Republic Corp.

NATIONAL AIRMOTIVE National Airmotive, a Division of Republic Corpora- tion and Larry W. O'Banion. Case 20-CA-7860 November 21, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 28, 1973, Administrative Law Judge Maurice Alexandre issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions anda supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as inconsis- tent herewith. The Administrative Law Judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging employee O'Ban- ion. While we agree that the Respondent thereby violated Section 8(a)(1), we do not agree that Respondent violated Section 8(a)(3). O'Banion was discriminated against because he was a "troublemak- er" for circulating a petition about wages among the employees and requesting their signatures. This was not activity on behalf of a union. It was related to the terms and conditions of employment, however, and thus protected by Section 8(a)(1). While the'activity was continued briefly on company time, we agree with the Administrative Law Judge that this was merely a pretext for the discrimination, and that the Respondent raised no objections to the conduct of Communication Committee business on company time generally. Although we have made" certain changes in the Administrative Law Judge's findings and conclu- sions, his recommended Order as it stands is appropriate. Accordingly, we adopt the said recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that National Airmotive, a Division of Republic Corporation, Oakland, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION 517 MAURICE ALEXANDRE, Administrative Law Judge: This case was tried before me in San Francisco, California, on May 11, 1973, upon a complaint issued on November 30, 1972,1 alleging , that Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended. In its answer, Respondent denied commission of the unfair labor practices alleged. Upon the entire record, my observation of the witnesses, and the briefs filed by the General Counsel and by Respondent, I make the-following: 2 Findings and Conclusions Respondent is a California corporation engaged in the manufacture and processing of aircraft engines and parts in Oakland, California. The General Counsel contends that Respondent violated Section 8(a)(1) by instructing employ- ee O'Banion to keep him advised of union activity at the plant, and violated Section 8(a)(1) and (3) by later discharging O'Banion because he engaged in protected concerted activities. Respondent denies that it requested O'Banion to spy or report on individuals involved in union activity, and asserts that O'Banion's discharge was for cause, i.e., because he violated instructions that he was to obtain permission before leaving his work station during working time. The Evidence Sometime in June 1972,3 employee O'Banion noticed a poster on Respondent's bulletin board stating that the employees were working under a contract which was subject to the McNamara-O'Hara Service Contract Act. The poster also stated that pursuant to law, a list of work classifications and prevailing wages were to be posted. O'Banion asked Personnel Manager Bums why Respon- dent had not posted the prevailing wages., Burns replied that he did not know. O'Banion continued to pursue the matter vigorously, and visited the Wage and'Hour Division of the United States Department of Labor, as well as Western Airmotive, a company which had subcontracted work to Respondent. Shortly thereafter, Production Man- ager Fadeef and other officials of Respondent requested O'Banion for an explanation of his visit to Western Airnotive, pointing out that such conduct could cause financial injury to Respondent . O'Banion agreed that his conduct had been unwise, and stated that it would not happen again. Two weeks later, after Leadman Rainey informed O'Banion that the latter had been called a troublemaker during a company meeting attended by President Morjig and Vice President Rivers, O'Banion attempted to explain ' Based upon a charge filed on October 19, 19.72 2 No issue of commerce is presented- The complaint alleges and the answer admits facts which, I find, establish that Respondent is an employer engaged in commerce and- in operations affecting commerce within the meaning of the Act. 3 All dates referred to hereafter relate to 1972 unless otherwise stated. 207 NLRB No. 83 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his conduct to Production Manager Fadeef. Among other things, O'Banion stated that the employees were not satisfied with their wages, that his concern was to keep the employees happy,4 but that a union was unnecessary. According to O'Banion, Fadeef_stated that he would relay these views to Morjig, and requested O'Banion to "keep him advised of any union activity" in the plant. Fadeef testified that he never' asked O'Banion "to spy . . . on employees and report to [him ]" or "to report individuals who might be interested in the union." O'Banion admitted that Fadeef, did not ask him "to spy on employees and report to [Fadeef ] the names of individuals who might be favoring the union," and did not ask him "to stay away from talking with the union about coming to the plant to organize it." Sometime prior to July 13, Respondent had distributed to its employees questionnaires relating to a proposed dental plan. A number of employees failed to return the questionnaires ; and at a meeting of the, communication committee , on the above date, Personnel Manager Burns requested the three employee members, - O'-Banion, Felici= ano, and Murray, to communicate with, those. who had failed to return questionnaires to complete them. Burns gave them no instructions relating to whether or not they were to carry out their task during working time, and O'Banion devoted about one-half hour of-his work time to the matter of the- questionnaires.-On August 2, O'Banion told Burns that he saw no reason for further delay in the dental plan , and Burns told him to talk to Fadeef. O'Banion testified that he accordingly requested Fadeef to meet with him . Fadeef testified that Burns complained that O'Banion had been badgering him about Committee matters, that Burns requested Fadeef to tell O'Banion not to bother Bums about the same subjects every day, and that Fadeef notified Foreman Neth that O'Banion could see Fadeef about committee matters if he wished to. A meeting between Fadeef and O'Banion took place on the morning of August 3, and they met again during the afternoon. Foreman Neth was present at both meetings, during which a number of, employee matters were discussed. Because O'Banion expressed the view during the afternoon meeting that the communication committee was not' handling problems expeditiously, Fadeef requested employee Feliciano to join them.5'Accordiiig to Fadeef, he and Neth met with O'Banion again on August 4, and a memorandum to the file prepared by Fadeef on August 8 contains his summary of discussions on August 3 and on August 4. _ The record contains conflicting evidence as to whether, during his discussions with O'Banion, ' Fadeef instructed him to obtain permission from his leadman before leaving his work station during work time to conduct communica- tion committee business. O'Banion testified that no such instructions were ever given to him. Feliciano initially testified that Fadeef gave such instructions on August 3, 4 O'Banion had recently been elected-to -the communication committee. In addition to O'Bamon , the comnuttee consisted of two other employee members, Feliciano and Murray, -Personnel. Manager Burns who was chairman, and -one_ additional, rotating management representative The committee met once a month to discuss suggestions , problems, and topics of common interest to Respondent and its employees. but, then changed - his story and testified that the instruc- tions were given prior to that dates However, Fadeef testified that he did not give O'Banion such instructions prior to August 4. In view of this conflict, I find that no such instructions were given prior to that date. With regard to whether he gave such instructions, Fadeef gave a number of nonresponsive answers which suggest that he was being evasive. He -finally ,testifiedthat •he gave the instructions to O'Banion at their meeting on August 4. There is, however, conflicting evidence as to whether there was an August- 4 meeting. O'Banion and Fadeef both testified that there, were two meetings on August 3-one in the morning and one in the afternoon. On the other hand, Fadeef's memorandum of August 8 refers to, only , one meeting on August 3 and one on August , 4. In addition, Feliciano testified ' that during the afternoon; meeting on August 3, O'Banion and Fadeef had an" argument and raised their voices. - Such testimony is consistent with Feliciano's prehearing affidavit. Although Fadeef testified that on August 4, O'Banion threatened to bring a union into the plant, Fadeef's memorandum of August 8 states that O'Banion made that threat on August 3. In addition, the, record does not contain evidence of two arguments. Finally, I note that Foreman Neth was not, called to testify on behalf of Respondent . On this record, I am not inclined to credit the_ evidence regarding a meeting on August 4, and find that O'Banion and Fadeef met twice on August 3 but not on August 4. Accordingly , I do not credit Fadeef's testimony that he gave the disputed instructions on August 4. I have already found that such instructions were not given prior to August 4, and there is no evidence that they were given after that date. Moreover , Fadeef did not know whether he had given similar instructions to Feliciano and Murray, and could not recall whether he had posted such instructions on the bulletin board . On the entire record, I reject Fadeef's testimony that he gave the instructions in question to O'Banion . Rather, I credit O'Banion's testimo- ny and find that the said instructions were never given to him. On October 17, O'Banion advised Personnel ' Manager Burns that he intended to raise the question of wages at the next communication committee meeting scheduled for October 19. In order to lend support to'his claim that the employees were concerned about the wage structure, O'Banion, on the morning of October 18, circulated a statement relating to wages among the employees, for their signatures. He began during his rest period, during which he obtained a number of signatures, and obtained additional signatures during a 15-minute interval immedi- ately following the rest period. He was stopped by Leadman Rainey who told him that Vice President Gravatt had observed him and was upset . Rainey instructed O'Banion to return to his machine. Shortly thereafter, Rainey told O'Banion that Fadeef wished to see him, and, Rainey and Foreman Neth accompanied him to Fadeef's office. O'Banion testified s Employee Murray was then on vacation s Feliciano's prehearing affidavit states that when O 'Bamon complained about his wages at the August 3 meeting , Fadeef told him that Respondent paid him a wage for which he was expected to give Respondent only 8 hours of work; and that if he felt underpaid, he should go elsewhere and get the money he thought he should be earning NATIONAL AIRMOTIVE 519 that Fadeef- stated that he understood that O'Banion had been circulating a petition among the employees , that he answered affirmatively and showed the petition to Fadeef, and that Fadeef informed him,that he was suspended for 3 days pending investigation. 'Fadeef testified that when Rainey reported the incident to him, he asked Rainey whether O'Bamon had sought permission to leave his work station; th at Rainey said he had not; that when O'Banion arrived, he told the latter that he had received a report that O'Bamon had been circulating a petition on company time; that he asked O'Banion whether this was true and O'Banion answered affirmatively; that he asked O'Banion whether he had received permission to do so and O'Banion replied that he had not; that Fadeef stated that O' Banion had been warned about his activities away from his work station and was'discharged; that O'Banion then offered to show him the petition relating to communication commit- tee-business ; that Fadeef replied that he was not interested inasmuch as O'Banion had not been at his work station doing the job he was being paid for; and that he then told O'Banion that the latter was suspended pending investiga- tion. Shortly thereafter, when O'Banion saw Fadeef in the reception area, he told the latter that the petition was intended as proof that there was a morale problem among the employees, and that the employees could and would readily have signed union cards. Fadeef further testified that he reported the matter to Vice President Gravatt with a recommendation that O'Banion be discharged. On October 19, O'Banion went to see President Mor]ig to ask why he had been reprimanded. Morjig replied that O'Banion had been discharged and Vice President Gravatt, who was present, stated that O'Banion was being terminat- ed because he was a "troublemaker." " Later, O'Bamon talked again with Moijig who stated that O'Banion had been suspended for 3 days pending investigation, and that he should call Bums the following week. O'Banion called Burns the following Monday and was advised that he was discharged. Concluding Findings 1. Although Fadeef dewed making other requests of O'Banion, he did not deny asking the latter to "keep him advised of any union activity" in the plant. I credit O'Banion and find that Fadeef made the quoted request. Such a request violated Section 8(a)(1) of the Act. Rea Construction Co., 137 NLRB 1769, 1773-1774. 2. The record clearly establishes , and I find, that O'Banion vigorously pressed for changes in wages and other terms and conditions of employment at Respondent's plant, that he impliedly threatened to bring a union into the plant, and that Respondent regarded him as a "troublemaker." I further find that when O'Banion circulated a wage petition for signature by the employees, Respondent seized upon the fact that he did so during work time as a pretext for suspending and then discharging the troublemaker. As already found above, Respondent did not instruct O'Banion, or indeed the other members of the communication committee, to obtain permission before leaving their work stations to conduct committee business. On the contrary, the evidence shows that Respondent did not object to the conduct of communication committee business during worktime., Thus, O'Banion obtained employee signatures on the dental questionnaires during work time without objection by Respondent. In addition, O'Banion testified without contradiction that he met on several occasions with Burns during work time regarding committee business. Although Burns complained to Fadeef about O'Banion, his objection related to the frequency with which O'Banion brought up employee matters rather than to the fact that they were discussed during work time. I, accordingly, find that Respondent suspended -and then discharged O'Banion because he engaged in protected concerted activity and to discourage the employees from considering unionization, thereby violating Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. By requesting O'Banion to keep it advised of any union activity in the plant, Respondent engaged , in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 2. By unlawfully suspending and then discharging O'Banion, as found herein, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), and (3) of the Act._ 3. The said unfair labor practices affect commerce within the meaning of the Act. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary, and recommend, that Respondent be ordered to cease and desist from the unfair labor practices found, and from in any other manner interfering with , restraining, or coercing its employees. Affirmatively, I recommend that Respondent offer to O'Banion immediate and full reinstatement to the position which he held at the time of his suspension and discharge, without prejudice to his seniority and other rights and privileges. I further recommend that Respondent make O'Banion whole for any loss of earnings suffered because of the suspension and discharge, by paying to him a sum of money equal to that which he would have been paid by Respondent from the date of his suspension to the date on which Respondent offers reinstatement , less his net earnings, if any, during the said period. The loss of earnings under the Order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER-7 Respondent, National Airmotive, a Division of Republic Corporation, its officers, agents, successors and assigns, shall: A. Cease and desist from: (1) Unlawfully suspending or discharging employees or otherwise discriminating in regard to their hire, tenure of employment, or any term or condition of employment. (2) In any other manner interfering with, restraining or coercing employees in the exercise of any right guaranteed by the Act. B. Take the following affirmative action: - (1) Offer to Larry W. O'Banion immediate and full reinstatement to his former position or, if that position no longer 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 section herein entitled "The Remedy." (2) Preserve and make available to the Board or its agents on'request, for examination and copying, all payroll 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. (3) Post at its place of business in Oakland, California, copies of the attached notice marked "Appendix."8 Copies of said notice on forms provided by the Regional Director for Region 20, after being signed by a representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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, 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. 8 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." APPENDIX 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, loin 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 To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully suspend or discharge employees, or otherwise discriminate against them. WE WILL OFFER to restore Larry W. O'Banion to his job and pay him for all the wages, if any, which he lost because of the discrimination against him. NATIONAL AIRMOTIVE, A DIVISION OF REPUBLIC CORPORATION (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, Califor- nia 94102, Telephone 415-556-0335.