Butler Aviation International, Inc.

352 DECISIONS OF NATIONAL Butler Aviation Company (Palm Beach) a Division of Butler Aviation International , Inc. and Local Lodge No. 971 , International Association of Machinists & Aerospace Workers , AFL-CIO. Cases 12-C A-4634 and 12-RC-3363 June 15, 1970 DECISION, ORDER, AND DIRECTION By MEMBERS MCCULLOCH, BROWN , AND JENKINS On March 18, 1970, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled con- solidated proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommend- ing that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in cer- tain other unfair labor practices alleged in the com- plaint and recommended that these allegations be dismissed. The Trial Examiner further found that, in view of his finding that the two alleged dis- criminatees were not discharged in violation of the Act, they were not eligible to vote and the chal- lenges to their ballots should be upheld. Finally, the Trial Examiner found that, as the parties have con- ceded the nonsupervisory status of Erwin H. Enos, whose challenged ballot affects the results of the election, the challenge to his ballot should be over- ruled, his ballot should be opened and counted, and a revised tally of ballots should be issued. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding 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, the briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, except as modified below. The Trial Examiner concluded that Respondent General Manager Karadavis' conduct in asking em- ' The Trial Examiner inadvertently stated that employee Raymond J Craig, Jr , signed a union authorization card on June 7, when the record is clear that he did so on June 8 We hereby correct this error LABOR RELATIONS BOARD ployee Coates whether he had paid his $11 union dues and his inquiry of employee Bloeser whether he had been contacted by the Union were not coer- cive and therefore not violative of Section 8(a)(1) of the Act. We find merit in the General Counsel's exceptions to these findings . In our opinion, the inquiries of Coates and Bloeser as to their union ac- tivities during the Union 's organizational campaign, since they served no legitimate business purpose, could only be regarded by the employees as an ef- fort by the Respondent to discourage their union activities and were therefore coercive. Accordingly, we find that the Respondent by such conduct vio- lated Section 8(a)(1) of the Act. The Remedy We have found, contrary to the Trial Examiner, that the Respondent engaged in certain additional unfair labor practices in violation of Section 8(a)(1) of the Act. We shall therefore order that the Respondent cease and desist therefrom. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the fol- lowing additional conclusion of law which we shall insert before the Trial Examiner's fifth conclusion of law, which should be renumbered as the sixth conclusion of law: 5. The Respondent by interrogating its em- ployees about their union activities engaged in con- duct violative of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Bu- tler Aviation Company (Palm Beach), a Division of Butler Aviation International, Inc., Palm Beach, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: 1. Insert the following paragraph before para- graph 1(b) of the Recommended Order and renumber the latter as paragraph 1(c): "Interrogating its employees as to their union activities in a manner constituting a violation of Section 8(a)(1) of the Act." 183 NLRB No. 43 BUTLER AVIATION COMPANY 353 2. Insert the following paragraph before the second paragraph of the Appendix to the Recom- mended Order: WE WILL NOT question our employees about their union activities in a manner constituting a violation of Section 8(a)(1) of the Act. DIRECTION Respondent submitted a supporting brief. The Respondent's motion to dismiss the complaint, on which ruling was reserved, is disposed of in ac- cordance with my findings and conclusions below. Upon the entire record,4 and from my observa- tion of the demeanor of the witnesses, and with due consideration being given to the arguments ad- vanced by the parties, I make the following: It is hereby directed that the Regional Director for Region 12 shall, pursuant to the Rules and Regulations of the Board, within 10 days from the date of this Direction, open and count the ballot of Erwin H. Enos, prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballot, and thereafter issue the appropriate certification. TRIAL EXAMINER'S DECISION AND REPORT ON CHALLENGED BALLOTS STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This consolidated proceeding, with all the parties represented, was heard on December 9 and 10, 1969, in West Palm Beach, Florida, on the complaint of the General Counsel issued in Case 12-CA-4634 on November 10, 1969,' as subsequently amended, and the amended answer of Butler Aviation Company (Palm Beach), a Division of Butler Aviation Inter- national, Inc.,2 herein called the Respondent or Company. In issue in the complaint case are the questions whether the Respondent discriminatorily discharged employees Raymond D. Craig, Jr., and James W. Coates in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,3 and whether it interrogated employees and maintained certain plant rules in effect in viola- tion of Section 8(a)(1) of the Act. By order of the Regional Director, Case 12-RC-3363 was con- solidated with the unfair labor practice proceeding for the purpose of hearing and determining the is- sues raised by the challenged ballots of the alleged discriminatees named above and Erwin H. Enos, an alleged supervisor. At the close of the hearing, the General Counsel and the Respondent argued their respective positions orally and thereafter only the ' The complaint is based on a charge filed on September 16, 1969, a copy of which was duly served on the Respondent by registered mail the same day r Name appears as amended at the hearing ' Section 8(a)(I) makes it an unfair labor practice for an employer "to interfere with , restrain, or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent , Section 7 provides that "[e]mployees shall have the right to self-organization , to form , ,loin, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection Section 8 (a)(3), with certain qualifications not material herein , prohibits FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, operates a facility at Palm Beach International Air- port, Florida, where it is engaged in the business of refueling and maintenance of privately owned and regularly scheduled aircraft. During the past year it purchased goods and materials valued in excess of $50,000 which were shipped directly to the facility from sources outside Florida. Its gross volume of business during the same period exceeded $500,000. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is agreed , and I find, that Local Lodge No. 971, International Association of Machinists & Aerospace Workers , AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Advent of the Union; the representation proceeding In or about June 1969,5' the Union initiated a campaign to organize the Respondent's employees at its Palm Beach International Airport facility. After the Union filed a representation petition (Case 12-RC-3363) on August 6,6 the parties, with the approval of the Regional Director, executed on September 4 a Stipulation for Certification Upon Consent Election. On September 30, pursuant to an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage mem- bership in any labor organization " ' In accordance with the arrangement made at the hearing , stipulations separately signed by the General Counsel and the Respondent are received in evidence as General Counsel 's Exhibit 6 and the record is formally closed ' Unless otherwise indicated , all dates refer to 1969 ' It appears that a separate petition to represent only dispatchers was also filed ( Case 12-RC-3392) and that , as a result of an election victory in that unit , the Union was certified as the exclusive representative of those em- ployees No question is raised with respect to that proceeding 354 DECISIONS OF NATIONAL LABOR RELATIONS i BOARD this Stipulation, the Regional Director conducted a secret election in which 12 votes were cast for the Union, 11 against, and 3 ballots were challenged. Two of the challenged ballots were cast by Raymond D. Craig, Jr., and James W. Coates, the alleged discriminatees, whom the Respondent maintains were discharged for cause prior to the eligibility date . The third ballot, which was cast by Erwin H. Enos and was challenged by the Union on the ground that he was a supervisor , is no longer in issue . At the hearing, the Union conceded Enos' nonsupervisory status, thereby entitling him to have his vote counted. 2. Alleged interrogation On June 7, 3 months before his discharge, em- ployee Craig signed a union authorization card when solicited at his home by Union Representative Smith. Several days later General Manager Costes (Gus) Karadavis observed employee Jack Hasson, who was away from his job area, talking to Craig in the installation shop where Craig worked. As Karadavis approached them Hasson departed. Karadavis asked Craig whether Hasson was discussing and organizing for the Union. Answering in the negative, Craig volunteered the information that he had signed a union card and paid dues and commented that the Union would not be such a bad thing. This is the substance of Craig's and Karadavis' testimony. However, Craig gave addi- tional testimony, which Karadavis denied, that the latter also remarked to Craig that Hasson, whom he was "trying to help," was "trying to stab" him in the back and that, if the Union got in , "it would tuin him." Craig further testified that, in reply, he assured Karadavis that he had nothing to worry about as there were not too many people who favored the Union. While both witnesses impressed me for their candidness, I find that Craig's recollec- tion concerning Karadavis' additional remarks more persuasive than the denial, and accordingly credit Craig's testimony. On June 16, Coates also signed a union authorization card at his home. About 2 days later Karadavis approached Coates at his work station and inquired whether he had paid his $11. Ap- parently, both understood that the $11 referred to union dues since Coates replied that he did not have to as he had already acquired membership in good standing at his former place of employment. When Karadavis thereupon commented that Coates "[t]hen ... really did not join," Coates repeated that he was already a member, explaining that he signed a pledge card in order to retain his union membership in the event he wanted to change em- 7 In a second affidavit given to a Board agent on October 8, there also is no reference to Bloeser's mentioning Coates or Craig to Karadavis in this conversation ' On October 11, 1968, the Respondent posted a Memo To All Shop Employees "to clarify the company policy as to the use of timecards" ployers to go to the airlines. Karadavis indicated that he I understood that this was a necessary precaution. Aboutia month before the discharge of Craig and Coates, which occurred on September 4, Karadavis asked employee William J. Bloeser, Jr., whether anyone from the Union had contacted him. There is a conflict in testimony as to Bloeser's reply. Ac- cording to Bloeser, who had never signed a union card, he answered that he "knew of the union. Jim [Coates] and Ray [Craig] mentioned it at lunch." However, in his pretrial affidavit given to a Board agent on September 30, Bloeser stated that "in the last part of July ... Karadavis came up to me in the hangar and asked me if I had heard anything about the Union. I told him no, because at that time I had not heard anything about the Union. "7 Karadavis, whose testimony accords with Bloeser's quoted statement from his September 30 affidavit, specifi- cally denied that the names of Coates and Craig came up in the conversation. I credit Karadavis' denial. 3. The discharges On September 4, the Respondent discharged em- ployees Craig and Coates under circumstances re- lated below. At that time, Craig had been in the Respondent's employ for some 5 years, while Coates had approximately 14 months' service. Their competency is not questioned. Admittedly, their involvement in union activity was unexcep- tional, being limited to signing union authorization cards, Coates' retention of previously acquired union membership , and their engagement in union conversations between themselves. It is the General Counsel's theory that the Respondent terminated them, not for union activity as such, but in order to eliminate two union votes in the representation election that was subsequently scheduled to be held on September 30. On September 2, employee Enos, who was designated to initial the timecards of coworkers while his supervisor, Manager Marshall Jackson, was on vacation,8 was struck by the identical punch-in and punch-out imprints on the timecards of Craig and Coates for the payroll period ending August 28, which he was then checking. Enos called this curious situation to General Manager Karadavis' attention, showing him xeroxed copies of the timecards of these individuals and inquiring what Karadavis intended to do about it.9 The identi- cal nature of the timecard imprints aroused Karadavis' suspicions that Craig and Coates might be punching each other's timecard in violation of which, among other things , provided that department managers were responsible for initialing late or overtime imprints Although it is not important to determine the particular circumstances under which Enos conveyed this information to Karadavis, I find Karadavis' account more persuasive and reliable than Enos BUTLER AVIATION COMPANY company rules.10 As a consequence, Karadavis un- dertook to investigate the matter and probably at this point, although the record is not too clear as to time sequence, examined the timecards of Craig, Coates, and other hangar employees for a preced- ing period. According to Karadavis, this inspection revealed a virtual pattern of conduct, not engaged in by their coworkers, whereby Craig and Coates were punching each other's timecards. Coates frankly admitted at the hearing that, although aware of the prohibition against punching timecards of other employees, he had an arrange- ment with Craig that, if either one saw the other on the road coming to work in the morning , the one who reached the timeclock first would, for con- venience , punch the other's timecard. It was stipu- lated by the parties that the weekly timecards for the period beginning the week ending June 5 through September 4 "would tend to confirm that Craig and Coates punched the time clock for each other"11 and that "[t]here is no evidence of any pattern tending to show that employee other than Craig and Coates have punched each other's time card." Although convinced that Craig and Coates were punching each other's timecards and that they should be discharged for this offense, Karadavis testified, he nevertheless decided first to consult the Company's legal counsel because of the pendency of the representation proceeding.12 After explaining the situation to a company attorney and informing him that he had not personally witnessed the of- fense, Karadavis was advised to withhold action until he observed whether Craig and Coates re- peated their conduct the following morning when they reported for work. Accordingly, shortly before Craig and Coates 10 Because of discipline problems, the Respondent on or about November 25, 1968, distributed among the employees copies of Company Rules For Employees with a covering letter which stated that the "rules will be strictly adhered to by all supervisors and personnel -NO DEVIATIONS WILL BE PERMITTED " Two rules specifically deal with timecards and provide , as follows Group I, Rule 13 Lining up or congregating around time clocks before lunch or quitting time, or punching another employee's time card Group III, Rule 9 Intentional falsification of records relating to work performed and time cards The penalty prescribed for a Group I infraction is a reprimand the first time, suspension for a second violation, and discharge for a third violation With respect to a Group III violation , the penalty is "immediate discharge, except in cases where unusual circumstances exist " " In his testimony , Craig, although also aware of the rule against punching another employee 's timecard , attributed some of the similarities in his and Coates' timecard reporting-in imprints to the fact that there was a period of time when they reported for overtime work before the regular 8 o'clock starting time, on which occasions either he and Coates arrived about the same time or Coates had to wait for him to open the hanger because only he ( Craig ) had a key As for similarties in lunch and departing time imprints, Craig explained that they ate lunch together and one would punch in and out for the other , and, at the close of the day, one would lock up the shop while the other punched out for both The parties stipulated that for the payroll period ending July 10, 1969, the timecard showed the same early starting time on one day, for the entire workweek ending July 355 came to work on the morning of September 3, Karadavis and Maintenance Manager Robert L. Lewis took positions near the timeclock which would enable Karadavis to hear and Lewis to see the timeclock punched. A few seconds or so after 8 o'clock,13 Coates approached the timeclock, punched both his and Craig's timecards, and proceeded to his work station. Karadavis then ex- amined the timecards and, after exhibiting them to Lewis, returned them to the rack. Thereupon, they went to the east hangar door and looked for Craig's car in the parking lot adjacent to the paint shop were Craig customarily parked but could not locate it. Several minutes later,14 Craig entered the hangar and was observed by Karadavis and Lewis as he walked by the timeclock to the installation shop without clocking in or checking his timecard to see if he was punched in. Neither Karadavis nor Lewis made any comment to Craig. It is noted that the evidence does not establish that, had Craig himself punched in at this time, his card would have recorded a later reporting-in time than that already shown on his card. Later that morning, Karadavis telephoned company counsel in St. Louis and re- lated the foregoing episode. In the afternoon, com- pany counsel called Karadavis back and informed him that he could take disciplinary measures against Craig and Coates. However, because of the lateness in the day, Karadavis told the attorney that he would defer action until the next morning to see if these individuals persisted in their offense and that, if they did, he would communicate with him again. The following morning (September 4) Karadavis stationed himself in another place near the timeclock and observed Coates when he reported for work. Coates went to the timeclock and, after 17, the timecard showed the same early starting time, and the same for one day for the period ending July 24, after which day Craig went on vacation 'Y Karadavis testified that he had previously received instructions from company counsel to refrain from terminating any employee or taking other disciplinary action during the pendency of the representation proceeding In addition , Karadavis testified that before calling company counsel in St Louis, he tried to communicate with Charles Snell, vice president of planning and training , at the Respondent's New York office to discuss his contemplated action , as he had been instructed to do before the advent of the Union , but could not reach Snell because he was out of the city " The timecard imprints showed "8 0" in red as the reporting time As the hour is divided into tenths for timekeeping purposes , " 8 0" covers the period from 8.00 to 8 06 a in Although the imprint " 8 0" indicates that the employee is technically late for work, which normally begins at 8 o'clock, it appears that he is not docked but is paid from 8 o'clock "The circumstances and timing of Craig's arrival are based on the sub- stantially corroborative testimony of Karadavis , Lewis, and employee Eckstein , which I find more probable than the accounts of Craig and Coates . According to the combined testimony of Craig and Coates, while driving to work from different parts of the city, they saw each other at an intersection not far from the Respondent 's facility, Coates proceeded to the facility , parking his car in the paint shop area , after Coates left his car, he saw Craig getting out of his, and while Coates was punching both their timecards Craig heard at the hanger door entrance the clicks of the timeclock and for this reason did not bother to check his timecard when he passed the timeclock 427-258 O-LT - 74 - 24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD punching his and Craig's timecards,15 walked to his work area. Approximately 15 to 20 seconds later, Craig entered the hangar, went to the timeclock where he removed his card from the rack, looked at it, and returned the card to the rack. Karadavis, thereupon, approached Craig and asked him why he did not punch the clock and why the day before he walked by the timeclock without checking his card but this morning he did look at his card. Craig's response was that he did not clock in because Coates had already done so and that he checked his card this morning because he was not sure whether Coates had punched him in. Declaring that their conduct violated company rules, Karadavis stated that he would see him sub- sequently. Craig replied that he knew the rules but that they did not intend "to beat" the Company. Karadavis then left for his office, taking the timecards with him.16 After consulting company counsel again, Karadavis decided to proceed with the discharge of Craig and Coates for conduct which he considered amounted to "[i]ntentional falsification of records relating to work performed and time cards" under Rule 9 of Group III because Craig had not yet re- ported for work when his timecard was punched.17 Accordingly, he summoned Craig and Coates to his office and, in the presence of Managers Lewis and Jackson, informed them that he had observed Coates punch Craig's timecard the past two mornings and that he was therefore terminating them. Reiterating his disavowal of any intention to cheat the Company, Craig remarked that em- ployees had been punching each other's cards for a long time . When Karadavis inquired of Lewis and Jackson whether they were aware of such a prac- tice he received a negative answer. Karadavis then indicated that he could investigate Craig's charge but that it would not change his decision to ter- minate him and Coates. At some point, Karadavis mentioned the similarities in their timecards for an earlier period. This elicited Craig's response that 90 percent of the timecards would be the same because each timecard imprint covered a 6-minute interval. Thus ended Craig's and Coates' employ- ment with the Respondent. Concerning the practice of employees punching each other's timecards in disregard of company rules, some evidence to that effect was adduced. However, the testimony does not indicate that this conduct was engaged in when the employee whose card was punched had not already reported in for work in the morning. On the contrary, the evidence "Apparently to explain the reason Coates punched Craig's timecard they testified that, while driving to work , they met at the same intersection as the day before and that Coates entered the parking lot followed by Craig. 11 The foregoing findings are based on those portions of the testimony of Karadavis, Coates, and Craig which I believe reflect the probable truth " Vice President Snell, who had drafted the Company 's rules, testified that Rule 9 of Group III was designed to apply to a situation where an em- ployee punched the timecard of another employee when the latter was not of an employee punching another's card relates to instances when employees went to lunch together in the plant or when they worked late together and one closed the shop while the other clocked out for both. There is also testimony given by Craig that super- visors witnessed the conduct in question but only named Manager Lewis. Coates added Karadavis and Jackson. However, Lewis and Jackson denied being aware of the asserted practice and so told Karadavis at the discharge interview of Craig and Coates. Moreover, it was Lewis who several months before Craig's and Coates' dismissal permitted an employee, Porter, to resign instead of being ter- minated for having another employee punch his timeclock while Porter was temporarily away from the plant. Furthermore, two other employees, Enos and Bloeser, testified that they did not believe su- pervisors witnessed their punching each other's cards when they went to lunch and that no super- visors were even present when they worked late and one of them closed the shop while the other clocked both out. 4. The no-distribution and no-strike or picketing rules On or about November 25, 1968, the Respon- dent distributed among employees copies of Com- pany Rules for Employees, which, among other things, contain the following restrictions on em- ployee activities: Group I, Rule 8.... Distribution of literature without approval. t6 Group III, Rule 11. Taking part in any strike, stoppage, sitdown, stay-in or slow-down or any curtailment of work or restriction of produc- tion, or interference with production of any of the Butler Aviation operations, or picketing on the company 's premises, or refusal to cross the picket line of another union. Vice President Snell and General Manager Karadavis testified, in effect, that to their knowledge, no employee was ever disciplined or discharged for violating these rules. However, no evidence was presented that any employee ever en- gaged in the prohibited conduct to furnish the oc- casion for applying these rules. In any 'event, Snell testified that these rules were recently revised and now prohibit: at work and that such conduct was tantamount to a falsification of records and dishonesty In this respect, according to Snell, this rule differs from Rule 13 of Group I which prohibits employees from "[l]ining up or con- gregating around time clocks before lunch or quitting time or punching another employee 's time card " 19 The first part of this rule, which prohibits "[s]olicitations and cam- paigning during working hours without permission ," is not alleged in the complaint to be unlawful. BUTLER AVIATION COMPANY Group I, Rule 8. . . . Distribution of literature during working hours in working areas without approval. Group III, Rule 11. Participating in any sit- down, slowdown, curtailment of work or restriction of production unless such activity is protected by applicable State or Federal law. According to Snell, several days before the hearing in this case, these new rules were issued to the general managers at the Company's facilities, in- cluding the Palm Beach one here involved, with in- structions to replace the old rules in the Procedures Manual. However, he was unable to testify whether employees had been also informed of the rule revi- sions, nor was other evidence of such employee notification produced. B. Concluding Findings 1. With respect to the discharges As previously indicated, the General Counsel contends that the Respondent discriminatorily ter- minated employees Craig and Coates on September 4 in order to eliminate two union votes in the sub- sequently scheduled election held on September 30 and that their violation of a company rule for- bidding employees to punch another's timecard was simply a pretext to hide its true unlawful motiva- tion. The Respondent, of course, insists that the discharges were for demonstrated cause. As is usual in cases of this type, the critical question thus presented is a factual one, depending principally upon circumstantial evidence for its determination. From my careful appraisal of the record herein I find insufficient evidence to sustain the General Counsel's position. It is perfectly clear that Craig's and Coates' union involvement was unexceptional, being practically limited to signing authorization cards and Coates' retention of prior union membership. Indeed, at the hearing the General Counsel conceded that these individuals were not "outstanding union adherents" but were "just two union votes." Certainly, this fact alone is insufficient to give rise to an inference that the discharges were prompted by a desire to eliminate two union votes, even though their union sym- pathies were known'to the Respondent. This is par- ticularly so where, as here, the employees were ac- tually guilty of the offense of punching each other's timecards-a practice in which they had been in- dulging for some time, pursuant to prior arrange- ment. I am also not entirely convinced, as the General Counsel argues, that the Respondent's reliance on this misconduct was pretextual because the Respondent purported to act on the basis of Rule 9 of Group III, which subjects employees to summary discharge for "[i]ntentional falsification of records relating to work performed and time cards." In the 357 General Counsel's view, Craig and Coates should only have been reprimanded for violating Rule 13 of Group I which prohibits "[l]ining up or con- gregating around time clocks before lunch or quitting time, or punching another employee's time card." While the Respondent might have been more lenient and compassionate and simply repri- manded Craig and Coates for violating the latter rule, I am unable to infer that the Respondent acted so unreasonably and arbitrarily in applying Rule 9 of Group III as to impugn its motivation, even though the evidence does not establish that Coates' clocking in for Craig resulted in Craig's entitlement to wages not otherwise earned. The fact remains that on the two mornings preceding the discharges, Coates clocked Craig in shortly before he entered the hangar to go to work and it was this circum- stance which prompted General Manager Karadavis to apply the discharge penalty of Rule 9 of Group III. Nor can the General Counsel's pretext argument find support in the conduct of other employees who punched the timecards of coworkers with impunity. On this record, I am not convinced that Karadavis was aware of such a practice or that those em- ployees clocked in fellow workers in the morning under circumstances similar to those that led to the discharge of Coates and Craig. Significantly, about 4 months before the termination of Coates and Craig the Respondent, in effect, forced an em- ployee to resign for having another employee punch his timecard while he was out of the plant. Finally, the June conversations between Karadavis and employees Coates, Craig, and Bloeser, occur- ring as they did 3 months before the discharges in question, do not reveal to me such hostility to the Union's efforts to win certification as to warrant the conclusion that the Respondent resorted to dis- crimination to bring about the defeat of the Union at the polls. Indeed, militating against a finding of unlawful motivation is the fact that the Respondent deals with sister locals of the Union and other labor organizations at a number of company facilities. In the last analysis, I find that the General Coun- sel has failed to sustain his burden of proving by a preponderance of the evidence that an antiunion purpose dictated the discharges. To be fair, the most that can be said for the General Counsel's case is that the Respondent's assigned reason is not beyond suspicion. But suspicion is not an adequate substitute for evidence. In view of the foregoing, I recommend that the allegations of discrimination set forth in the com- plaint be dismissed. 2. With respect to interference, restraint, and coercion of employees Except for the Respondent's no-distribution and no-striking rules, found below to be invalid, I find insufficient evidence to substantiate the allegations 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint that the Respondent violated Sec- tion 8(a)(1) of the Act. Specifically, I find no coer- cive implications in General Manager Karadavis' following conduct relied upon by the General Counsel, whether considered independently or in the context of his other remarks: his inquiry of em- ployee Craig whether employee Hasson, who was absent from his work station, was discussing or or- ganizing for the Union and Karadavis' expression of personal resentment over Hasson's union activity;19 Karadavis' asking employee Coates whether he had paid his $11 union dues; and his inquiry of em- ployee Bloeser whether he had been contacted by the Union. Accordingly, dismissal of the relevant allegations of the complaint is recommended. 3. With respect to the no-distribution and no- striking rules Under firmly settled principles,20 the prohibition against the distribution of literature without com- pany approval, embodied in Group I, Rule 8, quoted above, not limited as it is to the employees' working time or working areas, clearly constitutes an unreasonable and unwarranted impediment to the employees' exercise of their statutory rights. Similarly unlawful are the unqualified restrictions which Group III, Rule 11, also quoted above, places on employee rights to engage in a strike, picketing, and other union and concerted activities protected by the Act. Without disputing the invalidity of these rules, the Respondent contends that no violation should be found because the rules not only have never been implemented but actually have been recently rewritten to eliminate the doubtful provi- sions. Alternatively, it argues that an unfair labor practice finding is barred by the proviso to Section 10(b) of the Act21 since the rules were distributed among the employees on November 25, 1968, more than 6 months before the filing of the charges herein. I find these contentions totally without merit. It is perfectly clear that the gist of the violation is the maintenance in effect of the unlawful rules in question and not their execution or promulgation. Significantly, no employees were informed that the rules were not operative. In these circumstances, continued existence of these rules necessarily served as an unlawful restraint on employee rights to participate in protected union or other concerted iB Cf United Aircraft Corporation (Pratt & Whitney Division ), 180 NLRB 278, fn 4. In this connection , it is noted that the record contains no evidence, nor is it charged, that the Respondent utilized this episode to dis- criminate against Hasson 20 Stoddard-Quirk Manufacturing Co , 138 NLRB 615 2' That section provides in pertinent part Provided no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the per- son against whom such charge is made 4z N L R B v Mexia Textile Mills, Inc., 339 U S 563, 567-568 Central activities, whether or not the Respondent intended to, or did in fact, enforce or implement the rules. As for the Respondent's asserted rescission of the unlawful rules, it is also established law that the cessation of unfair labor practices does not render the cause moot or exculpate the wrongdoer of lia- bility for his prior misconduct.22 This is all the more so where, as here, the revocation of the rules had not been announced to the employees. Finally, I conclude, contrary to the Respondent's contention, that an unfair labor practice finding is not precluded by the 6-month statutory limitation period. As indicated above, the violation charged is not the j promulgation or distribution of the rules among the employees, which concedely occurred more than 6 months prior to the filing of the unfair labor practice charge. Rather, the violation is based on maintaining in effect unlawful rules during the 6 months preceding the filing of the charge. Since the rules onl their face are invalid and therefore a find- ing to that effect does not depend on events predat- ing the limitations period, the 10(b) defense is not available.` In sum, I find that the Respondent, by maintain- ing in effect the rules in question, violated Section 8(a)(1) iof the Act. I. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III; above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several,States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Pursuant to Section 10(c) of the Act, as amended , I recommend that the Respondent be or- dered to cease and desist from engaging in the un- fair labor practices found and in any like or related conduct and take certain affirmative action designed to effectuate the policies of the Act. The affirmative action recommended shall include rescission of the rules found invalid in this Decision and the posting of an appropriate notice. Soya of Canton, Inc, 180 NLRB 546, fn 1 " The factual situation in Local Lodge No. 1424, International Associa- tion of Machinists [Bryan Manufacturing Co ] v N L R B , 362 U S 411, 422, on which the Respondent relies, is plainly distinguishable Unlike the present case, the unfair labor practice finding which the Supreme Court reversed was "inescapably grounded on events predating the limitations period " The Court expressly differentiated between that type of case and one "where occurrences within the six month limitations period in and of themselves may constitute , as a substantive matter, unfair labor practices" (at 416) BUTLER AVIATION COMPANY Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining in effect rules unlawfully restricting employees in their statutory right to dis- tribute union literature and to participate in pro- tected strike, picketing, or other union or con- certed activities, the Respondent has interfered with, restrained, and coerced employees in the ex- ercise of guaranteed rights within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not discriminated against employees Raymond D. Craig, Jr., and James W. Coates in violation of Section 8(a)(3) and (1) of the Act or otherwise engaged in conduct violative of Section 8(a)(1) of the Act except as found above. RECOMMENDATION RESPECTING CASE 12-RC-3363 In view of my determination that Raymond D. Craig, Jr., and James W. Coates were not dis- criminatorily discharged, I find that they were not eligible to vote in the representation election. I, therefore, recommend that the challenges to their ballots be upheld and their ballots not be counted. As the parties have conceded the nonsupervisory status of Erwin H. Enos, and as his challenged bal- lot affects the results of the election, I find that this employee was eligible to vote, that the challenge to his ballot should be overruled, that his ballot should be opened and counted, and that a revised tally of ballots should be issued. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Butler Aviation Company (Palm Beach), a Division of Butler Aviation International, 24 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 Na- 359 Inc., Palm Beach International Airport, Florida, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Maintaining in effect any rule which prohibits its employees when they are on nonwork- ing time from distributing handbills, leaflets, or other literature in nonworking areas, without com- pany approval, on behalf of Local Lodge No. 971, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization, and from maintaining in effect any rule which prohibits employees from participating in any strike, work stoppage, picketing, or other union or concerted activities protected by the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind and annul any rule which prohibits employees when they are on nonworking time from distributing handbills, leaflets, or other literature in nonworking areas, without company approval, on behalf of any labor organization or which prohibits employees from participating in any strike, work stoppage, picketing, or other union or concerted activities protected by the Act. (b) Post at its facility at Palm Beach Interna- tional Airport, Florida, copies of the attached notice marked "Appendix. "2 Copies of said notice on forms provided by the Regional Director for Re- gion 12, after being duly signed by the Respon- dent's authorized representative, shall be posted by the Respondent immediately 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 al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the Trial Examiner's Decision, as to what steps the Respon- dent has taken to comply herewith.25 IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed insofar as it alleges that the Respondent discriminated against Raymond D. Craig, Jr., and James W. Coates in violation of Section 8(a)(3) and (1) of the Act, and engaged in other conduct in violation of Section 8(a)(1) of the Act except as found herein. IT IS ALSO RECOMMENDED in Case 12-RC-3363 that the challenges to the ballots of Raymond D. tional 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 " zs 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 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 360 DECISIONS OF NATIONAL Craig, Jr., and James W. Coates be upheld; that the challenge to the ballot of Erwin H. Enos be over- ruled; that his ballot be opened and counted; and that a revised tally of ballots be issued. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain in effect any rule which prohibits employees when they are on nonworking time from distributing handbills, leaflets, or other literature in nonworking areas, without our approval , on behalf of Local Lodge No. 971, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization ; nor will we maintain in effect any rule which prohibits em- ployees from participating in any strike, work stoppage, picketing, or other union or con- certed activities protected by the Act. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. LABOR RELATIONS BOARD WE WILL rescind and annul any rule which prohibits employees when they are on non- working time from distributing handbills, leaflets, or other literature in nonworking areas, without our approval, on behalf of any labor organization or which prohibits em- ployees from participating in any strike, work stoppage, picketing, or other union or con- certed activities protected by the Act. BUTLER AVIATION COMPANY (PALM BEACH), A DIVISION OF BUTLER AVIATION INTERNATIONAL, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711.