Riley Aeronautics Corp.

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assembly, who have been stipulated to be nonprofessional employees, although, like the three disputed employees, they also often estimate the cost of advanced proposals and parts. The evidence shows that the cost estimating employees are not concerned with solving engineering problems, but merely estimate the cost of material and manpower which will be needed to manufacture or assemble a certain component or item proposed. In view of the predominantly repetitive and routine nature of the cost estimating function, and the stipulation that certain cost estimators-assembly who perform comparable work are not pro- fessional employees, we find that the cost estimator-advanced proposals and the cost estimators-parts do not meet the statutory requirements of Section 2 (12) for professional employees. In sum, it appears that the stipulated unit contains both professional and nonprofessional employees, within the meaning of Section 2(12) of the Act. Since the ballots of the professional employees did not present the question of inclusion in the mixed unit and in any event were not kept separate from those of the other employees, and since it has therefore not been possible to ascertain that a majority of the professional employees voted for inclusion in the unit, as required by Section 9(b) (1) of the Act, we must of necessity exclude them from the stipulated unit. Moreover, it is not clear that the Petitioner seeks either a separate election among the professional employees in the unit, or a finding that a substantially smaller unit (containing only the non- professional employees) is appropriate. It is likewise not clear that a majority of the nonprofessional employees who voted in this smaller unit cast ballots for representation by the Petitioner. Under all the circumstances, we shall vacate the certification hereto- fore issued by the Regional Director and shall remand the proceeding to him for such further action on the petition as may be appropriate, consistent with our decision herein. The Board vacated the certification of representatives and re- manded this proceeding to the Regional Director for Region 15 for appropriate further action on the petition.] Riley Aeronautics Corporation and Donald A. Depew and Fred Lee, Jr. and Wallace J. Nelson and Sigmund R. Ni^ed , and Homer D. Sapp. Cases Nos.12-CA-3055-1,12-CA-3055-2,12-CA-3055-3, 12-CA-3055-4, and 12-CA-3055-5. August 9, 1965 DECISION AND ORDER On May 12, 1965, Trial Examiner Arthur E. Reyman issued his Decision in the above-entitled proceeding, finding that the Respondent 154 NLRB No. 25. RILEY AERONAUTICS CORPORATION 361 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 attached Trial Examiner's Deci- sion. Thereafter, Respondent filed exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members 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 Trial Examiner's Decision, the exceptions, and the entire record in these cases, and hereby adopts the findings conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Riley Aeronautics Corpora- tion, Fort Lauderdale, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as so modified : 1. Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, the present paragraph 2 (b) and those subsequent thereto being consecutively relettered : "(b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 'Respondent, in its exceptions to the Trial Examiner's Decision , alleged numerous procedural errors committed by the Trial Examiner . We have examined each allegation and find them without merit TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151 et seq., herein called the Act. On October 26, 1964, Donald A. Depew, Fred Lee, Jr, Wallace J. Nelson. Sigmund R. Nied, and Homer D. Sapp each filed a charge, identical in form, stating as a basis therefor that Riley Aeronautics Corporation, hereafter sometimes called the Company or the Respondent, had engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act in that "On or about October 26, 1964, it by its officers and agents terminated the employment of [name of Charging Party and ioh title] because of his membership and activities in behalf of International Association of Machinists , AFL-CIO, a labor organization, and at all times since such date, it has refused and does now refuse to employ the above-named employee," and that by such acts and other acts and conduct the Company interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 22, 1964,1 the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for Region 12, pursuant to Section 10(b) of the Act and the Board's Rules and Regulations, Series 8, Section 102.15, issued a complaint and notice of hearing against the Respondent, the complaint alleging that the Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the Act. Thereafter the Respondent filed an answer to the complaint. The complaint in paragraphs 1 and 2 thereof alleges service of the charges upon the Respondent and facts sufficient to warrant a finding that Respondent is an employer engaged in commerce within the meaning of the Act , and that it meets the Board's jurisdictional standard. The General Counsel thereafter moved to strike certain por- tions of the answer, said motion being referred to a Trial Examiner for ruling. The Trial Examiner on January 26, 1965, issued an order granting said motion unless the Respondent amended its answer on or before February 5, 1965. The Respondent did not amend its answer; accordingly, the pertinent portions of paragraph 1 of the answer are therefore deemed stricken and the allegations of pargaraphs 1 and 2 of the com- plaint neither specifically denied nor explained. Under the Board's Rules and Regula- tions, Series 8, as amended, Section 102.20, such allegations therefore are deemed admitted to be true; therefore Respondent has admitted the jurisdiction of the Board. Pursuant to notice, this matter came on to be heard before Trial Examiner Arthur E. Reyman at Miami, Florida, on March 15, 1965, and was closed on the following day. At the hearing the General Counsel and the Respondent each was represented by counsel, and the appearance of Charles E Michael, business representative, Inter- national Association of Machinists, District 40, was noted on behalf of the Charging Parties. At the hearing, each party was afforded full opportunity to be heard, to call and examine and cross-examine witnesses, to present oral argument, to file proposed findings and conclusions, or both, and to file briefs A brief has been submitted on behalf of the General Counsel. Upon the whole record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Riley Aeronautics Corporation is a Florida corporation maintaining its principal office and place of business at Executive Airport, Fort Lauderdale, Florida, where it is engaged in the overhaul and maintenance of aircraft. During the 12 months immediately preceding the issuance of the complaint herein, a representative period, the Respondent purchased and received goods, supplies , and materials from points directly outside the State of Florida valued in excess of $50,000. The Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED International Association of Machinists, AFL-CIO, District Lodge No. 40, herein sometimes called the Union or IAM, has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act 2 The testimony of Business Representative Michael of the Union, and the testimony of employee Fred Lee, Jr., establishes that the Union is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. I find, therefore, that this Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The employees' interest in union organization A few days prior to October 20, Fred Lee, Jr., employed by the Respondent from April 1960 until he was discharged on October 26, communicated with Business Representative Michael of the Union, and on or about October 20 Michael, with John McGivern, an organizer for the AFL-CIO, attended a meeting held in Lee's home. Among those present at this meeting were Donald A. Depew, Wallace J. 'Unless specifically noted, the dates hereinafter mentioned are for the year 1964 2 The answer denies that International Association of Machinists, AFL-CIO, District Lodge No. 40 is a labor organization. RILEY AERONAUTICS CORPORATION 363 Nelson, Sigmund R. Nied, Homer D. Sapp, and Lee. At this meeting the employees inquired of the union officials the nature or kind of assistance which the Union could give them with respect to improving their working conditions. The possibility of organizing the employees of the Respondent was discussed. During the days immediately following this meeting, the employees who had been present discussed the Union. They solicited from 40 to 50 employees and asked for their support for the Union, and obtained some signed Union authorization cards. Among those approached was Andrew Waksman. Lee asked him to talk to the men in the metal shop and get as many of the metalsmiths as possible to sign up for the Union. Waksman's response to this request was, as he expressed it, negative. Lee testified that after the meeting at his home with Michael and McGivern, he engaged in a number of conversations with other employees of the Company about the Union, some 40 to 50 men other than Sapp, Nied, Depew, Nelson, and Waksman. Among those employees he recalled the names of Tony Popola, Russell Johnson, Ed Fields, Coney E. Gaeoda, George Brady, and Randy Carter. Nied testified that he had talked with employee Harry Kassel; that Kassel said he did not like unions and wanted nothing to do with them and "stormed off." Afterwards, Nied said, he was afraid to mention the Union to anyone because he understood that other people pre- viously had been fired because of union talk. Depew testified that he spoke to employees in the paint department and the sheet metal department, including Joe Schaeffer, George Breeding, Randy Carter, Al Serrano, and others. Nelson testified that he spoke about the Union to, among others, Al Santar, Aaron Lyons, Harry Castle, Antonio Rico, and Frank Phillips. Sapp testified to talking to an employee named Roy and another, John Mulligan. Jack Riley, the president of the Company, was informed by Waksman on Octo- ber 23 of current rumors concerning the Union, and on the following day told Riley that persons other than Lee and Nelson were union adherents. B. The party on October 23 On the afternoon of Friday, October 23, a party (referred to throughout the record as a "beer party") was held at the hangar. As explained by Depew, a fund is main- tained. "a kind of employee fund, and when it gets sizable enough or we see an occa- sion arise that warrants it, well, we spend the money for beer and pretzels and so on." This party was held for all of the employees of the Company, with President Riley among others, present. At one point Sapp was engaged in preparing set-ups when Riley put his arm around Sapp's shoulder, addressed him as "old buddy," and informed him that the Company had acquired a considerable amount of work on the so-called Dove program which would result in a considerable increase in work, enough to require the force to be working night and day. Each witness agreed that Riley joined in with the gathering and acted in a friendly manner toward the employ- ees during the party. Later, Nelson, Depew, and Sapp observed Waksman talking to Riley. When they approached the two, Riley and Waksman withdrew to an inside office. After from 20 to 45 minutes, Riley left the office and the party, passing Sapp and Nelson without speaking to them. Thy two men were concerned about the pri- vate discussion between Riley and Waksman, discussed its possible meaning, and decided to question Waksman concerning what he and Riley had talked about. Shortly thereafter, Nelson, Depew, and Sapp conferred with Waksman outside the hangar. This conversation, according to Waksman, took place about 5:30 or 5 45 p.m. Waksman told them that he had gone into Vice President Evans' office to talk with Riley about an increase in wages. The men asked him if he had spoken to Riley about the Union, and Waksman replied that he had not. Waksman testified that just before he left Riley, Riley had asked him if he had ever heard anything about the Union and that he, Waksman, told Riley "that there were rumors going around to the effect that once before they had tried to get a union in." Waksman testified further that when he talked to Riley on the following morning, Saturday, the Union again was mentioned; then, referring back to his conversation with Riley at the party he said that Riley "mentioned several names"-"I believe we talked about Fred Lee's name, I think was mentioned and Wally Nelson's name was mentioned, I believe, and that's all that I can recall." Then again, referring to the conversation between him and the three men outside the hangar on Friday evening, Waksman testified: They told me first, they asked me what I had talked to Riley about and I told them that I felt it was none of their business and they started to press me and they are three pretty big fellows and I told them that I had talked to Mr. Riley about personal reasons on an increase, at which time, they told me that they would let it ride until Monday but that if there was a meeting of any kind or any talk on the floor by Mr. Riley that they would hold me personally responsible and that they would take care of me Monday night. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said Nelson was the one who made the initial remark and that Nelson was "backed up" by Depew ; and that Sapp said that he was surprised "that I had taken the attitude towards him that I had taken ." Waksman said that when he was asked whether or not he had spoken to Riley about the Union , he told them that he had not because he did not think it was any of their business Nelson testified that he told Waksman that he, Nelson, had been warned about union activities before , and that he could not afford to be fired ; and that he further told Waksman that if the latter was going to "point his finger at anybody make it the right man" ; and further told Waksman that if Riley said anything to Nelson, that Nelson would make Waksman prove his state- ments to Riley . Nelson denied threatening Waksman by telling the latter that he would be "taken care of" on Monday night if anything was said by Riley on Monday morning. Depew testified that he, Nelson and Sapp asked Waksman about what he had talked about in Riley's office , whether the Union had been mentioned by Waks- man to Riley: and that Waksman had replied that he had been talking about wages but denied talking about the Union to Riley. Depew said that he told Waksman at that time that if he had given Riley the names of any union sympathizers , he should be certain that he named all of them and named the right ones . Depew testified that during this conversation not one of the three men had told Waksman that he would "be taken care of on Monday night" if he had told Riley that any one of them were union adherents ; and said that after he finished talking to Waksman he apolog ized to him "if I falsely accused him , and I extended my hand, and I asked him if he would accept my apology and he said that he would and he shook hands with me, and he shook hands with each one of the other fellows too, as I remember." Sapp denied that any one of the three had told Waksman they were going to "take care of him Monday night." Sapp said that during the course of his conversation he told Waksman that he and Nelson were almost fired the previous year because of their union activity and they did not want to be blamed again ; he further testified that Waksman was told that if any of the three employees ' names were mentioned on Monday morning, they would take him to Riley's office and prove him a liar ; that at the conclusion of his remarks , Sapp shook hands with Waksman , and the gathering was broken up when the chief inspector , Knight , and several other inspectors approached and suggested that they all go to another beer parlor ; that Waksman agreed it was a good idea , and a number of the employees went to a bar Depew did not join them . Waksman, Nelson, and Sapp stopped at the 4200 Club for about an hour where, they all agreed, nothing was said about the Union and everyone joined in having a good time. Waksinan said that when he accompanied the others , including Nelson and Sapp, to the bar after the party at the hangar he did not feel that he was in any danger of physical injury that night, because the threat was that "they were going to take care of" him Monday night ; that they were less belligerent ; and, because he was no longer in fear that evening, he went to the bar to see "what more they had to say" and to get further information The information he was looking for, he said , had to do with his own personal safety. Judging from the testimony and demeanor of Waksman , he was a willing informer when he gave Riley the names of the three or four Union adherents , and also, as he said, told Riley that he had been threatened by Nelson, Depew, and Sapp. Waksman said he told Riley on that Saturday morning , October 24, that he was fearful because of the threats reported by him to Riley , although it seems that he did not feel himself to be in danger Friday or Saturday night, but only looked forward to what might occur on Monday During the course of his conversation with Riley on Saturday morning, Waksman said Riley asked if he, Waksman , wanted to have a peace bond taken out for his protection and he replied that he did not think it was necessary Even though Waksman first said he did not talk about the Union to Riley on Friday at the party he did later on in his testimony say that he had discussed union rumors; he testified on cross -examination that he was not fearful as of Friday night although, in reporting his conversation with Riley on Saturday he said that he was-that he had told Riley he was in fear. He said that he was apprehensive because, after Nelson and the others said he would be taken care of if anything happened on Monday morning , he had had a serious stomach operation some 5 years before and a blow might result in his death. The General Counsel contends, and it seems to be a fair inference , that Waksman did not tell the truth when he testified that he had no purpose in going to the 4200 Club with Nelson and Saps other than for the purpose of learning something to his own advantage, but that his purpose was to ohta:n additional information about the Union to transmit to Riley; and the proof of this is that on the following day, Satur- day, he gave Riley the names of three or four of the men who were most active in promoting the Union. RILEY AERONAUTICS CORPORATION 365 Depew, Lee, Nelson, Nied, and Sapp were not present in the hearing room when Waksman testified, nevertheless my impression of him as a witness is that his story of being threatened is not to be taken too seriously, and that actually the testimony of Nelson, Depew, and Sapp, which in substance is that they told Waksman they would make him prove to Riley his statements about them if they were called to account for their union activities on the following Monday, amounted to the full substance of any "threat" made by them to Waksman If Waksman stood in fear of these other men, it is difficult to understand why he so readily accompanied them to the 4200 Club after the Friday evening party at the hangar, and why he rejected Riley's purported offer to assist him by putting the other men under a peace bond. Obviously, Waksman described the conversation outside the hangar on Friday evening as he did because he could not avoid a straight denial or, in the alternative, invent a story which would be consistent with all of the other events of that evening. C. The meeting of Monday, October 26 At the call of President Riley, all employees at work in the hangar, variously esti- mated to be some 40 to 50 or more in number, were assembled in a group on the hangar floor at 8 a.m. on Monday, October 26, when Riley talked to them They were assembled in a semicircle; Riley moved in front of them as he spoke, and from time to time an employee either answered questions or volunteered information. Robert Edwin Fields, was the first witness to testify concerning the course of that meeting. He quit his job that day because of what transpired at the meeting, or as he put it, "I just didn't like the way Riley did the people involved that morning." According to Fields, Riley told the employees that he had heard rumors of union activities in his organization; that Riley "wanted to know if anybody [who] had any- thing to do with it was man enough and had guts enough to step forward and have themselves recognized"; that . Mr. Lee came in then and I would say approximately 5 or 10 minutes after 8 which he was late, and he was at the coffee machine there waiting to get a cup of coffee and then Mr. Riley called out to him. I don't remember for sure but he either says, damn it Fred Lee or god damn it, Fred Lee, come over here, and so Fred came on over there and when he did, Mr. Riley told him that he had heard that he had been involved in union activities, and he asked him did he have guts enough to admit it, and Fred Lee stepped forward and said that he did have. Well then, Mr. Riley said, you no longer work here and you are the most unap- preciative person I have ever seen in my life. According to Fields, Riley asked Nelson if he had anything to do with union activi- ties and that Nelson told Riley that he had heard of "this union coming in," and that he had told the men if 80 percent of the men wanted it, he would go along with it. Fields said that Riley asked Depew if he had anything to do with the union activities going on in his organization, that Depew answered by saying that he had heard of such activities and had said that if the majority of the people there wanted a union that he would go along with it, and that Riley then told Depew "you no longer work here " Fields further testified that Riley told Sapp an employee (Andrew Waksman) had told him that he had been threatened by Sapp, and that Sapp answered He told Mr. Riley that he was referring to a beer party that they had had on Friday night and that in the conversation with Andy that he had told him that if he made any accusations of him threatening anybody that he had better know what he was doing and at that time he told Mr. Riley that he had made no threats to anyone. Fields said that Waksman was present, that Riley asked him how he was threatened, that ". . . he stepped forward, well, he started to say something, but I never could understand what he said." Fields was approximately 10 feet away from Riley and Waksman and about 15 feet from Sapp. The cross-examination of this witness elicited substantially the same testimony as on direct; he was most positive that Riley's first remarks were concerning union activities, and not about the threats said to have been made. He iterated: Well, Mr. Sapp told Mr. Riley that he had never threatened anybody and then he referred to Mr. Riley at that time back to the beer party on Friday night and he said the only thing that he had said whatsoever was that he told Andy, who he was talking to at the time, he said don't accuse him of anything unless he was sure of what he knew or what he was talking about. I credit the testimony of Fields in each material respect. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Depew, one of the charging parties herein , testified that during the week prior to the time his employment was terminated at this morning meeting, he had discussed the subject of union organization with Fred Lee, Jr . and another employee, Al Serrano, and that he also had attended the meeting held at Lee's house the Friday night before the Monday morning on which the men were fired . According to the testimony of Depew, Riley, after calling the men together on the morning of Octo- ber 26, told them that he understood that there was talk about a union, that he was not going to allow a union in his shop, that before he would let a union into his shop "that he was going to close the doors, that no god damn union was going to run his business." According to Depew, Riley asked that any of the employees who might be involved step forward ; that he recalled that Lee stepped forward first and that Riley then told Lee that he understood that the latter was the instigator and the ring- leader "of starting this union here and that he was disappointed in him and he went on to a lot of other little phrases ." Riley, he said , fired Lee during their discussion concerning the Union. In regard to Nelson , Depew testified that Riley, while walking up and down the line of men, stopped by Nelson and told him that he understood that he "was in on it too" and that Nelson stepped forward and told him that he probably was; that Well, he [Riley] kind of rolled his eyes around and then they fell on me and I could see that he was getting ready to call my name out so I stepped forward and told Mr. Riley that I had previously never been for or against the union but that I thought a union would be a real good thing here and I proceeded to tell him why I thought it was, I had lots of reasons why I thought so, and then Mr. Riley told me, "well , you think that the damn union is so good you're going to get a chance to find out," and he said, "you are through." He too mentioned Riley's invitation that- anybody else who is man enough or thinks he is man enough to step forward if they think they are for the Union, and he went on down the line a little bit more and he did a lot more name calling and trying to get people to step forward and to express their opinion. Regarding Sapp, Depew said that Riley: To Homer he said, "Dick, I understand that you can get a job any where else in town for more money," and I believe Dick said yes, he said , "yes, I think I said that." And he said , "well, I'm going to give you your chance to find out too. You are through with the rest of these fellows." Generally, the testimony of Depew was to the effect that Riley mentioned having heard about the Union, inquired as to whether any employee there had the guts or the courage to step forward ; that Riley had made a statement to the effect that someone had threatened one of his employees, Waksman , and then, Depew, said, . It was about that same time that I stepped forward and I asked Mr . Riley then if Andy was threatened why didn't he have Andy come out and say what it was that he was threatened about or how he was threatened and Mr . Riley said for Andy to step forward and Andy did but Andy just hung his head down and he didn't say anything loud enough for anybody to hear and I stood right next to Andy and I didn't understand him and I recalled afterwards that nobody else did either. It was after this that I directed my conversation directly to Mr. Riley.3 The testimony of Lee, concerning what happened to him at the Monday morning meeting was succinct- ... [Riley] said, hey, Fred, come over here , so I walked over to where the group was and he was talking of the Union then and he stated something like he had been in business for something like 20 years , that he had never had a union s During the cross-examination of Depew , counsel for Respondent attempted to estab- lish the fact that Riley had mentioned threats before he had mentioned union organiza- tion I do not consider which of the subjects was discussed first of too much importance. It seems to me that each subject was directly connected with the union activities of the men involved . I do believe that the preponderance of the evidence and the best recol- lection of the witnesses whose testimony I credit shows that the Union first was men- tioned , then Riley mentioned threats having been made and it was about this time that Nelson stepped out in front of the group and told Riley that he thought Riley must be talking about him and that Nelson said then that nobody had been threatened. RILEY AERONAUTICS CORPORATION 367 in any of his shops and he wasn't going to have one now and before he would, he would close his doors. He says, if I was for the union to step forward, and so I did, and he said, you don't work here any more. As to his own exchange with Riley at this meeting, Sapp said that Riley told him that he had heard that Sapp had been offered a job at $3 an hour, and "now with this union business you got started around here," it would be a good time for Sapp to take that job; Sapp testified that he did not tell Riley that he had a $3-an-hour job, nor had he said this to anyone else; that he had simply asked Foreman Keller for a raise to $3 to bring him up from his $2.90-an-hour rate, but did not tell him that he had been offered any such job. Nevertheless, according to Sapp and the other men, Riley said that a union having been brought up, and Sapp having gotten his $3-an-hour job, it would be best for Sapp to go out and get that job. Nied corroborated the testimony of Fields and the others. According to Nied, Riley had said that he had heard of four or five men starting a union, that there had been some union talk; that Riley then called to Lee and told him that he was not going to have a union in his plant, that he had not had one in 20 years of operation, and would close down first. Nied reported the substance of the interrogation of Lee by Riley and witnessed the fact that Riley fired Lee, asking if there were any others who had "guts enough" and wanted the Union to step forward. Nied testified, too, that after Depew, Nelson, and Sapp had denied threatening Waksman, Riley called on Waksman, that Waksman "mumbled" something which Nied could not hear although he was standing within a very few feet. It is clear enough from the testimony of each of the witnesses that, near the end of the meeting, Riley told them that "you four or you five men" could pick up their checks. Under cross-examination, Nied testified, as did the others, that it was the statements of the men concerning union activity, and not the alleged threats to Waksman, that made Riley so angry; on cross-examination, Nied was certain that Riley discharged Depew immediately after Depew had stepped forward and men- tioned the Union. The testimony of Vice President Ward Evans, who arrived at the meeting 5 or 10 minutes late, refers to the blanket statement made by Riley that "anybody who had guts enough to speak up should do so," his impression being that this remark was made by Riley during his discussion about the threats alleged to have been made against Waksman. It is the testimony of Evans that Depew first brought up the sub- ject of the Union and that Riley said that the Union was fine and anybody had the privilege to work under a union if he wanted to. It seems clear enough that the testimony of this witness on direct examination by counsel for the Company shows clearly that the particular discussion about the Union came immediately after what Evans called Riley's "blanket statement," that those who had "guts enough" should step forward. Ward's testimony shows that when he first came in or got close enough to hear what was going on, Lee was talking, and that: Mr. Riley said-or something to the extent that he didn't feel that Fred had been doing his job and spent too much time walking around and talking to everybody, instead of doing his job, and that he was disappointed in him because he had let him come back to work with the understanding that this I guess or a repetition of what had happened before wouldn't happen and he was disappointed in Fred that it had happened again and then went on to testify as to the words exchanged with Depew and Nelson. He did not remember the exact sequence in which statements by these several persons were made. Since Evans arrived late at the meeting, the testimony of the other wit- nesses as to what was said before Lee spoke is uncontradicted• Depew's in that Depew said that Riley called Lee over and asked him whether he was the ringleader and had instigated the union movement; Lee's, that he walked over to the group when Riley was talking of the Union and Riley's comments about being in business for 20 years and never having had a union and the fact that he wasn't going to have one now but would close his doors first; Sapp's, to the effect that Riley told Lee if he had anything to do with the Union to step out, that Lee did so, and Riley asked him if he admitted it, and finally, Neid's, that Riley said he had heard of five men starting a union and there was union talk, and that he then called Lee. Notwithstanding the fact that Riley conducted and was present during the entire morning meeting on October 26, he did not appear as a witness at the hearing. This I consider most significant. The preponderance of the evidence strongly shows that Riley made the statements attributed to him by witnesses called by the General Coun- sel. I give weight to the fact that Evans, who was not present during the entire meet- ing on the morning of October 26, was the only witness called on behalf of the Respondent to testify to statements made and questions asked by Riley. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Riley's meeting with Nelson and Sapp after the morning meeting on October 26 After Riley had told the men at the morning meeting that checks were being drawn to pay off the discharged employees, Nelson asked Riley for permission to speak to him. A conversation then took place in Evans' office at which Evans, Riley, Sapp, Nelson, and another person were present. Nelson again told Riley that he was not guilty of promoting the Union or of threatening Waksman; Riley replied that Nelson had just said that if a high percentage of the men were for the Union, he would be for it and therefore Nelson was a union man. Nelson persisted in his denial and then, according to the testimony of Nelson as corroborated by Sapp, Riley drew an analogy between a man's taking his wife to a doctor and being told that she was pregnant-that the doctor does not say that she is 20 percent pregnant and 80 per- cent not; she is all pregnant or not pregnant. Riley repeated that Nelson was a union man; Nelson said that Riley had not named all the union men, whereupon Riley said that Nied's check was being made out. In connection with this conver- sation, Sapp testified further that Riley reminded him that they had been on trips together, that Riley had considered him as his personal friend, and he was of the opinion that Nelson and Sapp should have been the first ones to tell him about the Union. Nelson told Riley he had never "squealed" on a man and did not intend to start Regarding this conversation Evans, who was present, testified in substance that although Nelson and Sapp claimed that the reason for their respective discharges was for union activity, Riley asserted that the Union did not matter, that it was the threats to Waksman that did concern him. Evans failed to contradict the testimony to the effect that Riley said then that Nied's check was being made out. I credit the testimony of Nelson and Sapp regarding this conversation since, at the time it occurred, Riley knew about the Union and had known about it since his conversation with Waksman on the preceding Friday; and Evans conceded that Riley had talked about the Union in the general meeting of the morning before the conversation took place in Evans' office. Riley not having testified as to this conversation, and the brevity of Evans' testimony regarding this conversation, not only confirms my belief in the credibility of Nelson and Sapp here, but supports their testimony as opposed to that of Evans as to what was said and was not said at the general meeting. E. The conversation between Evans and Nied after the morning meeting of October 26 After Riley had dismissed the meeting, Nied returned to work, and then was told by another employee, Dennis, that Nied's check was being made out, together with the others of the men who had been discharged. Nied was uncertain as to whether he had been discharged; he then sought out Evans in his office to find out if he had been fired. According to Nied's testimony, Evans told him he was fired for union activities and that the checks were being prepared. Evans denied that he told Nied that he was fired because of union activities or that he had talked with Nied about the reason for the discharge. Evans said that Nied seemed to know that he was fired. Both men agreed that later that day they saw each other on the floor in the hangar, when Nied asked Evans if he could come back later for his tools and Evans consented to this request .4 F. The evening of October 26 Vice President Evans testified that he saw Nelson, Depew, and Nied standing near the paint shop at the hangar or near the hangar sometime between 5 and 6 p.m. on October 26, that he was about 100 feet away from the persons he saw, did not talk to them, and had no reason for knowing what they were doing there. Inferentially it was because he knew of the so-called threats against Waksman, and because Riley had expressed his desire to protect Waksman from any harm, that it was then Evans 'Evans testified that for sometime before this he had not been satisfied with Nied's work performance, had discussed the matter with Nied and they had spent time discuss- ing the correction of the conditions of which Evans complained. Obviously, Evans' dis- satisfaction with the work of Nied was not related to the latter's discharge on October 26. It cannot reasonably be inferred that if Nied was an unsatisfactory employee, Evans would not have spoken to him before the meeting ; the inference to be drawn, on the other hand, is that since Evans says he did not notify Nied of the reason for the discharge, as Nelson and Sapp said he did, Nied was discharged by Riley along with the others at the morning meeting. RILEY AERONAUTICS CORPORATION 369 called for police protection. It seems that the police responded, that one patrol car came to the plant area and that another, unknown to Waksman, followed him home. It is on the basis of Evans' testimony that anyone anticipated any violence or assault or any similar action against Waksman or anyone else after the meeting on that morning. The only testimony of any contact with the police was given by Nied, and it was not contradicted by Evans or anyone else. As Nied testified, when talking to Evans earlier that day about his paycheck, he had asked Evans if he might return later for his tools. Nied testified to a third conversation at which Evans was present: The third one was when we got back from the Labor Relations Board here in Miami. I had been picked up on the field by the police department and brought to the hangar and Mr. Evans came out to see what was going on. At about 9:15 a.m., Nied, Sapp, Depew, Lee, and Nelson had used Sapp's car to travel first to Fort Lauderdale (where they thought the Regional Office or an office of the Board was located) and later to the Board's Regional Office at Miami, to dis- cuss their discharges and file formal charges. About 6 p.m., after the meeting with a representative of the Regional Office of the Board in Miami, the men returned to the Company's field at Fort Lauderdale. They had driven back to the field from Miami in Sapp's car to pick up their respective automobiles; it was too late in the day for them then to get their tools; accordingly, according to Nied, they asked Ward "if we could pick up our tools the following day and he said it was all right." Sapp dropped off his passengers, who then went to their cars At no time was Waksman involved in this episode. G. The alleged poor wo,k performance of Lee and Nied Totally unrelated to the relevant and material facts presented at the hearing in support of the allegations of the complaint, but as matters of defense, the Respondent presented testimony bearing on the responsibilities and work performance of Lee and Nied. Lee was a leadman in the plastics or fiberglass department, reporting directly to Foreman Keller. Vice President Evans testified that something over a year before Lee's discharge rising costs in his department were traced to him. Evans, who said he knew very little about the operation of that particular department, was not too clear in his testimony as to how the rising costs in the plastics department could be attributed to Lee rather than to Keller, the foreman. Further in connection with Lee, the Respondent brought out on cross-examination its contention that Lee pre- viously had been discharged from the employ of the Respondent, and was rehired conditionally. In other words, I interpret the contention of the Respondent to be that at the time of his discharge on October 26 Lee was working on a trial basis. The testimony of Lee is clear enough: He left the employ of the Company, worked for a competitor of the Respondent for a period of time, when he was made a party to litigation wherein the here Respondent asked that Lee, among others, be restrained from disclosing company trade secrets. All this took place a year or more prior to October 26. Even were Lee's incompetency in his work been proven, and I do not believe it has, the facts adduced through Evans and Lee in this connection cannot possibly be separated from the fact that Riley knew on October 23 and on October 26 that Lee was a leader in the union movement, that Lee never was informed that his proba- tionary or trial period (if it ever existed) was terminated; and that Lee was sum- marily fired by Riley at the general meeting on October 26 when union activities and union adherence were discussed. The case made out with respect to Nied is even more thin. Evans asserted that the hours required to perform the work in Nied's department, where he was a lead- man, had gone up; that Nied was responsible for the assignment of work and that lack of parts slowed down Nied's performance in his department. The testimony of Nied shows that all planning in his department was done by Keller or Evans, that his responsibility was to pass on orders given by them to him, and that he had no control over the supply of parts needed in the operation in that department. There is in evidence herein a memorandum addressed to S. R. Nied over the typewritten name J. W. Evans, vice president, advising Nied that "Your supervisor has recom- mended you for a salary increase in compensation for your quality of work and interest shown towards our behalf. We appreciate your efforts and effective Septem- ber 26 an increase of .10 hr. has been approved." This notification of a salary increase was given exactly one month before Nied was discharged. 206-446-66-vol 154-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have concluded, and find, that the alleged deficiencies in the work of Lee and Nied are unfounded; or, even if assumed to be true, support no basis for their discharges. H. Summary of the facts The necessary questions concerning the credibility of the several witnesses who testified at the hearing are readily resolved by the whole context of uncontradicted facts within the record, including the unassailable proof of President Riley's knowl- edge of employee union interest and activity and his abrupt behavior and the remarks by him, as reported by every credible witness, at the Monday morning meeting fol- lowing the Friday afternoon "beer party", the vacillation of Andrew Waksman in his version of events in which he participated; and the careful, cautious testimony of Vice President Ward Evans as to his apparently limited substantial knowledge, or recollection of, the main events which occurred on October 26. Six witnesses, including the five discharged employees, appeared as witnesses at the hearing; Vice President Ward Evans was one of the two who testified on behalf of the Respondent, and I have commented on his testimony. Andrew Waksman, the second witness called on behalf of the Respondent, was an unimpressive and unsatisfactory witness in several respects. It appeared to me that where the truth of the events could not possibly be denied, he admitted them; that where there was some doubt in his mind as to whether he could evade the whole truth, he tried to do so; and at other times he plainly misstated a fact or failed to remember an essential fact which, in the light of all of his testimony, he should have remembered. I find that the Respondent discharged Donald Depew, Fred Lee, Jr., Wallace J. Nelson, Sigmund Nied, and Homer Sapp for union activity. That Lee first created interest in union organization is undisputed, as is the fact that the other four employ- ees were all active in support of the Union. No inference other than the following can be drawn: Riley had knowledge of the activities of these men concerning the Union on Friday, October 23, and at the meeting called by him on the following Monday morning, October 26, did discuss the fact that he had heard of the union movement and expressed hostility toward anything any of his employees might have done toward furthering their interest in union organization Further, the contention of the Respondent that Nelson, Depew, and Sapp were discharged because of the so-called threat made to Waksman, and that Nied and Lee were discharged for alleged incompetence, must fall. As to the discussion or conversation held between Nelson, Depew, Sapp, and Waksman on the Friday afternoon after the beer party, the "threat" said to have been made at that time simply was their admonition to Waksman that if he had informed Riley of their union activities, and they were approached by Riley on Monday morning in connection with that, they intended to take Waksman to Riley and prove that Waksman had been untruthful in his report to Riley. Waksman's version of the "threat" in substance is that he told the other three men that if he had informed Riley about their interest in the Union, and if they were questioned about it by Riley, then they would "take care" of Waksman. Waksman's testimony further is weakened when he says that he was not in fear at the time he was talking to the three men; that he went to a bar with two of the employees in his own automobile; and that it was Riley who suggested police pro- tection which Waksman said he refused. In my opinion, the calling of the police on Monday evening was an entirely unnecessary act, and any report made to the police by Evans or Riley that Waksman was in danger was not for the purpose of actually insuring Waksman's safety, but an afterthought to support a story of "threats" related by Riley, intemperately, to his employees on that morning. There is no evidence to show that Riley believed Waksman when the latter said he had been threatened. If Riley did believe Waksman, why did not Riley testify to this fact? Further, if Riley had had any question in his mind concerning the possi- bility of harm coming to Waksman on Monday night, as Waksman said he feared might, why did not Riley call the three employees involved into his office and make his inquiry or threat of discharge, on that Monday morning, instead of calling the general meeting he did? Had he wanted to get to the bottom of the matter, he could have interrogated these three employees privately or in the presence of Waksman, and determined in his own mind whether or not Waksman was telling the truth. This he did not do. RILEY AERONAUTICS CORPORATION 371 In sum, the circumstances amply warrant a finding that discriminatory reasons motivated the discharge of the five union adherents. In the light of the clear show- ing of President Riley's hostility to the Union, and the inconsistencies and implausi- bilities inherent in the Company's defense, I am impelled to find the discharges pre- textual, and that the Respondent's president did, in reality, on October 26, seize upon or stage an opportunity to rid the Company of any employee who, it knew or sus- pected, was supporting the Union I find that the Respondent engaged in unfair labor practices in violation of Section 8(a) (1) of the Act, in that it did, as alleged in the complaint, on October 24, through its President ask an employee what he had heard about the Union; and on the same day questioned an employee concerning other employees' attitudes and sympathies for the Union; that on October 26 it did interrogate employees concerning union activities, threaten to close the shop before employees would be allowed to have a union, stated to an employee that if he wanted the Union the best thing for him to do is to go where there was a union; interrogated an employee as to whether or not he had been talking union to the other employees; telling an employee that he understood that he could find a better job since the union "stuff" was brought up, the employee would be let go to get that job; requested "union men" to step forward, and when an employee stepped forward, discharged the employee; and otherwise on that day engaged in interrogation and other acts intended to interfere with and coerce employees in the exercise of the rights guaranteed to them under Section 7 of the Act. I find that on October 26 the Respondent, by its president and agent Riley, termi- nated the employment of Donald A. Depew, Fred Lee, Jr., Wallace J. Nelson, Sig- mund R. Nied, and Homer D. Sapp, employees of the Respondent, because of their membership in and activities on behalf of the Union and because of their concerted activities on behalf of themselves and other employees with respect to wages, hours, and working conditions, all being unfair labor practices as set forth and defined in Section 8(a) (3) and (1) of the Act. I further find that by the acts described immediately above, and each of them, the Respondent did discriminate and is discriminating in regard to the hire and tenure and terms and conditions of employment of its employees, thereby discouraging membership in a labor organization, and discouraging concerted activities, and the Respondent thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent as described in section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce V. THE REMEDY It having been found that the Respondent is engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer employees Donald A. Depew, Fred Lee, Jr., Wallace J. Nelson, Sigmund R. Nied, and Homer D. Sapp immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of the discrimination against them, by payment to each of them of a 5 Credibility generally may be resolved by impeachment, substantial contradiction, or uncontroverted facts, and in many instances by objective observation of the witness aimed to result in findings based on "consistent and inherent possibilities of testimony." Uni- versal Camera Corp. V. N.L R B., 370 U.S 474, 496. There "is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more common In all kinds of jurisdical proceedings than to believe some and not all " N L.R B. v. Universal Camera Corp., 179 F. 2d 749, 754, reversed on other grounds 340 U.S 474. Accord, N.L.R.B. v. West Point Mfg Co., 245 F. 2d 783, 785; N.L.R B v United Brother- hood of Carpenters and Joiners of America. Local 517 , 230 F. 2d 256. 259 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, in a manner consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on such sum of money due each of said employees shall be computed accord- ing to the principle laid down by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the com- putation of backpay. It also will be recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists, AFL-CIO, District Lodge No. 40, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Donald Depew, Fred Lee, Jr., Wallace J. Nelson, Sigmund R. Nied, and Homer D. Sapp, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices, within the meaning of Section 8(a)(3) and (1) of the Act. 4. The Respondent, by threatening its employees, by interrogating them in regard to their union activities or interest or membership, by threatening to close the plant if its employees became members of a union, and by threatening its employees with other adverse consequences including loss of their jobs, has engaged in and is engaging in violations of Section 8 (a)( I) of the Act. 5. By engaging in the conduct set forth in section III, above, the Respondent has interfered with, restrained and coerced its employees and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case and on the preponderance of the evidence, and in order to effectuate the policies of the National Labor Relations Act, as amended, it is recommended that the Board order that the Respondent, Riley Aeronautics Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of its employees in International Association of Machinists, AFL-CIO, District Lodge No. 40, or any other labor organization, by discriminating against its employees in regard to their hire or tenure of employ- ment or any term or condition of employment. (b) Threatening employees with adverse consequences, including job loss, in the event they select a labor organization as their collective bargaining agent, or in any manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join or assist the Union herein or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the poli- cies of the Act: (a) Offer Donald A. Depew, Fred Lee, Jr., Wallace J. Nelson, Sigmund R. Nied, and Homer D. Sapp, each, immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suf- fered by reason of the discrimination against him, in the manner set forth in the section of this Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. RILEY AERONAUTICS CORPORATION 373 (c) Post at its office and hangar at Executive Airport, Fort Lauderdale, Florida, copies of the attached notice marked "Appendix." 6 Copies of said notice, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply therewith.? It is further recommended that, unless the Respondent shall, within the pre- scribed period, notify the said Regional Director that it will comply with the fore- going Recommended Order, the National Labor Relations Board issue its Order requiring the Respondent to take the aforesaid action. 6If 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. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order". If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 12, 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 Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Association of Machin- ists, AFL-CIO, District Lodge No. 40, or any other labor organization, or in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist said labor organization, or any other labor organization. WE WILL NOT threaten our employees with discharge because of their activities on behalf of said Union, or any other labor organization WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist the above named or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and 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 Donald A. Depew, Fred Lee, Jr., Wallace J. Nelson, Sigmund R. Nied, and Homer D. Sapp immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. RILEY AERONAUTICS CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their rights to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, of 1948, as amended, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 826, Federal Office Building, 51 SW. First Avenue, Miami, Florida, Telephone No. 350-5391.