Sierra Academy of Aeronautics, Inc.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sierra Academy of Aeronautics, Inc. and Rolland Weller and Jerry Weller d/b/a Transamerican Employers Group, Inc.' and Brotherhood of Teamsters & Auto Truck Drivers , Local 70, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Case 20-CA-5447 May 20, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On January 19, 1970, Trial Examiner Maurice Alexan- dre issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recom- mending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommend- ed that such allegations be dismissed. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Sierra Academy of Aeronautics, Inc., Oakland, Califor- nia, its officers, agents, successors,- and assigns, and the Respondents, Rolland Weller and Jerry Weller, d/b/a Transamerican Employers Group, Inc., their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraph A, 2(a) of the Recommended Order and substitute therefore the following: "Offer to Edward A. Lloyd immediate and full rein- statement to his former job, or if his job no longer ' Although at the hearing, the Trial Examiner granted the Respondents' motion to amend the caption, he inadvertently failed to do so in his decision We hereby amend the Trial Examiner's decision to reflect that the correct name of the firm under which the Wellers do business is Transamerican Employers Group, Inc exists, to a substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him, in the manner set forth in The Remedy section of the Trial Examiner's Decision." 2. Delete the seventh indented paragraph of Appendix A and-substitute the following: WE WILL offer to take back Edward A. Lloyd to his old job, or if that job no longer exists, to a substantially equivalent position, and pay him for all the wages he lost because of his discharge. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case was heard in San Francisco, California, on September 9, 1969, upon a complaint issued June 24, 1969,' alleging that Respondents had violated Sections 8(a)(1) and (3) of the National Labor Relations Act, as amended, by engaging in unlawful interference, restraint, and coer- cion, and by the unlawful discharge of Edward A. Lloyd. In their respective answers, Respondent Sierra and Respondents Rolland and Jerry Weller denied the commission of the alleged unfair labor practices. Upon the entire record, my observation of the witness- es, and the brief filed by Sierra on behalf of the Respond- ents, I make the following: FINDINGS AND CONCLUSIONS' 1. THE UNFAIR LABOR PRACTICES A. Introduction Respondent Sierra is a California corporation with its place of business located in Oakland, California, where it is engaged in providing aeronautical pilot training services to individuals. At the time material herein, Sierra employed about eight rank-and-file flight instruc- tors, and its admitted supervisors included the following: President Norris N. Everett, Sr. (hereafter referred to as Everett), Vice President Norris N. (Skip) Everett, Jr., Director of Flight Operations Burgess, and Chief Flight Instructor Cohen. Respondents Rolland and Jerry Weller, doing business as Transamerican Employers Group, Inc., are engaged in providing counseling services in labor relations to various employers throughout the State of California, and admittedly were the agents of Respondent Sierra at all times material herein. Beginning on or about November 1, 1968, Respondent Sierra's rank-and-file flight instructors held a series of meetings at the home of Employee Lloyd to discuss ' Based on an original and an amended charge filed on February 19 and April 7, 1969, respectively. 4 No issue of commerce is presented The complaint alleged and the answers, by their failure to deny, have admitted facts which, I find, establish that Respondent Sierra is an employer engaged in operations affecting commerce within the meaning of the Act I further find that Brotherhood of Teamsters & Auto Truck Drivers, Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter called the Union) is a labor organiza- tion within the meaning of the Act 182 NLRB No. 82 SIERRA ACADEMY OF AERONAUTICS 547 their grievances relating to salaries and days off. On or about December 1, 1968, and again about two weeks later, the employees met with a representative of the Union. At the latter meeting , union authorization cards were signed by employees. Thereafter, the Union filed a petition for certification and a Board election was scheduled for February 18, 1969.3 B. Interference, Restraint, and Coercion 1. By Everett and Burgess Employee Lloyd testified without contradiction that at a weekly meeting of instructors with Burgess and Cohen held about 2 or 3 weeks after the authorization cards were signed , the instructors stated that they felt the need for representation in order to be effective; and that Burgess suggested that they seek representation by the Pilots' Association which represented the employ- ees of a number of airlines. Lloyd further testified without contradiction that at another weekly instructors' meeting with Burgess and Cohen held about the end of January, after the notice of election had been posted on Sierra's bulletin board , Burgess asked the employees why they had selected the Teamsters; that Burgess expressed the opinion that the Teamsters, who were engaged in picketing at the college attended by his son, were not the union which the employees needed to represent them; and that he also stated that Everett had stated that if the employees did not like their condi- tions of employment ,, they could leave and obtain jobs elsewhere . Employee Hart testified without contradiction that Burgess stated that he would not want to be associat- ed with the Union. Employee Hart further testified without contradiction that sometime between the time the authorization cards were signed in December 1968 and the election held on February 18, he was told by Burgess that the latter did not feel that the employees should be represented by the Teamsters ; and that during the same period, Everett told him that he would not resist the Union if the employees wanted it, but that it would not be his choice if he were in their position. The complaint alleged that Burgess and Everett unlaw- fully told employees which union they should choose to represent them . Respondents contend that the record contains no testimony supporting the allegation relating to Everett. The contention is without merit. I credit Hart's uncontradicted testimony and find that Everett made the statement attributed to him . Respondents do not deny , and I find , that Burgess made the statements attributed to him. Respondents ' position is that in expressing disapproval of the Union , Burgess was expressing only his personal opinion . I reject the conten- tion and find that since Burgess was an admitted supervi- sor, Respondent Sierra is responsible for unlawful con- duct on his part.4 All dates referred to hereafter relate to 1969 unless otherwise stated. The record does not support Respondents ' claim that Burgess "was originally included-in the bargaining unit " Even if it did, that circum- stance would be irrelevant I further find that the disapproval expressed by Bur- gess and Everett respecting the employees ' selection of the Union interfered with their statutory right to select a collective-bargaining representative of their own choosing, thereby violating Section 8(a)(1) of the Act. Although Everett told Hart that he would not oppose the Union if the employees wanted it, that reassurance was belied by his statement, disclosed to the employees by Burgess, that they could leave if they did not like their conditions of employment. Viewed in such a coer- cive context and in the additional light of Respondents' other violations, discussed below, Sierra's attempt to persuade the employees to withdraw their support of the Union conveyed to them the idea that they might suffer economic consequences if they selected the Union as their bargaining representative. Cf. Vernon Steel Prod- ucts Co., Inc., 146 NLRB 1115. 2. By Vice President Norris N. (Skip) Everett, Jr. During the second or third week in January, employee Shepson , who had signed a union authorization card, informed Everett and Vice President Newcomb that he opposed the Union , that he had made his feelings plain to the other employees, that the employees were divided, and that the vote might be unfavorable to the Union. On January 28, as a result of his negligence while piloting one of Sierra 's airplanes , Shepson was involved in an accident which resulted in damage to the aircraft . Shepson admitted his responsibility and offered to pay the $500 deductible on Sierra's insurance policy. Everett did not accept the offer. On February 14, Shepson and Vice president Everett drove to a coffeeshop where the latter told Shepson that he would not be required to pay the deductible and need not worry about any letter concerning the accident which might be received from the Federal Aviation Agency. Everett, Jr., then asked Shepson what he thought would be the outcome of the election scheduled for February 18. When Shepson expressed the view that the Union would win, Everett, Jr., asked which employees were in favor of the Union. After Shepson named those supporting the Union, Everett, Jr., thanked him and said , "I think in the next weekend there may be some things that will take place that may be a little bit unusual, but we don't want you to get upset." Later that day, Shepson learned from employee Lloyd that the latter had been discharged. About 8 p.m. that night, Everett, Jr., telephoned Shepson and said that although Sierra had told Lloyd that Shepson's case was still pending before the FAA, Shepson had nothing to worry about. On the day of the election, President Everett asked Shepson to act as Sierra's observer, but he declined. About a week or 10 days after the election, Shepson told Everett Jr. that he had voted for the Union because of Sierra's action in discharging Lloyd for supporting the Union. Everett, Jr., replied that there was good cause for the discharge. When Shepson then pointed out that he had not been a union supporter and had not been discharged, Everett, Jr., replied that 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sierra was still waiting for a letter from the FAA regard- ing the outcome of Shepson's case. The complaint alleged that Vice President Everett unlawfully interrogated Shepson, promised benefits to him if he would oppose the Union, and threatened him with disciplinary action because of his support of the Union. Respondents do not deny, and I find, that the foregoing conversations took place as Shepson testified without contradition. Respondents assert, how- ever, that Shepson "volunteered" his comments and' views, and that Vice President Everett made no unlawful promises of benefit or threats. The record clearly estab- lishes that Vice President Everett interrogated Shepson concerning the expected outcome of the election and the names of the employees who favored the Union. It is equally clear from the record that in advising Shepson that he would not be required to pay the deductible and in reassuring him that his. job was not in jeopardy despite his accident, Everett, Jr., was attempting to persuade Shepson to adhere to his expressed opposition to the Union. No other conclusion is reasonably compatible with Sierra's revocation of the promised job assurances after it learned that Shepson had voted for the Union. I find that the coercive interro- gation, promises of benefit, and the withdrawal of assur- ance that Shepson would not be discharged constituted unfair labor practices prohibited by Section 8(a)(1) of the Act. 3. By Respondents Jerry and Rolland Weller a. The conversation with employees Buttler and Ward On February 15, Respondent Jerry Weller went to the home of employee Arlis Buttler to see him pursuant to arrangements made during a telephone conversation with the latter's wife on the preceding day. Those present were Buttler, his wife, and employee Ward. Buttler and Ward testified that Weller stated that he wished to obtain information for an insurance plan that he was preparing on behalf of Sierra which would be entirely paid for by the latter and was to be effective April 1; that Weller further stated he had been trying to reach Ward and another of Sierra's employees; that he removed from his briefcase an insurance booklet containing Sierra's current insurance plan; that Weller began to discuss unfavorable union experiences which he had had; that in response to Buttler's inquiry as to how he should vote in the forthcoming election, Weller stated that he would not vote for the Union because his insurance plan was far better than anything the Union could offer; and that when Ward expressed doubt that the Union would win the election, Weller asked, "how come is that?" According to Ward, the conversation lasted about an hour and a half. Chief Flight Instructor Cohen testified that he was told by Everett that the Wellers planned to discuss the Union with each of Sierra's instructors, and that the subject of insurance would be used as a means of beginning the conversation. Weller testified that he had made the telephone call to Buttler's home in response to a message instructing him to call a number regarding insurance; that it turned out to be that of Buttler; that when he arrived at the latter's residence, he learned that Buttler and Ward were employed as flight instructors by Sierra; that Buttler directed the course of the conver- sation; that they talked briefly about insurance; and that when union matters were brought up, Weller excused himself and left within 15 minutes after his arrival. The complaint alleges that Respondents, through Jerry Weller, unlawfully interrogated , employees regarding their support for the Union, and unlawfully promised employees increased insurance benefits if they aban- doned their union activity. Respondents contend that the record fails to support these allegations since Weller's visit was for the purpose of discussing insurance and the subject of unions was raised by Buttler and Ward. I do not credit Weller's testimony. He was evasive about the extent to which he has been active in represent- ing employers; he admittedly had discussed a business matter with Sierra only two or three days before his visit to Buttler's home; he did not deny having a Sierra insurance brochure with him at the time of the visit; nor did he deny that he had attempted to reach Ward and another Sierra employee. In view of these facts, it strains credulity for Weller to say that he was not aware of Buttler's employment by Sierra prior to the visit. And since he did not specifically deny any of the remarks attributed to him by Buttler and Ward, both of whom testified in a straightforward manner, I credit their version of conversation and find that Weller made such remarks. Contrary to the General Counsel's contention, I find that Weller did not engage in unlawful interrogation when, in response to Ward's volunteered opinion that the Union would not win the election, he merely asked why he so believed. However, I find -that by holding out to Buttler and Ward the possibility of increased insurance benefits in order to induce them to vote against the Union, Jerry Weller engaged in conduct prohibited by Section 8(a)(1) of the Act. . . , I further find that Respondents are all. responsible for such conduct. Since Jerry Weller was an admitted agent of Sierra, it was bound by his conduct. Clarke v. N.L.R.B., 410 F.2d 756 (C.A. 4). Moreover, it is clear from Cohen's - testimony, which constituted an admission binding on Sierra,-, that Sierra knew about Weller's plan to use the subject of insurance as a method of attempting to influence employees to oppose the Union. The record contains nothing to show that Sierra took any steps to stop or disavow Weller's plan. Sierra is thus liable for such conduct. Lake Butler Apparel Co., 158 NLRB 863,.874. As for the Wellers, doing business as Transamerican Employers Group, their liabil- ity for such conduct is predicated on their agency rela- tionship with Sierra, their inclusion in the complaint as named Respondents, and the allegation in the com- plaint that Jerry Weller personally committed the unlaw- ' Drico Industrial Corp , 115 NLRB 931, Port Drum Co , 170 NLRB No 51, fn 3; Associated Divers and Contractors, Inc , 180 NLRB No 62, fn I SIERRA ACADEMY OF AERONAUTICS 549 ful conduct. Henry L. Spiegel Co., Inc., 172 NLRB No. 88 ; Dean Industries , Inc., 162 NLRB 1078, 1100-1101. b. The Hart incident Employee Hart testified as follows. Sometime prior to the election , he told Everett that it was he who had been the one who first communicated with the Union , and not another employee as had been rumored. On or about the Wednesday before the election scheduled for Tuesday , February 18, Hart found a note on his desk stating that he had received a call from one Hepin- stall of the Transamerica Corporation regarding possible employment . Hart returned the call , but was told that Hepinstall would return shortly . About five minutes later , Hart received a call from an individual who iden- tified himself as Hepinstall , Vice President of Transamer- ica, stated that he had a job vacancy for a, pilot and that Hart had been highly recommended , and arranged to meet with Hart on February 17. Hart mentioned the conversation to Director of Flight Operations Bur- gess, who said that it did not "sound quite right" to him and that he would look into the matter. On the following day, Burgess told Hart that he had not had time to make the investigation. , On Friday or Saturday , Hart received a telephone call from an individual who identified herself as Hepin- stall's secretary , postponed the meeting until Tuesday, February 18, and requested Hart to send a resume immediately to "Transamerica" at 436 10th Street, Room 609, Oakland , California , because she understood that he was to be hired . Rolland Weller testified that this had been his prior business address, but that he knew of no one named Hepinstall associated with his business. Hart testified that on Saturday Chief Flight Instructor Cohen told him that he knew about the interview, and that the Wellers had arranged the job interview as a ruse to keep Hart from voting at the election. Cohen corroborated Hart 's testimony regarding their conversa- tion . According to Hart , Cohen also told him that Burgess had requested Cohen not to say anything about the matter . According to Cohen , he also told Hart that the Wellers were working for Sierra as consultants respecting union activity , and that the employees should be careful and watch what they were doing . As a result of this conversation , Hart cancelled the job interview, and he voted at the election. The complaint alleged that the Respondents, through the Wellers , unlawfully attempted to prevent an employ- ee from voting at the election . Respondents ' sole defense is that the record fails to establish that any employee was prevented from voting . This defense overlooks the fact that an attempt to prevent an employee from voting at a Board election , even if unsuccessful, constitutes interference , restraint , and coercion violative of Section 8(a)(1) of the Act . Holly Hill Lumber Co. v. N.L.R.B., 380 F .2d 838 (C.A. 4). The question is whether the record establishes such an attempt . I find that it does. I credit the uncontradicted testimony of Hart, who appeared to be a credible witness. However , the record contains no direct evidence that either of the Wellers was involved in the matter of the job interview and resume . The principal indirect evidence of their involve- ment consists of Cohen 's testimony regarding his state- ment to Hart . Since there is nothing to show that Cohen had any reason to lie to Hart , I am satisfied that Cohen did not concoct the information he gave to Hart. The record does not disclose how Cohen acquired the infor- mation . But since Cohen testified credibly that prior to his conversation with Hart , he had "only seen" the Welters and had never heard a conversation between them and anyone else (see fn . 9, infra), he must have received the information from a source other than the Wellers. Cohen's testimony concerning the Wellers thus constitutes hearsay as to them. Other evidence which tends to indicate that the Wellers were involved is Hart 's testimony that he was told by Cohen that Burgess had requested Cohen not to say anything about the matter .'' But like that of Cohen , Hart's testimony consti- tutes hearsay as to the Wellers . All of this hearsay was received without objection . Moreover , although both of the Wellers testified , neither denied involvement in the matter of the job interview . Cohen did not contradict Hart 's testimony relating to Burgess, and the latter did not testify . In such circumstances , the hearsay testi- mony of Cohen and Hart may be given its natural probative effect . Monroe Auto Equipment Co., 153 NLRB 912, 913, fn. 1. In Monroe, a former supervisor testified that he had been informed by other supervisors that the employer's labor relations consultant had outlined a plan for defeat- ing the union by discharging one Slack and other active union adherents shortly before the election . The Board held that although such hearsay testimony was unobject- ed to and undenied , it was not sufficiently probative "without further corroboration " to justify a finding that the consultant was equally guilty with the employer in the unlawful discharge of Slack . Applying this princi- ple to the instant case , it is apparent that the testimony of Cohen and Hart , standing alone , is not sufficient to justify a finding , binding upon the Wellers , that they were involved in an unlawful plot to prevent Hart from voting . However, the record contains corroboration; i.e., Rolland Weller's admission that his former business address, including the room number , was identical with the address to which Hart was instructed to send his resume . No explanation for this remarkable indentity of addresses has been given . Indeed , as already noted, the Wellers did not deny their involvement in the matter, and their brief merely argues that the attempt was unsuc- cessful . In the light of this evidence as well as the evidence showing other unlawful conduct by the Wellers, it is difficult to escape the conclusion , and I find, that the Wellers were involved in the arrangement for Hart's job interview , and that it was for the unlawful purpose of attempting to prevent Hart from voting at the election.7 I credit Hart's testimony that he told Burgess about the job interview It is immaterial that the record does not disclose the method by which the Wellers intended to accomplish their purpose Perhaps they had no fixed plan and merely hoped that they could somehow succeed in eliminating Hart's vote For example, they may have thought that 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further find that for the reasons stated in connection with Jerry Weller's conduct at employee Ward's home, Respondents are all responsible for the unlawful conduct toward Hart." C. The Discharge of Lloyd 1. Sierra's motivation Edward A. Lloyd was employed by Respondent as a flight instructor in mid-1968. He testified without con- tradiction that he had averaged 100 hours a month of flying time, that he had been told by Everett that this was somewhat higher than that of other instructors, and that Everett had stated that he was pleased with Lloyd's utilization of aircraft and wished that other instructors had his attitude and worked as hard as he did. As noted, the employee meetings all took place at Lloyd's home. At the meeting of instructors and supervisors held in late January, referred to above, Lloyd made known his support of the Union. On February 14, i.e., 4 days before the Board election, Sierra discharged Lloyd following two incidents in which he was involved. In the first incident, which took place on February 13 while Lloyd was making an approach at Oakland Airport during a training flight with a student, Lloyd admittedly landed the plane on the, pavement about 15 or 20 feet short of the line which represented the beginning of the runway. Director of Flight Opera- tions Burgess was very disturbed by the incident and told Lloyd in the presence of Chief Flight Instructor Cohen that if he ever repeated such a landing, he would lose his job. Lloyd apologized and assured Burgess that it would not happen again . Shortly thereafter when the two met, Burgess asked while smiling, "Ed, have you made any more short landings today?" Lloyd smiled back and replied, "No, because I know better." Later the same day, a meeting was held in Everett's office. Those present included Everett, Vice Presidents Everett and Newcomb, Burgess, and Cohen. The record contains no direct evidence as to what was said at the meeting other than Cohen's testimony that the possi- bility of Lloyd's discharge was discussed. Cohen further testified without contradiction that he informed a Board investigator that Everett stated at the meeting that the Wellers had asked him which employees were supporters of the Union, had told Everett to watch those employees and discharge any who made a mistake, and had also told Everett that he could discharge Lloyd. In addition, Cohen in effect testified that he told the Board investiga- tor that at the meeting Burgess had expressed opposition to discharging Lloyd on the ground there was insufficient if he had not yet voted before he arrived for the job interview, they could delay his return to the polling place long enough to prevent his voting, or that they could chill his desire to vote by offering him a spurious job, or that they might be able to challenge his ballot if he accepted such a job " Cohen's testimony respecting what he told Hart concerning the Wellers, and Hart's testimony respecting what Cohen told him concerning Burgess, constituted competent evidence of an admission by Cohen, binding upon his principal, Respondent Sierra, that Sierra knew of the plot See cases cited in fn 5, supra cause and because he had already talked to Lloyd about the short landing incident. Employee Hart testified with- out contradiction that he was told by Cohen that at the meeting Everett requested Burgess to discharge Lloyd because of the short landing, but that Burgess declined, saying: "I have already talked to the, man about the incident, it would look kind of bad now to go back and fire him for something that we have already resolved."9 Everett testified that he was informed of the incident and reprimand by Burgess, and that the latter recom- mended that nothing be done at that point. On the same day, February 13, Burgess told Lloyd that Everett wanted Lloyd to prepare a written report on the short landing. When Lloyd protested, Burgess replied, "I can't tell you how to word your letter but-be 'very careful what you say. All I can tell you is you have to write a letter, that's all I can say. Just write it and be careful about how you word it." On the next day, February 14, the second of the above-mentioned incidents took place. Early that morn- ing, after landing his plane following his first flight of the day, Lloyd taxied to the end position of the so-called tie-down area and parked the craft. About 9 a.m., Burgess called Lloyd to his office and complained about his short landing and about taking the plane to the tie-down area under ^ power rather than pushing it manually. When Lloyd stated that he had taxied several times before, Burgess asked him whether he had not read the sign posted by Sierra prohibiting the taxiing of planes into a tie-down. Lloyd replied that he had not read it, but that he knew that students were forbidden to taxi, in because of frequent mention of this rule at meetings. In addition, Burgess told Lloyd that he had better get his report up to Everett. Sometime later, Lloyd prepared the report and took it to Everett's office. Lloyd told Everett that he was then scheduled for a flight, and Everett instructed him to return when he was finished. Everett testified that on the same day, at an undis- closed hour subsequent to the parking incident; he called a special meeting of Sierra's three board of directors, and they unanimously agreed to discharge Lloyd. The minutes of the meeting, which are in evidence, state that it took place at 3 p.m., that written reports had been made by Burgess and by Lloyd concerning,the short, landing, that Burgess had also made a written report concerning the parking incident, that the directors regarded Lloyd's conduct as dangerous, and that it was unanimously decided to discharge him. When Lloyd completed his flight, he went to Everett's office where he found Everett and Newcomb. Everett was examining Lloyd's report, stated that he did not like "this," and informed Lloyd that he was discharged. Lloyd asked why he 'was being discharged for doing " Cohen credibly testified that the Wellers arrived at the meeting after Lloyd had been discussed, that Everett asked him and Burgess to leave, and that prior to his conversation with Hart, he had "only seen" the Wellers and had never heard a conversation between them and anyone else SIERRA ACADEMY OF AERONAUTICS 551 "these two things" when other instructors had not been terminated for the same conduct. Everett replied, "Well, perhaps we 'should have started becoming a little stricter a long time ago." When Lloyd then outlined the high quality of his work and made a plea for suspension rather than discharge, Everett turned to Newcomb to ask what he thought. Newcomb replied that it was hard for him to change his decision. When Lloyd then pointed out that Shepson had not been discharged although he had damaged a plane, Everett replied that no one could tell him whom to fire, and that Shepson might very well be discharged. He then added, "Well, perhaps later in the future we will reconsider your application for employment." The complaint alleged that Respondent Sierra, acting on the suggestion, counsel, and advice of Respondents Rolland and Jerry Weller, discharged Lloyd because of his support for the Union and other protected activi- ties. Respondents' brief admits that the discharge was made after consultation between Sierra and the Wellers but asserts that it was motivated solely by the short landing and parking incidents. I find the asserted reasons for the discharge to be unpersuasive. Everett was not a credible witness"' and I reject his testimony that the two incidents were the sole basis for Lloyd's discharge. In addition, the evidence shows that Burgess did not deem the two infractions to be sufficiently serious to warrant discharge. Although Everett could have felt otherwise, it is significant that when Burgess relayed Everett's request for a written report on the short landing, he warned Lloyd to word it carefully and mysteriously stated that he could say no more. This suggests that something more was involved than mere evaluation of the short landing." It is also significant that Everett did not order Lloyd to discontinue flying even after the second incident, a circumstance which suggests that Everett himself did not'regard the infractions as serious. This conclusion is buttressed by the fact that Everett momentarily wavered in his decision to discharge Lloyd and that, despite his professed belief "' Everett testified that the short landing was "absolutely forbidden" by the FAA regulations In support of his testimony, Respondents introduced an FAA advisory circular relating to runways Without attempting to analyze its highly technical contents which are not explained 'in the record, I note that the circular is dated April 29; i.e , some 10 weeks after the discharge-a fact that must have been known to Everett when he gave the quoted testimony Everett further testified that the buildings and land used by Sierra are leased from the Port of Oakland, which has issued rules and regulations governing tenants at Oakland Airport Among other things, the rules provide that no aircraft shall be operated in a manner which endangers or is likely to endanger persons or property. Everett testified that , shortly before May 12, he requested Coleburg, the operations officer of the Airport, for his opinion respecting the short landing , and that he received a letter from Coleburg regarding the matter On interrogation by the General Counsel, he testified three times that the letter was received in the mail However, when it was pointed out that the letter was not folded, he admitted that Coleburg had been to Sierra's office, that the letter may have been typed in the office, that Coleburg's signature was in green ink, and that Sierra used green ink " Cohen apparently sensed this for, as Hart testified without contra- diction, he was told by Cohen that the latter knew that Lloyd would be discharged, but did not know on what grounds that Lloyd's conduct was serious, he told Lloyd that he might consider reemploying him in the future. Everett's testimony also shows that despite the posted sign forbidding the taxiing in of aircraft, Sierra's instruc- tors frequently disobeyed the notice. However, I do not credit either his testimony that he first learned of such disobedience after Lloyd's discharge, or his testimony that Burgess and Cohen assured him at the time of the second Lloyd incident that the instructors were obeying the notice. In view of the small number of instructors employed by Sierra, the ease with which Burgess was able to observe Lloyd's two infractions, and the frequency of the disobedience, I find it difficult to believe that Burgess and Cohen were unaware of the situation or that they withheld the information from Everett. In addition, when Lloyd pointed out at the time of his discharge that other instructors had not been discharged for conduct like his, Everett did not contradict him. On the contrary, he tacitly admitted his knowlege that other employees had engaged in the same conduct by stating that perhaps he should have become stricter earlier. Of course, Everett was not required to tolerate rule infractions indefinitely. Howev- er, his defense would be considerably more plausible if he had explained why a previously overlooked infrac- tion should have become intolerable 4 days before the Board election when committed by a known union sup- porter. Further evidence relating to Sierra's motive may be found in Cohen's testimony that he disclosed to a Board investigator Everett's statement that he had been advised by the Wellers to seize on any mistake made by a union supporter, and Lloyd in particular, as a basis for discharging him. Such testimony constitutes compe- tent evidence of an admission, binding upon Sierra, that Everett received such advice.12 Finally, Sierra's treatment of employee Shepson suggests that Everett carried out the advice received from the Wellers. As already found, Everett, to whom Shepson had expressed antiunion views, declined Shepson's offer to pay the deductible following his negligence which resulted in damage to one of Sierra's aircraft, and reassured Shepson that his job was not in jeopardy. Such action was in direct contrast to the treatment of Lloyd, whose infractions had resulted in no damage. Moreover, after Sierra learned that Shepson had changed his mind and voted for the Union, the job reassurance was revoked. For the above reasons, I reject Respondent's explana- tion for the discharge of Lloyd as pretextual and find that it was motivated by his prounion views and activity. I therefore find that by discharging Lloyd, Respondent Sierra engaged in unlawful discrimination, thereby violat- ing Section 8(a)(3) and (1) of the Act. 2. The Wellers' responsibility Employee Hart testified that he was told by Chief Flight Instructor Cohen that at the above mentioned meeting in Everett's office on February 13 the Wellers 'Z See cases cited in fn 5, supra 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked Everett for the names of the employees supporting the Union, suggested their discharge for the slightest provocation, and recommended the discharge of Lloyd because of the short landing incident. Cohen testified that he did not recall making such statements to Hart, that he told Hart that he had been present when the discharge of Lloyd was discussed, and that he also informed Hart that the Wellers were working for Everett in connection with union activity and that the employees should be careful. As already noted, Cohen also testified that he had never heard a conversation between the Wellers and anyone else and that he told a Board investi- gator Everett informed him about the discharge advice given by the Wellers. The General Counsel contends that the record is sufficient to justify a finding, binding on the Wellers, that they advised Everett to use the short landing as a. pretext to discharge Lloyd because of his union sup- port; that the Wellers thus aided Sierra in violating the Act; and, that an agent who so'aids an employer is himself guilty of an unfair labor practice and subject to the Act's remedial process. It is the General Counsel's theory that Hart testified that he was told by Cohen that the latter was present when the Wellers gave the advice in question to Everett; that, Cohen's statement to Hart constituted a prior statement inconsistent with 'Cohen's subsequent testimony at the hearing; that under Section 1235 of the new California Evidence Code the prior statement is admissible for the purpose of proving the fact stated; that Cohen told Hart the truth and testified falsely at the hearing; and hence that Hart's testimony establishes that the Welters, who did not deny giving the advice, did in fact give it. I find it unnecessary to resolve the conflict between Hart and Cohen regarding their conversation. For even if Hart's version is accepted, I find no conflict between that version and Cohen's testimony that he never heard a conversation between the Wellers and anyone else. Contrary to the General Counsel, Hart did not testify that Cohen said he was present when the Wellers made the statements. He merely testified that Cohen said that the Wellers made the statements. On the record before me, I am satisfied that Cohen was not present at the meeting after the Wellers arrived and that, as he told a Board investigator, he obtained his information as to what the Wellers said from Everett. It follows, and I find, that Cohen's testimony as to Everett's disclo- sure of the statements by the Wellers constituted hearsay as to the latter. The General Counsel further argues that Cohen's testimony may properly be used as evidence under the admission exception to the hearsay rule. His theory is that the Wellers, being Sierra's agents, are "employ- ers" within the meaning of Section 2(2) of the Act; that Respondents' answers admit the allegation in the complaint that Sierra and the Wellers constitute a single employer; that as a consequence, Cohen and Everett were agents of the Wellers as well as of Sierra; and that Cohen's testimony as to Everett's disclosures con,- cerning the Weller statements constitute probative admis- sions binding upon the Wellers. Paragraph III of the complaint alleged as follows: Respondents , at all times material herein, have constituted an employer engaged in commerce and in operations affecting commerce within the mean- ing of Section 2(2), (6) and (7) of the Act. I interpret the quoted language as an allegation that Respondents are one employer for' jurisdictional purpos- es only . I do not construe it as alleging a single employer for all purposes . If the General Counsel desired to litigate the question whether Respondents constituted a single employer for purposes other than jurisdiction, a more explicit allegation was required . I do not consider paragraph III of the complaint sufficient to raise that question . In any event , the question involves a mixed question of fact and law . To the extent that the answers may be regarded as admitting a conclusion 'of law, they are not dispositive ' of the question . And were I required to decide whether or not the record establishes that Respondents are a single employer for the purpose sought by the General Counsel , I would conclude that it does not. The issue then boils down to whether Cohen 's hearsay testimony , unobjected to and undenied , is sufficient to justify a finding, binding upon Respondents Rolland and Jerry Weller , that they made the statements in question to, Everett . Standing alone , such testimony is not sufficient . Monroe Auto Equipment Co., supra. Since there is no corroboration , I find' that the record does not warrant such a finding . 13 I therefore find that the General Counsel has failed to establish the Wellers' statutory responsibility for the discharge of Lloyd. CONCLUSIONS OF LAW A. Respondent Sierra violated Section 8(a)(1) of the Act by coercively attempting to persuade employees to withdraw their support from the Union, by unlawfully interrogating an employee, by unlawfully promising ben- efits to him, and by unlawfully revoking its promised assurance that he would not be discharged. B. Respondent Sierra and Respondents Rolland and Jerry Weller violated Section 8(a)(1) of the Act by unlawfully, holding out to employees the possibility of increased insurance benefits in order to induce them to vote against the Union and by unlawfully attempting to prevent an employee from voting at the Board election. C. By unlawfully discharging Lloyd because of his union views and activity, Respondent Sierra violated Section 8(a)(3) and (1) of the Act. D. The aforesaid unfair labor practices affect com- merce within the meaning of the Act. E. Respondents did not violate the Act by any conduct not found herein to constitute an unfair labor practice by them. '1 For this reason , it is unnecessary to reach the question whether a labor consultant is subject to the Act' s remedial process where he advises his principal to commit an unfair labor practice I note in passing that the cases relied on by the General Counsel involved direct conduct by the employer's agent vis-a-vis the employees, e g , interrogation Natiohal Welders Supply Co , 132 NLRB 660, Guild Industries Mfg Corp , 133 NLRB 1719, amended in 135 NLRB 971 SIERRA ACADEMY OF AERONAUTICS THE REMEDY I shall recommend that Respondents cease and desist from their unfair labor practices and that they take certain affirmative action designed to effectuate the poli- cies of the Act Specifically, I shall recommend that Sierra offer to Lloyd immediate and full reinstatement to the position which he held at the time of the discrimina- tion against him or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges I further recommend that Respondent Sierra make Lloyd 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 would have been paid by Sierra absent such discrimination , less net earnings during the said period The loss of earnings shall be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716 RECOMMENDED ORDER A Respondent Sierra, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Unlawfully interrogating or threatening its employ- ees, promising them possible benefits in order to induce them to vote against unionization, or unlawfully attempt- ing to prevent employees from voting at a Board election (b) Unlawfully discharging employees or otherwise unlawfully discriminating in regard to their hire, tenure of employment, or any term or condition of employment (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of any right guaranteed in Section 7 of the Act 2 Take the following affirmative action (a) Offer to Edward A Lloyd immediate and full reinstatement to his former or a substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrim- ination against him, in the manner set forth in the section herein entitled "The Remedy " (c) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces (d) 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 and the right of reinstatement under the terms of this Recommended Order (e) Post at its place of business in Oakland, California, copies of the attached notice marked "Appendix A "'" 79 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order 553 Copies of said notice , on forms provided by the Regional Director for Region 20 after being signed by Respond- ent's representatives , shall be posted by the Respondent immediately upon receipt thereof and maintained by them for 60 consecutive days thereafter in conspicuous places where notices to employees are customarily post- ed Reasonable steps shall be taken to insure that said notices are not altered , defaced , or covered by any other material (f) Post at its place of business in Oakland , California, copies of the attached notice marked "Appendix B" after signed copies thereof shall have been delivered to it The same conditions shall be observed with respect to the posting of Appendix B as with respect to Appendix A (g) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps have been taken to comply herewith iS B Respondents Rolland and Jerry Weller, doing busi- ness as Transamerican Employers Group, their officers, agents, successors, and assigns, acting directly or indi- rectly as agents of Sierra Academy of Aeronautics, Inc , shall I Cease and desist from (a) Unlawfully promising possible benefits to the employees of Sierra Academy of Aeronautics, Inc , in order to induce them to vote against unionization (b) Unlawfully attempting to prevent the employees of Sierra from voting at a Board election (c) In any 'like or related manner interfering with, restraining, or coercing employees of Sierra in the exer- cise of rights guaranteed by Section 7 of the Act 2 Take the following affirmative action (a) Deliver signed copies of the attached notice mark ed "Appendix B" to Sierra Academy of Aeronautics, Inc , for posting at its place of business in Oakland, California "' Copies of such notice will be furnished by the Regional Director for Region 20 herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 15 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 20 in writing within 10 days from the date of this Order what steps it has taken to comply herewith " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps have been taken to comply herewith." " In the event that this Recommended, Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully discharge employees or otherwise discriminate against them because of their union activities. WE WILL NOT unlawfully question or threaten our employees. WE WILL NOT unlawfully offer possible benefits to employees to induce them to vote against unioni- zation. WE WILL NOT unlawfully attempt to prevent employees from voting at a Board election. WE WILL offer to take back Edward A. Lloyd to his old job and pay him for all the wages he lost because of his discharge. SIERRA ACADEMY OF AERONAUTICS, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Edward A. Lloyd if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 13050 Federal Building , 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify the employees of Sierra Academy of Aeronautics, Inc., that: WE WILL NOT unlawfully offer possible benefits to Sierra' s employees to induce them to vote against unionization. WE WILL NOT unlawfully attempt to prevent Sierra's employees from voting at a Board election. WE WILL NOT in any like or related manner interfere with , restrain , or coerce Sierra's employ- ees in the exercise of their rights guaranteed by the National Labor Relations Act. APPENDIX B ROLLAND WELLER AND JERRY WELLER, D/B/A TRANSAMERICAN EMPLOYERS GROUP (Employer) Dated By (Representative) Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.