Lane Aviation Corp.

LANE AVIATION CORP. 575 Lane Aviation Corporation and John E. Hook and John D. Zaros and Teamsters Union, Local 413 af- filiated with the international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 9-CA-8183, 9-CA-8263, and 9-CA-8420-1,-2 October 22, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On April 13, 1976, Administrative Law Judge Rus- sell M. King, Jr., issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 as modified herein. We agree with the findings of the Administrative Law Judge that Respondent committed the various violations of Section 8(a)(1) of the Act alleged in the complaint. We also agree that Respondent unlawful- ly discharged employees Zaros and Hook in violation of Section 8(a)(3) and (1). As discussed by the Administrative Law Judge, the Respondent entered into a settlement agreement on July 24, 1974, under the terms of which it agreed, inter alia, to offer unconditional reinstatement and backpay to Zaros and Hook and to post a notice stating that it would not engage in various unfair la- bor practices. Respondent has complied with the set- tlement agreement except with respect to the rein- statement of Zaros. It posted the proper notice, made backpay payments to Zaros and Hook, and offered reinstatement to Hook, which he declined in writing. Respondent need not be required to do again what it has already done. We shall therefore amend the rem- edy and recommended Order accordingly.' With respect to Zaros, we agree with the remedy recommended by the Administrative Law Judge- i.e., a reinstatement offer and backpay until such time as a valid unconditional offer of reinstatement is made. As stated, Zaros was discharged by Respon- dent in April 1974 in violation of Section 8(a)(3) and 'Jackson Tile Manufacturing Company, 122 NLRB 764 (1958) (1). In accordance with the terms of the settlement agreement, Zaros was to have been reinstated and given backpay. Zaros did receive the backpay, but was never reinstated. Respondent asserts that it did not reinstate Zaros because he did not fulfill an oral- ly understood condition precedent to reinstate- ment-obtaining a valid Ohio driver's license and appropriate insurance coverage-within a reasonable time. We have previously considered Respondent's as- sertion that there existed a condition precedent to Zaros' reinstatement and concluded that, as the set- tlement agreement was clear and unambiguous on its face requiring immediate and unconditional rein- statement, we could not accept parole evidence for the purpose of varying the terms of the written agree- ment.' While we adhere to that conclusion,' we note that, even if parole evidence varying the terms of the written agreement were considered, the rejection of Zaros' application for reinstatement was unlawful. Respondent contends that a valid license was a job requirement. The testimony reflects, however, that such a requirement was not enforced. Zaros' license had previously been suspended for 6 months in 1972 with Respondent's knowledge, but he was not re- stricted by Respondent from performing any of his driving duties during that time period. Another em- ployee was told when hired that while having an Ohio driver's license was preferred it was not neces- sary. It is thus clear that the condition sought to be applied by Respondent, a variance from the terms of the settlement agreement, was also discriminatorily applied. Finally, we note that even if the condition sought by Respondent could be applied herein, a discrimi- natorily discharged employee is entitled to a reason- able period of time to decide whether he wishes to accept reinstatement 4 Zaros not only consistently signified his desire to be reinstated, but also, contrary to the assertion of Respondent, fulfilled the invalid condition precedent within a reasonable period of time under the circumstances of this case. When the alleged "oral understanding" was reached on July 24, 1974, no time period was mentioned for obtaining the insuiance and license. Respondent's attorney did, however, offer his assistance to Zaros in' straighten- ing out his problems with the Bureau of Motor Vehi- cles. Zaros then tried unsuccessfully to reach Re- spondent's attorney by phone approximately 15 to 20 times. Zaros finally reached the attorney on August 2 Lane Aviation Corporation, 218 NLRB 590 (1975) ' We note that Zaros admitted in his testimony, over objection, that it was his understanding that he had to validate his license before being reinstated ° Southern Household Products Company, Inc, 203 NLRB 881 (1973), Pen- co Enterprises, Inc, Penco of Ohio, and Acoustical Contracting and Supply Corp, 216 NLRB 734 (1975) 226 NLRB No. 78 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14 and they made an appointment to go to the Bu- reau of Motor Vehicles the following week. Several days later the attorney called off that appointment and it was understood that Zaros would contact him again. Zaros then proceeded to settle his insurance and license problems himself, completing this by September 9, 1974. Respondent, however, then re- fused to reinstate him asserting that the delay was unreasonably long.5 We disagree with Respondent and find that Zaros fulfilled within a reasonable period of time whatever "oral understanding" existed. No time period for ob- taining the insurance and license was given to Zaros at the time of the settlement agreement and Respon- dent was not prejudiced by the short delay, which, indeed, was at least partially caused by Respondent's attorney.' Contrary to our concurring colleague, we do not believe that compliance with the Act is facilitated by allowing a Respondent to pick and choose which provisions of a settlement agreement he will disre- gard and which he will leave intact. While this result might, as our colleague asserts, "encourage parties to enter into [settlement] agreements," it does not "give more standing to such agreements" but rather under- mines them and encourages additional litigation sub- sequent to such settlements.7 We find that Respondent wrongfully refused to re- instate Zaros upon demand and thereby failed to comply with the- terms of the settlement agreement. AMENDED REMEDY Having found that Respondent has already com- plied with the notice-posting requirements with re- spect to its violations of Section 8(a)(1) of the Act 5 The exact date in September that Zaros sought reinstatement is unclear It is clear, however, that shortly after he received the appropriate papers Zaros went to Respondent's premises and applied for reinstatement through Supervisor Noble Noble referred him to Respondent's attorney, who in- formed Zaros that he would not be reinstated. v We find Trinity Valley Iron and Steel Company, a Division of C. C Grif- fin Manufacturing Company, Inc, 158 NLRB 890, 903 (1966), inapposite here In Trinity, a striker abandoned his job and left the geographical area Later he returned to the area and fortuitously learned that the strike had ended He then waited I month before requesting reinstatement We noted there that in addition to the fact that the striker had abandoned the job, which is not true here, he also unreasonably delayed in applying for rein- statement. Here, of course, the delay was, at least part, beyond Zaros' con- trol 7 The cases cited by our concurring colleague as representative of cases in which the Board reached a result contrary to our conclusion herein are clearly distinguishable. Thus , in Medical Manors, Inc, d/b/a Community Convalescent Hospital and Community Convalescent East, 199 NLRB 840 (1972), the Board refused to set aside the entire settlement agreement only because there was full compliance in all respects except for a single minor incident And in Tompkins Motor Lines, Inc, 142 NLRB 1 (1963), the sub- ject in dispute was specifically not covered by the settlement . Here, in con- trast, the refusal to reinstate Zaros is a critical element of the settlement agreement and the failure to comply therewith constitutes a breach of the basic intent and purpose of that agreement and its discriminatory discharge of Hook and, fur- ther, offered Hook reinstatement, which he_ declined, and gave him backpay, we will delete those portions of the recommended Order requiring it to take the actions already taken. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Lane Aviation Corporation, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph 1(c): "(c) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer John D. Zaros immediate and full rein- statement. to his former job or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for such loss of pay he may have suffered as a result of the Respondent's discrimination against him, in the manner set forth in the section of this Decision entitled `The Remedy.' " 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER WALTHER, concurring: I agree with my colleagues as to the result reached in this case but not with their rationale. Respondent complied with the settlement agree- ment reached with the General Counsel except as to Zaros. As to him, Respondent believed, apparently in good faith, that it was not required to reinstate him because of his delay in validating his driver' s license which Zaros admitted had been a precondition to his reinstatement. I agree with my colleagues that Re- spondent's refusal to reinstate Zaros was unjustified and I concur in their order directing his reinstate- ment with backpay. But I do not believe that in order to reach this result it is necessary to set aside the entire settlement agreement and litigate the unfair la- bor practices which have been resolved by agree- ment. I think it sufficient in circumstances such as exist in this case to leave the settlement agreement intact except as to the single term which has not been complied with and base a finding of unfair labor practices only as to that term. By doing so, the Board will be giving more standing to settlement agree- ments and thus encourage parties to enter into such LANE AVIATION CORP. 577 agreements, and will also make unnecessary any liti- gation whose results are already embodied in the set- tlement agreement. The Board has in some cases re- fused to set aside an entire settlement agreement because of noncompliance with one or more terms.' I would encourage the practice. 8 Medical Manors, Inc., d/b/a Community Convalescent Hospital and Com- munity Convalescent East, 199 NLRB 840 (1972), Tompkins Motor Lines, Inc, 142 NLRB 1 (1963). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge you, refuse to rein- state you, or otherwise discriminate against you because you have engaged in organizing activity, or are a member or supporter of Teamsters Union, Local 413, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT In any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights under Section 7 of the Na- tional Labor Relations Act. WE WILL offer John D. Zaros reinstatement to his former job or, if that job no longer exists, to a job substantially equivalent, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of pay he may have suffered because we discharged him, with interest at the rate of 6 percent per annum. LANE AVIATION CORPORATION on October 30, 1975. The complaint alleges a series of vio- lations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (the Act), dating back to the spring of 1974, during which period an organizational cam- paign on behalf of Local 413 (the Union) was in progress. The alleged violations were the subject of an all party, in- formal settlement entered into on July 24, 1974. The Gen- eral Counsel alleges that Lane Aviation Corporation (the Respondent) breached the settlement agreement by failing and refusing to reinstate employee John D. Zaros. On Au- gust 13, 1975, the Regional Director for Region 9 withdrew his approval of the settlement agreement under Section 101.9(e)(2) of the Board's Statement and Procedures. A renewed and consolidated complaint was issued on August 13, 1975. The Respondent alleges full compliance with the settlement agreement, maintaining that Zaros failed and refused to accept an offer of reinstatement. The initial issue here is whether the Respondent's failure to effectuate the reinstatement of Zaros violated the Act and the settlement agreement. If such is the case, the earli- er charges and allegations must be dealt with to ascertain whether or not they too were violative of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel, the Re- spondent, and the individual employees, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION The Respondent, an Ohio corporation, owns and oper- ates a business in Columbus, Ohio, which is engaged in selling and servicing aircraft. The Respondent annually sells and causes to be shipped directly from its Columbus, Ohio, location to points outside Ohio, goods valued in ex- cess of $50,000. The Respondent also derives annual gross revenues in excess of $500,000. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find, as admitted, that the Union (Local 413) has been and is a labor organization as defined in Section 2(5) of the Act. DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge: These consolidated cases I were heard by me in Columbus, Ohio, i (1) Case 9-CA-8183: Charge filed by the individual, Hook, on Decem- ber 7, 1973; complaint (consolidated with Case 9-CA-8263) dated March 6, 1974. (2) Case 9-CA-8263: Charge filed by the individual, Zaros, on January 23, 1974, complaint (consolidated with Case 9-CA-8183) dated March 6, 1974 (3) Cases 9-CA-8420-1,-2: Charge, Case 9-CA-8420-1, filed by the Union (Local 413) on April 3, 1974; charge, Case 9-CA-8420-2, filed on April 18, 1974; complaint, involving both charges, dated June 11, 1974 A II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background This case has its roots, as do many, in an organizational campaign during 1973 and 1974. The unit involved here had been covered by a contract with Idea and Devel- opment Council (IDC). Local 413 (the Union) petitioned consolidated complaint involving all three cases was dated August 13, 1975, and was later amended on October 15, 1975 2 The record fails to reveal exactly why the Regional Director waited approximately a year to withdraw his approval of the settlement agreement However, the litigation history in this case (which will be discussed later) indicates challenges to an election held July 31, 1974, and subsequent excep- tions to the Regional Director's report The Board issued its Supplemental Decision and Direction on June 18, 1975 (218 NLRB 590) The dissent in that Decision indicates that the Regional Director was awaiting the Deci- sion itself before withdrawal of his approval of the settlement agreement 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board for an election on June 19, 1973. The matter was transferred directly to the Board which rendered its deci- sion on June 21, 1974 (211 NLRB 824).3 In granting the petition and directing an election, the Board held that the IDC contract was not a bar to granting the Union's peti- tion for election since the contract term was indefinite or without a termination date. The election was held on July 31, 1974, and the Union failed to receive a majority. Chal- lenges were filed to the election and exceptions were filed to the Regional Director's report. The Board's Supplemen- tal Decision and Direction was issued. June 18, 1975 (218 NLRB 590). The ballot of discharged employee Zaros was among those challenged. The Board, in light of the settle- ment agreement reinstating Zaros, agreed with the Region- al Director's recommendation that Zaros' ballot should be opened and counted.' When the individual John E. Hook executed the settlement agreement, he also executed a let- ter to the Respondent acknowledging and declining an of- fer of reinstatement. However, Hook remains a party to these proceedings and the complaint seeks his reinstate- ment along with that of Zaros. B. Summary of Testimony and Evidence 1. Charles Richard Noble Charles Richard Noble has been employed by the Com- pany for the last 7 years. He is presently ramp manager, a position he has held for 4 years. Noble, together with Shift Supervisor Robert L. Moore, discharged Charging Party John E. Hook on January 21, 1974, for what Noble charac- terized as "continued absence." Noble testified that Hook failed to report for work because of reported "car trouble" on January 18, 19, 20, and 21, 1974, and was thereafter discharged solely for these absences. Noble also discharged Charging Party John D. Zaros on or about April 16, 1974, and at the recommendation of Foreman Bill Conners. No- ble testified that Zaros' discharge occurred because of "his failure to possess a valid driver's license" and "absentee- ism." According to Noble, his discovery of Zaros' lack of a valid license was the controlling reason for the discharge at the time it occurred, although Noble maintained that the absenteeism was of equal seriousness. Noble was aware of the union organizational activities of Hook and Zaros. In November 1973, Noble discovered a group of employees gathered together with union repre- sentatives in a "line shack." Hook and Zaros were among the employees present. Zaros had earlier received a pay increase in October 1973 and Zaros had thereafter accused 3 The original and alleged unfair labor practices occurred during the peri- od between the Union's petition for election (June 19, 1973) and the Board's initial decision (June 21, 1974) See fn. 1, supra 4 The Board, in fn. 3 of its decision (218 NLRB 590, June 18, 1975), discussed the Zaros reinstatement and the fact that he had not yet been "returned" to work The reasons for the failure of Zaros' return were also discussed, the Board concluding that the Respondent's condition that Zaros obtain a valid state driver's license prior to his return was outside of the written settlement agreement. The Board thus, and in effect, rejected the condition, which goes to the very heart of this case. Since the General Counsel has chosen to renew the complaint involving (among others) this very issue, I will determine the matter anew, notwithstanding the Board's conclusions in fn 3 of its Supplemental Decision and Direction Noble of trying to "bribe" him and thus influence his union sympathies through the pay raise. Noble further tes- tified that, in late 1974, Hook had been laid off in an eco- nomic reduction of employees. As a result, Hook had filed a charge with the Board. Hook's layoff was accomplished by seniority and he thereafter requested reemployment on another shift through a "bumping" process. Noble delayed this bumping process for 2 or 3 weeks and Hook was final- ly reemployed on or about January 7, 1974. Noble testified that Hook, by virtue of "car trouble," failed to report to work on January 18, 19, 20, and 21. On January 21, Noble called Hook and stated that, if he did not report to work that evening, he would be terminated. Hook failed to re- port to work that evening and thus, his termination became effective. Noble had not checked Hook's prior attendance record. Noble testified that Zaros had been walking to work for quite some time, and that he was suspicious that Zaros was having problems with his driver' s license. On or about April 13, 1974, Noble indicated that Zaros was involved in a minor accident while driving a truck at work. Noble testi- fied that Zaros thought the incident was "very funny." This incident, further prompted Noble to check into the status of Zaros' license, whereupon Noble testified that his inquiries revealed that Zaros' driver's license was not valid. Noble then discharged Zaros (on Monday, April 16). Zaros was a ramp service employee and Noble testified that the Federal Aviation Administration and the Respondent 's insurance company required all such employees to have a driver's license. Noble further indicated that additional reasons for discharging Zaros included a drinking problem and a med- ical problem with his back. Noble had not previously ques- tioned Zaros regarding the status of his driver's license, even in light of what Noble had concluded was a "drinking problem." In fact, in previous years, Zaros had been issued the standard driving card (issued by the Respondent to all of its drivers) without inquiry into the status of Zaros' li- cense. 2. John E. Hook Hook had worked for the Respondent as a lineman since 1972. His job was to service and refuel aircraft. In June 1973, Hook had been appointed to the Idea and Devel- opment Committee (IDC) at the recommendation of No- ble. As a lineman, Hook worked in the ramp service de- partment and, as a member of the IDC, Hook's duties were to aid in the negotiation of a new contract for the ramp service department employees. In mid-June 1973, the ramp service employees rejected a proposed contract of Respon- dent and at the same time voted to take action to obtain representation by a local Teamsters union. Hook partici- pated in this effort and distributed union cards to the em- ployees. Based on the union cards obtained by Hook, Lo- cal 413 demanded recognition on June 19, 1973, and on the same date filed its representation petition with the Board (Case 9-RC-10185). On June 21, 1973, Hook was called to Noble's office whereupon, according to Hook, Noble indicated his dissat- isfaction with the petition, stating "we [were going to] give you . . . everything if you hadn't filed for this union." Lat- LANE AVIATION CORP. 579 er that day, Noble requested a meeting of the ramp service employees in the "line shack." At that meeting, Noble, ac- cording to Hook, requested the employees to continue with IDC in an effort to negotiate a new contract to replace the current contract which expired at the end of the month. At that meeting the employees voted and rejected Noble's re- quest. A hearing was held in the Regional Director's office on July 13, 1973, regarding the representation petition of Local 413. Hook testified that, prior to the hearing, he was required to sweep out hangars approximately once a week but that, after the hearing, he was required by Noble to sweep han- gars almost every day. In October 1973, Hook requested a transfer to another shift where he had seniority over two employees. He testified that his request was denied by Su- pervisor Tom Johnson although the shift supervisor in- volved (Robert Moore) acquiesced in the initial request. Hook was laid off on November 30, 1973, and immediately requested that he be allowed to exercise his "bumping rights" on another shift. This decision was delayed because Hook had received a summons for 3 weeks'jury duty,com- mencing on or about the date of his layoff. In mid-Decem- ber 1973, Hook contacted Supervisor Moore with regard to returning to work and was told to resubmit the request after the first of the year. On or about January 2, 1974, Hook contacted Noble and was told to report to work on January 7. Hook testified that prior to his layoff he had missed only 2 days of work, once by virtue of the birth of his son and once to attend the representation petition hear- ing in July 1973. Regarding January 18, 19, and 20, 1974, Hook testified that he did in fact fail to report to work on these days because all three of his automobiles were inoperative. He further testified that he lived almost 11 miles from the air- port and that the cab fare ranged from between $13 to $15 a day. During these 4 days Hook further testified that he was attempting to fix one or more of the vehicles and that he was unable to use bus transportation because the near- est busline was 6 miles from his residence. Hook also testi- fied that he called in on the dates of the absences, reporting the reasons to Supervisor Moore, who merely stated, "Okay, fine." On January 21, 1974, Hook testified that he again called Supervisor Moore and reported that he would be unable to work because of car trouble. Moore's reply, according to Hook, was again, "Okay, fine." Hook was scheduled to commence working at 3:30 p.m. on January 21, 1974, and he acknowledged receiving a phone call from Noble at approximately 3:20 p.m. that afternoon wherein Noble indicated to him that, unless he came to work that day at the appointed time, he was fired. Hook testified that other employees had irregular attendance records, includ- ing John Montgomery and George Skiver. Skiver worked on Hook's shift and, according to Hook, he was absent 1 or 2 days each month. On cross-examination, Hook admitted that during the period between January 18 through Janu- ary 21, he personally called in to the Company only once to report his car trouble. On the other 3 days concerned (January 18, 19, and 21) his wife or Zaros called in with the excuse on his behalf. Regarding the settlement agreement that was entered into on July 24, 1974, Hook testified that he had never been offered reinstatement and that he never refused rein- statement. Hook further testified that the backpay amount recited in the agreement ($2,500) was to be a net amount and that in fact the amount that he actually received was $1,400. Hook was also familiar with the fact that Zaros was to be reinstated and testified that he agreed to less backpay in the settlement than he was actually entitled to because of Zaros' reinstatement. In conjunction with the settlement agreement, Hook also executed a letter addressed to the Respondent wherein he acknowledged an offer of immedi- ate and full reinstatement and wherein he further declined that offer. Hook testified that he understood said letter to be part of the settlement and that the reason he -signed the letter was to receive his backpay and to, in effect, allow Zaros to be reinstated. 3. John Zaros Zaros began working for Respondent in February 1969 as a lineman. He continued as a lineman until his discharge on April 16, 1974. In his capacity as a lineman, Zaros was a ramp service employee engaged primarily in the fueling of aircraft. Zaros joined the union campaign in June 1973 and testified that on or about June 22, 1973, Noble stated to him "as you men are getting a union in here, I hope you all got another job lined up." In late October 1973, Zaros received an unscheduled pay increase which was with- drawn approximately 6 weeks later. Zaros apparently re- ported the pay increase to Local 413 representatives and thereafter, according to Zaros, Noble commented on re- porting the increase to the Union, stating, "I tried to give you guys a raise and you throw it back on the Company, if you don't want it I'll take it away from you." Further, and according to Zaros, he was given a disciplinary layoff of 4 days in January 1974 by Noble for failure to report to work for 2 days. Zaros indicated that he did report back prob- lems to a supervisor on the dates involved. Regarding his diver's license and the problems connect- ed therewith, Zaros testified that he did in fact lose his diver's license by court order in January 1972. The period of suspension was 6 months and, according to Zaros, he reported this fact to Noble, resulting in no change of rou- tine in his work program. Zaros further testified that he received his license in the mail in mid-August 1972 and thereafter continued driving ramp service vehicles and re- fueling aircraft until March 1974, when,he was placed in- side hangars refueling private and smaller airplanes. Zaros apparently looked on this transfer as somewhat of a demo- tion, indicating that such work was usually done by less experienced employees. Zaros thereafter apparently filed a charge with the Board as a result of the transfer, and on April 10, 1974, Zaros testified that Noble approached him and verbally expressed his dissatisfaction with the charge, stating, "I'll show you what . . . remedial tasks are, I'm so ... mad." Zaros further testified that the following day, April 11, Noble accused him of drinking and asked him to present his diver's license, questioning him about the va- lidity of the license. Zaros indicated that Noble copied down his driver's license number and gave him back the license, after which Zaros indicated that it was valid. Zaros further testified that, to the best of knowledge, he actually 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought that his license was valid and that the following day, April 12, 1974, the Respondent did issue him its own driver's license or driver's card. Zaros did in fact identify the card during his testimony and the contents of the writ- ten documentation on the card were, without objection, read into the record. Zaros, in testimony, acknowledged that he was involved in an accident on Saturday, April 13, 1974, whereby a dou- ble pane window approximately 4 by 6 feet was broken. Zaros denied having been drinking at this time, stating that the accident happened at approximately 12:15 p.m., and that he had reported to work at approximately 6 a.m. that morning. Zaros also related that he reported for work as usual on Sunday, April 15, 1974, and that nothing unusual happened on the entire shift. He further related that the following 2 days, April 15 and 16, were his scheduled days off although he did stop by the plant on April 15 and saw Noble, who said nothing to him. Zaros further testified that on the following day, April 16, 1974, Noble called him at home at approximately 11:25 a.m., and indicated simply that his employment was terminated. Zaros also testified that he subsequently, on July 24, 1974, learned that his license had been in fact suspended or revoked. The infor- mal settlement agreement was executed July 24, 1974, and thereafter Zaros testified that he obtained the necessary insurance to revalidate his license. This insurance was ap- parently in the form of a financial responsibility bond. The necessary insurance to validate Zaros' license was obtained on or about September 9, 1974, and according to Zaros the Respondent, with knowledge' of the same, refused to rein- state him thereafter. Zaros also acknowledged that he knew the validation of the driver's license was a necessary pre- requisite (on his part) in getting his job back.' Zaros also confirmed that he had called in on behalf of Hook in January 1974 and that he also was present in the line shack in November 1973 when Noble confronted the employees and several union representatives, expressing displeasure at the meeting. According to Zaros, Noble asked what was going on and Zaros replied that they were trying to find out their rights, to which Noble replied that "you [have] no ... rights." Zaros also contended that he thought his net backpay amount would be the full $750 as stated in the settlement agreement and in fact he received a net amount of $5051 Zaros further contended that counsel for the Respondent was to be of greater aid in obtaining his license or revalidating the same and that he was successful in reaching the Respondent's counsel only once as the re- sult of 15 to 20 phone calls. The actual state driver's license of Zaros was, without objection, examined during his testi- mony and reflected that it was issued by the State of Ohio on November 10, 1972. There was also nothing on the li- cense to indicate its revocation or suspension and the expi- ration date was November 11, 1976. 4. George W. Skiver III George W. Skiver III has been a lineman and a ramp 3 This testimony was allowed over the strenuous objection of Zaros' coun- sel, who understandably argues here'that obtaining the license was not a condition, implied or otherwise, of Zeros' reinstatement. See fn 4, supra service employee for Respondent since January 1973. Skiv- er testified that on or about June 22, 1974, Noble ap- proached him regarding the Union and stated (among other things) that "the Company will not agree to anything that the Union has to propose . . . [and] . if the Union gets in, you're out." Skiver further related that he was again confronted by Noble in mid-August and while he and a fellow employee, Dennis Allard, were sweeping out a hangar, Noble stated that he hoped that they were "enjoy- ing" what they were doing "because after the union gets in that's all you're gonna be doing." Skiver further testified that, when he was interviewed and hired, Noble had asked him if he had an Ohio driver's license, to which he replied that he did, after which Noble related that "it's not really necessary to have one here but we prefer that you do." 5. Dennis Lee Allard Dennis Lee Allard was employed by Respondent in July 1972 and had terminated his employment voluntarily in January 1974 to accept a position with another company. Allard testified that on June 22, 1974, Noble indicated to him and another employee that "you guys better have an- other position lined up if the union gets in." Allard also testified that sometime during the summer of 1973 he and Skiver' were sweeping out a hangar when they were ap- proached by Noble who stated that they had "better get use to it because that's what we would be doing when the union came in." 6. Robert Moore Robert Moore was employed by Respondent in March 1967. His initial job was that of a lineman and he was later made a foreman in 1970. Approximately 2-1/2 years later, he was promoted to the position of ramp supervisor. Moore's employment terminated on August 9, 1974, for "absenteeism, due to mental problems, and also back prob- lems which had plagued [him] since 1968." At the time of his testimony in this case he was under psychiatric treat- ment but indicated that he had recollection of the facts and events as they occurred during the union campaign in the summer of 1973. During this period, Moore's immediate supervisor was Noble. Moore himself had been solicited by Hook and had in fact signed a union card at Hook's re- quest. Moore testified that, during the union campaign, Noble and Vice President Tom Johnson had discussed Hook with him and in connection with union activities. Moore described these conversations as frequent and al- most daily. Moore further related that both Noble and Johnson, in said frequent discussions, had accused Hook of being "a union plant" and that they both had indicated that they would do anything in their power to get rid of him. Moore, in testimony, also remembered that Hook's wife had called in during several of Hook's absences in January 1974. Moore further testified that, in the fall of 1973, Hook requested to "bump on" a different shift and that he (Moore) had requested approval from Johnson for Hook to make the transfer. Moore indicated that Johnson refused, stating that "if it were anybody but John Hook, he would approve it." Moore testified that during Hook's 4- LANE AVIATION CORP. 581 day absence in January 1974 Noble made several com- ments regarding dissension among the ramp service em- ployees and further regarding the fact that Hook had the employees "uptight over this union thing." Moore further related that such comments were made on the date of Hook's termination and immediately prior to Noble's ter- mination conversation with Hook on January 21, 1974. Moore, on cross-examination, admitted that he felt that Respondent had been "not entirely" fair and "somewhat" unfair in terminating him because of illness. III. EVALUATION OF LAW AND EVIDENCE The Regional Director's authority to withdraw his ap- proval of the settlement agreement cannot be challenged. His reasons were obviously grounded in Respondent's fail- ure to reinstate Zaros. He further apparently felt his posi- tion was buttressed by the remarks set forth in footnote 3 of the Board's Supplemental Decision and Direction.6 I choose to tackle the issues anew and in light of the evi- dence presented in this case. I conclude and find in this case that Respondent's fail- ure to reinstate or return Zaros to work constituted a breach of the settlement agreement dated July 24, 1974. I have little trouble in concluding that the reason set forth by Respondent in failing to reinstate Zaros is groundless. Re- gardless of the license renewal thought (erroneously or otherwise) to be a condition to reinstatement, the undisput- ed fact remains that Zaros, as early as September 9, 1974, was ready, willing, and able to return to work. He was thus reemployable and his return to work was inexcusable. It appears that Respondent argues here that its offer of rein- statement was not timely accepted by Zaros through his own inaction in failing to promptly validate his driver's license. The settlement agreement was executed on July 24, 1974, and approximately 6 to 7 weeks thereafter Zaros had singlehandedly validated his license and was ready to work. I do not consider this period of time unusual or un- reasonable under the circumstances of this case. I do not conclude here that obtaining the license was an implied condition of Zaros' reinstatement as, provided in the settle- ment agreement. Obtaining the license merely removed the last possible bar (valid or not) to Zaros' return to work. Having concluded that the failure to reinstate or return Zaros to work rests solely with the actions (or inactions) of Respondent, I further conclude that the original discharge of Zaros was, at least in part, pretextual. I cannot and do not credit the significant portions of Noble's testimony in this case. His somewhat protracted performance on the witness stand', afforded me ample opportunity to weigh his interests and! hostilities. His mannerisms, his recollective capabilities in some areas as opposed to others, and his lethargic attitude in many important areas lead me to de- tect in him extreme hostility toward, the Union and its sup- porters and a willingness to go to almost any length to secure its failure. Of further significance here is Respon- dent's issuance, to Zaros, of a company driver's card on April 12, 1974, only 4 days prior to Zaros' discharge and 6 See fn. 4, supra, long after Noble claims he became suspicious that Zaros may have had state license problems. Hook's discharge poses a slightly more difficult problem. Noble alleged that he discharged Hook because of his 4- day absence in January due to car trouble. The absence, standing alone, could well attract some sympathy to Re- spondent's position here. However, in considering the rec- ord as a whole I can only conclude that Noble was consid- erably influenced by Hook's union activities. Hook had been throughout the prime organizer on behalf of Local 413. Noble had originally been responsible for Hook's ap- pointment to IDC, which had been fostered or backed by Respondent. Hook had then turned against IDC in favor of a Teamsters union, contrary to Noble's wishes and ap- parent faith in Hook. According to Moore, whose testimo- ny I credit, Hook had been accused of being a "union plant" and an employee that both Noble and Johnson wanted to -get rid of. In my considerations of these matters I have been mind- ful of the unsettled status of the Union and the pending litigation during the period of most of the alleged viola- tions. The election of July 31, 1974, had been challenged and was pending before the Board. As Noble had com- plained to Moore in January 1974, the employees were "uptight over this union thing." It was in this atmosphere and during this period that Noble chose most unwisely to assert himself. Upon the foregoing findings of fact and upon the entire record, I hereby make the following: FURTHER FINDINGS AND CONCLUSIONS OF LAW 1. Respondent is an employer 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. Respondent engaged in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act as follows: (a) In mid-August 1973, by threatening employees with more onerous working conditions if the Union was suc- cessful. (b) On or about June 21, 1973, by informing employees that they would have gotten all of their demands if they had not sought union representation. (c) On June 22, 1973, by threatening employees that Re- spondent would not bargain with the Union and that em- ployees would be laid off or discharged if the Union was successful. (d) In mid-December 1973, by revoking a wage increase to an employee because of his union and protected activi- ties. (e) In November 1973, by advising employees that they had no right to union representation. (f) During the period from on or about January 16, 1974, to on or about January 21, 1974, by suspending an employee because of his union support and protected ac- tivity. (g) On April 10, 1974, by threatening an employee with more onerous working conditions because the employee had filed an unfair labor practice charge with the Board. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act as follows: (a) On January 21, 1974, by discharging John E. Hook because he engaged in union and protected activity. (b) On April 16, 1974, by discharging John D. Zaros because he engaged in union and protected activity. 5. The Respondent has not otherwise violated the Act. THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of interference, re- straint, coercion, and unlawful discharges, in violation of Section 8(a)(1) ad (3) of the Act. This will require Respon- dent to cease and desist from the unfair labor practices found, to offer reinstatement 7 with backpay 8 to John E. Hook and John D. Zaros, and to post a notice to that effect. In accordance with the usual requirements, rein- statement shall be to the two employees' respective former positions or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. The two discriminatees shall be made whole for any loss of earnings each may have suffered by reason of the discrimi- nation against them, by payment to each of a sum of mon- ey equal to that which each normally would have earned from the dates of their discharge to the dates they are of- fered reinstatement by Respondent, less net earnings, if any, during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, Lane Aviation Corporation, Colum- bus, Ohio, its officers, agents, successors, and assigns, shall: 7 Hook, by letter dated July 24, 1974, declined Respondent's offer of reinstatement as proved in the settlement agreement of the same date. Hav- ing found a breach of that agreement and the Regional Director having proerly withdrawn his approval, I consider Hook's declination to be void SPHook and Zaros contend that the backpay amounts set forth in the settlement agreement were to be "net" amounts , although they accepted less I consider that the ' agreement was unambiguous in this respect and that the compliance officer's instructions regarding tax deductions were correct. The word "pay" connotates salary in the context of these matters, and inherent in salary are the standard deductions and withholdings Credit should and thus be given to Respondent for said payments 9In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 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. 1. Cease and desist from: (a) Discouraging membership in, support for, or activi- ties on behalf of Teamsters Union, Local 413, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, ,by discriminating in any manner against any of its employees in regard to their hire and tenure of employment, or any term or condition of employ- ment, because of their union membership, sympathies, or activities. (b) Suspending employees, threatening employees with discharge or layoffs, loss of benefits, or other reprisals be- cause its employees engage in union activity or express prounion sentiment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer John E. Hook and John D. Zaros immediate and full reinstatement to their respective former jobs or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make each of them whole for such loss of pay they may have suffered as a result of Respon- dent's discrimination against them, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful to an analysis of the amounts of backpay due under the terms under this Order. (c) Post at its plant in Columbus, Ohio, copies of the attached notice marked "Appendix." 10 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 9, after being duly signed by an authorized represen- tative of the Respondent, shall be posted 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. Respondent shall take reasonable' steps to insure that said notices are not altered, defaced, or-covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 2D days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed msofar as it alleges unfair labor practices not found herein. 10 In the event 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an,Order of the National Labor Relations Board." 11 I do not herein direct, order, or allow credit to Respondent for any time of posting which may have been accomplished as a result of the settlement agreement of July 24, 1974