Serv-Air, Inc.

382 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with discharge or other reprisal for engaging in protected union activities under color of enforcement of a dis- criminatorily applied rule against solicitation during working hours or otherwise. WE WILL NOT in any like or related manner interfere with , restrain , or coerce ,our employees in the exercise of the rights to self-organization , to form labor organizations, to join or assist Local 236, United Furniture Workers of Amer- ica, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. LOUISVILLE CHAIR COMPANY, INC., Employer. Dated------ ------------- By------------------------------------------- (Representative ) (Title) NOTE -We will notify the above -mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement or employ- ment, as the case may be, upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after dis- charge 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 2023, Federal Office Building, 550 Main Street, Cincinnati , Ohio 45202, Telephone 684-3627. Serv-Air, Inc. and International Association of Machinists, AFL- CIO and Smoke-Eaters Lodge No. 898 , International Associa- tion of Machinists, AFL-CIO. Cases 16-CA-21292, 2131, 2163, 2176, and 2187. October 05,1966 DECISION AND ORDER On November 18, 1965, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of the complaint with respect thereto. Thereafter, the Respondent and General Counsel filed excep- tions to the Decision and supporting briefs. 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 this case 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. 161 NLRB No. 17. SERV-AIR, INC. 383 The rulings are hereby affirmed except as noted below.' The Board has considered the Trial Examiner's Decision, the exceptions 2 and briefs, and the entire record in this case and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, as modified herein.3 1. The facts reveal that, in November 1960, Respondent posted a notice stating its position on union organization. The notice stated in part that : (6) No person will be allowed to carry on union organizing activities on the job. Anyone who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge. The Trial Examiner stated that since this rule applied only to on- the-job activity, it was presumptively valid, and since he found the General Counsel had not established that the rule was either discrim- inatorily promulgated or enforced, the Trial Examiner concluded that it did not violate the Act. Consequently, he held that Respond- ent's discharge of employees Haley and McCarty under this rule was not a violation of either Section 8(a) (1) or (3) of the Act. We do not agree. The Board has held in interpreting similar notices that an em- ployer may lawfully prevent its employees from soliciting for a union during working hours provided the ban is not promulgated or 1 The Trial Examiner denied as "superfluous" General Counsel's unopposed motion urging that certain minor corrections be made in the transcript The Trial Examiner explained that he had already made these corrections himself on the basis of an earlier motion made by the General Counsel at the end of the hearing to conform the "record to the proof " A review of the record indicates that the General Counsel at the end of the hearing moved to "conform the pleadings to the proof in minor matters such as names and dates." Such a motion is routine and is made for the purpose of conforming the complaint and other formal pleadings filed by the General Counsel with the evidence adduced and recorded during the hearing. See, e g., Consolidated Edison Co . v. N.L.R B , 305 U.S. 197. 225 It does not ordinarily purport to include a motion to correct a transcript of record which has not yet been seen , and was incorrectly construed by the Trial Examiner as permitting him to correct the transcript without any opportunity for the parties to file exceptions thereto. Alternate procedures are available in the event a Trial Examiner be- lieves a record requires correction. See, eg., W. B Jones Lumber Company, Inc , 114 NLRB 415, 421, enfd 245 F 2d 388 (C A 9) we find, theretore, contrary to the Trial Examiner, that the General Counsel's motion to correct the record was not superfluous In the absence of opposition , the motion is hereby granted. 2 Respondent's request for oral argument is hereby denied , as the record , including the exceptions and briefs , adequately reflect the issues and the positions of the parties i No exceptions were filed to the Trial Examiner's finding that Respondent' s "segrega- tion" of the employees who engaged in the September 2 salkout did not violate the Act Further, although General Counsel did not except to the Trial Examiner' s dismissal of that portion of the complaint alleging that in the course of a conversation Respondent's General Manager Hood threatened employee Knowlton in violation of Section 8(a) (1), we do not adopt a possible implication in footnote 20 of the Trial Examiner's Decision that the actual presence of fear in an employee who was allegedly threatened was necessarily crucial to finding a violation . Cf. Clark Bros. Company, Inc., 70 NLRB 802, 806, enfd. 163 F.2d 373 (C.A. 2). 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforced for a discriminatory purpose 4 Contrary to the Trial Examiner, we find that the record evidence amply establishes such discriminatory purpose and, therefore, that the rule in question vio- lates Section 8(a) (1) of the Act. At the outset, no one disputes that the notice was initially promul- gated in response to union activity which apparently had begun in 1960. Thereafter, Respondent continued to maintain the rule in effect, although there was no overt activity of this nature in the plant. However, in May 1964, an election was held in which the Union was certified as the bargaining representative of a unit com- posed of employees in Respondent's Fire and Rescue Department. In late August, certain of Respondent's supervisors engaged in interro- gation of employees in violation of Section 8(a) (1). Shortly after this, on September 1, one day after Haley and McCarty engaged in the solicitations which resulted in their discharge, and undeniedly to forestall such solicitations, Respondent posted a notice reminding the employees of the provisions of paragraph 6, noted above, and calling to their attention the possible penalties for defiance of its terms. However, employee solicitations for other purposes were per- mitted on company time and property. Thus, Respondent's assistant manager, Hood, testified that he knew of such solicitations to send flowers to the widows of deceased fellow employees and similar pur- poses.5 Further, although Hood asserted that the Red Cross, Com- munity Chest, or similar charities were not allowed to solicit since many of the employees contributed to these charities by means of a voluntary payroll deduction, he admitted that when some employees decided to withdraw their deduction authorizations, they were called together to try to persuade them to reconsiders Under the circumstances here present, we find that the ban imposed by this rule was discriminatory, since it was clearly promulgated in response to union activity rather than for the legitimate purpose of maintaining order in the plant and was discriminatorily enforced in a manner directed to stifling union activity. Accordingly, we con- clude, unlike the Trial Examiner, that the evidence was sufficient to establish that the discriminatory promulgation and enforcement of this rule violated Section 8(a) (1) of the Act.7 s Pepsi Cola Bottle, s of Miami , Inc, 155 NLRB 527. 5 Apart from the Haley and McCarty discharges , Hood testified that only two other employees , who also had been engaged in conduct on behalf of the Union, had ever been disciplined for engaging in solicitation. 0 The Trial Examiner refused to admit other evidence of such solicitations and in view of our decision in Wm. H. Block Company, 150 NLRB 341 , this refusal was erroneous. However, since the record is sufficient to establish discriminatory application of the rule, we find that this exclusion was not prejudicial Wm. H. Block Company, 150 NLRB 341 ; Ward Manufacturing, Inc, 152 NLRB 1270; Walton Manufacturing Company, 120 NLRB 697, enfd 289 F2d 177 (C.A. 5). SERV-AIR, INC. 385 2. Respondent admits that Haley and McCarty were both discharged for violating the rule which we have here held to be an illegal interfer- ence with the exercise of the Section 7 rights of Respondent's em- ployees. It is also apparent, and we conclude, that the discharges were an integral part of Respondent's illegal campaign to combat union organization and served to discourage other employees from engaging in similar activity as well as ridding Respondent of two active union adherents.' Accordingly, we find that the discharges of these two employees violated Section 8(a) (1) and (3).9 See Ripley Manufacturing Company, 144 NLRB 1132, 1156. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Paragraph 1 is amended by adding the following as paragraphs (i) and (j) : [" (i) Discouraging membership in International Association of Machinists, AFL-CIO, Smoke-Eaters Lodge No. 898, International Association of Machinists, AFL-CIO, or any other labor organiza- tion, by discharging or otherwise discriminating in respect to the hire or tenure of any employee under color of enforcing a rule against solicitation promulgated for a discriminatory purpose or applied in a discriminatory manner or any other pretext." ["(j) Threatening employees with discharge, layoff, or other reprisal for exercising their rights under Section 7 of the Act under color of a rule invoked or applied for the purpose of restraining or coercing employees in the legitimate exercise of those rights." [2. Reletter the present paragraph 2(e) to 2(g) and add the fol- lowing as paragraphs 2(e) and 2(f) : [" (e) Offer immediate and full reinstatement, if this has not already been done, to employees Alfred R. McCarty and Joe D. Haley, to their former or substantially equivalent positions with backpay and with interest added thereto in the usual manner, as referred to in the section of the Trial Examiner's Decision entitled `The Remedy.' 111 1" (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social s We note from the record that the Respondent summarily discharged Haley although he could not have "interfere [d] with the work of others" since the employees he solicited were not actually working we note also that the record does not support the Respondent's claim that McCarty either neglected his own work or interfered with the work of others when he solicited for the Union. G As we have found that Haley and McCarty were unlawfully discharged , we also find, contrary to the Trial Examiner 's statement in part (C(4)) of his Decision , that the first walkout of the JEFM employees in protest of their discharges was an unfair labor practice strike. However, this contrary conclusion does not affect the correctness of the Trial Examiner's ultimate conclusions or the remedy herein insofar as these strikers are concerned. 264-188-67-vol. 161-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security payment records, timecards, personnel records and reports, and all other records relevant and necessary to the determination of the backpay due and to the reinstatement and related rights pro- vided under the terms of the recommended Order." [3. Add to the list of employees named in the Appendix, the names of Alfred R. McCarty and Joe D. Haley. [4. Add to the Appendix, after the third paragraph, the following two paragraphs : DVE WILL NOT discourage membership in International Asso- ciation of Machinists, AFL-CIO, Smoke-Eaters Lodge No. 898, International Association of Machinists, AFL-CIO, or any other labor organization by discharging or otherwise discriminating in respect to the hire or tenure of any employee under color of enforcing a rule against solicitation promulgated for a discrim- inatory purpose or applied in a discriminatory manner or on any other pretext. [WE WILL NOT threaten employees with discharge; layoff, or reprisal for exercising their rights under Section 7 of the Act, under color of a rule invoked or applied for the purpose of restraining or coercing employees in the legitimate exercise of those rights.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges and amendments thereto filed between September 4 and Decem- ber 2, 1964, by International Association of Machinists , AFL-CIO, ' and in' some instances by its Smoke-Eaters Lodge No. 898 , both referred to herein as the Union, the Regional Director for Region 16 of the National Labor Relations Board, herein called the Board , issued a consolidated complaint on behalf of the General Counsel of the Board against Serv-Air, Inc., Respondent herein, alleging violations of Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. Respondent, in its duly filed answer, while admitting certain of the allegations in the complaint, denied the commission of any unfair labor practice. However, during the course of the hearing certain amendments to the complaint and answer were made, and in several such instances to be considered herein (infra, IV, C, 1 ) the substance of certain of Respondent's amended answer did constitute , in effect, an admission of a violation of the Act. Pursuant to notice the aforementioned hearing was held before Trial Examiner Thomas M. Maher in Enid, Oklahoma, between January 12 and 15, and on April 7 and 8, 1965. All parties were present, represented by counsel or repre- sentatives as indicated above, and afforded a full opportunity to be heard, to pre- sent oral argument, and to file briefs with me . Briefs were filed by General Coun- sel and the Respondent. Thereafter, counsel for the General Counsel filed a motion with me requesting in considerable minor detail the correction of the transcript of the hearing. No objection has since been interposed . Counsel, how- ever, had already moved , prior to the closing of the hearing , and without objec- tion, for the conformance of the record to the proof in minor details which I granted, deeming it to refer to spelling and typographical errors and omissions. As counsel's subsequent motion merely catalogues in detail such misspellings and obvious typographical errors and omissions , and as this matter was already dis- posed of by motion at the hearing and by my physical correction of the transcript where such discrepancies appeared , I deny counsel's motion as being superfluous. SERV-AIR, INC. 387 Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each witness while testifying and in the hearing room,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE, BUSINESS OF THE .RESPONDENT Serv-Air, Inc., Respondent herein, is a North Carolina corporation engaged in operations at Vance Air Force Base, Enid, Oklahoma, under a contract valued at approximately $5 million with the U.S. Air Force, by virtue of which it per- forms base services which have a substantial impact upon national defense. Upon these stipulated facts I conclude and find Respondent to be an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 II. THE LABOR ORGANIZATION INVOLVED It is agreed between the parties and I accordingly conclude and find that Inter- national Association of Machinists, AFL-CIO, and its Smoke-Eaters Lodge No. 898, are labor organizations within the meaning of the Act. M. THE ISSUES 1. Respondent's admitted refusal to bargain in violation of Section 8(a)(5). 2. The legality of posted notice provisions, including a no-solicitation rule. 3. The discharges of employees Haley and McCarthy for cause. 4. The segregation of returned strikers as a safeguard against anticipated future strike action. 5. The conditional and unconditional character of offers to return to work 6. The illegal motivation of an employer lockout. 7. The distinctions between a lockout and a continuing strike. 8. Unlawful restrictions upon the wearing of union insignia. 9. The unlawful character of an employee election petition. 10. The discriminatory implementation of an economic reduction in force. IV. THE UNFAIR LABOR PRACTICES A. Introduction Vance Air Force Base, hereafter referred to as Vance, is one of eight bases of the Air Force Training Command devoted to the training of pilots for the U.S. Air Force. Attached to Vance, itself a 2,500 acre facility, are Kegelman Field and Perry Field, two auxiliary fields in the Enid, Oklahoma, area whose operations are fully integrated with those of the main base. The installation at Perry Field was deactivated in December 1964, an event of considerable moment to the par- ties to this proceeding. Respondent's function at Vance was described by its President Truman Miller as one of responsibility for the operation and maintenance of the base in support of its flight training mission, a function which does not appear to be assigned to a civilian organization at any of the other Training Command bases. Thus Respondent is responsible for the maintenance of all the facilities and equipment used in the pilot training program, including the servicing of aircraft, utilities, and base installations, the handling of supplies, and the safeguarding of equipment and 'Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least In part, upon his demeanor as I observed It at the hearing and particularly at the time the testimony was given Cf. Retail Clerks International Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, 1682 and footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I do not rely upon or I reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLR8,115, 117, footnote 1, enfd. 283 F.2d 569 (CA. 2). To the extent that I credit any,witness only in part I do so upon the evidentiary rule that it is not uncommon "to believe some and not all" of a witness' testimony. Universal Camera Corpo- ration v. N.L.R.B., 179 F.2d 749, 754 (C.A. 2). 2 Gray, Rogers, Graham d Osborne, 129 NLRB 450. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel. To this end approximately 1,100 civilians are employed by Respondent; approximately 600 of these are employed in the Division of Aircraft Maintenance and 80 in the Fire and Rescue Department, both organizations being the ones principally involved here. In the Aircraft Maintenance Division of which John Hill is director, there are seven major units: the base shops, periodic inspection, pipeline, jet engine field maintenance (JEFM), unscheduled maintenance, quality control, and maintenance control The Fire and Rescue Department, as its title suggests, is equipped to fight the usual variety of building conflagrations, but its more specific functions deal with the protection of aircraft and personnel on the field and flight line, and in the hangars, and to provide the necessary rescue facilities. By way of further description of the training operations at Vance it appears that in addition to the 1,100 employed by Respondent that the military comple- ment at the time of the hearing was in the neighborhood of 600; 400 being pilots in the various stages of training and the remaining 200 being instructors and staff and command cadre. The training program extends over a 55-week period' and is so organized that eight classes are in progress, with one class graduating as another commences, at an approximate 6-week interval Except insofar as mili- tary replacements were used on the occasion of one walkout the military per- sonnel at Vance has no connection whatever with any of the incidents described' herein. Throughout the hearing the character and quality of aircraft maintenance was continually emphasized. Thus the types of plane in the training service at Vance was described as a fighter plane of the T-38 variety-a highly developed jet air- craft capable of attaining supersonic speeds and powered by a jet engine-and the G.E. J-85, whose advanced improvements required a high degree of attention and maintenance not lightly to be compared with the garden variety of combustion, engines, or indeed with jet engines of an earlier vintage. Accordingly, the stand- ards maintained by Respondent in its performance of services were shown to be of the high degree required in the treatment of precision machinery, and at alit times were intended to conform to standards established and continually revised upward by the Air Force, as promulgated in the various manuals to which Respondent and its employees were required strictly to adhere. Significant to the issues presented by this case are several rules or policies derived from or directly related to Air Force requirements and standards. These pertained to (1) the elimination of foreign object damage, (2) the interval of periodic inspection of jet engines, (3) the protection of employees from diver- sionary activities, and (4) the maintenance of crew integrity. The foreign object damage referred to hereafter is the resulting havoc caused by the introduction of small objects into the working mechanism of jet engines. It is well established that even the smallest screw or washer, not to mention screw- drivers or metal names plates, could effectively demolish a jet engine, and if such, occurred in flight the consequences to aircraft and pilot would be obvious. A con- tinuing program to minimize this hazard has always been high on the Air Force's priority of safety precaution and is significantly relevant to a program of badge display carried out by the employees and discussed in detail hereafter (infra, section, IV, B, 15 and section IV, C, 9). Periodic inspection of jet engines is one of the basic phases of the aircraft maintenance program. Depending upon the type of engine involved a specific time interval is established after which the required inspection is performed by the employees assigned to the Periodic Inspection Shop. In early 1964 the interval, for the periodic inspection of the J-85 engine in service at Vance was 100 hours. Thereafter, for technical reasons adopted by the Air Force and set forth in appro- priate directives to individuals and units concerned, the interval was raised from 100 to 200 hours, thus permitting the J-85 engine to remain in service twice as long between inspections. The protection of employees from diversionary activities was a responsibility imposed by the Training Command to maintain effective workmanship among the maintenance mechanics without undue distraction from their work. In this respect, as will be detailed hereafter, Respondent promulgated by notice a rule restricting solicitation of employees by others. Portions of this rule and its enforce- ment has been alleged to constitute an unfair labor practice. The maintenance of ciew integrity was a management policy approved by the Air Force to insure that an engine be worked on by an established crew rather- SERV-AIR, INC. 389 than a fluctuating group of individual mechanics. Inherent in this policy was the goal of more effective maintenance and inspection, to the principal benefit of those who would fly the plane. Consistent with this concept of crew integrity, employees were reassigned and allegedly segregated into new crews, an operation alleged to have been instituted for discriminatory purposes and to be considered in detail hereafter (infra, section IV, B, 7 and IV, C, 5).3 B. Sequence of events 1. Union activity and representation As early as November 1960, union activity among the Respondent's employees was manifest by a conspicuously posted notice relating to its employees' union activities. Since then and to the time of the hearing it is stipulated that the follow- ing notice appeared on all company bulletin boards at or near the timeclocks at Vance, Kegelman, and Perry Fields: TO ALL EMPLOYEES Since the Union is again putting on a campaign to get in here, some of you have been asking questions in regard to the following matters. We have decided to state the Company's position on these subjects as clearly as we can for everybody alike: (1) This matter is, of course, one of concern to the Company. It is, how- ever, also a matter of serious concern to you and our sincere belief it that if this Union were to come into this Plant, it would not work to your benefit but to your serious harm. (2) It is our positive intention to oppose this Union and by every proper means to prevent it from getting in here. (3) We would like to make it clear that it is not necessary, and it is not ever going to be necessary, for anybody to belong to any Union in order to work in this Plant. (4) Those who might join or belong to this Union are not going to get any advantages or any preferred treatment of any sort over those who do not join or belong to any Union. (5) If anybody causes you any trouble at your work or puts you under any sort of pressure to join the Union, you should let the Company know, and we will undertake to see that this is stopped. (6) No person will be allowed to carry on Union organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge. Anybody who tells you anything contrary to any of the foregoing is not telling you the truth. Truman W. Miller SERV-AIR, INC. President & General Manager, Vance Air Force Base, Oklahoma. From the union activity thus alluded to there emerges a campaign resulting in an election among the employees in the Fire and Rescue Department conducted by the Board in Case 16-RC-3593 on May 6, 1964, in which the Union obtained a majority of the votes and was thereafter certified as bargaining representative of a unit described as: All employees of Respondent in the Fire and Rescue Department of the Base Operations and Maintenance Division, Enid, Okla., excluding office clerical empolyees, fire chief, platoon chiefs, guards, watchmen and supervisors as defined in the Act. The number of employees in this unit was reliably established to be 85 and Respondent concedes the Union's representative status. 8 The foregoing is a synthesis of the testimony of Col. James Little, Major Eugene Bartolich, Major John Troubaugh, and President Truman Miller whom I have credited generally, and of Assistant General Manager John Hood and Director of Aircraft Mainte- nance John Hill, both of whose special competence in the area being considered warrants reliance upon their testimony. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. First evidences of active company opposition Previously, on February 19, 1964, a hearing in this representation proceeding had been held and employee R. A. Chodrick was the only one appearing in behalf of the Union. Thereafter on May 6, immediately following the Union's victory in the election Chodrick, in the company of Union Representative James Witcher and employee Dodd stopped off at Perry Field, as they drove from Vance to Ponce City, and visited with the employees at Perry, discussing with them the election-results. This conversation took place in the office trailer at the field during duty hours while the employees there were drinking their coffee. As the conversa- tion was concluding and Chodrick, Witcher, and fellow riders were about to continue on their journey Personnel Supervisor Masemore appeared on the scene. While there is no testimony as to any conversation that transpired it was stipulated that as a result of the episode Chodrick was presented on May 7 with a warning letter which he refused to countersign .4 The letter was signed by Supervisor Willis B. Moxley and authorized by director of base operations, Cnmpston, and stated that Chodrick had been warned as follows: In that Ressie A. Chodrick and Myron W. Dodd were engaging in Union activities on Plant premises at Perry Auxiliary Base during working hours on or about 1400 hours, 6 May 1964, in violation of Company Regulations pro- hibiting Union activity on Plant premises during working hours. Any further violations of Company policy by you may result in your termination. 3. Unilateral company decisions and actions Prior to May 9 it had been company policy with respect to the firefighting employees whom the Union then represented to permit them to take a night off after having completed 131/2 hours of work, and to permit one of its three fire- fighting crews to take Saturday and Sunday off at 3-week intervals. On May 9, 3 days after the employees had chosen the Union as their bargaining representative, Respondent admittedly discontinued this practice without prior consultation with the Union. Thereafter on May 12, and continuing for a period of about 3 or 4 weeks, Respondent, likewise without prior consultation with the Union, admittedly changed the night watch assignments of employees in the bargaining unit from four men standing night watch for-2 hour periods, respectively , to one man stand- ing an 8-hour night watch period ; and on May 15 and 21, again without prior consultation with or notice to the Union, Respondent changed the existing lunch hours of firefighting employees at Kegelman and Perry Fields .5 4. The questioning of employees and disparagement of the Union and its members Elsewhere at the base Respondent's interest in the Union became apparent as the Union, began to extend.its field of operations, beyond, the certified firefighting unit. Thus, when employee - Victor •Lankard-;was •intei iewecL'for..employmentv,in the base shops on June 29, 1964, J. C. Masemore ,' Respondent's supervisor of per- sonnel , asked him his stand on the Union.6 Subsequently, in late August, Shop Superintendent Houston Sprayberry admittedly pursued the same course, calling various employees into his office between August 25 and 27 and asking them how they felt about the Union and about the organizing drive that was going on in the shop. Among those called was employee Billy Ming who credibly testified that Sprayberry, in his- office on August 26 , said he wanted to obtain his opinion about ' The foregoing is a summary of the nndenied testimony of Chodrick which I accept as explanatory of the stipulated warning letter . Upon my observation of him as a witness I am not impressed with Cbodrick as a reliable witness and accordingly , with the excep- tion of his undenied account , reject his testimony unless it is corroborated by the testi- mony of credible witnesses. ° The foregoing incidents occurring between May 9 and 21 are found upon the basis of a stipulpt$on between the partteq madeat tbe.hearing ,as a'consequence of which.I granted a motion for judgment on that particular portion of the •pleadiugg alleging a' violation of Section 8(a) (5) of the Act, to which Respondent acquiesced , agreeing to be bound by the remedial order which I recommended and which I repeat herein, and not to file exceptions thereto with the Board. See infra, section IV, C, 1. O The credited testimony of Lankard. Masemore had no recollection of the incident. SERV-AIR, INC. 391 the Union. When Ming answered favoring the Union, Sprayberry mentioned that "he had been through this sort of thing before," and that he did not think anyone would benefit from a union. He then commented on the leaders of the organizing drive as "some of the sorriest people," mentioning employees Scaia, Knowlton, Mundy, and Edwards, and saying that "regardless of whether a union came in he was getting rid of those men." Sprayberry concluded his conversation with Ming by asking if he knew any of the other union organizers, and specifically, how employee. John Kuberskey felt about the Union. Others to whom Sprayberry spoke during this period were employee Thomas Willson whom he asked what he thought of the Union and how he was going to vote; and employee Kenneth Edwards who was asked the same questions. In the course of this latter conversation, as Edwards was expressing his personal approval of the Union, Sprayberry accused him of thinking only of himself and of personal gain and being willing thereby to "jeopardize the jobs of 1100 men and their fami- lies." Thereafter on September 10 Sprayberry had a conversation at his home with employee Talbert Gooday who had visited him seeking a leave of absence. In the course of the conversation Sprayberry asked him what he thought about the Union and upon learning that Gooday favored it, said "that it would jeopardize their jobs out there." Sprayberry, in defense of his conduct, testified that he never threatened employees during these conversations. I reject his interpretation of the remarks attributed to him and, to the extent that he denies the remarks themselves I do not credit .him?; The record also 'contains the credited itestimony of employee Russell DeHart to the effect that Morris Shackley, a leadman in the hydraulic department, told a group of employees on September 2 that if they did not get rid of their union badges they would lose their jobs. Because the supervisory status of Shackley was not resolved in the record to my satisfaction I shall refrain from including this incident among the findings which support the allegation of threatening employees. 5. The Union's major organizing drive As the foregoing incidents were occurring Respondent and the Union joined issue on the subject of union membership solicitation and the following letter dated Sep- tember 1, 1964, was sent to Union Representative Witcher and copies prominently posted on company bulletin boards: You raised the question of solicitation on the premises. In order that there may be no misunderstanding as to company policy, we refer you to our printed Rules and Regulations relating to organizing activities which have been posted prominently on the Bulletin Boards with a large, red border, since 1962. The first sentence of Paragraph No. 6 of this Bulletin read, as follows: No person will be allowed to carry on union organizing activities on the. job. This means that:'- 1. There will be no solicitation by any employee during working hours, on the premises. 2. No person, who is not an employee of Serv-Air, Inc. will be permitted to solicit on the premises. 3. As a necessary factor'in maintaining order, production, discipline, and the efficiency required of us at Vance Air Force Base, there will be no papers, cards, or literature of any kind distributed during work time, or left in working areas of the premises. The responsibility is yours for 'any misguidance you give to any of our employees which results in disciplinary action or possible termination. Sincerely yours, (S) Truman W. Miller TRUMAN W. MILLER President-General Manager By late August the tempo of the Union's organizing -campaign-'had, increased sub- stantially. Meetings were being held, memberships solicited, and organizers were 7 Upon my observation of Sprayberry at the hearing and as a witness I am not persuaded of his reliability as a witness . I accordingly do not credit his testimony except insofar as it is corroborated by credible witnesses or constitutes admissions contrary to his own or Respondent's interests. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recruited from among the ranks of employees and issued steward's badges which they wore prominently about the shop. These organizers, it appears, circulated throughout the base in loving bands, seeking new members. Thus employee Knowl- ton testified that he personally attempted to get 150 to 200 employees to join, that he "was always soliciting in the engine shop," and that on August 31 a group of 12 employees from the engine shop, went to Hangar 141, another shop, to solicit union cards. Included in this group was employee Alfred R. McCarty, whose activi- ties together with those of employee Joe D. Haley, were the stimulation for what transpired thereafter. a. The McCarty discharge McCarty, by his own admission, had entered the hangar with the group for the express purpose of signing up new members. Excerpts from his testimony best describes what occurred: We entered the hangar on the north side and walked through the hangar up to the break room and there were several people there eating lunch, playing games. They were all in a group and I walked up to one group of people that were sitting at a table-a group of four-eating lunch, and I asked one person there in particular if he was in the Union and he said, "No" and I asked him if he was interested in the Union and he said he was not interested. So I in turn moved to another table, there was a group of people playing dominoes. I asked a gentleman there at the table if he was in the Union and he said, "No" and I said, "Would you mind joining the Union and signing a card," and he told me to get the hell out of there .. . * * * * * * Q. What happened immediately next? A. Well, our group started out of the break room into the hanger We started across the hangar and I noticed an employee sitting on one of those little roll type seats under the nosegear of an aircraft Q. What was he doing? A. He was eating a sandwich. A I walked up to him and asked him if he was in the Union and he said he was not and I said, "Would you be interested in signing a card and joining our Union?" * * * * * * * Q. How long did this conversation last, approximately? A. The conversation lasted less than two minutes. Well, he said he was not interested in the Union and he made a brief statement about that he was forced to join a Union for a-some kind of a music-musician Union and he would have to think it over. So, I did not have time to fool with him and I said, "Well, think it over and come see one of us." And the people I was with, we turned and walked on. I looked up and there was a man in the canopy of this airplane and I did not say a word to him because he was busy. Q. What did you do next? A. We went across the Hangar and there was a roll type work bench or desk there. There was a man there at the desk . While I believe he was busy at something, but I do not recall. Q. What did you say, if anything? A. I asked him if he was working and he said he was working and I made a remark to him that we were not allowed to solicit on Company time, II thanked him and went on around the end of the airplane. There was a fellow leaning up against the wing of an airplane and I asked him if he was working and he said, "I am just getting ready to start to work," so I began to give him my punch line, "Are you a member of the Union" and he said, "No" and I said, "Would you be interested in joining our Union?" and he was undetermined so I handed him a Union card and told him to take it home and think it over and if he was interested to bring it back to anyone of the committee men and hand it to him. TRIAL. EXAMINER : Then what happened? The WITNESS : Well the group broke up and, went on their merry way and I went to lunch. SERV-AIR, INC. 393 Upon cross-examination McCarty supplied further information, thus: Q. These one hundred and fifty people that you talked to and solicited between the 20th of August and the 2nd of September, did you do that all during the lunch hour? A. Some of the people I talked to was not on government property and some were on government property. Q. Did you do any of that on the job? A. No, sir. Q. Until this deal on August 31? A. I never solicited any business on Company time. Q. Well now, you did on August 31 solicit some people while they were working in the job, did you not? A. I was on my lunch hour and I did not know they had a shift down there at that time. Q. You saw these men working on a shift, did you not? A. The ones I talked to were eating, playing dominoes or sitting on their butts. Q. Well, did you ever persist in any way in talking to them after they had told you that they were working and did not want to be bothered? A. Normally I would cease the conversation and thank them and go on about my business. Q. I am asking you what you did that morning? A. To the best of my knowledge, the people that I noticed that were work- ing I left alone. The people that were not working I walked up to them and talked to them. They could have been on working time when I talked to them, but were not working when I talked to them. Upon learning of McCarty's activities from reports submitted by several of the employees 8 Respondent's director of aircraft maintenance, John Hill, after consul- tation with other management officials, sent for McCarty on September 2 and con- fronted him with the reported details of his activities. McCarty admitted to this conduct, whereupon Hill advised him that his employment was being terminated for "union activities during working hours" which Respondent has at all times claimed to have been in violation of the no-solicitation rule contained in paragraph 6 of the notice posted in the plant.9 b. The Haley discharge During the same period employee Joe Haley was engaged in soliciting activities similar to McCarty's, with identical consequences . On August 31, after reporting to work at his usual 7:15 a.m . starting time Haley was directed to go to the flight line at the north end of the field and "pull daily preflight inspections in place of another person." After engaging in these duties until "about 8 : 30," Haley went into one of the nearby "line shacks to smoke a cigarette and check the time," his break time being from 9:15 to 9:30 a.m . Upon entering the shack he met a fellow employee, William Weaver, who inquired about the steward's badge Haley was s Employees Gerald Parker and Louis Durheim, called as witnesses by Respondent, credibly testified in substantial corroboration of McCarty's account of his membership soliciting, stating in detail the names and circumstances of his solicitation ; and a state- ment to the same general effect in the handwriting of employee Richard A. House is also in evidence. While there is considerable variation of emphasis in the testimony of these men in their assessment of McCarty's union activity and although it is clear that Re- spondent had solicited their reports of the incident from each of them, nevertheless the testimony supports in essential detail McCarthy's hesitant and guarded admission that employees were either at work, about to work, or resting from work while he solicited their union membership. 9 Supra, section IV, B, 1. Paragraph 6 reads as follows : No person will be allowed to carry on Union organizing activities on the job. Any- body who does so and who thereby neglects his work or interferes with the work of others will be subject to discharge. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wearing. Haley explained that it authorized him "to organize for the union." Haley continued: Then I asked him if he would like to join and he said, "No," so I put my organizer's card in my pocket and started to leave and I looked at the clock and I said, "Well, it is break time and I am ready to go on and leave." Q. Excuse me, what time did you think the clock said? A. Nine o'clock. Q. All right. What happened immediately after this? A. He assured me that it was only 8:30 that I had looked at a twenty-four hour clock and I had misread the clock. Q. Was it, in fact, 8:30, at that moment? A. After recognizing it, yes, it was 8:30. Q. All right. A. So I turned to leave and he said, "Say let me see one of those .cards." He said, "Say I might want to join the union." Again I took one out of my pocket which was still folded, he took it out of my hand unfolded it and read it, looked at it, then held it up in the air so Mr Thurman could read it and he says, "Hey Red, would you like to join the Union?" And Red turned around and says no, he says that . . . . A. Then I returned-then Red Thurman left and William Weaver returned the card to me and I put it in my pocket and then I left. Q. Was either Thurman or Weaver working at any time during the con- versation with these gentlemen. A. No sir. Q. Now Joe, this trip that you made to the line shack was that a customary duty that you had? A. Yes, sir. Subsequently, upon cross-examination at the hearing, Haley admitted that he had signed a statement foi the Compensation Board as follows, "I was discharged from my last Employer, Serv-Air Inc., on September 2, 1964, for trying to solicit Union members while on the job at Serv-Air." Leadman E. J. Thurman, called as a witness by Respondent, corroborates Haley's admissions. As Haley himself testified to soliciting during his normal working hours I find it unnecessary to rely upon Thurman's further testimony which elaborates upon the details of Haley's solicitation although much of it is at variance with Haley's account. The written complaint of Weaver as well as Thurman's written report submitted immediately after the incident also appear in the record. Weaver is no longer employed by Respondent. As in the case of Thurman, noted above, I find it unnecessary to resolve the issue of credibility created by Weaver' s written statement as to other solicitation appeals which Haley has denied. Suffice it to say the incident found above admittedly occurred while Haley was at work which is Respondent's stated reason of discharging him.to Immediately after disposing of McCarty on September 2, Hill then sent for Haley and confronted him with the complaints of employees that he had solicited their union membership on company time. Hill thereupon informed Haley that upon the basis of the information it had Respondent was terminating him for "union activity during working hours" in violation of the posted notice." 6. The September 2 protest walkout Immediately upon learning of Haley's and McCarty's discharge on September 2, 15 employees working in another shop on the base, the JEFM shop, immediately walked off the job and proceeded to Sprayberry's office to protest. In Sprayberry's absence they spoke to his assistant, Eugene Lolmaugh, to whom they protested the discharges as being for union activity and requested that the two men be returned 101 do not find it necessary to consider nor do I base my fibdings upon further' evidence, supplied by Hill and Thurman that other employees and supervisors were solicited by employees Hill and McCarty. u Haley testified that he was aware of the notice upon which Respondent based his discharge. SERV-AIR, INC. 395 to their jobs. When Lolmaugh informed the employees that the decision was final all 15 punched out their timecards ; 12 this action being in conformance with a prearranged decision made at an August 20 union meeting, to walk out if anyone were fired for union activity.13 The striking employees immediately assembled at a nearby motel and held a meeting attended by Kelsey Hawkins, president of Smoke- Eaters Lodge Local 898 which represented another unit of the employees, the fire- men, and Harvey Christian, the Union's special representative. With no indication that circumstances had changed in the short period between their walkout and the meeting the employees voted to return to work on the following day, September 3. This they did, presenting themselves at the shop at 7:15 a.m. 7. The reassignment of work stations Upon their arrival in, the JEFM shop the returning strikers were directed by Sprayberry and Foreman Don Klepfer to work at different work stations or areas from those in which they had previously been assigned. It is important at this point to the determination of the issues raised to under- stand the nature of the JEFM shop where jet engine maintenance and inspections are performed. By the nature of the work each engine is handled by a separate work crew of four or five mechanics working in designated docks or work areas. These areas, each usually 300 square feet in area, are located in blocks of four throughout the plant, with cross aisles adjacent to each area in the block. In the interest of efficiency and safety it is company policy, approved by the Air Force, that crew integrity, that is, assigned membership in a designated crew, be main- tained (supra, section IV, A). The returning strikers had been members of eight distinct crews prior to their September 2 walkout, excepting only Kuberskey and Ming, assigned to the gear box room, and Gooch to the cleaning room. After the men had walked out, Respondent reassigned the crews to bring each one up to full numerical strength. Accordingly when the strikers returned 11 of them were constituted as 3 new and separate crews, Lankard was returned to the crew he had left, and Kuberskey, Ming, and Gooch to the work to which they had been previously assigned Spray- berry told the men at the time and Hill credibly explained in his testimony that this realignment of the crews was essential to insure that the adjustments made in the crews after the men had walked out on the previous day would not be impaired, to the detriment of the work being performed on the jet engines. Hill also credibly explained at the hearing It was our intention in this to put the people that were building an engine together, and if we had to we could set one engine off if this crew walked off and then when they came back they could have their same engine. In a woid, the readjustment was intended to make certain that the people most likely to walk off in the future would be members of the same crews, thus lighten- ing-the effect upon the over-all production of the shop. 8. The September 3 protest walkout Within an hour of their return to work on September 3 under the reassigned conditions the employees involved protested their relocation to Sprayberry, brand- ing Respondent's action as one of isolation and segregation in reprisal for their strike action . When Sprayberry refused their demand to revise the work assign- ments to eliminate this alleged indignity the men had a brief conference and walked off again, punching out their timecards.14 In addition to the 15 employees 19 The credited testimony of employees Victor Lankard and Robert Knowlton The fol- lowing employees in the JEFM shop walked out Thomas E. Anson G F. Gooch Billey D. Ming Franklin Brockway Robert J. Kuhlmeler Donald G. Peckham Larson L. Brown Robert Knowlton Jesse C. Payne Kenneth W. Edwards 'John W. Kube>skey Van R: Ringgold Eldon G. Greer Victor H . Lankard Thomas D. Scala is The testimony of Knowlton. 14 The credited testimony of Knowlton and Hill , corroborating in substantial part Sprayberry's description of the Incident. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had walked out on September 2 and again on September 3, as just described, 11 more employees joined in the protest and walked out, making a total of 26.15 9. The unsuccessful effort to return to work On the evening of their second walkout, September 3, the 26 employees met and agreed to return to work on the following morning, September 4. When they did so at 7:15 a.m. of the 4th, they found all of their timecards out of the rack and upon inquiry they were directed by Sprayberry to report to director of main- tenance's Hill, office. Hill asked the men if they were willing to resume work under the new crew arrangements and employee Van Ringgold, speaking for the men, replied, "We will give you till 7:45 Tuesday to put us back where we were before." Whereupon Hill, referring to notes which he held, stated, "Well, since you have walked out, I have had to rearrange my work schedule and we do not need you today." Hill credibly testified concerning this incident in substantial corroboration of employee Knowlton, upon whose testimony this account is based.16 By way of explanation Hill further testified that he considered the men's ultimatum of return- ing to the original positions by the following Tuesday to be a condition under which they would return immediately and he accordingly refused to permit them to resume work. The men again walked out. 10. The base shop walkout As news of what occurred circulated among the employees a number of those working at the other end of the base-at the base shops-joined in the walkout in protest of what they considered to be a lockout on that morning of the original 26 strikers.17 According to Hill this walkout caused a chain reaction in other shops throughout the base and other employees, not specifically identified, joined the strike. 11. The September 4 offer to return On the evening of Friday, September 4, the three protesting groups of employees, namely the original 15 from the JEFM shop, the 11 who joined them, and the base 15 The additional strikers were : Willard R. Bebee William L. Franklin K. C. Muir John J. Blankenship George W. Jones Phillip O'Daniels Richard D. Canaday Darl W. Long Richard W. Spoonhoward Dewey Dale Eeds Earnest E. McCalvin All except Jones, Franklin, and Muir were from the JEFM shop None of these additional strikers from JEFM shop had been grouped in the so-called segregated areas, although four of them, and many other employees in the shop, had been reassigned to other posi- tions as part of Respondent's accommodation move after the first walkout, September 2. '('Hill identified Payne as the men's spokesman , whereas Knowlton testified that Ring- gold stepped from behind Payne and spoke up. I do not deem this variant to be of significance. 17 The credited testimony of Knowlton corroborated by Director Hill. I do not accept employee Woodbury's testimony to the effect that the base shop group of which he was the leader walked out in protest of the Haley-McCarty discharges which had occurred 2 days earlier ( supra). In the first place it contradicts the corroborated testimony of Hill with whom the base shop employees registered their protest of the alleged JEFM segrega- tion and lockout. Secondly, Woodbury testified to having witnessed McCarty's discharge. Having done so and having waited until after ,the alleged lockout of protesting strikers had occurred, it seems more reasonable to conclude that it was the lockout and not the earlier discharges which prompted the base shop walkout. The following walked out on September 4, joining the other 26 Ronald Ayoder Lloyd A. Glover Robert Summers Don Alcorn Kenneth Critz Doyle L. Stone John W. Bly Bill Medina Wallace St. Clair Jack Brazzel Bobby Meador Gary Struble Elmer L. Brown Robert D. Neely. Marvin L. Turner Bobby G. Clark James Pruner Patrick T. Van Leer Russell L. Dehart Billy W. Ramsey William F. Wilkerson Luke L. Draffin Edward J. Rollo Walter Wazal Teddy Edwards Olen Smith Roy D. Woodbury Thomas Roberson SERV-AIR, INC. 397 shop employees, met with Union Representative Christian and authorized him to make an unconditional offer in their behalf to the Company to return to work on September 8, the next working day following the coming holiday weekend. Chris- tian's offer in behalf of the employees took the form of a telegram to the Company dated September 4 which first recited that the employees walked off because of specified unfair labor practices and concluded: The Union is respectfully demanding that the Company cease and desist these unfair practices and to allow all concerned to return to their jobs without any more retaliatory measures being taken against them because of their con- certed action. An immediate reply as to the Company's intent is requested. 12. The September 8 base shop lockout and JEFM show walkout On the morning of September 8, all of the employees previously on strike, both JEFM and base shop personnel, appeared for work Sprayberry told the JEFM group that Hill wanted to see them and they went to the break room to await his arrival.18 Meanwhile Hill was at the base shop where he met with the group who had returned to work there. Hill told them that he had no work for them at that time, employee Woodbury quoting him as saying, "Due to the rearranging of work schedules, we don't have any work for you today." No other employee present at this meeting was called to testify but Director Hill's version does appear to be in substantial accord, adding that he told the men that he had already made arrange- ments for that day and, "if their intentions were to come back they should notify me so I could make arrangements to put them back to work." In his testimony Hill explained at length the extent to which arrangements had been made on the previous Friday, September 4, when the JEFM employees refused to accept permanently their reassigned work stations and had again walked out, in the company of the base shop group. Thus, to insure that the production at the base shop would not be cur- tailed if the group remained out on the following Tuesday, September 8, and thereafter, reassignments of work loads and duties were made among employees and supervisors in the several shops comprising the base shop area and on Tuesday morning when the men appeared for work these prior arrangements for that day's emeigency operations prevented putting the people immediately to work. I credit Hill's explanation of this situation as it existed when the base shop employees thus presented themselves. I do not at this point, however, pass judgment on the wis- dom of the decision. Following Hill's refusal to permit the returning base shop strikers to resume their work all of them got into their cars and in a noisy cavalcade proceeded to the JEFM shop area where the returning 26 JEFM strikers were still awaiting Hill's arrival from the base shop. Before Hill could arrive to speak to them Knowlton and the other JEFM returnees went out to confer with Woodbury and the base shop group. Upon learning that these people had been prevented from working the JEFM group again walked off, not having yet learned whether work was available for them. Both groups thereafter met with Christian of the Union who again commu- nicated with Respondent in their behalf by telegram dated September 8, stating: Be advised that the groups that were locked-out and the group that walked out protesting the company's discriminatory actions on September 8, 1964 will report for work tomorrow September 9, 1964 at their regular time. This is to request that their timecards be placed in their regular place in order to elimi- nate any confusion or misunderstanding. The group desires to work but they want their legal rights respected. Thereafter on the same day Respondent dispatched the following telegram to each oof the employees involved: Although your walk-out last week was unwarranted, nevertheless, we have rearranged our work schedule to accommodate your services. You are there- fore notified that you may return to your work at the usual time on Wednes- day 9 September 1964. John S. Hill Director of Aircraft Maintenance All of the employees involved return to work on the morning of September 9 with- out incident and took up their usual duties. The employees in the JEFM shop who 18 The testimony of Knowlton. '398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD originally struck in protest of the changed work area assignments returned to their new stations, and except for minor operational changes, these assignments were regularly maintained thereafter. 13. Further questioning by company officials, In the comparative quiet that pervaded for the next several. weeks 1@ representa- tives of Respondent and the Union met and bargained in behalf of the firefighting employees for whom the Union was the certified representative. The bargaining sessions were well attended, it appears, not only by representatives of the prin- ciples but by active union adherents among the employees from other parts of the base. These spectators referred to themselves as "the gallery" and included employee Knowlton who was also active in the series of walkouts which had just subsided. During one of the breaks at the September 9 bargaining session, Assistant General Manager Hood walked up to Knowlton and, noting the steward badge he was wear- ing, asked him who he was and if he were among those who had walked out2e 14. The firemen's dispute a. The walkout As negotiations for a firemen's contract continued at headquarters level in a local hotel, events' back on the base did';not suggest the, same spirit of negotiation. Thus• on September 14 employee Ressie.Chodrick, amost -active' union leader among the, employees (supra, Section IV, B, 2) and'shop steward of the firemen's unit,-sought out Fire Chief Moxley on the morning of September 14, and requested that he discuss with Chodrick a number of pending grievances. Moxley advised Chodrick that this was not the proper time to hear and process grievances and refused to discuss them. Whereupon Chodrick repeated his request and Moxley again denied it. Chodrick then advised Moxley that unless the grievances were handled the firemen would walk out. Moxley consulted with Assistant General Manager Hood who appeared on the scene and was presented with the same request by Chodrick, who, when again told that there was an established time for hearing grievances, replied that "the people wanted the grievances heard when they wanted them heard." Upon Hood's refusal to accede the firemen at the main base walked out under the leadership of Local President Kelsey Hawkins and Chodrick and the firemen' at the auxiliary bases were notified - by Chodrick to, do likewise. lUpon ' securing- proper safety clearance at these fields later in the day the firemen there joined the walkout.21 IG During this period, it will be recalled however, that Sprayberry, upon questioning employee Gooday and finding that he favored the Union told him that the Union would jeopardize their jobs (supra, section IV, B, 4). w The credited testimony of Knowlton corroborated by Hood who admitted to the con- versation, describing it as one in which he introduced himself to Knowlton, whom he had not met before and whom he believed to be active in the Union. I do not credit so much of Knowlton 's testimony , however, to the effect that by Hood's so-called interrogation of him he "was still just as scared as if [he] had been at the base." From my observation of Knowlton, from the credited evidence of his militant ,leadership in the Union, and from the circumstances surrounding the conversation , as described by him and Hood , I am convinced that he was neither scared then 'nor thereafter, 'nor did he appear to be of the temperament to scare easily. slAssistant General Manager Hood provided his version ' of the details set forth above. Fire Crew Chief Jay Crowley credibly testified as to the effect of the September 14 walk- out upon the Perry Field firemen where he was stationed. Employee Chodrick was the only General Counsel witness whose testimony alluded di- rectly to the details of the firemen's walkout. Thus when he was asked if he had ever engaged in union activities of which the Company had knowledge, Respondent's counsel, to expedite the proceeding, stipulated that it was fully aware of Chodrick' s union -activity and of the fact that of all the employees he was the only one appearing as a witness ,at the earlier representation hearing. When counsel for the General Counsel. then sought to question Chodrick further on his activities "to prove that this man wa's 'more'active than the others" I precluded him, Indicating that the stipulation adequately established this fact, as I now find that it does. In an excess of caution counsel sought to make an offer of proof of Chodrick's activity, which I indicated he might do. Counsel then sought again to question Chodrick' along the same line,' asking him if he ever led a walkout, in fur- SERV-AIR, INC. 399 b. The ofJei to return At this point normal avenues of communications between all the parties concerned appear to have been superseded by the telegram . Immediate efforts were made on all sides to effect a return to work,22 the method of effecting it depended upon the viewpoint of the party writing the message. Because it has been claimed on the one side that unconditional offers to return were not made and on the other that obstacles to return were set up and a lockout, in effect, instituted , I shall set forth, with regret for the burden it creates to this decision, the exchange of communica- tions relating to the September 14 dispute. Thus a telegram from Christian to Presi- dent Miller dated September 10 describes the grievance sought to be resolved: Be advised that Smoke -Eaters Lodge 898 of the International Association of Machinists protest the recent unilateral changes in the working conditions and work assignment of the fire department unit namely painting and mechanical work and request that these conditions be returned to status quo. Harvey Christian , Special Representative International Association of Machinists On September 15, the day following the walkout, at 10:07 a.m., another telegram from Christian to Miller announced the walkout, setting forth acceptable terms for settlement: Be advised that members of Smoke-Eaters Lodge 898 Firemen's Unit walked off their jobs at Serv-Air Inc. in protest of the company's unreasonable and arbitrary action of refusing to accept and discuss grievances arising from uni- lateral and arbitrary changes in working conditions in job assignments in the bargaining unit without negotiating these changes with the union . The union is requesting an immediate meeting to discuss this dispute in order that the fire- men can return to their jobs under normal and usual conditions . An immediate reply is requested. Harvey Christian, Special Representative International Association of Machinists Miller's telegraphic reply to Christian on the same day at 2:45 p.m. stated: Please be advised that members of Smoke Eaters Lodge 898 were asked why they walked off the job and they stated specifically that they were leaving because they could not get their grievances heard at the time they demanded. We respectfully reject the reasons stated in your telegram of this date as the basis for the firemen's unwarranted walkout. Serv-Air has never refused to accept and discuss grievances from fire department employees. We have estab- lished a scheduled time for firemen to present grievances to the fire chief, and the firemen were aware of this schedule which is posted in the fire station. We completely reject your charge that we are requiring unilateral work of the fire- men as referenced in our letter to you of 11 September wherein it was pointed out that the firemen were performing first echelon maintenance and housekeep- ing functions to include interior painting which the firemen have always pre- viously performed and considered their normal work requirements. Not having ther effort to establish that the Company was aware of this. Respondent's counsel again agreed to stipulate, this time as to Chodrick's leadership of the walkout; a stipulation which I also accepted and rely upon herein . I have, nevertheless, rejected the offer of proof of Chodrick's prominence in the Union, subsequently made in writing, in view of this stipulation offered by Respondent and upon which I now find. The offer of proof does contain, however, the details of the September 14 walkout, an issue that General Counsel had never indicated in the course of his questioning he was seeking to establish by Chodrick's testimony and which arose only in this questioning as it related , tangentially , to proof of company knowledge. I would not be disposed, there- fore, to consider this offer as evidence of the September 14 event. It is also to be noted, of course , that I have not credited Chodrick generally (supra, footnote 4). Under the foregoing circumstances in the absence of credible evidence presented by the General Counsel, and in the absence of countervailing evidence presented by Respond- ent I accept Hood's account of the walkout. 22 On this point I specifically reject Assistant General Manager Hood's unsolicited re- mark in the record that the only reason for the walkout was to embarrass the manage- ment upon the visit to Vance of an Air Force Inspector General's team. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the firemen available for duty when needed, has forced Serv-Air to plan and train other personnel in order to meet certain test requirements imposed by the inspector general team, headquarters, ATC, which are classified. This work load, along with other requirements must be accommodated. Therefore, we will be pleased to meet with you Wednesday to discuss the firemen's interest in returning to work and will contact you relative to a mutually agreeable time. Please understand that we will not, repeat we will not, discuss any so-called grievances at this meeting. Truman W. Miller President, Serv-Air Inc. Before Miller's telegram had been received (at 4:34 p.m.) Christian dispatched a second telegram to Miller (at 2:59 p.m.) which he claims to be the strikers' uncon- ditioned offer to return. It states as follows: Be advised that the members Smoke-Eaters Lodge 898 International Associa- tion of Machinists who would be customarily scheduled to work tomorrow Wednesday, September 16, 1964 will report to work on their regular job and place and in their usual manner. Be further advised that they are interested in returning to their jobs and remaining on their jobs as long as the company doesn't create new instances that would cause another disturbance. Harvey Christian, Special Representative International Association of Machinists That same evening of September 15 Miller replied to Christian's earlier offer stating: The conditions set forth in your telegram are unacceptable to Serv-Air relative to firemen returning to work Wednesday inasmuch as the firemen walked off without justification and the basis of their return to employment would have to be unconditional; and that they may be depended upon to provide the serv- ice for which they were employed. Serv-Air specifically rejects your inference that the company has created any instance which would justify the irrespon- sible walkout of the firemen. In the absence of adequate assurance that the firemen's proposal to return to work will be unconditional and in view of the fact that we have programmed our work requirements on the basis that the firemen would not be at work Wednesday (16) September 1964, we will not require their services on that date. This telegram does not supersede our offer to meet with you tomorrow. Truman W. Miller President, Serv-Air Inc. Thereafter on the afternoon of September 16, Christian complained to the Regional Director of the Board that Air Force personnel were being used as replacements performing the firemen's fighting and rescue duties on the flight lines and elsewhere at the base. On the following day, September 17, he again wired the Regional Director, this time referring to his earlier telegram of September 15 as "restating" the union position that the firemen were "ready, willing and able to return to their jobs unconditionally"; to which Miller wired a rejoinder, also on Thursday, Septem- ber 17, to the Regional Director and Christian stating the Company's position that the September 15 offer to return was not acceptable because it was not uncondi- tional and that the men could return on Saturday, September 19, if the Union's most recent telegram to the Regional Director was intended to constitute an uncon- ditional offer. Meanwhile on September 16 at 6:15 a.m., seven of the firemen at Perry Field made themselves available for work but were told by Respondent's auditor, Robert Van Buien, that no work was available for them and they returned to their homes.23 As all of the foregoing communications were in transit, Hood, in behalf of Respondent, and Christian met with a Federal mediator where the dominant issue appears to have been whether or not the offer to return was or was not uncondi- tional. The Company was adamant that the unconditional nature of the offer be stated with precision; whereas Christian, relying on the language of his telegram (supra) setting forth the terms of the employees' return restated it at the meeting, Respondent would not accept it. Finally, on September 17, after Hood and the 23 The credited , undenled testimony of employee Jay Crowley. Van Buren was not ques- tioned on the subject when called as a witness by the Respondent. SERV-AIR, INC. 401 Federal mediator had suggested language which they believed would clearly indi- cate the employees ' intent, the firemen at Perry Field signed an unconditional offer to return which the Company accepted unconditionally . The remaining firemen fol- lowed suit and all returned to work on Friday, September 18.24 15. The buttons and badges The heightening tempo of the organizing campaign was manifest by the increas- ing frequency with which union adherents indulged in the practice of wearing varieties of badges indicating their union allegiance. These badges took many forms, a number of which were displayed at the hearing and appear among the exhibits. Thus union adherents appeared at their work stations with pencils in their shirt pockets bearing the union insignia on the clip. The shop stewards, of whom there were a considerable number, wore plastic badges prominently indi- cating their position and bearing the inscription "Justice on the Job," with union insignia. Others wore an improvised badge consisting of a piece of paper 3 inches in diameter pasted on a smaller plastic button , on which was crudely printed "I am a Union member." Still others wore a red 21/4-inch plastic button, "IAM meets tonight." Throughout the early fall the more active union people wore one or more of these insignia or hand printed facsimile of them, but by mid-October multiple badge wearing became the custom. Not only were employees wearing two or more badges on their shirts and hats, plus the IAM pencil clip in their pocket, but some ofthem appeared with small signs pasted on their backs. Thus employee Knowlton, for example, not only wore two badges each on his hat and shirt but had a 14-inch inscription taped to his back, "Don't be a fink, come to the Union meeting tonight at 7:30 p.m." Employee Peckham wore a similar sign on his back. It appears, however, that some of the employees had actually been wearing more than one button at a time as early as August 27, and many of them, with company approval consistently wore plastic name tags affixed to their shirts. Assistant General Manager Hood, himself, wore this type of identification tag as well as a badge worn by many officials and rank-and-file employees who were opposed to the Union. This was a 21/4-inch white plastic badge with the following inscription. I am for Vance "Keep 'em flying" No Union wanted Beginning on October 19 Respondent commenced positive action to eliminate the mass button wearing among the employees . Thus Hood concedes that Spray- berry called the situation to his attention on October 19, stating his feeling that the ` badge and sign business" was getting out of hand ; that feelings in the shop 26 The employees who engaged in this walkout were stipulated to be the following, and appear as Appendix H in the consolidated complaint : Ernest W. Adams Gordon T. Edwards J. L. Niles Elmer L. Allen Robert L. Fields Dickie D. Pritchard Billy J. Avery Marshall Frazier, Jr. Charles A. Ramey Olin N. Ashcraft Weaver D. Gamble Leonard H . Randolph Robert L. Boon Jerry B. Grammont Lawrence D. Rowe Robert L. Bratcher John R. Grewell Jack R. Roy Cecil F. Carroll Francis A. Harris Charles G . Sanders Jimmie R. Caywood Kelsey C. Hawkins David D. Schroeder Jim R Chestnut Donald L. Hildinger Robert J. Sedbrook Donald R. Clark Willis E. Johnson Andrew F. Sima R. A. Chodrick Ronald D. Kihega Sanford E Stark Lewis F. Coulter Marlow Kirk Sammal P. Stinson Harvey S. Crabtree Hubert E. Leckie James H. Sturgeon Jay D. Crowley Amel L. Letellier Billy D. Tooman Harold W. Daugherty Delbert B. Luginbill Paul W. Torre James H. Dehaas Harold L. Lunsford Ronald B. Treat Myron W. Dodd John C. Madison Wilbur E. Unruh Donald E. Dodson Michael V. Mitchell Larry It. Voss Roy L. Eastin Dallas Myers Eugene R. Webber 264-188-67-vol. 161-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were running high because of it; that the men "looked like a bunch of clowns"; and that safety at the base was being jeopardized. Accordingly it was determined to take restrictive action.25 Previously, on October 15, employee Knowlton with buttons achest and a taped message on his back was called into Sprayberry's office together with employee Peckham who was similarly adorned and was also wearing a button 5 inches in diameter. Sprayberry, in the presence of his assistant, Lolmaugh, and Foreman Klepfer, told the men he thought their signs were childish.26 He then told them to take the badges off and the men refused, stating their right to wear them. They did compromise, however, by removing their back signs. The men returned to work and continued thereafter to openly wear the several buttons they had previ- ously worn on their persons. Thereafter on October 19 Sprayberry again sent for Knowlton and also for employee Ken Edwards. He told them that hand painted signs and buttons and defaced antiunion buttons would not be permitted to be worn. Whereupon Sprayberry gave the two men the option of removing such buttons or "go home." They refused to remove them and Sprayberry punched out their timecards 27 On the following day, October 20, Sprayberry sent for employees Billy Ming and Peckham and asked them, in the presence of his assistant, Lolmaugh, why they were wearing the badge "I am a union member," noting they were also wearing steward's badges. After some conversation on the need for the badges Sprayberry told the two he would give them the same choice he had given other badge wearing employees on the previous day-they could wear one badge or the other or leave. Assistant Manager Hood appeared at this point in the conver- sation and supplemented Sprayberry's remarks by saying that the badges were getting out of hand, and that as they were working for the U.S. Government they had to make a good appearance before higher officials. He then said he felt that the whole button and badge affair had been intended as harassment of manage- ment. Whereupon Ming denied Hood's accusation and referred him to the badge that he (Hood) was wearing-the previously described "no union wanted" badge (supra). Hood then repeated Sprayberry's ultimatum permitting the wearing of only one badge, and when the two employees refused to comply he directed Spray- berry to punch out their cards, stating that they could come back to work if they took the badges off.28 On the same day, October 20, Respondent posted a notice respecting the wear- ing of buttons. It reads as follows: ADMINISTRATIVE CIRCULAR' NO. 9 SUBJECT: Wearing of Buttons or Badges by Employees 1. Effective immediately Serv-Air Employees will be permitted to wear only one button on their uniforms or outer garments while on duty. This can be one (1) union button or one (1) company button. This policy has become neces- sary for the following reasons: A. Many employees work around and on Jet Engines where the wear- ing of any unnecessary buttons or badges becomes a safety hazard. B. In order to maintain the appearance of a responsible working organization to our customer, the United States Air Force. C. The indiscriminate use of all types and kinds of buttons is causing disharmony among all employees. 2. Directors will take action to implement this policy immediately. 3. A copy of this circular will be placed on our bulletin boards. (S) John M. Hood JOHN M. HOOD Assistant General Manager SERv-AIR, INC. n The testimony of Hood which I accept on this point. The facts with respect to the badge wearing episode and its curtailment (infra) are not in dispute. Respondent's pur- pose in restricting the wearing of badges is In dispute. 2'Knowlton testified that the maximum number of badges be wore on any occasion were two on his chest and two in his hat. aT The credited testimony of Knowlton. 21 The credited testimony of Ming. SERV-AIR, INC. 403 By the time this notice had been posted, however, other employees had been con- fronted with the same alternatives as had the above four, and each went home. All employees who left in this fashion prior to the posting of the notice were sent following letter: This is to confirm to you that you have not been terminated from employ- ment with Serv-Air and to further state to you that we will be happy for you to return to work provided you will abide by the rules and regulations estab- lished by the Company regarding the wearing of badges and buttons and other adornments on your uniform. Serv-Ai'r recognizes and has always recognized your right to conduct legal Union activity as your conscience dictates in accordance with the rules of the National Labor Relations Board and Serv- Air's policies and procedures. Serv-Air's policy in this regard prohibits Union activity during working hours on plant premises. Serv-Air's decision to restrict the use of adornments on outer garments among all employees is necessary for several reasons, and in no way has any connection with your membership or any union activity that you have engaged in. A copy of Administrative Circular No. 9 spells out the reasons for this policy and is enclosed. We regret that we had to send you home as a result of your defiance and refusal of our request to wear only one button or badge. You must realize that our rules and regulations must be applied indiscriminately to all employees. Again this is to inform you that you are free to return to work at any time with the provision that you abide by rules and regulations that all other employees have to abide by. Sincerely yours, (S) John S. Hill JOHN S. HILL Director, Aircraft Maintenance 29 Following the posting of the notice on the 20th, others who were wearing a profusion of buttons were summoned to the office, asked by either Sprayberry or Lolmaugh if they had read the notice , and were given a choice of either complying or clocking out. These employees included Victor Lankard, Ernest McCalvin, and Richard Canady, all of whom clocked out on October 23. Previously on, October 21, after the notice had been posted , employee Thomas Willson was given a similar ultimatum by Sprayberry in his office. After directing Willson to return to his shop and make up his mind Sprayberry followed him there and spoke to a number of the employees who were also wearing badges. After first singling out employee Gooch and dismissing him upon his refusal to remove his badges, Sprayberry told the remaining employees , including Willson whose account of the episode I credit, that unless they removed the badges they would be clocked out. They all left 3u It was stipulated at the hearing that during the same October 21-23 period a con- siderable number of other employees were terminated under the same circumstances for the same reasons . These and the dates upon which they were terminated were: Winfred B. Haines-------- Oct. 21 Teddy E. Edwards -------- Oct. 21 Ronald A. Yoder --------- Oct. 21 Jesse E. Payne ----------- Oct. 21 Marvin L. Turner --------- Oct. 21 Ewald E. Schultz --------- Oct. 21 George W. Jones ---------- Oct. 22 Vernon O'Dea ----------- Oct. 22 Jack P. Brazzel----------- Oct 22 Roy D. Woodbury --------- Oct. 22 Bobby Meadors ----------- Oct 22 James Pruner ------- ----- Oct. 22 Larson L. Brown---------- Oct. 22 Ferris L. Collier---------- Oct. 22 William F. Wilkerson------ Oct. 22 Robert E . Summers -------- Oct. 23 29 It Is stipulated that this letter was sent to the following employees: Robert Knowlton; Franklin Brockway, Donald Peckham, Kenneth Edwards, Thomas Anson, Billy Ming, Robert Kuhlmeier, Van Ringgold, and Thomas Scala. 80 This October 21 group included , according to Willson : Richard Spoonhoward Kenneth Gritz Philip O'Daniels Edward J. Rollo Eldon Greer Willard Beebe Larry Knapp John Blankenship Gary Struble Stephen Ladd Darl W. Long Archie Murdy 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent thereafter on October 25 suspended the enforcement of its rule respecting the wearing of badges, and beginning on October 26 the men returned to work, many of them continuing to wear their respective assortment of insignia. On October 27 Respondent posted its Administrative Bulletin, No. 10 noting the opposition of employees to the badge rule and announcing an immediate suspension of the rule pending final determination of the legality of it by the Board (referring to the instant proceeding). 16. The employee election petition Beginning sometime in late October 1964, and during a period until shortly prior to January 8, 1965, approximately 557 of Respondent's total civilian complement at the base, estimated to be approximately 1100, signed a petition directed to the Regional Director of the Board's Region 16. Although alleged in an amendment to the complaint as "an anti-union petition" circulated for the purpose of interfering with employee statutory rights, the petition itself bore the heading: WE THE UNDERSIGNED EMPLOYEES OF SERV-AIR, INC., HEREBY MAKE KNOWN OUR REQUEST THAT THE QUESTION OF UNION OR NO UNION BE BROUGHT BEFORE US IN AN ELECTION. The letter of transmittal to the Regional Director, signed by Panthea M. Cauld- well, a clerical employee,31 who appears to have been the most active in procuring the signatures, elaborated on the stated purpose, thus, We, the employees as shown on the attached petition, respectfully request that your office conduct an election among the Production and Maintenance employees of Serv-Air, Inc. The present situation is causing much disharmony and is detrimental to the morale of all the workers at Vance AFB, and could, if allowed to continue over a long period of time, result in a disruption of the mission at Vance AFB and therefore jeopardize all employees' jobs. We feel that we have been discriminated against by not having the privilege of voting in the election held May 6 at Vance AFB and that we should have a vote in this matter at the earliest possible time. On this petition are the signatures of four individuals claimed to be of supervisory rank: Donald Klepfer, E. L. Smith, Morris Shackley, and William L. Huston. Their supervisory status was denied by Respondent and counsel for the General Counsel adduced considerable testimony in support of his claim that they were. Donald Klepfer, known to the 15 or 20 men who worked under him as senior mechanic and a leadnian, directed them as to what engines they would work on, reported on them if he found them not working, did no manual work, attended meetings in, the office at which other supervisors were in attendance, temporarily reassigned employees from one work station and duty to another, and on a number of occasions directed employees to report to the office. Upon the foregoing I would conclude and find that Klepfer is an agent and representative of Respondent, and also that he responsibly directs employees in such a manner as to denominate him a supervisor as defined by Section 2(11) of the Act 32 William L. Huston, another senior mechanic and leadman, also assigned men to specific tasks and engines. He has excused absences and has granted permission to employees to take time off, assigned them to overtime work, criticized them for failures in their reports and paperwork, and has attended supervisory meetings 33 Upon the foregoing I conclude and find that Huston is a representative and agent of Respondent and responsibly directs employees within the purview of Section 2(11) of the Act thus constituting him a supervisor. Si Counsel for the General Counsel sought and obtained a stipulation that Miss Cauldwell was a clerical assistant to a Kenneth Price, without further identifying Price. Even were I to assume that this gentleman were a high company official, I would draw no inference from that fact in derogation of the petition. That a clerical employee is directly supervised by a high official is certainly grounds neither to exclude her from the bargaining unit, nor indeed, as is suggested here, to deprive her of her Section 7 rights to engage in what would appear on its face to be a protected activity Employees may not be deemed to lose rights merely by working for major supervisors rather than minor ones The credited testimony of employees Ming, Kuhlmeier, and Knowlton, as well as Klepfer's own explanation of his duties. 33 The credited testimony of employees John Hill, Knowlton, Hevr, and Turner. SERV-AIR, INC. 405 In addition to affixing to the petition as did Klepfer and the other two, Huston, in. the presence of leadman Smith,34 walked through the aisles of the sheet metal and machine shop carrying the petition. Employee Turner noted this and called to Huston, asking him to bring the petition forms to him . Huston complied, stating "We want to get an election; get this over with one way or another. We do not want no union." 35 17. The JEFM reduction in force As previously noted earlier in this Decision (supra, section IV, A), the Aircraft Maintenance Program administered for the Air Force by Respondent was subject to revision as the needs of the service and the improved efficiency of the engines dictated. Thus, for example, it was determined that the periodic inspection of the J-85 engine by personnel of the JEFM shop need no longer be performed after every 100 hours of engine use. When the engine first went into service the periodic inspection interval was 50 hours, and thereafter raised to 100. During 1965 numer- ous conferences were held which representatives of the Air Force and Respondent attended, and where it was sought to decide the major improvements that would be necessary to make a 200-hour inspection interval possible, and what a base would have to do to maintain such a 200-hour engine. In these conferences numer- ous technical problems were presented for solution and the net conclusion was that upon the completion of a certain amount of retooling, and the establishment of new procedures 200 hours of periodic inspection interval would be approved by the Air Force Training Command. The Vance facilities were the first of the Training Command bases to be qualified for this improved maintenance inspection program. On September 2 the Respondent received from the Air Force "work cards" which set forth in detail the newly established procedures. Study of these procedures, establishing as it did that inspections of J-85 engines would be reduced by one half, indicated that a reduction in the work force would then be in order. Accord- ingly, on October 12 director of aircraft maintenance Hill notified Assistant Gen- eral Manager Hood of this prospect and indicated that a survey would be made to determine the extent of the reduction. Based upon the data supplied by the Air Force it was determined that the personnel of the JEFM shop could be reduced 20 percent from its present complement of 80 employees 36 This meant that a reduction of 16 would be in order. By early, November, as plans were developing to select those subject to termination, eight employees had already left through normal attrition, leaving only eight to be disposed of by termination procedures 37 Meanwhile, in anticipation of the pending layoff, Hill wrote to the Air Force on October 14 advising that a reduction in force of 11 would be effected in the JEFM shop on October 23 and requested that the Training Command "be queried to determine if there are other requirements in the foreseeable future that would justify [reasonably] retaining these people." Major John H. Westbrook replied on October 22 that his office had "no knowledge of any additional requirements at this time." Accordingly, plans for the selection of candidates for layoff which had already begun were then accelerated. To this end charts had been prepared by Sprayberry and his assistant, Lolmaugh, whereup each employee's name appeared along the left margin and a series of blocks provided spaces for ratings under specific categories with space provided at the far right to accommodate each employee's aggregate rating. The categories in which the employees were evaluated were the following: seniority, production, job ability, initiative, temperament, job attitude, attitude toward supervision, acceptance of rules and regulations, and harmony with coworkers. In 'each category, except seniority, provision was made for five ss In view of my conclusions as to Klepfer and Huston I find it unnecessary to burden this decision with further findings as to the supervisory status of Smith and Sliackley. To do so would , in my estimation , simply constitute surplusage. 25 The credited and undenied testimony of employee Marvin L. Turner. w There appeared to have been 86 employed there on September 4 when the work sta- tions were reassigned ( supra, section IV, B, 7). 51 The foregoing details concerning the administration of the periodic maintenance' program is the undenied testimony of Director of Aircraft Maintenance Hill who was directly responsible for its implementation and whom I credit in this respect. Counsel for the General Counsel stated on the record that he was not contesting the necessity for the layoff which followed , stating that "at'some time in the fall of 1964 there was a need to lay off some employees." Counsel 's case rests rather upon the selec- tion which Respondent made of employees to be laid off. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD separate ratings ranging from poor to outstanding; a candidate being marked poor receiving only one mark in the, category, whereas a candidate being marked out- standing would receive marks in the four other rating possibilities as well, giving him a possible maximum of five for each category. In the category of seniority a mark was given for each year or less of service up to and including •5 years. It was determined that those with the lowest aggregate rating would be laid off. On the morning of November 6, a number of the JEFM employees were sum- moned to Sprayberry's office where Director of Aircraft Maintenance Hill was waiting for them. The employees, all of whom were known by Respondent to have been active in the Union and who had frequently attended bargaining sessions as interested spectators, were Thomas Anson, Jesse Bayne, Franklin Brockway, Thomas Scaia, Robert Knowlton, Victor Lankard, and Robert Kuhlmeier. Employee Eldon Greer was summoned but was absent on sick leave. Hill handed Sprayberry letters which the latter distributed among the men. The letters, addressed to each individual present, were identical in content and read as follows: We regret to inform you that your services will no longer be required as of the close of business November 1964, due to a reduction in the work force in the JEFM shop. This reduction in work force is required due to the change from 100 hours to 200 hours in the repair and inspection cycle of the J-85 engine. In an effort to preclude this reduction in force, Serv-Air querried the Air Force to deter- mine if there weie any future work requirements that would justify the Com- pany maintaining all personnel presently employed in the JEFM shop. The Air Force has notified us that there are no foreseeable work requirements that would justify our retaining all personnel in the JEFM shop. Similar reductions have been programmed for all JEFM shops in Air Training Command. Supervisory personnel of the JEFM shop and this office have completely reviewed the work records of all personnel in the JEFM shop and selection of personnel to be laid-off was based on production, efficiency, seniority, and other pertinent factors. You will be given first consideration on any job that comes open in the Company for which you are qualified. You will receive 2 weeks pay in lieu of notice which we hope will be of material assistance to you and prevent any undue hardship until you can find other employment. - We appreciate the services that you have rendered Serv-Air during your employment and wish you well in the future. (S) John S Hill JOHN S. HILL Director, Air Craft Maintenance Because it is claimed that these individuals thus selected for layoff were victims of Respondent's reprisal for their acknowledged activity in behalf of the Union, I shall consider each individual separately. In this respect it is to be noted, how- ever, that certain facts and circumstances are common to all eight. Thus they were all designated stewards of the Union in late August, they all participated actively in the organizing drive mounted in early September, they participated in the several walkouts previously described (supra), were the alleged victims of a reassignment of work areas, were the most prominent in the button wearing dis- pute, and were each given a letter laying them off until they complied with the button rule. With several exceptions noted hereafter it is stipulated that none had previously been the subject of prior disciplinary action,38 and it is further stipu- lated that the Respondent was fully aware of their respective union activities. Employees concerned never saw the rating chart which formed the basis of their layoff, and finally that they never discussed either the chart or the several cate- gories contained thereon with their supervisors. Thomas D. Scaia, a JEFM crew chief and a member of the Union since Octo- ber 1963, wore his union insignia constantly since then and on August 31, 1964, as the most active of the shop stewards, organized the recruiting drives for new 88 There are in the record Certificates of Training Issued by the Air Force to all these employees. It appears that all the employees in the JEFM shop are at some time required to take specified technical training. I attach no significance whatever to the evidence that the eight involved here may have satisfied what appears to have been a general in-service training requirement. SERV-AIR, INC. 407 members which took place in the several hangars and work areas around the base and which provided the backdrop for the discharge of employees Haley and McCarty (supra, section IV, B, 5). On that same day Scaia was summoned to Sprayberry's office where Director Hill was waiting for him. Hill presented him with a warning notice signed by himself and Sprayberry which stated that he was being warned for lack of production in that his crew has constantly turned out the lowest num- ber of engines of any of the fully manned crews over a two month period. This is caused wholly upon his lack of interest, initiative, productivity and attitude towards his work. Immediate improvement in these areas is mandatory. It is stipulated that this was the first disciplinary action ever taken against Scala. When asked for comments upon the warning Scaia indicated to Hill that he had none and left the room. Prior to this, according to Scala, no one ever discussed his productivity with him. He conceded on cross-examination, however, that his production was in fact down, and when asked if he gave Hill any assurances of improvement he replied that he made no comment but that he immediately left and filed a grievance for having received the warning letter. When Scala was shown his rating upon which his selection for layoff was deter- mined, this, except for the August 31 conference, was the first and only time he had been appraised for the several categories upon which he was being rated. He received the rating of 17, thus being in a tie for the fourth lowest score in the shop.39 Robert J. Kulil,neier appears to have been the second least senior of any of the eight laid off, having been hired on February 17, 1964 He testified without con- tradiction that during his tenure he was never criticized by his supervisors When he was notified of his rating he had not, to that time, nor since, seen the chart nor discussed his status with anyone. He was rated at 14, being the second lowest of the employees rated. In this respect it is to be noted that he received only one of a possible five points foi seniority, and one of a possible five for production. With respect to these two factors which appear to have contributed mightily to his poor score Kuhlmeier testified that he considered seniority and production to be proper rating scores His complaint then was not the categories used but the manner in which they were applied to the rating in his case. Robert L. Knowlton does not appear to have been a stranger to the rating process, having been called to Sprayberry's office in July and confronted with a rating sheet similar in detail to the chart used for the November 6 layoffs The categories then were much the same and Sprayberry had discussed these with Knowlton as they applied at that time to his situation Thus, according to Knowlton, he explained that since he had taken Knowlton away from certain employees his attitude was a lot better and that he was raising it to "Good." At the same time it appears that Sprayberry indicated that they were then i emovmg from Knowlton's file the record of an oral reprimand previously given him. Respondent makes no representations, however, that Knowlton had previously been subject to discipline. A review of Knowlton's position on the layoff rating chart indicates that he had a rating of 16, being the third lowest of all rated A breakdown of categories dis- closes further that of a possible five in each he was rated as follows: seniority-2, production-2, job ability-3, initiative-3, temperament-1, job attitude-1, attitude towards supervision-1, acceptance of rules and regulations-1, harmony with cowork- ers-2. None of these were ever discussed with him between the July incident and November 6. Victor H. Lankard commenced work in June 1964. Excepting only his connection with the button incident he was never disciplined during his five months of employ- ment. He was rated 22, being tied with employee Gooday for the position of eight lowest of those rated. Gooday was also a union member, but was not laid off. He did have 9 months more seniority than Lankard, who appears to have been the least senior of all, but was rated as having less job ability and initiative. It was s The foregoing is based upon admissions by Scala at the hearing. Having observed him during the hearing I am not disposed to and do not iely upon his testimony except as it constitutes, as here, admissions against his interest or is corroborated by credible witnesses. Thus I do not accept his assertion that he does not understand the rating chart and the grading system used. It is simple in construction and capable of being understood by one of normal intelligence His stated failure to comprehend it is deemed to be more the result of his belligerence as displayed on the stand and at work rather than a lack of intelligence. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gooday who had previously been interrogated by Sprayberry and who also testified that on November 6 he voluntarily walked off in protest of the layoff of the other eight. Thomas E. Anson was given a rating of 20, his rating in attitude towards super- vision being "Poor" Like the others he had no prior notice of his status and had been subject to no disciplinary action excepting the button incident. Franklin Brockway was first employed on February 10, 1964, a week before Kuhlmeier, thus receiving only one point for seniority. He did have 3/ years of prior experience with jet engines while in the Air Force. His total rating was 20, ranking him as tied for seventh lowest of all rated. Jesse E Payne was also hired on February 10, 1964, and has thus accumulated but one seniority point. His rating, which he had never previously discussed with any superior, was 24. Eldon G. Greer, unlike the other seven who were terminated on November 6, was absent from work on sick leave. Upon his return on November 12 he was given the same termination notice as were the others (supra, section IV, B, 17). Greer was a crew chief in the JEFM shop and had a record of 14 years of service at Vance, the last 4 being with Respondent. On the chart prepared for the Novem- ber 6 layoff Greer received a rating of 19, receiving but 1 point each in initiative, temperament, and attitude towards supervision. When asked if he had ever been criticized Greer admitted to a reprimand by Sprayberry in mid-1963 thus, While I was more or less not staying in the dock; I was running around the hangar more than I should, and they thought. Greer also admitted to a further "oral jam session" with Sprayberry concerning things he was doing wrong, ending in what appears, from Greer's confused account, to be the presentation to him of a written warning. And when asked if he had received any other criticism of his work he replied, "I don't know the dates, but then a number of times I have been-oh, spoken to." 40 Earlier in the summer of 1964, and prior to Greer's wearing of a union badge, he applied for a promotion to a supervisory position and was interviewed by Spray- berry. On a resume form submitted at the hearing by Greer in support of his appli- cation, notations had been made by Sprayberry to indicate that Greer's qualifica- tions in such categories as ability, obey orders, incentive, dependability were "Good " On the November 6 rating chart Greer received no rating in any of these categories higher than "Fair." A critical review of the rating chart used to determine those subjects to layoff reveals the following as the 13 lowest, annotated to indicate those who are actually laid off: Name Rating Ranked lowest Status Anson__________________ 20 7 Laid off. Brown----------------- 24 12 Retained. Greer------------------ 19 6 Laid off Knowlton-------------- 16 3 Do Edwards --------------- 10 1 Retained Peckham--------------- 20 7 Do. Ringgold--------------- 17 4 Do. Scaia------------------- 17 4 Laid off. Gooday---------------- 22 10 Quit. Biockway-------------- 20 7 Laid off Payne------------------ 24 12 Do Lankaid --------------- 22 10 Do. Kuhlmeier------------- 14 2 Do 40 At this point in Greer's testimony Respondent stipulated that his file contained no record of disciplinary action taken. Counsel refused to stipulate, hosever, that Greer's termination on November 12 had no relation to any shortcomings that he had concerning his work or conduct. SERV-AIR, INC. 409 On the foregoing it is evident that the eight lowest were not laid off. Sprayberry, who with Lolmaugh made the ratings as well as these elections, explained this anomaly thus- That was the fourteen people that had low points on these rating charts,41 there were eight of them on two crews. We decided, even though the people on the two crews that were laid off did not have the lowest points on this chart in some cases, we felt it would be better to lay off two crews in the J-85 engine periodic inspection section which actually is the area of where we had to lay the people off to start with. Q. Now, were these eight people among the lowest fourteen? A. Yes, sir, they were. We decided that we were going to have to lay the people off in the periodic section or a part of the section, we decided it would be best to layoff two crews that were in thus low fourteen point rating. And it is also evident that the eight selected for layoff on November 6 were the September 2 strikers who returned to work on September 3 and were allegedly segregated into two distinct work crews (supra, section IV, B, 7). On the other hand. monthly production records of the Company subpenaed by General Counsel and introduced by him into the record indicate that of all of the full crews pro- ducing during July, August, September, and October, the Scala crew was the low- est producer in July, August, and October, and the second lowest in Septem- ber, and the Greer crew was the second lowest in July, third lowest in August, and lowest in September and October, tying with the Scaia crew in the later month 42 18 The Perry Field reduction in force Meanwhile the fate of Perry Field, the auxiliary base, had been settled by a directive of November 16, 1964, of the vice-commandant of the Air Force Training Command, Randolph Field, Texas, ordering the field closed. Two days later, on November 18, Headquaiters, Vance Air Force Base, notified Respondent it was terminating operations at Perry "effective this date." Whereupon it was determined that a reduction in force of seven firemen would be necessary to accomplish the curtailment of fire and rescue operations at Perry. A rating chart similar in form to the one set up for the JEFM shop layoff was prepared and consultations were had with Christian of the Union, this matter being related to the bargaining unit.43 By the time the selection of candidates for layoff was completed, one employee had already quit and only six remained to be selected. Included among the six was 41 The rating chart, being General Counsel's Exhibit 17( a) and (b) shows only 13 employees with a rating of 24 or less. 42 The crew compositions in July and August did not include the total eight who were laid off in November as did the September and October records In fact Edwards was the only one in either of these two crews that was in either Scala's or Greer's crew at the outset, and he, with a score of 10 was not laid off. 43 The foregoing is based upon the undenied assertions of Assistant General Manager Hood 'Neither Christian nor Crowley, an employee at Perry, both called to testify for the General Counsel on the third day of the hearing, were questioned on the subject of the Perry layoff. Upon the conclusion of General Counsel's case the hearing recessed for several months. During the intervening time counsel for the General Counsel prepared a number of written offers of proof which he served upon the parties and Introduced into the record over Respondent's objection By this time counsel for the General Counsel had rested his case and had neither moved to reopen for the purpose of supplying additional evidence nor to amend his complaint. Because I deem the matters contained in these offers to constitute little more than either an accumulation of evidence already in the record or supplemen- tary materials relating to issues on which counsel had failed to examine the witnesses when they were on the stand I reject them as unnecessarily burdening and confusing the record Christian's expected testimony relating to the layoff of Chodrick was in such a cate- gory although Christian, who testified on the third day of the hearing, was not questioned on the subject nor was his return to the stand requested at any time thereafter. I spe- cifically reject the offer directed to his expected testimony. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee Ressie Chodrick, whose prominence in the Union's activities has previously been discussed. Chodrick, a fireman, had been employed by Respondent for over 4 years and was given the rating of 17 on the chart, the third lowest of a comple- ment of 58. Prior to his employment by Respondent, Chodrick had 4 additional years of experience as a fireman as a civil service employee. Chodrick, it will be recalled, was the leader of the firemen's walkout on Septem- ber 15, had previously been active as the Union's shop steward, and was the Union's only witness at the representation hearing preliminary to the Union's certification of the firemen's unit. No one questions that Chodrick was the most active and militant union member of the bargaining unit. When he was told by Hood at a meeting between Hood and union representatives that he was selected for layoff he and Union Representative Christian immediately protested that his selection was for reasons of his union activity and that the chart's ratings did not represent an objective evaluation of his qualifications. Hood, in his testimony, admitted to the Union's protest of Chodrick's selection, and he also described a companion grievance that was raised. It appears that an employee of less than a year's service, Marler, was being retained and another, Field, with more than a year's service, was being laid off. Upon reconsideration of this case, Hood reversed the decision that had been made by his subordinates, personally notified Field that he would be retained, and told Marler that he would be let go "due to his very little seniority." However, Hood told the union repre- sentatives at that time that Chodrick's case, involving over 4 years seniority and 8 years experience, "would have to stand." 44 Accordingly on November 25, Chod- rick and five others were terminated with pay running through December 3. 19. The threat to pickets The hearing in this matter was set originally for January 11, 1965, but did not get under way until the following day due to transportation difficulties experienced by me. On the morning of the eleventh, however, the employee-members of the Union, including those not in the bargaining unit, again engaged in a strike and established a' picket line at the main entrance at Vance Air Force Base. The genesis of this strike is worthy of note. During the fall 1964 there had been numerous unfair labor practice charges filed with the Board's Regional Director and by November 27 two complaints had been issued, consolidated, and amended. Finally on December 2, the Regional Director rescheduled to January 11, 1965, the hearing originally set for December 15, 1964. On the following day, Decem- ber 3; it is stipulated that the Union wrote to Respondent stating its intention to strike on January 11, 1965, thus coinciding with the opening of the hearing. The exact purpose of the strike that was in progress on my arrival upon the scene was never disclosed on the record. It is quite apparent, however, that it, like all of the Union's activities following its certification in the firefighting unit, was for the purpose of organizing the rest of the base. During the course of this latest strike it is claimed that a number of pickets were struck by cars approaching and passing through the main gates. And it is specifically alleged, by way of an amendment to the complaint, that Max Cumpston, director of Base Operations, "instructed, directed and encouraged" employees to strike picketing employees with their automobiles. Employee Charles L. Cagle supplied the details of this incident which I accept. On Friday, January 8, meetings of the employees were called in anticipation of the strike expected on the following Monday morning, and the ground rules respecting the strike, rights of pickets, obligations of employees, etc., were explained. At one such meeting addressed by the county sheriff, Cumpston added his own instructions. During the question period which followed an employee asked Cumpston "what if someone stepped out in front of him, one of those pickets, "For reasons previously stated I do not credit Hood generally but only upon admis- sions contrary to his or Respondent's Interest. Accordingly I do not credit his denials that these selections were based upon considerations of union activity. As I do not credit Chodrick generally I do not rely upon the statements which he at- tributes to Hood throughout this incident to the effect that the selection of Chodrick "goes back four years" when he was involved in a wage and hour grievance, or that Hood has stated that "he had the goods on Chodrick," the latter statement being allegedly reported to Chodrick by Union Representative Christian who never testified concerning it himself. (Cf. footnote 21, relating to offers of proof which I do not accept.) SERV-AIR, INC. 411 when he was going through the gate." In reply Cumpston asked the questioner what he would do if "a man ran out in front of you." The questioner replied that he would have to hit him because he wouldn't have a chance to stop if he just ran out. Whereupon Cumpston replied, "There you have it. I guess the fence will stop him; if it doesn't he will end up in [a field]." Cagle testified without further explanation that midway in his reply Cumpston turned away and laughed. Cumpston, called by Respondent, corroborated Cagle and identified the ques- tioner as one Tex Frazier. Frazier was not called. In verifying the statement attributed to him Cumpston credibly explained that he was using an illustration to emphasize the fact that if someone did jump out in front of the driver's vehicle and he could not avoid hitting him there would, under such circumstances, be no fault. He testified further, however, that throughout his talk and after discussing this particular illustration that he placed much emphasis upon the need for all employees to drive with extreme care. There is nothing in Cagle's testimony to suggest that he did not. C. Analysis and conclusions The substance of the findings I have made herein presents for consideration an interrelated series of events that does credit to few, if any, of the parties or indi- viduals involved. They present (1) an employer with a predilection for resisting the principles of collective bargaining, as well as the legitimate organizing efforts of its employees, (2) a labor organization whose representatives have resorted to a peculiarly immature approach to the organizing and bargaining processes, and (3) a group of interested and partisan employees whose antics are worthy of the average school yard. Be this situation as it may, the rights of all of the approxi- mately 1100 employees are concerned here and these are the rights which deserve the fullest protection afforded by the statute, regardless of the irritants and obstacles at hand. Accordingly, to the extent that employees are deprived of their rights, either actually or potentially, it is the deprivation and not the peculiar manner in which the rights may have been asserted that will be of prime importance in the several analyses which follow. 1. The refusal to bargain No one contests the Union's status as representative of the employees in the Fire and Rescue Department and the Board's earlier findings in this respect in Case 16-RC-3593 and the very wording of Sections 8(a)(5) and 9(a) of the Act clearly established Respondent's obligation to bargain collectively with such a certified representative. Despite this obligation explicitly imposed upon Respondent by the terms of the May 1964 certification, it admittedly changed the working hours and conditions of its employees in the bargaining unit in a number of respects enumerated above, without any consultation whatever with the Union (supra, section IV, B, 3). This, as I ruled at the hearing upon Respondent's admission, constitutes a clear refusal to bargain in violation of Section 8(a)(5), and sup- porting citation of authority is unnecessary in this restatement of my finding and conclusion to the same effect. In so doing, I find as a fact that Respondent has agreed on the record to be bound by my oral finding of a violation of Section 8(a)(5) and has agreed further that it would file no exceptions thereto. 2. The notice Included in the notice posted by Respondent (supra, section IV, B, 1), and quite apart from its prohibition of union solicitation, is a statement that the Union's organizing campaign is a matter of serious concern to the Company. The notice states further It is, however, also a matter of serious concern to you and our sincere belief is that if this Union were to come into this Plant, it would not work to your benefit but to your serious harm. This very phrase in an employee notice has frequently been reviewed by the Board and found to constitute unlawful interference, restraint, and coercion 45 Indeed a varient of the phrase substituting for the last segment of the final sentence: "but in the long run operate to your serious harm," has also been pro- 46 Morris and Associates, Inc, 138 NLRB 1160; White Oak Acres, Inc, 134 NLRB 1145; Owens-Corning Fiberglas Corporation, 146 NLRB 1492 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed by the Board 46 Upon such authority, therefore, I would conclude that so much of the posted notice as I have quoted above constitutes interference, restraint, .and coercion in violation of Section 8(a)(1) of the Act. 3. The Haley-McCarty discharges The notice considered above also stated that: (6) No person will be allowed to carry on Union organizing activities on the job. Anybody who does so and who thereby neglects his own work or inter- feres with the work of others will be subject to discharge. Because this no-solicitation rule seeks to regulate employee activity only during working hours, it is presumptively valid on its face.47 If, therefore, it is illegal it is because it has been promulgated discriminatorily 48 or discriminatorily applied.49 It was promulgated in November 1960, long before any of the, incidents related herein occurred, including the May 1964 representation election conducted by the Board which resulted in the Union's certification. As a long term proposition this, it would seem,, nullifies any suggestion that the 4-year promulgation of the notice was discriminatory. I would. accordingly conclude and find that absent evidence of dis- criminatory promulgation the no-solicitation provision of the notice, in and of itself, as not discriminatory. There remains however for determination whether this provi- sion of the notice was discriminatorily applied.50 Employee Alfred McCarty, by his own admission (supra, Section IV, B, 5, a), roamed about the plant soliciting employees during regular working hours on August 31. A reading of his testimony suggests that the only possible excuse he may have had was his belief that some of the employees were not at work when, in fact, they were; or that they weie taking a periodic "smoke break." McCarty's soliciting activity was duly reported to Respondent's officials by those employees whom he solicited and who objected to his interference. And Respondent, upon receiving such information, enforced the rule by imposing the stated penalty of discharge. Commonsense and a normal interpretation of a usual plant rule prohibiting solicitation "on the job" or "during working hours " certainly does not permit of distinctions so finely drawn that workers being solicited must have tool in hand before the solicitation becomes improper. Nor do I believe that Respondent's super- visors should' be held to this standard of vigilance in the enforcement of such a shop rule. McCarty was, by every reasonable criteria, soliciting on the job and upon the facts found, it is clear that his was a discharge for cause . Nor does it become less because his activity was in behalf of the Union. The Act does not provide insulation in such circumstances 51 Any union solicitation is union activity and indeed it is this particular type of union activity, solicitation on the job, that can and has been legitimately restricted.52 It cannot be used here, therefore, as General Counsel urges, as the premise for excusing a violation of a plant rule. Finding as I do, that McCarty was properly discharged for cause I would recom- mend that so much of the complaint alleging this to be a violation be dismissed. The discharge of Joe Haley stands on no different footing (supra, section IV, B, 5, a). There is no question but that he did solicit an employee who was working on the job. Haley himself testified to this, seeking to excuse the incident by explain- ing that he mistook the time. Accepting as I do Haley 's belief that he had misread the clock when he recruited the employee concerned, the simple fact is that he violated the posted rule. Accordingly, when this violation was reported to Respond- ent the posted penalty for violation-discharge-was properly imposed. Accord- ingly, and upon the same considerations as noted in McCarty's case above, I con- .s Sagamore Shirt Co., 153 NLRB 309. The italicized words were added to the notice In that case. l7 The Rose Company, 154 NLRB 228; Ward Manufacturing, Inc., 152 NLRB 1270; Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d 177 (C.A. 5) ; Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527. -is Ward Manufacturing, supra. 419 Sagamore Shirt Go, supra. ss Sagamore Shirt Co., supra. m Cf. Southwire Company, 152, NLRB 1594; Tampa Coca-Cola Bottling Company, 130 NLRB 1505, 1509, and footnote 7; Wax Corporation, 132 NLRB 1059, 1078 and footnote 34. 52 Walton Manufacturing Company, supra SERV-AIR , INC. 413 elude and find that Haley, too, was discharged for cause and I shall recommend that so much of the complaint as alleges his discharge to be a violation of the Act be dismissed. 4. The first walkout The facts clearly establish the Haley-McCarty discharges to be the direct cause of the several walkouts which followed (supra, section IV, B, 6). It is of no con- sequence, however, that the subject matter of the protest, the discharges, turn out to be for good cause and not violations of the Act, for the distinctions between a so-called economic and an unfair labor practice strike relate only to the after- math; an unfair labor practice striker being entitled to reinstatement upon request under any circumstance and an economic striker being so entitled only if he has not been permanently replaced.53 In no strike or walkout situation occurring herein has representation been made that any striker was permanently replaced. It is of no consequence, therefore, that the strike was of one variety rather than the other. I conclude and find, however, that the initial walkout on September 2 was in fact an economic stiike. 5. The segregation of returning strikers Respondent's reassignment of returning JEFM shop strikers to two specific crews (supra, section IV, B, 7) is claimed to be unlawful as a discriminatory reprisal for their walking off the job I have credited Director of Aircraft Main- tenance Hill's explanation for this reassignment as being one dictated by the emergency situation created in the plant by the walkout, and as an assurance, of sorts, that the production of the shop would not again be completely disrupted in case another walkout by these people occurred. In N.L.R.B. v. John Brown, 380 U.S. 278, the United States Supreme Court, holding to be lawful a lockout in response to a whipsaw strike, where operations continued with temporary help, stated (at 283): In the absence of proof of unlawful motivation, there are many economic weapons which an employer may use that either interfere in some measure with concerted employee activities, or which are in some degree discrimina- tory and discourage union membership, and yet the use of such economic weapons does not constitute conduct that is within the prohibition of either § 8(a)(1) or § 8 (a)(3). See, e.g., Labor Board v. Mackay Radio & Telegraph Co., supra; Labor Board v. Dalton Brick & Tile Corp., 301 F.2d 886, 896. Even the Board concedes that an employer may legitimately blunt the effec- tiveness of an anticipated strike by stockpiling inventories, readjusting con- tract schedules, or transferring work from one plant to another, even if he thereby makes himself "virtually strikeproof." As a general matter he may completely liquidate his business without violating either §8( a)(1) or § 8(a)(3), whatever the impact of his action on concerted employee activ- ities. Textile Workers v. Darlington Mfg. Co., [380 U.S.] 263. If then an actual exclusion of employees from their work can thus be lawfully effected under certain conditions specified by the Court, a foi tioi i, the assignment of employees to specific work stations for the purpose of safeguarding against future strike action would be equally permissive Thus as the Supreme Court stated on the same day in another case involving the legitimacy of a lockout, American Ship- ping Building Co. v. N.L.R.B., 380 US. 300, 311. . . [W]e have consistently construed [Section 8(a)(3)] to leave unscathed a wide range of employer actions taken to seive legitimate business interest in some significant fashion, even though the act committed may tend to discour- age union membership. Upon the foregoing authority, therefore, I would conclude and find that the reas- signment of employees to new woik stations upon their return from their strike was a safeguard by which "the employer may legitimately blunt the effectiveness of an anticipated strike," and was neither a discrimination in violation of Section 8(a) (3 ), nor interference, restraint, and coercion in violation of Section 8(a)(1). I will accordingly recommend that so much of the complaint that alleges such a violation be dismissed. 53 N L R B v. Mackay Radio & Telegraph Co , 304 U. S. 333, 343. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The September 4 conditional offer to return As set forth in detail earlier in this Decision (supra, section IV, B, 8 ) the treat- ment of the 15 strikers upon their return from their 1-day protest of Haley's and McCarty's discharge sparked a series of walkouts. The JEFM shop employees responded in greater numbers, 26, to be exact, and at the end of the day they agreed, it will be recalled, to return to work on the following morning, to find when they appeared that the same rearranged assignments were to be observed. When asked if they were ready to return to work their leader stated that they were giving the Respondent until the following Tuesday (September 8) to rearrange the work- place assignments to their original form. Respondent interpreted this ultimatum to be a condition upon the employees' return and refused to let them work. It is this refusal on the morning of September 4 that General Counsel alleges to be a dis- criminatory lockout violation Section 8(a)(3). It is well settled, of course, that an employer need only reinstate strikers upon their unconditional offer to return to work 64 It is critical to the issue presented, therefore, to determine if the strikers, who returned on September 4 and were refused, had placed a condition upon their willingness to work. The Board has recently considered facts similar to this in Northeast Products Co., Inc., 147 NLRB 675, holding that where strikers were unwilling to work on existing terms but only upon proposed new terms the employer "was reasonably justified in regarding the strike as not yet over." Relating this case to the instant one the assertion of employee Ringgold (supra section IV, B, 9 ), speaking for the men, "We will give you till 7:45 Tuesday to put us back where we were before," is on no different footing. Upon it I conclude and find that Respondent's Hill was "reasonably justified," as was the employer in the cited case, "in regarding the strike as not yet over." Accordingly, I would recommend that so much of the complaint as alleges the employees' September 4 absence from work as a lockout in violation of Section 8(a)(3) and ( 1) be dismissed. 7. The unlawful lockout of September 8 The continuing walkout on September 4, augmented by at least 28 more employ- ees (supra, section N, B, 10 and footnote 17) was interrupted by still another offer to return-this return set for the morning of September 8. By this offer the Union, speaking for the strikers, "respectfully demanding that the Company . . . allow all concerned to return to their jobs without any more retaliatory measures being taken against them because of their concerted activities." This request to return, unlike the previous one, had no condition attached to it . By it the men were ready, willing, and able to work, expecting that when they did so they would not be pun- ished. This is not a condition; it is simply an expression of their right not to be hurt. When the men employed at the base shop appeared for work on the morning of September 8, however, they were refused, Respondent insisting it had already made its emergency arrangements at the base shop for that day's work in anticipation of a continuing strike . When the returning strikers employed in the JEFM shop learned _ of the treatments of the base shop strikers this group again walked off their jobs in protest. Here we have two separate situations . One group allegedly locked out-the base shop employees. Another group who never waited to learn if they had work, but who left in protest-the JEFM employees. The former has been deprived of work, the latter has not-and the distinction is critical in remedying any loss of pay that may have occurred. Accepting on its face Respondent's reasons for curtailing base shop work on the morning of September 8 as being prompted by. operational necessity it remains to be seen if this justifies locking out the base shop people for that day; remembering of course, that on September 4, immediately before the intervening weekend, the striking employees made what I have already found to be an unconditional offer to be at work on the 8th. Preliminary to any consideration of a lockout as a Section 8(a)(3) violation is the assessment of the employer's motive. Cf. N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221; American Ship Building Co. v. N.L.R.B., supra. Respondent's motives are manifest. Thus it has already been found that Respondent has an admitted the pre- 51 Deaton Truck Line, Inc., 152 NLRB 1531 , footnote 10; Park Edge Sheridan Meats, Inc., 139 NLRB 748, enfd. 323 F.2d 956 (C.A. 2). SERV-AIR, INC. 415 disposition to ignore its bargaining obligations with the Union (supra, section N, C, 1), and in addition, it has made repeated inquiries of its employees as to the Union, its campaign, and their position with respect to it, it has singled out its leaders for criticism, has told other employees that the Union would jeopardize their jobs (supra, section IV, B, 4), all of which I conclude and find to be unlawful inter- ference, restraint, and coercion in violation of Section 8(a)(1).55 Added to this Respondent has posted a notice, the essence of which I have already found to con- stitute a threat (supra, section IV, C, 2) and which states in paragraph 2 that "it is our positive intention to oppose this Union and by every proper means to prevent it from getting in here," and, as the recitation of all the facts herein disclosed, it has carried on throughout the entire period covered by this Decision its own har- assment of the Union, which I will consider in detail as we continue in this Deci- sion. Under all the circumstances enumerated above, therefore, and upon the facts found herein, I can and do infer from them Respondent's antipathy to the Union. Being so motivated and with three working days in which to prepare (September 5, 6, and 7) I would conclude and find that Respondent's failure to accept the strikers' September 4 unconditional offer to return was in fact rejected because of the Respondent's antipathy to the Union and that the alleged unpreparedness of the base shop on September 8 when the men appeared there for work was of the base shop on September 8 when the men appeared there for work was but a contrived excuse to put them off for another day. With 3 days in which to adjust itself it cannot be heard to say that the men's arrival on the morning of the 8th caught them unprepared and thereby justified depriving these men of work until the fol- lowing day. I find Respondent's excuse to be but a pretext for its desire to thwart or punish its employees for engaging in a legitimate concerted activity. I accordingly conclude and find that Respondent's 1-day lockout of the base shop employees whose names are enumerated in footnote 17 supra, as discriminatory and a violation of Section 8(a)(3) and (1) of the Act. I am conscious, to be sure, of a distinction that I have made herein in the appli- cation of the law governing an employer's resort to self help. Earlier I justified a reassignment of work stations as a legitimate anticipation of future strike activity, citing recent Supreme Court decision. Here I have found a subsequent lockout to be unlawful. This, it would seem, is the element of balance suggested by the Court in John Brown v. N.L.R.B., supra. While I have not overlooked the likelihood of a continuing antiunion motivation on Respondent's part I would direct my conclu- sions to the consequences rather than to the acts themselves. Thus the reassignment of work stations deemed to be justified was, at most, an inconvenience to employees. The lockout above, on the contrary, was not shown to be justified but to be moti- vated by a spirit of reprisal. This constituted, not a mere inconvenience in work location, but an computable loss of pay. Because there is no evidence that the JEFM employees were deprived of work on September 8 and upon the evidence that they actively refrained from work in protest of the base shop lockout I specifically conclude and find that no discrimina- tion was visited upon this group on this occasion. Indeed Union Representative Christian's telegram dated September 8 establishes this very fact, specifically identi- fying two distinct groups as "the groups that were locked out and the group that walked out protesting .. .. I accordingly recommend that so much of the complaint as alleges the absence from work of the JEFM strikers on September 8 to be a violation of Section 8(a) (1) and (3) be dismissed. 8. The firemen's walkout and lockout The walkout of the firemen on September 14 is set forth in the findings above (supra, section IV, B, 14) and appears to have been prompted by Respondent's unwillingness to engage in an immediate , on-the-spot settlement of a grievance of undetermined merit. Regardless of the clouded circumstances and the questionable wisdom which prompted the men to walk out there is nothing in the record to sug- gest it was not a protected activity. And because all were subsequently returned to their job it is of no consequence that this was or was not an unfair labor practice strike. Actually it is the circumstance of their return that is at issue. Detailed in the facts (supra, section IV, B, 14) is the Union's telegram of Sep- tember 15 "advising" Respondent that the employee members of the Union would 55 Cf. Fontainebleau Hotel Corporation, 131 NLRB 14, footnote 2. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report to work on the following day, September 16. Respondent rejected this offer calling it a conditional one which it was not obliged to accept. The portion of the Union's offer claimed to be a condition was the following sentence in the telegram: Be further advised that they are interested in returning to their lobs and remaining on their jobs as long as the Company doesn't create new instances that would cause another disturbance . [Emphasis supplied.] This is the Respondent's second such objection to an employee offer to return (supra, section IV, B, 11). A reading of this one makes it abundantly clear that the employees were attaching no strings whatever to their return. What they did was to reserve their rights, for the future and after they returned to work, not to be hurt. I would conclude and find that the employees in the firefighting unit accord- ingly offered unconditionally to return to work on September 16, and indeed seven actually appeared for work at Perry Field and were refused. When thereafter Respondent, by its president's letter, refused to accept this unconditioned offer it effectively locked out the employees. The employees remained in this status until September 17 when they adopted language acceptable to Respondent. During this intervening time, September 16 and 17, based upon my earlier conclusions respect- ing Respondent 's antiunion motivation (supra, section IV, C, 7 ), I conclude and find that the men were excluded from their jobs by Respondent for retaliatory reasons in violation of Section 8 (a) (3) and (I) of the Act 56 9. The buttons and badges The ludicrous spectacle of union adherents and Respondent's representatives seek- ing to outdo each other in a childish display of buttons and badges of all sizes and descriptions nonetheless presents a serious legal issue quite apart from its comic aspects (supra, section IV, B, 15). Upon the conclusion of General Counsel's presentation of evidence dealing with both the button wearing and the subsequent disciplinary terminations I denied Respondent's motion to dismiss so much of the complaint as alleged discharges for such a reason to be a discrimination in violation of the Act. Upon hearing evidence adduced by Respondent in support of its reason for the rule and the terminations I reaffirm my ruling and find a violation of Section 8 (a) (3) and (1) of the Act It is well settled that the promulgation of a rule prohibiting the wearing of union insignia constitutes a violation of Section 8(a)(1) in the absence of evidence of "special circumstances" showing that such a rule is necessary to maintain production and discipline.57 It would follow, as a logical consequence, therefore, that a dis- charge pursuant to such a rule would constitute discrimination in violation of Sec- tion 8 (a)(3). It is Respondent's contention, of course, that "special circumstances" do justify its conduct here, referring to the disruptive influence upon both production and the harmony in the plant, and to the danger to the jet engines inherent in the presence of "foreign objects" on the persons of those working on and near such engines. With respect to its claim that the wearing of insignia creates a disruptive atmos- phere, it would seem that Respondent's own actions defeat its position. Thus, in the first place, its rule restricts the employees to the wearing of one button of their choice. It is difficult to perceive how if each partisan union member were to wear one button the production would be less disrupted and the plant harmony less dis- turbed than if they each wore more than one. It would seem more reasonable to expect that production and harmony would be effected, if at all, by buttons or no buttons; but certainly not on a quantitative basis Moreover, if this objective was seriously being sought by Respondent, it is equally difficult to understand how it could be encouraged, or was intended to be encouraged, by Respondent's own offi- cials, including Assistant General Manager Hood, and those employees who opposed the Union, each wearing buttons of like dimensions expressing opposition to the Union. Indeed if dissension had not been generated by the appearace of union but- tons I can conjure no more effective way to generate it than by Hood's appearance wearing an opposition button. Furthermore, it seems obvious that Respondent's fears GO In this respect it Is to be noted that the employees at Perry Field returned on Sep- tember 17 , and all others on September 18. 57 Floridan Hotel o f Tampa, Inc., 137 NLRB 1484; Fabri-Tek Incorporated 148 NLRB 1623; Parker Seal Company, 149 NLRB 809 ; Harrah's Club , 150 NLRB 1702 ; The Annin Company, Division of Worthington Corporation , 151 NLRB 1512. SERV-AIR, INC. 417 for production and disharmony were of recent origin. Thus, employee Knowlton credibly testified that prior to August 28 many of the employees were wearing more than one union button in the presence of supervisors and were never noticed or reprimanded for it. Nor was it thereafter mentioned to them as a deterrent to either production, harmony, or safety, for in a notice stipulated by the parties to have been posted as late as September 16, 1964, employees were exhorted to observe the "no smoking" regulations and to avoid temporary absents from their work stations, but the wearing of buttons was not mentioned, albeit Respondent subsequently claimed it to be a deterrent to production as well as a safety hazard. Upon the considerations discussed above and in view of Respondent's expressed antipathy to the Union, I reject as implausible its claim that the wearing of union buttons was disruptive of plant production and conducive of disharmony. On the contrary I find that these stated objections to the union member's activities consti- tuted a pretext to mask Respondent's effort to curtail the union organizing effort then in progress. Nor do I accept wholeheartedly Respondent's reliance upon the foreign object damage safety program as the other basis for its promulgation of the button rule. For there appeared to be too many exceptions to the regular observance of these safety precautions to make promulgation of the rule a matter of prime consideration in that respect. Thus it appears that all civilian as well as military personnel, includ- ing Assistant Manager Hood, wore or were permitted to wear plastic name tags affixed to then jackets with a safety clip or pin of a construction identical to the badge worn by Hood and other Respondent officials, and to the proscribed badges worn by union adherents. Similarly it was established at the hearing that employees working on jet engines habitually carried pencils, both loose and clipped, steel rules without clips, cigarettes, and other items in their breast pockets with the knowledge and without the objection of management and supervisors. And finally there is credible testimony (Knowlton) that employees never heard of the safety hazard aspects of the button wearing until the notice was posted restricting, not the wear- ing of buttons, but the number of buttons that might be worn. Upon the foregoing, and without in any way minimizing the need and justification for a rigidly enforced safety program directed to the elimination of foreign object damage, I conclude and find that Respondent's restriction of badge wearing for that stated reason was also but a pretext to curtail union activity of its employees. Most persuasive of Respondent's intent in this matter of badge restrictions and the safety reasons assigned by it were two unrelated situations. Employee Robert E. Summers whose duties were to run a lawnmower credibly testified that although he was terminated on October 23 for wearing too many buttons he never worked any- where near an aircraft or a jet engine. Similarly, there were instances of employees, including Knowlton, who were instructed to remove union legends taped to their jackets under pain of discharge. It challenges credulity to equate the work activities of a grounds keeper or a taped sign on a jacket with the elimination of foreign object damage. Upon all of the foregoing considerations, therefore, I conclude and find that Respondent has not established circumstances of a variety that would except it from the application of well-established rule of law which permits the wearing of union insignia.58 I therefore conclude and find that Respondent has thereby interfered with, restrained, and coerced its employees in violation of Section 8(a)(1), and insofar as it terminated certain of its employees whose names and the dates of their termination appear above (supra, section IV, B, 14) for refusing to comply with the rule it thereby discriminated against them in violation of Section 8(a)(3). 10. The employee petition It is counsel for the General Counsel's contention, as stated at the hearing, that the petition signed by a majority of Respondent's employees between October 1964 and January 8, 1965, and sent to the Board's Regional Director "was encouraged, sponsored and circulated by supervisors and was an antiunion petition and there- fore it interfered with Section 7 rights." It has been established by credible testimony that at least two supervisors signed the petition, and that one of them Huston, actually solicited signatures (supra, section IV, B, 16). So, to that extent, General Counsel accurately states the par- ticipation of Respondent's supervisors in the effort. Cf. Standard Fstting8 Co., 133 NLRB 928. 264-188-67-vol. 161-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD What remains to be considered, however, is whether this petition was, in fact, an antiunion petition and whether its sponsorship by supervisors did deprive employees of Section 7 rights. It is appropriate to inquire, it seems, what Section 7 rights did the petition, on its face, interfere with. All that the petition, as presented to the Regional Director, stated was that those who signed it were, to paraphrase its language, making known their request that the question of a union or no union be brought before them in an election. This, it appears, was nothing more on the part of the employees than an expression of their right guaranteed by Section 7 to determine for themselves whether or not they are to be represented for collective-bargaining purposes or other mutual aid or protection. Thus on its face the petition appears to be nothing more than a mass effort of the employees to secure for themselves what the Act provides for them through Section 9(c), namely, an election. . The vice in this petition must lie, if at all, in the fact that supervisors as well as rank-and-file employees desired a Section 9(c) election, or in the alternative, that supervisors were instrumental in urging rank-and-file employees to request one. That supervisors had merely joined in such a petition by adding their signatures seems hardly grievous enough to invalidate the document. For if this were so it could bring into question those situations where employees' supervisory status might be in doubt. Thus if their names were included in a Section 9(c) petition this might well be the cause of invalidating the petition and the otherwise valid representation proceeding flowing from it. This would be a ludicrous result and I reject any sug- gestion that the presence of a supervisor's signature on an otherwise valid election petition in and of itself invalidates it. It remains to be considered, therefore, whether solicitation by a supervisor of signatures on a petition for an election is actually deprivation of employee rights. This Respondent has been found by me to have harbored animus against the Union and has engaged in a variety of unfair labor practices designed to thwart the Union's organization efforts. Having thus given unlawful expression to the ani- mus it bears, in an effort to curtail the Union, to now permit it to urge through its supervisors a choice among its employees would simply permit the employer to reap the harvest of its earlier efforts. It has long been settled that an employer may not be permitted to enjoy the fruits of his own unfair labor practices 59 and that is pre- cisely what would occur here for an election to be held when so requested. To the extent, therefore, that Respondent's supervisors sought such' a result it thereby deprived all of the employees of an election free from the debilitating effects of the Respondent's unlawful conduct. Under these circumstances, therefore, I would find that the supervisory sponsorship of the otherwise legitimate request for an election constitutes interference with the employees' Section 7 rights in violation of Section 8(a)(1). 11. The November JEFM layoffs It is General Counsel's contention that the reduction in force resulting from the change in inspection operations (supra, section IV, B, 17) constituted discrimina- tion for two reasons: That the time was discriminatorily selected, and that the employees were likewise discriminatorily selected. There can be no question but that a reduction in force was necessary in the fall of 1964. Documentary evidence in the form of Air Force directive and correspond- ence, as well as undisputed testimony, detail the technical circumstances which dic- tated curtailing the work force of the JEFM shop by 16 men, 8 of whom were actually eliminated by attrition. A review of the chronology of this technical deci- sion and the events leading up to it (supra, section IV, B, 17) indicates that although the likelihood of such a change was known throughout the summer, it was not until September 2 that accurate information on the nature and extent of the change was available to Respondent in the form of the "work cards" received from Air Force Headquarters. The 6 weeks which followed were devoted to study of the new operations, and by October 12 the need for curtailment of work force became apparent. Within 2 days the extent of the reduction had been determined and the date, October 23, was set for implementation. Meanwhile the Air Force was requested by Respondent to find other work for those affected and replied a week later that it would be unable to assist. On November 6 the reductions became effective. 59 Franks Brothers Company v. N.L.R.B., 321 U.S. 702. SERV-AIR, INC. 419 There is certainly no appearance of precipitate action or panic in the plan to reduce the work force and• the very chronology noted above is sufficient to estab- lish this fact. It had to be done, everyone agrees. General Counsel has suggested no reason why an earlier or a later date would be less discriminatory, and indeed had Respondent moved with any greater dispatch the employees reduced by attri- tion would most certainly have been included among those terminated in fact. And had there thus been greater dispatch the terminal date would have more closely coincided with the several walkouts which occurred in September (supra, section IV, B, 6) and with the badge dispute (supra, section IV, B, 15) which occurred in October. It could then have been argued more effectively that a greater number were being terminated than there would have been had attrition been permitted to set in, and that the layoff was being perpetrated in the throes of a labor dispute. As matters stand I am satisfied, and I conclude and find, that the date for the reduc- tion in force was not selected for discriminatory reasons and I would recommend that so much of the complaint as alleges the selection of the date to constitute a violation of the Act be dismissed. The selection of individuals for layoff stands on less firm ground, and for the reasons which follow I am disposed to conclude that it was done for discriminatory reasons. An analysis of the facts relating to this selection (supra, section IV, B, 17) discloses that each of the eight who were selected had been designated by the Union as a shop steward, and each was known to be such by Respondent's supervisory personnel. Moreover, the eight selected, based upon all the facts found herein, were known to be the most active in the Union's organizing campaign, quite apart from their designation as stewards. They all participated in the several JEFM shop walk- outs; were discriminatorily locked out on September 8, and excepting only Lankard, were the employees grouped together in the same working area (supra, section IV, B, 7) in an effort to soften the blow of a future walkout. Thus there is no question that the leaders were the ones selected. Had the leaders been, in fact, objectively selected for layoff certainly it could not be said that their prominence and activity had earned for them some special immunity.60 But the claim of objectivity is simply not supportable. I have detailed above (supra, section IV, B, 17) the significant facts relating to each employee selected. These facts disclose that on the basis of allegedly objective criteria many employees with little or no seniority were retained at the expense of men like Greer and Scaia, for example, each of whom had a maximum of five seniority points. Similarly, over the entire gamut of so-called objective criteria the individuals selected were rated sufficiently low to bracket them in the lowest segment. In view of the circumstances under which these criteria were applied and the ratings made, the objectivity of the process is certainly open to question. Thus in a continuing atmosphere of tension between the management officials who made the ratings, par- ticularly Sprayberry and Lolmaugh, on the one hand, and the union leaders being rated, on the other, and in the light of Respondent's animus toward the Union which I have already found to exist (supra), it cannot be seriously claimed that the ratings of these leaders are objective when made on such items as job attitude, atti- tude towards supervision, acceptance of rules and regulations, and harmony with coworkers. These are the areas of human relations in which effective union leader- ship is most vigorous. Certainly-'then to test these leaders by standards and values applied by the other party to a running dispute would be comparable in the area of baseball, as an example, to the- selection of an umpire from among the players on one of the contesting teams. Respondent's repeated assertion that the categories of evaluation are in themselves objective, however sincerely made, is completely at variance with basic human nature. The categories referred to are those which can- not logically, in the charged atmosphere of the dispute at hand, be the least bit objective. Thus it is reasonable to expect that a partisan union leader in an existing labor dispute would not be found harmonious among all of the workers, nor would he reasonably be expected to docilely accept all of the rules and regulations, includ- ing those whose application he was protesting. Nor would it reasonably be expected that he would be rated too highly in the area of attitude toward supervision. In sum, I am not disposed, under the circumstances present, to view as objective the rating applied for the selection of the employees to be laid off. Assuming, contrary to the facts found, that these ratings were objective and that the employees were objectively rated, it still appears that even'then the ranking estab- 80 Cf. Southwire Company, 152 NLRB 1594. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lished for each did not finally determine who was to be laid off. In section IV, B, 17, supra, I have set forth the status of the 13 lowest in rank. While it is contended gen- erally that those eight who ranked lowest would be laid off this admittedly did not happen. Lankard and Payne ranking 10th and 12th from the lowest were laid off; whereas Edwards, Ringgold, and Peckham, ranking first, fourth, and seventh, were retained. These very exceptions to the stated rule simply add further doubt to the objectivity of the entire process. Upon the foregoing analysis and a review of all the facts found I am persuaded that the eight JEFM employees: Anson, Brockway, Greer, Kuhlmeier, Knowlton, Lankard, Payne, and Scaia, were selected for layoff on November 6, 1964, not for reason of their ranking in an evaluation which I do not find to be objective, but because of their prominence and their active participation in the affairs of the Union Nor am I disturbed that some of the employees may well have displayed deficiencies in one or other of the critical areas of evaluation. I am persuaded that Respondent's reliance upon these deficiencies was but a pre- text to mask its true reason which I find and conclude to be a purpose of elimi- nating from its employ the most active union leaders. I accordingly conclude and find that the eight JEFM shop employees named above were discriminatorily selected for the November 6 layoff in violation of Section 8(a)(3) and (1) of the Act 12. Chodrick's discriminatory layoff Everything that has been said with respect to the mechanics of the JEFM shop reduction in force may be repeated with equal force in considering the reduction which occurred among the firemen as a result of the closing of Perry Field (supra, section IV, B, 18). There, as in the JEFM shop, a rating chart was prepared, employees were rated during the same period of union activity on the basis of the same allegedly objective criteria, and the lowest ranking ratees were selected for layoff. In the light of the selection of eight union stewards for layoff at the JEFM shop it is not at all surprising that Chodrick, the avowed leader of the unionized firemen, was ranked 3rd lowest in a group of 58. That Chodrick, a firefighting employee with 4 years' seniority had a total of 8 years' experience in his duties, should receive only 17 out of a possible 45 points raises doubts as to the objective application of the criteria Even more doubts arise when it can be shown from the rating chart that eight employees with a year or less seniority received ratings of 25 or higher. All that has been said with respect to the character of the criteria used in the JEFM reduction applies with equal relevance here and need hardly be repeated. Suffice it to say that such shortcomings as Chodrick may have had were not, in my opinion, the true reason for his low ranking and his selection for layoff. On the con- trary they were but a pretext to conceal Respondent's true purpose, displayed in so many instances herein, to eliminate an active union protagonist. I accordingly con- clude and find that Chodrick's selection for layoff on November 25, was a discrim- ination against him in violation of Section 8(a)(3) and (1) of the Act. 13. The provoking of pickets A reading of the account of the meeting called to brief employees on conduct to be observed during the January 1965 strike (supia, section IV, B, 19) discloses nothing more startling than a questioner, either seriously or in jest, asking what would happen if a picket walked in front of his moving car. Everything in the facts I have found above suggests merely that he was told by Supervisor Crumpson to be careful. There is nothing in the record to suggest that anyone either deliberately or otherwise suggested that pickets be run down by cars. I accordingly recommend that so much of the complaint as alleges such conduct to be a violation of the Act be dismissed for lack of credible, relevant evidence. 14. Summary By way of recapitulation I have concluded and found that Respondent, by its own admission, has refused to bargain with the Union as the certified representative of the employees in the Fire and Rescue Department in violation of Section 8(a) (5). It has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) by (1) posting a notice to its employees, the substance of the offending portion (paragraph 1) being a threat of the consequence of unionization, (2) the interrogation by and threatening statements of Respondent's officials Mase- SRRV-AIR, INC. 421 more and Sprayberry, (3) the restrictions placed upon its employees in the wearing of union insignia, and (4) solicitation of its supervisors of employee signatures upon a petition for an election. Respondent has discriminated against its employees in violation of Section 8(a)(3) by (1) locking out its base shop employees on Sep- tember 8, (2) locking out its striking firemen on September 14-16, (3) terminating employees who refused to comply with its directive restricting the wearing of union badges and insignia, and (4) its selection for termination of active union leaders, exclusively, in the execution of a reduction in force occasioned by a changed method of operation in JEFM shop and by the deactivation of Perry Field. In addition to the foregoing findings and conclusions which support certain allega- tions in the complaint I have also recommended, upon the facts found, that the complaint be dismissed in certain respects. Thus I do not find that any inquiry of Knowlton by Hood as to whether he was "one of those who walked out" was unlawfid in the context of a conversation between the two of them at a union- management negotiating session. Nor have I made any finding with respect to the un- lawful character of a warning letter given to employee Chodrick (supra, section IV, B, 2) or of the giving of tests to employees in the summer of 1964, the record being unclear as to the incidents and, the Respondent having been found to have other- wise violated Section 8(a)(1), the subject matter may be deemed surplusage.81 Other incidents which I have rejected as violation of Section 8(a)(1) are (1) the reassignment of employee work stations in the JEFM shop, and (2) the Respondent's alleged tacit suggestion through Supervisor Cumpston's remarks that pickets be run down by autos In certain respects I find that Respondent's conduct did not consitute discrimina- tion in violation of Section 8(a)(3) and thus have recommended that the complaint be dismissed in such respects Thus (1) employees Haley and McCarty were prop- erly discharged for soliciting union membership either on their own working time or on that of the employees whom they solicited, (2) Respondent properly reas- signed the JEFM employees to work stations on September 2, (3) it was not obliged to reinstate the same employees on September 4 in view of their conditioned offer to return, and (4) the JEFM strikers were not locked out on the morning of September 8, but continued their strike, it never having been established that they were refused work by Respondent. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in con- nection with the operations of the Respondent 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 the free flow thereof. VI. THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and, because of the gravity of its conduct I shall also recommend that it cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act.62 Affirmatively I shall recommend that the nine employees whom it discrimina- torily selected for layoff as part of a reduction in force be reinstated to their former or substantially equivalent positions, if this has not already been done, without prejudice to seniority or any other rights and privileges, and that they be made whole for any loss of earnings suffered by them because of Respondent 's discrim- ination against them, with backpay computed by access to the Company's books, records, and accounts, and in the customary manner,63 with interest added thereto at the rate of 6 percent per annum .64 I shall further recommend that the base shop employees who were locked out on September 8, whose names appear in footnote 17, supra, the firemen who were locked out on September 14 to 16 and 17, whose names appear in footnote 24, supra, and the employees discriminatorily laid off on October 21, 22, and 23, whose names appear in section IV, B, 15, supra, all be made whole in the manner described above. 61 Vacuum Platers, Inc., 154 NLRB 588. e^ N.L R B. Y. Express Publishing Company, 312 U.S. 426, 433. F. W Woolworth Company, 90 NLRB 289 e4 Isis Plumbing & Heating Co , 138 NLRB 716. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There appears in the record and upon the credited testimony of Respondent's president, Truman Miller, the likelihood that on two occasions civilian fire fighting personnel were replaced by Air Force military personnel. Thus, on September 16 Union Representative Christian complained by telegram to the Board' s Regional Director that the Air Force personnel were replacing fire fighting employees whom I have found to have been locked out. Similarly, President Miller testified that during the economic strike in progress during pendency of the hearing Air Force personnel were used as replacements. The United States Supreme Court has specifically precluded the use of the Board's remedial facilities for redressing public injuries of the type suggested by the evidence herein. Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. It would seem appropriate, however, and I recommend, that the proper authorities of both the Air Force and the Department of Defense be advised that in the respects noted herein military replacements have been availed of, however unwittingly, for the purpose of effectuating unlawful conduct. For, to the extent that such replace- ments relieved Respondent of the need to use the employees whom it locked out then to that extent these replacements contributed to the effectiveness of the lockout. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend 85 that Serv-Air, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Unlawfully interrogating employees concerning their or their fellow employees' union membership, activities, or desires. (b) Threatening its employees with discharge or other reprisal for engaging in union activities or for supporting the Union. (c) Posting at its plant a notice informing employees that if the Union' s organi- zational efforts succeeded "it would not work to your benefit but to your serious harm." (d) Restricting its employees in the wearing of union insignia. (e) Soliciting the signatures of its employees to secure a Board election. (f) Discharging and otherwise discriminating against its employees in respect to hire and tenure by layoffs in reprisal for the wearing of union insignia, by selec- tion of them for economic termination because of their active union leadership, and by locking them out because of their participation in protected concerted activity. (g) Refusing to bargain collectively with Smoke-Eaters Lodge No. 898, Inter- national Association of Machinists, AFL-CIO, as the exclusive representative of employees in the following unit found to be appropriate for the purpose of collec- tive bargaining: All employees of Serv-Air, Inc. in the Fire and Rescue Department of the Base Operations and Maintenance Division, Enid, Okla., excluding office clerical employees, fire chief, platoon chiefs, guards, watchmen, and super- visors as defined in the Act. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer immediate and full reinstatement, if this has not already been done, to Thomas E Anson Eldon G. Greer Victor H. Lankard Franklin Brockway Robert L. Knowlton Jesse E. Payne Ressie Chodrick Robert J. Kuhlmeier Thomas D. Scaia to their former or substantially equivalent positions in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Make whole employees whom it has unlawfully locked out or laid off for any loss of pay they may have suffered by reason of Respondent's discrim- as In the event that this Recommended Order is adopted by the Board, the word "RECOMMENDED" shall be deleted from its caption and wherever else it thereafter appears ; and for the word "I recommended" there shall be substituted the words "the National Labor Relations Board hereby orders." SERV-AIR, INC. 423 ination against them in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (c) Upon request, bargain collectively with the above-named labor organiza- tion as the exclusive representative of all Respondent's employees in the unit found appropriate and, if an understanding is reached, embody such understand- ing in a signed agreement. (d) Post at its Vance Air Force Base and Kegelman Field operations copies of the attached notice marked "Appendix." 66 Copies of said notice to be furnished by the Regional Director for Region 16 after being duly signed by the Respond- ent, shall be posted immediately upon receipt thereof, in conspicuous places, including places where notices to employees are customarily posted, and be main- tained but it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken 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 Decision what steps the Respondent has taken to comply therewith.67 00 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 further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 071n the event that this Recommended Order is adopted by the Board, this provision shall be modified to read • "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order, what steps 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 unlawfully interrogate our employees concerning their or their fellow employees' union membership, activities, or desires. WE WILL NOT threaten our employees with discharge or other reprisal for engaging in union activities or for supporting Smoke-Eaters Lodge No. 898, International Association of Machinists, AFL-CIO, or any other labor organi- zation. WE WILL NOT post in our plant notices informing our employees that if the aforesaid Union's organizational efforts succeed "it would not work to your benefit but to your serious harm." WE WILL NOT restrict our employees in the wearing of union insignia NOR WILL WE discharge or otherwise discriminate against them for wearing said insignia. WE WILL NOT discharge, layoff unlawfully, lockout, or otherwise discrim- inate against our employees in respect to hire or tenure because they are leaders in the aforesaid Union or have participated in concerted activities protected by Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain with the aforesaid Union as the exclusive representative of all our employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All employees in the Fire and Rescue Department of the Base Operations and Maintenance Division, Enid, Okla , excluding office clerical employees, fire chief, platoon chiefs, guards, watchmen, and supervisors as defined in the Act. WE WILL offer immediate and full reinstatement to their former or sub- stantially equivalent positions to Thomas E. Anson Eldon G Greer Victor H. Lankard Franklin Brockway Robert L. Knowlton Jesse E. Payne Ressie Chodrick Robert J. Kuhlmeier Thomas D. Scaia 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL make whole for any loss of pay they may have suffered those employees whom we unlawfully laid off , discharged, or locked out, in the manner set forth in the section of the Trial Examiner 's Decision entitled "The Remedy." WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. All of our employees are free to become or refrain from becoming members of the above-named Union, or any other labor organization. SERv-Am INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) 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, Sixth Floor Meacham Building, 110 West Fifth Street, Forth Worth, Texas 76102, Tele- phone 335-4211 , Extention 2145. ,Carpenters Local Union No. 1849, affiliated with the United Brotherhood of Carpenters and Joiners of America , AFL-CIO and William H. Parker. Case 19-CB-1074. October 25, 1966 DECISION AND ORDER On May 10, 1966, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 this case to a three member panel [Members Fanning, Brown, and Jenkins]. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent they are consistent with our Decision herein. 161 NLRB No. 29.