absent until then and classifying the absence as "re- ported" if during the day the employee "gets a hold" of him or the personnel office. 12 While asserting that the proper reporting procedures are specified in the Guide, Duderstadt recognized ^Cox's authority to accept the direct report Mays made to Cox on August 6 ; stated that he would have to "interpret" as "justifiable" a direct report to a supervisor if there was no one in the personnel department when an absent employee tele- phoned ; and temporized as to the acceptability of absences reported through a third party by stating that "I don't think" that would be "a legal manner " 13 Fully read and fairly construed , the Guide as a whole appears to be more what the word "guide" Imports, that is, a broad explanation, particularly to new employees, of Respondent's employment atmosphere, policies, and practices, rather than a formal and precise compendium of working rules and regulations This introductory character of the Guide is further evidenced by Its repeated directions that employees should consult their supervisors for fuller clarifications and more specific guidance, and follow the instructions and advice so received. 14 It cannot be determined from the Mays-Cox testimony just how many conversations they had, or precisely when they all occurred, but one of them was prompted by a clearly unreported absence by Mays on June 7. In the course of the resulting talk, Cox, accord- ing to his own testimony, "talked to Mays about reporting in" and went on to explain the procedure to Mays, including a reference to the Guide. Respondent, largely through 712-548-64-vol. 142-61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But, as previously seen, the telling factor is that at other points in his testimony Cox unconditionally conceded that members of his staff could properly report to him, directly or through a corider. In the circumstances, I find that at some points during a period beginning about 2 months prior to Mays' discharge, Cox did advise Mays that absences could be safely reported to Cox directly or through a co-rider, and that, as was clearly implicit from Mays' testimony, Mays relied on this advice in reporting his absences during the week of August 6 in the ways he did.i5 The final question, then, is whether the discharge was motivated by an animus on Respondent's part toward Mays' membership in and activities on behalf of Local 725, and on this dispositive question of motive I turn to a consideration of the two prior decisions of the Board involving the same parties.is These decisions are reported in 132 NLRB 1194, decided August 24, 1961,17 and in 138 NLRB 1331, decided October 1, 1962. In the first case, it was found that during the period October 1959-July 1960, Respondent had engaged in a broad spectrum of unfair labor practices directed against Lodge 725 and its members, in violation of Section 8(a)(1), (3), and (5) of the Act, including a refusal to bargain collectively with Lodge 725 and consequent precipitation of a strike, discriminatory action in reinstatement of its striking em- ployees, and a discriminatory discharge and refusal to reinstate one employee be- cause of his activity in the Union With reference to these manifold violations, and specific conduct and statements by Respondent manifesting its purposes to rid itself of the Union as the collective- bargaining representative of its employees, and of union members as employees, the Board found: The broad pattern of the violations found evinces a general hostility on the Respondent's part to the principles of collective bargaining and to the right of employees to engage in legitimate concerted activities for the purposes of orga- nization or other mutual aid and protection. In the second case, the Board adopted findings of the Trial Examiner that during the period from December 1960 to mid-1961, Respondent engaged in further viola- tions of its duty to bargain collectively with the Union; that, because of their par- ticipation in a 1-day strike in May 1961, Respondent discriminated in succeeding months against several employees in the bestowal of desirable "makeup" and over- time work; and that Respondent, on April 12, 1962, discriminatorily discharged the president of the Union. With respect to this union official, it was specifically found that Respondent for months kept "tabs" on him for the purposes of obtaining a pre- text for a discharge in fact motivated by Respondent's antiunion policy. Respondent's hostility to the policies of the Act in general, and toward Lodge 725 and its leaders and members in particular, as found in these cases, is at once deep- seated in nature, recent in time, and continuing in character. Considered in conjunc- tion with my inability to accept the ground for discharge given by Respondent, that hostility presents itself as the true reason for action which otherwise is far from Rachal''s questions, characterizes this as a "warning" to Mays. But a "warning," both in general as well as in cases under the Act, means an advance notice of some impending or probable danger if a given course of conduct is followed. There is no suggestion that what 'Cox said was in such terms. A fair construction of his testimony, which is akin to that of Mays, is that what he said to Mays had the character of a reminder, not a warn- ing Indeed, Mays was absent again without reporting, and without discharge and with- out comment by Cox, on July 16, just 3 weeks before his discharge 15 In making these findings, I have relied, in part, upon the demeanor of Mays while on the stand. He impressed me as an honest man, disposed to give straightforward, un- hesitant testimony to the best of his recollection and ability. As to Cox, he created much the same impression while under examination by the Trial Examiner, where in effect he retreated from answers he had given concerning reporting methods while under examina- tion by Rachal. I attribute this self-contradictory character of his testimony on rather crucial points to Rachal's position as president of Respondent. 11 That I am free to take official notice of those decisions for purposes of such an inquiry is well established. Paramount Cap Manufacturing Company v. N.L.R.B., 260 F. 2d 109, 113 (C A. 8), and cases there cited. See also, Nahtel Corp v. West Virginia Pulp & Paper Co, 141 F 2d 1, 2, footnote 2 (C A. 2) ; Underwood Machinery Company, 79 NLRB 1287, 1288-1290, enfd. 179 F. 2d 118 (C.A. 1) ; Fred P. Weissman Co., 71 NLRB 147, 151, 155, enfd. 170 F. 2d 952 (C.A. 6). 17 The Board Order in this case was enforced by the Court of Appeals for the Fifth Circuit on November 28, 1962, 310 F. 2d 565. MOONEY AIRCRAFT, INC. 949 persuasively explained or explicable on the record.18 I find that Respondent dis- charged Mays because of his membership in and activities on behalf of Lodge 725, in violation of Section 8 (a) (3) and (1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in con- nection with the operations of the Respondent described in section I, 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. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a) (3) and 8(a) (1) of the Act, I recommend below that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act, including offering to George E. Mays immediate and full reinstatement to his former or a substantially equivalent position, and making him whole for any loss of earnings he may have suffered because of the discrimination against him, by pay- ment to him of a sum of money equal to the amount of wages he would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period, together with interest thereon at the rate of 6 percent per annum, the loss of pay and interest thereon to be computed in accordance with the respective formulas and methods prescribed by the Board in F. W. Woolworth Coin- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging George E. Mays on August 10, 1962, as found above, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and 2(7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I recommend that the Respondent, Mooney Air- craft, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in Lodge 725, International Association of Machinists, AFL-CIO, or any other labor organization of its em- ployees, by discharging or in any other manner discriminating against any individual in regard to his hire, tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collec- tively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to George E. Mays immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Make George E. Mays whole in the manner and in accordance with the methods referred to in section IV, above, entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- Is See N.L.R.B. v. Texas Bolt Company, 313 F. 2d 761 (C.A. 5) ; N.L.R.B. v. Baker Hotel of Dallas, Inc., 311 F. 2d 528 (C.A. 5). 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, personnel records and reports, and all other records necessary to a deter- mination of the amount of backpay due. (d) Post at its plant at Kerrville, Texas, copies of the attached notice marked "Appendix." 19 Copies of said notice, to be furnished by the Regional Director of the Board for the Twenty-third Region, shall, after being duly signed by an author- ized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including its main bulletin board, all department bulletin boards, and all other 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. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.20 19 In the event that this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the additional event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 20 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Lodge 725, International Association of Machinists, AFL-CIO, or any other labor organiza- ton of our employees, by discharging or in any other manner discriminating against any individual in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to George E. Mays immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. MOONEY AIRCRAFT, INC., Employer. Dated------------------- By---------------------------------- -------- (Representative) (Ti tle) NOTE.-We will notify George E. Mays if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, 77002, Telephone No. Capitol 8-0611, Extension 296, if they have any question concerning this notice or compliance with its provisions.,