Serv-Air, Inc.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Serv-Air, Inc. and Smoke-Eaters Lodge No. 898, International Association of Machin- ists, AFL-CIO. Cases 16-CA-2744 and 16-CA-2780. June 22, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On April 10, 1967, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the 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. 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 recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Serv-Air, Inc., Enid, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Trial Examiner : Upon charges filed in July and August 1966 , by Smoke-Eaters Lodge No. 898, International Association of Machinists, AFL-CIO,' referred to herein as the Union, the General Counsel issued a consolidated complaint, dated October 17, 1966, alleging that Respondent Serv-Air, Inc., referred to herein as the Company , has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended . Respondent's answer generally denies the commission of any unfair labor practices . A hearing was held before Trial Examiner Herbert Silberman in Enid , Oklahoma, on December 7, 8, and 9, 1966. Subsequent to the hearing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a North Carolina corporation, performs services at Vance Air Force Base and Kegelman Auxiliary Field in Oklahoma under contract with the United States Air Force. During the last calendar year, a representative period, Respondent purchased and received products and goods valued in excess of $50,000 directly from points outside the State of Oklahoma. Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Smoke-Eaters Lodge No. 898, International Association of Machinists , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Background The issues in this proceeding are whether disciplinary actions taken by Respondent against Jerry R. Wolfe and R.A. Chodrick were unlawfully discriminatory, as alleged in the complaint, or were for "good and just cause," as contended in the answer. The discriminations occurred on July 14, 1966, when Wolfe was suspended from his job for the period from July 14 to 22, and on August 7, 1966, when Chodrick was suspended for 1 day and demoted from crew chief, a nonsupervisory position, to fireman.2 The instant controversy has its genesis in the Union's successful drive to organize Respondent's employees and the certification of the Union in May 1964, as the collective-bargaining representative of the employees in Respondent's fire and rescue department at certain Air Force installations, including the Vance Air Force Base, where Wolfe and Chodrick were working during the times material hereto. The Company was opposed to the organization of its employees. Both before and after the certification of the Union the Respondent engaged in conduct which the Board has found in cases reported at 161 NLRB 382 and at 162 NLRB 13693 infringed on its employees' statutory rights. In the first reported case the Respondent was found to have engaged in extensive unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. From the circumstances there found, including ' As International Association of Machinists , AFL-CIO, is not a separate party to this proceeding , its name has been omitted from the caption z The position of fireman is sometimes referred to as fire crashman or fireman crashman 8 At the hearing herein General Counsel requested that official notice be taken of the decision of Trial Examiner Davidson issued on November 1, 1966, despite the fact that exceptions to the decision was then pending before the Board Since the close of the hearing, the Board has issued its Decision and Order in said case adopting the decision of Trial Examiner Davidson Accordingly, I take official notice of said Decision and Order which is reported at 162 NLRB 1369 SERV-AIR, INC. among other factors Respondent's admitted predisposition to ignore its collective-bargaining obligations, its having singled out union leaders for criticism and its harassment of the Union, the Board concluded that the Company looked upon the Union with antipathy, and that it had discriminated against various employees in reprisal for their union activities or protected concerted actions. In the second reported case the Board found further violations of Section 8(a)(1) of the Act on the part of the Respondent in that on February 26, 1966, it discharged and suspended various employees for having engaged in a concerted activity within the protection of the Act. B: The Suspension of Wolfe On July 14, 1966, Wolfe was suspended without pay until July 22 by Fire Chief Willis B. Moxley. According to Moxley, he acted on an oral and a written report that he had received from William B. Allen, another fireman. Allen's report was to the effect that about 7 a.m. that morning, while Allen was on duty in the alarm room, Wolfe came into the room and engaged Allen in a conversation during which Wolfe asked Allen to join the Union and when Allen declined to do so, Wolfe became abusive and profane. At the time Wolfe was advised of the disciplinary action taken against him, he was given an "Employee Warning Notice" which described his offense as follows: "Conducting union activity during working hours, harassing a fellow employee, and personal conduct unbecoming to a Serv-Air employee on or about 0700 hours, 14 July 1966." Moxley explained that the solicitation of Allen by Wolfe contravened a company rule which prohibits employees from engaging in organizing activities on the job and that a notice setting forth the rule is posted on the Company's bulletin boards. Moxley further explained that he was referring to the strong language allegedly used by Wolfe in his conversation with Allen, by the reference in the employee warning notice to "Harassing a fellow employee, and personal conduct unbecoming to a Serv-Air employee." The no-solicitation rule which Wolfe purportedly violated has been posted and maintained by Respondent on its bulletin boards since about November 1960. In the case reported at 161 NLRB 382, the Board found that this notice in various respects was unlawful and specifically found that the ban imposed on solicitation was "promulgated in response to Union activity rather than for the legitimate purpose of maintaining order in the plant and was discriminately enforced in a manner directed to stifling union activity." The Board also found that the discharge of two employees purportedly for having violated said rule constituted violations of Section 8(a)(1) and (3) of the Act.4 Accordingly, to remedy the unfair labor practices found in said case, the Board ordered the Company, among other things, to cease and desist from "discouraging membership in International Association of Machinists, AFL-CIO, Smoke-Eaters Lodge No. 898, International Association of Machinists, AFL-CIO, or any 'The notice containing the no-solicitation rule which was introduced in evidence in this case by Respondent is the identical notice which was before the Board in the case reported at 161 NLRB 382 and which is there quoted in full 5 When on duty in the alarm room an employee was required to monitor a two-way radio and to be prepared to respond to emergencies 771 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 discriminatory purpose or applied in a discriminatory manner or on any other pretext." In the instant case Wolfe was disciplined for having violated the very same rule which the Board has enjoined Respondent from enforcing. Wolfe's suspension for such reason, therefore, violates Section 8(a)(1) and (3) of the Act. In its defense Respondent argues that Allen was on duty in the alarm room when Wolfe engaged him in the conversation for which Wolfe was disciplined. However, the uncontradicted evidence shows that employees while on duty in the alarm rooms were permitted to drink coffee, to converse, and even to watch television. As there is no evidence that Wolfe on the occasion in question interfered with Allen's performance of his duties,6 the mere fact that Wolfe engaged Allen in conversation was not a dereliction of duty on the part of either employee or a breach of any valid company rule. With regard to Wolfe's use of profanity in his conversation with Allen, although such behavior may have been viewed with disfavor by Respondent, it is conceded that it was not the exclusive reason for the disciplinary action taken against Wolfe nor the dominant reason for such action. Fire Chief Moxley testified that the profanity was only "another ground" which motivated his decision to suspend Wolfe. The law is well settled that an employer is not exonerated for discriminatory action taken against an employee merely because there may have existed a valid reason for such action unless his action was predicated solely on such valid reason.7 Furthermore, in this case, Respondent has not demonstrated that Wolfe would have been subject to the same disciplinary action had his only offense been the use of profanity and had not included union solicitation. Accordingly, I find no merit to Respondent's defenses in regard to the suspension of Wolfe. C. The Suspension and Demotion of Chodrick R.A. Chodrick began working for the Company in September or October 1960 as a hand lineman and then as a truckdriver and about March 1961 was advanced to the job of crew chief. In the case reported at 161 NLRB 382, it was pointed out that "[n]o one questions that Chodrick was the most active and militant union member of the bargaining unit," and the Board there found that Chodrick's layoff on November 25, 1964, was a discrimination against him in violation of Section 8(a)(3) and (1) of the Act. In reaching this decision the Board adopted the conclusions of the Trial Examiner to the effect that "such shortcomings as Chodrick may have had were not ... the true reason for his low ranking and his selection for layoff. On the contrary they were but a pretext to conceal Respondent's true purpose, displayed in so many instances herein, to eliminate an active union protagonist." 6 Allen testified that while on duty in the alarm room , "we carry on conversations " and that he did not neglect his job when he was talking to Wolfe ' N L R B v Symons Manufacturing Co., 328 F 2d 835, 837 (C A 7), N L R B v Great Eastern Color Lithographic Corp , 309 F 2d 352, 355 (C A 2). cert denied 373 U S 950 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 26, 1966, Chodrick and other employees, as found by the Board in the case reported .at 162 NLRB 1369, were unlawfully suspended for 2 weeks in violation of Section 8(a)(1) of the Act for having engaged in protected concerted activities. This proceeding is concerned with the suspension and demotion of Chodrick which was effected on Sunday, August 7, 1966. About 8 a.m. that morning some members of Chodrick's crew asked him for permission to air the mattresses in the bunkroom of the building called the crash station , which he granted. (The crews work on 24- hour shifts and are permitted to sleep in the bunkroom when not on an active assignment .) Two of the mattresses were removed from the room through a window and in so doing the window screen may have been damaged. Max Cumpston, director of base operations for the Company, testified that the screen was then 15 to 20 years old and a new replacement would cost no more than $8. The remaining mattresses were taken from the room through the outside door. Assistant Fire Chief James F. Terrell testified that he was on duty that morning and about 7:45 a.m. received a call that some of the men had thrown mattresses out of the bunkroom at the crash station. When Terrell arrived at the station, Chodrick and his crew had already left for breakfast. Terrell spoke with Crew Chief Sedbrook, who was on duty at the crash station, but who could not tell Terrell why the mattresses were being aired. Terrell testified that "It had rained the previous night, and I knew the ground was wet .... I was astonished that [the mattresses] would be out there at this time."8 There is conflict between the testimony of witnesses for General Counsel and for Respondent as to whether the ground was still wet at 8 o'clock that morning. However, neither Terrell nor anyone else on behalf of Respondent testified that upon inspection of the mattresses he found that they had become wet.9 Terrell further testified that "I felt like I had an incident on my hands and being relatively new out there I contacted the Chief (Moxley) and told him what had taken place. I called him by phone, and he told me to contact Security for a photographer and get pictures of the mattresses which I did ..."10 After the photographs were Terrell did not explain the reason for his astonishment. It may have been because it was unusual for mattresses to be aired on Sundays, or because the mattresses were being aired the morning after a rainfall " Fire Chief Moxley testified that the mattresses were damp when they were returned to the bunkroom However, he did not testify that he inspected the mattresses or that anyone made such report to him Furthermore , according to Moxley's testimony, covers were on the mattresses during the time he was at the crash station Although he testified that the mattress covers were changed later that day he was not present when that was done Thus , Moxley's opinion that the mattresses were damp was based upon guess and not upon inspection . The impression which various witnesses on behalf of Respondent sought to give was that the mattresses were somehow damaged by having been placed on the ground which allegedly was still wet from the previous night's rain Max Cumpston, who approved Fire Chief "Moxley's recommendation for the suspension and demotion of Chodrick, when examined concerning the extent of damage caused the mattresses avoided a direct and responsive answer to the question asked him by testifying, "Now, I don't think you can tell me or anyone in this courtroom can tell me when or how much sooner those mattresses will have to be replaced now that they have been soiled and wet laying in the rain than they would have been had this not happened " No convincing evidence was adduced which taken, Terrell went to central station (another building on the base) where Chodrick and his crew had reported after breakfast. Terrell questioned Chodrick as to why the mattresses were outside and Chodrick replied that "there were bugs in them." There was some further discussion between Terrell and Chodrick about the matter, then Terrell returned to the crash station. According to Terrell, "People from Security, Air Police were there at the time. I know one of the Security Policemen came up to me and said he had found a couple of the men trying to move the mattresses or do something to them and he had stopped them." About this time, Fire Chief Moxley arrived at the scene. Fire Chief Willis B. Moxley testified that when he received the telephone call from Terrell he, in turn, telephoned his supervisor, Max Cumpston, and informed Cumpston that there was "some difficulty at the Base," that he was going to the Base and would furnish Cumpston with more information later. When Moxley arrived at the crash station, there were present Terrell, some military personnel, and security police and he observed the mattresses on the ground. Moxley instructed Terrell that as soon as the military completed their investigation, he should have the mattresses brought back into the building. According to Moxley, "Sunday is never a day we air mattresses." Moxley then began an investigation by speaking with Chodrick, various members of his crew, and other employees about the incident. According to Moxley, the only thing that Chodrick would tell him about the matter was that there were bugs in the mattresses and the men had asked him for permission to air the mattresses. i i Jerry L. Niles, a member of Chodrick's crew, gave Moxley a more complete version of what had occurred. According to Moxley, Niles told him that employees on the previous shift had been bitten by bugs so Niles and other employees in Chodrick's crew decided they would air the mattresses. Niles admitted to Moxley that he threw two mattresses out of a window and acknowledged that he heard that the window screen was damaged. Niles offered to pay for the damages. Moxley asked Niles if Chodrick supervised the airing of the mattresses and Niles replied that Chodrick was not present at the time and did not observe the demonstrated that the mattresses were in fact damaged 10 Terrell failed to explain why he thought he "had an incident" on his hands However , Fire Chief Moxley testified that two employees had been suspended the night before because they had left the base while on duty and that he believed the airing of the mattresses constituted some expression of resentment against the Company for suspensions As the only damage , if any, caused by the incident was that the mattress covers may have become soiled (it was not established that the mattress covers were clean before the incident) and a window screen may have been broken (here too, it has not been shown that the trivial damage to the old, inexpensive window screen was caused by the employees who pushed two mattresses through the window), the airing of the mattresses, without more , was not such a forceful demonstration of resentment on the part of the employees as to give rise to any reasonable apprehension that "an incident " of serious proportions was taking place or might occur Moxley further testified that "[ t] hey were lust letting a little steam off by shoving the mattresses out " " Moxley testified that the mattresses had been inspected about 2 weeks earlier and were found to have been free from infestation and that none of the employees with whom he spoke on August 7 had themselves noticed any bugs in the mattresses Furthermore, according to Moxley , the mattresses had been aired about 6 days earlier SERV-AIR, INC. 773 operation but knew that the men were going to take the mattresses outside for airing. After Moxley completed the interviews, he telephoned Max Cumpston who asked what was the cause of the incident to which Moxley replied, "You know as well as I know." By this answer Moxley was referring to an incident which took place the previous night when two employees had been suspended for leaving the base while on duty. Cumpston asked Moxley for his opinion about the matter and Moxley replied, "Well, I think it was the crew chief's responsibility. I think the crew chief should have been in charge of the operation like any other operation. Before any mattress was moved out of that building I think the Assistant Chief should have been contacted."12 Cumpston then remarked, "It looks like this man is continually giving us trouble. It looks like he's come to the final point. We are going to have to take some action on the individual." Moxley recommended that Chodrick should be suspended and demoted to fireman. Cumpston accepted this recommendation. Moxley testified that his recommendation for the disciplinary action against Chodrick was not based entirely on the mattress incident. After Moxley concluded his telephone conversation with Cumpston, he personally prepared an employee warning notice, called Chodrick to his office, and gave Chodrick the notice. The notice advised Chodrick that he was relieved from his position as crew chief, demoted to fire crashman, and suspended for the remainder of the workday. The notice described the reasons for the Company's actions as follows: 1. On or about 0800 7 August 1966, Mr. Chodrick did not adequately supervise and control his crew of men during removal of mattresses from bunkroom for airing and sunning purposes. This resulted in damage to government property as follows: a. Some of the mattresses were shoved out two windows onto the wet ground. (Rained during the night) b. Mattress covers were soiled. c. Window screen frame was broken. d. Clean linen was removed from bed and placed on floor. e. Mr. Chodrick attitude was very indifferent to entire incident. 2. Mr. Chodrick attitude in supervising his crew has been very lax in the past. a. He has failed to comply with required scheduled training requirements for members of his crew, even though Fire Chief just recently counseled with him over training reports over the telephone. b. His laxity in supervising his crew in station duties has been brought to his attention by Asst. Chief numerous occasions. c. Mr. Chodrick attitude to supervisory personnel is arrogant, repulsive and disrespectful. In explanation of Chodrick's demotion Moxley testified, "He's just not qualified in my mind to be a crew chief. Mr. Chodrick has eliminated himself as far as crew chief material in his action and in his duties. He just didn't produce what a chief should in this position." Directing himself more specifically to the items set forth in the employee warning notice Moxley testified that Chodrick neglected his duties with respect to training his crew and in particular Chodrick usually failed to file the required daily written reports of his training activities. While the notice refers to a recent telephone conversation about the matter, Moxley did not testify when that conversation was held. It might have taken place months before August 7, 1966. 13 In any event, the tenor of Respondent's evidence is that Chodrick had been delinquent in discharging his training obligations not merely over a period of months but consistently over a period of years. As to the item in the employee warning notice that Chodrick was lax "in supervising his crew in station duties," again the testimony is very general and would appear to cover a substantial period of time beginning long before August 7. Similarly, the complaint that "Mr. Chodrick attitude to supervisory personnel is arrogant, repulsive and disrespectful" is directed to conduct on Chodrick's part which has been continuing over a period of years. In addition to his testimony, summarized above, regarding Chodrick's generally poor performance of his duties over a long period of time, Moxley testified to several specific incidents purporting to illustrate Chodrick's inadequacy as a crew chief. One such incident, testified to by Moxley, occurred on February 26, 1966. However, that incident was the subject of a proceeding before the Board and, in the case reported at 162 NLRB 1369, the Board found that the disciplinary action taken by Respondent against Chodrick and other employees for their participation in the incident was an unfair labor practice in violation of the Act. i4 Another incident described by Moxley occurred in September 1964 when Chodrick and other firemen engaged in a work stoppage. With respect to this incident, the Board in the case reported at 161 NLRB 382 found that the employees were engaged in a protected activity and that Respondent's later refusal to accept their offer to return to work was "for retaliatory reasons in violation of Section 8(a)(3) and (1) of the Act." 12 Moxley explained that while it is not necessary to obtain permission from the assistant chief before mattresses are aired, nevertheless, it is a custom to inform the assistant chief in advance Moxley further testified, "Mr Chodrick was aware of this, and I knew that Mr Chodrick's attitude in supervising the crew wasn't what it should have been If it was, the mattresses would never have been put out on the wet ground 13 Thus, with respect to the telephone conversation Moxley testified Q Did his reports improve any after you had the talk with him 9 A He told me he would see what he could do. Yes, they did improve They did pickup for a while Q For a while? A. Right Q Drop off again? A They did. Respondent's further evidence shows that during the year 1966, from January until Chodrick's demotion, Chodrick submitted reports on the following days only: April 5, 11, 17, and 19, and July 20 Unless Moxley was referring to the four reports filed by Chodrick during the month of April, when Moxley testified that Chodnck's reports had improved after their telephone conversation, Moxley was referring to a period antedating January 1966 14 At the hearing Respondent contended, despite the litigation in the case reported at 162 NLRB 1369, that the "incident is one of the factors which motivated this discipline [of Chodrick] on August the 7th " 299-352 0-70-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent follows a practice of issuing written warning notices to employees who have engaged in misconduct. It is also the practice of Respondent to keep these warning notices in its files for a period of at least 6 months. No such warning notice for the 6-month period preceding Chodrick's demotion on August 7, 1966, was introduced in evidence. It therefore can be inferred that Chodrick was not given any employee warning notice during that period. Respondent introduced in evidence two warning notices given to Chodrick in October 1965. With respect to one of these notices, which is dated October 29, 1965, and with respect to which Chodrick was suspended for 1 day without pay, Chodrick testified without contradiction that "we had charges (unfair labor practice charges) filed on it and I was paid for that day." The other charge is dated October 19, 1965, and relates to an incident which occurred in April of that year.15 Thus, although the purport of Moxley's testimony is that in his opinion Chodrick had been an unsatisfactory crew chief over a long period of time, Moxley was unable to advert to any specific misconduct or act of misfeasance on the part of Chodrick occurring later than April 1965 (except for incidents which the Board in prior proceedings found were within the protection of the Act) other than matters which had been continuing for long periods of time. Stated otherwise, the import of Moxley's testimony is that although he considered Chodrick to have been a poor crew chief he was unable to point to any deterioration in Chodrick's performance of his duties during the period of more than a year preceding Chodrick's demotion on August 7, 1966. Max Cumpston who approved the disciplinary action against Chodrick testified regarding the reasons for this approval as follows: I agreed with the Fire Chief in the action which he recommended in that Mr. Chodrick had long been a thorn, a source of contention and a lackadaisical performer in his tasks, and therefore, it was relatively easy for me to agree to the suggestions of the Fire Chief, that he be suspended for the remainder of the day and demoted in that he had not been performing his task and this last lack of interest on his part clearly delineated that he was not interested in being a crew chief. The issue regarding Chodrick is not whether he was a satisfactory or unsatisfactory crew chief or whether Respondent had valid reasons for suspending and demoting him, but only whether when Respondent disciplined Chodrick on August 7, 1966, it did so for cause or in retaliation against Chodrick for his union activities and other concerted actions. The case in support of the complaint is strong indeed. It was shown that Chodrick was the most active and most militant of the Union's supporters, Respondent was hostile to the Union, Respondent has engaged in numerous unfair labor practices, and by its past conduct, Respondent has demonstrated a ready disposition to engage in discriminatory, retaliatory disciplinary actions against union adherents. Furthermore, twice before in the recent The notice is as follows NAME Bessie Allen Chodrick POSITION Sergeant-Vance DEPT] Fire Dept Has been warned for the following reason(s) On or about 2 Apr 1965, Mr R A Chodrick acting as backup man for Mr. Robert L Fields did allow Air Force owned 750 pumper fire truck, field No 103, to be backed into the Fire Crash Station with an open hose compartment door past, namely, in November 1964 and in February 1966, Respondent discharged or suspended Chodrick for having engaged in union or concerted activities under circumstances which the Board found constituted unfair labor practices. Moreover, the Board has specifically found that Respondent's discrimination against Chodrick in November 1964 was motivated by a desire " to eliminate an active Union protagonist" and nothing before me suggests that Respondent's attitude in this respect has changed. In these circumstances, an inference of unlawful discrimination may be drawn with respect to the further discipline of Chodrick on August 7, 1966, unless Respondent can show in its defense that its action was for cause unrelated to Chodrick's union activities. The incident on August 7 which precipitated Respondent's decision to discipline Chodrick was trivial. All Respondent has been able to show is that members of Chodrick's crew placed mattresses outside the bunkroom for airing on a Sunday morning when the ground might have been wet, and in so doing may have soiled the mattress covers and may have caused some damage to an almost valueless window screen. Responsibility is attributed by Respondent to Chodrick in that he failed to supervise this relatively menial operation and failed to inform the Assistant Fire Chief that the mattresses were going to be aired. The Respondent's reaction to the incident was so much out of proportion to the alleged offense as to indicate that the misconduct itself had little to do with Respondent's subsequent actions. Thus, when Assistant Fire Chief Terrell came to the crash station and saw the mattresses on the ground, instead of ordering them returned to the bunkroom if he objected to the mattresses being aired on a Sunday morning, he telephoned Fire Chief Moxley and advised Moxley, without any apparent basis for his opinion, that he had "an incident on his hands." Moxley reacted to the call in the same exaggerated fashion as did Terrell. For reasons completely unexplained, Air Force Military Personnel and security police were called to make an investigation. Moxley himself, although he testified he had very little sleep the previous night, came to the base and conducted an investigation. What was being investigated is not clear from the record. That the mattresses were aired by Chodrick's crew with Chodrick' s permission was freely admitted so that no particular effort was required to fix responsibility for the incident. If the subject of investigation was the extent of the damage then, in spite all the time and personnel devoted to the investigation, the investigation was seriously inadequate because nobody, at least insofar as the testimony adduced at the hearing shows, closely inspected the mattresses which allegedly were damaged by the employees' misconduct. The strenuous effort on the part of Respondent to create the appearance of a serious dereliction by Chodrick and members of his crew from something so trivial suggests that Respondent was looking for an opportunity (and judging from the incident onto which it latched-no matter how slight or trivial) for demoting Chodrick. To the argument that the August 7 incident was merely the last which caused damage to the vehicle and three wall lockers Mr Chodrick is further advised to read thoroughly the copy of Change No 1 to SAR 30-6 dated 1 Oct. 65 (attached) relative to future disciplinary action relative to Government or Contractor owned property This warning was issued on the 19th day of October 1965 at the following location Crash Station-Bldg. No. 146 SERV-AIR, INC. 775 straw that broke the camel's back, it is noted that Respondent was able only to point to outdated misdeeds on the part of Chodrick to demonstrate his unfitness for his job, and several of those matters were incidents with respect to which the Board has found that the Respondent had acted unlawfully. Accordingly, I find no merit to Respondent's defense that Chodrick was disciplined on August 7, 1966, for "good and just cause." To the contrary, I find that the disciplinary action taken against Chodrick on August 7, 1966, was in violation of Section 8(a)(3) of the Act and also constitute interference with, restraint, and coercion of employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. of reinstatement, less his net earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F.W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By discriminating in regard to the tenure, terms, and conditions of employment of Jerry R. Wolfe and R.A. Chodrick to discourage membership in the Union, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. The unfair labor practices here found when related to the unfair labor practices found by the Board in the two recent decisions cited above reveal an underlying attitude of opposition on Respondent's part to the purposes of the Act. The unfair labor practices committed by the Company are potentially related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Company's conduct in the past. The preventive purposes of the Act will be thwarted unless the Recommended Order herein is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantee of Section 7, and thus effectuate the policies of the Act, an order requiring the Company to cease and desist from in any manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. Having found that the Respondent unlawfully suspended Jerry R. Wolfe on July 14, 1966, for a period of approximately 1 week, I shall recommend that the Respondent make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned from the date of his suspension, to wit, July 14, 1966, until the date he was returned to duty, to wit, July 22, 1966, less his net earnings , if any, during such period. Having found that the Respondent unlawfully suspended and demoted R.H. Chodrick on August 7, 1966, I shall recommend that the Respondent offer him immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned from the aforesaid date of his suspension and demotion to the date of Respondent's offer RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, Serv- Air, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Smoke-Eaters Lodge No. 898, International Association of Machinists, AFL-CIO, or any other labor organization, by suspending or demoting any employees or in any other manner discriminating in regard to the hire, tenure of employment, or any term or condition of employment of any of its employees. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization , to form labor organizations , to join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer R.A. Chodrick immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make R.A. Chodrick and Jerry R. Wolfe whole in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings each may have suffered by reason of Respondent's discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its place of business in Enid , Oklahoma, copies of the attached notice marked "Appendix." 16 Copies of said notice , to be furnished by the Regional Director for Region 16, after being duly signed by an authorized representative , shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." 16 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." i' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Smoke- Eaters Lodge No. 898 , International Association of Machinists , AFL-CIO , or any other labor organization , by suspending or demoting any of our employees or in any other manner discriminating against any of our employees in regard to their hire, tenure of employment , or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization , to form labor organizations , to join or assist the above-named Union , or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer R.A. Chodrick full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges. WE WILL make R.A. Chodrick and Jerry R. Wolfe whole for any loss of earnings they may have suffered by reason of the unlawful discriminations against them. SERV -AIR, 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, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.