Aero Corp.

National Labor Relations Board - Board Decisions

Nov 11, 1977

233 N.L.R.B. 401 (N.L.R.B. 1977)

AERO CORPORATION
Aero Corporation and Theodore Fowler, John E.
Grubbs, and L. B. Brannen. Cases 12-CA-7430-1,
12-CA-7430-2, and 12-CA-7430-3
November 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On July 21, 1977, Administrative Law Judge Jennie
M. Sarrica issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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,2 to
modify the remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977), 3 and to adopt her recom-
mended Order, except that the attached notice shall
be substituted for that of the Administrative Law
Judge.4
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 the Respondent, Aero Corpora-
tion, Lake City, Florida, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order.
t The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dri) Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing her findings.
The Administrative Law Judge found that at the time of the layoffs
planes C 52, C 54, and C-55 were under repair in the hangar where the
three discriminatees worked. Examination of the record reveals that the
work on plane C-54 had been completed prior to October I, 1976. This
finding does not detract from our agreement with the Administrative Law
Judge, however. that Respondent has violated Sec. 8(aX
3
) of the Act in this
proceeding. For while it appears there were only two planes in the hangar at
the time of the layoffs, employee Barrick's credited testimony indicates
extensive work which the laid-off employees could perform was necessary
on these two planes at that time. We also note the balance of Barrick's
credited testimony on work availability.
2 In the absence of exceptions. Chairman Fanning and Member Jenkins
adopt pro forma the Administrative Law Judge's finding that Respondent
did not violate Sec. 8(aXI) by its no-distnbution rule which precluded the
distribution of literature at all times in any working area. Chairman Fanning
233 NLRB No. 64
relies on his dissenting opinion in Stoddard-Quirk Manufacturing Co. 138
NLRB 615 (1962).
3 See. generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
4 The Administrative Law Judge inadvertantly failed to conform the
notice with her recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To bargain collectively through represen-
tatives of their own choosing
To refuse to do any or all of these things.
WE WILL NOT interfere with you in the exercise
of the aforementioned rights. All our employees
are free to become or remain a member of
Teamsters Local 512, or not to become or remain
a member of that or any other union.
WE WILL NOT question you regarding your
membership in, sympathies for, or activities on
behalf of Teamsters Local 512, or any other
union.
WE WILL NOT engage in surveillance of your
union activities or engage in any conduct which
makes it appear that we are watching your union
activities.
WE WILL NOT discourage membership in the
aforesaid or any other labor organization by
discriminatorily laying off employees or changing
the terms and conditions of employment of our
employees, or in any other manner discriminating
against any employee in regard to the hire, tenure,
or any other term or condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed them in Section 7 of the
Act.
WE WILL give John Grubbs, Theodore Fowler,
and L. B. Brannen the pay and any other benefits
they lost, with interest.
AERO CORPORATION
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: The
complaint ' in this case alleges that during an organization-
al campaign by Truckdrivers, Warehousemen and Helpers
Local Union No. 512, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, hereinafter referred to as the Union,
among the employees of Aero Corporation, hereinafter
referred to as Respondent or the Company, the latter
engaged in surveillance of its employees while engaged in a
union meeting; interrogated employees concerning their
union activity and the union activity of fellow employees;
promulgated an unlawful no-distribution rule; and dis-
charged three employees because of their union and/or
concerted activity, thereby violating Section 8(a)(1) and (3)
of the National Labor Relations Act, hereinafter referred
to as the Act. By its answer, Respondent admitted the
formal allegations of the complaint, but denied the
commission of any unfair labor practices.
At the hearing of this case before me at Lake City.
Florida, on February 7, 8, 9, 14, and 15, 1977, all parties
were afforded full opportunity to participate in the
proceeding, to introduce evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs. Oral argument was waived. A brief from
Respondent (no brief was received from the General
Counsel) has been duly considered. Upon the pleadings,
stipulations of counsel, evidence, including my observation
of the demeanor of the witnesses while testifying, and the
entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The complaint alleges, the answer admits, and I find that
Respondent is engaged at Lake City, Florida, in the repair,
overhaul, modification, and fabrication of aircraft and
related components. During the past year, Respondent has
furnished to the United States Air Force and Navy services
of a value in excess of $100,000, and during the same
period, received at its Lake City, Florida, plant, directly
from points and places outside the State of Florida, goods
and materials valued in excess of $50,000.
I find that Respondent is now, and has been at all times
material herein, an employer within the meaning of Section
I Issued December 21, based on charges filed and served October 13.
these two dates and all dates hereafter are 1976, unless otherwise indicated.
2 Young's Park is a public park owned and maintained by Lake City.
The park is a rather large area, the portion thereof involved here being
bounded on the north by DeSoto Street, on the south by Madison Street, on
the east by Fifth Street. and on the west by Seventh Street. The distance
between DeSoto and Madison Streets is roughly 293 feet. Within that area
are located a large picnic area, restrooms, tennis courts, and a basketball
court. North of DeSoto Street is another area containing a football field, a
boys club, a swimming pool, and a pool house.
3 These are the three employees laid off on October I. allegedly for
discriminatory reasons.
4 The foregoing findings are based on a composite of the credited
testimony of Wheeler. Grubbs, Fowler, and Brannen. Patterson had an
entirely different version of this incident, but I am unable to credit his
testimony. According to Patterson. the plant worked on Sunday. September
2(2) of the Act, engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Truckdrivers, Warehousemen and Helpers Local Union
No. 512, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is now, and has been during all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
IiL. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events of September 16
In late August or early September, the Union began
organizing Respondent's employees. In furtherance of this
objective, it arranged a meeting in a picnic area of Young's
Park 2 on Sunday, September 26, at 2 p.m. At the appointed
time, Union Representative James H. Wheeler and approx-
imately 30 employees of the Company had gathered in the
picnic area of the park. They soon discovered that
Assistant Production Manager Leon Patterson, an admit-
ted supervisor, was seated in his car parked on DeSoto
Street facing the tennis court area, approximately 150 feet
from the area where the employees were gathered,
observing that area. Among the employees attending the
meeting were John E. Grubbs, Theodore Fowler, and L. B.
Brannen. 3 Patterson remained seated in his car for a period
estimated at 30 to 40 minutes and engaged in no activity
other than looking into the area where the employees were
assembled. Concluding that Patterson was at the park to
engage in surveillance of their union activity, the employ-
ees decided to disburse in different directions and resume
their meeting at a local motel where arrangements were
then made for that purpose. However, of the 30 employees
who had congregated at the park, only about 21 attended
the meeting at the motel. When the employees began to
leave the park area, Patterson also left. Employee Grubbs
followed Patterson to the main highway, at which point
Patterson crossed the highway going into a housing
development, and Grubbs turned right heading downtown.
According to Grubbs, prior to reaching the main highway,
Patterson did not stop anywhere, nor was anyone else in
his car. 4
26, and he was the supervisor on duty. He left the plant and drove across
town to his home some 6 to 8 miles distant, where he picked up his son and
his son's friend, and took the two boys to Young's Park to play tennis. He
left the park about 12:45 p.m., and returned to the plant where he remained
until the appointed time to pick up the boys between 2 and 2:30 p.m. He
returned to the park about 2:30, parked headed toward the tennis area, and
scanned the area, but not seeing the boys, waited there for about 10 minutes
watching for them. He finally saw two boys across the park on Madison
Street, a distance of approximately 300 feet, on skateboards. Thinking this
might be his son and his son's fnend, he went to the area, picked up the
boys, and took them home, leaving the park at approximately 3 p.m.
According to Patterson, while waiting for the boys he saw a group of
about a dozen people in the picnic area where company employees had
congregated, but did not recognize anyone. He gave three reasons for
nonrecognition: (I) that he was not interested in the group, but was intent
on watching for the boys; (2) that he knew employees only from their attire
402
AERO CORPORATION
B. The Events of September 29
Louis Menendez, Respondent's vice president in charge
of operations, admitted that he learned of the union
activity at the plant on Monday, September 27. He testified
that such information was given to him by one of his plant
supervisors, but claimed not to be able to recall the name
of the supervisor who did so. Early in the afternoon of
September 29, all employees were told to leave their jobs
and assemble at hangar I, where Company President
Gurnon made a speech. Approximately 500 to 600
employees were assembled to hear the speech. Gurnon
prefaced his remarks by saying that a speech had been
prepared for him and that he had to read it without change,
and that, as a result, he could not say what he really
wanted to. Gurnon then told the employees in substance
that they should consider the Company's side of the
questions as well as the Union's side, and to stick by
whatever decision they made.5
Later during the afternoon of September 29, John
Brooks, admitted supervisor of quality control, approached
employee Grubbs while the latter was at work, and asked
that Grubbs accompany him outside the building for a
talk. Outside the building, Brooks asked Grubbs what was
going on with the Union. Grubbs professed not to know
what Brooks was talking about. Brooks then asked Grubbs
how many employees had signed union cards and whether
the Union was going to be at the gate the next day. Grubbs
replied that he did not know and that the next day all
would see whatever happened. Grubbs then returned to his
work. 6
C. The Events of September 30
On September 30, officials of the Union distributed
literature at the plant gate. As Grubbs was leaving the
plant at the end of that day he stopped at the gate to
deliver to the union agent some authorization cards on
which he had obtained signatures. At that time the union
agent gave Grubbs some leaflets asking Grubbs to have
them posted on the employee bulletin board in the plant.7
The following morning, before the starting hour of 8 a.m.,
in the plant where they dressed differently from the way they would dress
when they came to the park; and (3) that with his impaired vision, even
though he wears corrective glasses, he is unable to distinguish features at a
distance beyond 40 feet. Patterson did not explain how, in view of his
claimed impaired vision. he could distinguish two boys on skateboards
across the park on Madison Street. a distance of approximately 300 feet. As
indicated. I do not credit Patterson's explanation for his presence at the park
on September 26. On the contrary, my consideration of the entire record
convinces me that Patterson was at the park on the occasion in question for
the purpose of observing the union activity of Respondent's employees.
I The General Counsel makes no contention that anything Gurnon said
in his speech violated the Act.
8 These findings are based on the admission of Brooks and the credited
testimony of Grubbs. Brooks admitted that he had a conversation with
Grubbs outside the hangar. but recalled that it took place on September 28.
According to Brooks, as a result of his visit to Grubbs' father, who had been
his friend for many years. he called Grubbs out of the plant to inquire why
Grubbs had left the farm. and in this conversation he asked how things were
going. Grubbs replied, very well. They had about 30 percent signed up.
Brooks then asked when things were going to start to happen and Grubbs
replied just watch the gate. I perceive no logical reason why an official
would invite an employee for a private conversation away from the work
area just to make such a mundane and casual inquiry as to why he stopped
farming. Nor am I able to believe that Grubbs, who participated in attempts
Grubbs posted copies of the leaflet on the bulletin board in
hangar 2 and on another bulletin board across from hangar
2. Both bulletin boards are maintained for the use of
employees to post notices of a personal nature, such as
living quarters for sale or rent, or personal items that
employees might wish to buy or sell. As Grubbs was
returning to hangar 2 from the second bulletin board, he
observed Billie Putman, whom I find to be a supervisor
within the meaning of the Act,8 removing the leaflets
posted on the bulletin board in hangar 2. Thereupon,
Grubbs posted another copy in that location but Putman
also took that one down. Grubbs then posted a copy of the
leaflet on his toolbox9 which was kept near his work
station. There is no evidence that Putman made any
statement while engaging in these leaflet removal actions.
The evidence also shows that copies of the leaflet were
posted on the toolboxes of other employees and at least
one copy was posted on a cowl rack,?O but there is no
evidence as to when, by whom, or under what circum-
stances they were posted. During the afternoon of October
1, Navy Project Manager Gaylon Roberts and Navy
Project Supervisor John Lassiter, came through the plant
while the employees were at work and, observing the
leaflets posted on the cowl rack and toolboxes, Roberts
asked employee Brannen, according to the latter, if he
knew who posted the leaflets. Brannen replied that he did
not. Roberts then stated that employees were not supposed
to post any material without permission.iI
Employee rules promulgated by the Company and
distributed to all employees at the time of hire contain the
following rule:
No solicitation of any kind will be allowed on working
time without special permission. Distributions of
literature of any kind will not be allowed in any
working area on Company property.
D. Events of October I
Early in the afternoon of October 1, employees Grubbs
and Brannen, who were assigned to station 13 on the Navy
line, and Fowler, who was regularly assigned to station 13,
to keep union activity secret, would, in reply to a general question as to how
things were going, volunteer that the Union had signed cards from 30
percent of the employees, or would volunteer the prediction that there
would be union activity at the gate.
7 The leaflet, in evidence as G.C. Exh. 2, is dated September 30, is on the
Union's letterhead, and is addressed to Respondent's employees, asking
them to attend a meeting to be held at the City Hall in Lake City at 2 p.m.
on Sunday, October 3, for the purpose of answering any questions
employees might have regarding the Union. At the bottom of the page in
large letters appears the legend "Please Post On Bulletin Board."
8 The evidence shows that Putman supervised the employees in the
electrical shop.
9 The toolbox is a large red box on wheels. The contrast of the white
leaflet on the red box caught the attention of a number of people, employees
and representatives of management, who stopped to look at it.
10 This is a rack in the work area where cowls are stored after being
removed from the plane.
il Roberts testified that on this occasion he was in the plant, and
remarked, "Who in the hell is posting all those posters," and that Brannen.
who was standing close by, remarked that he did not know. Roberts claims
that his remark was general and not directed to any particular person and
denied that he made any statement regarding the necessity for the consent
of management for the posting of any matenal. For reasons hereafter stated,
I find it unnecessary to resolve the conflict.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but who was then temporarily working on what Respon-
dent calls the commercial project, were informed by
Roberts that they were being laid off because of lack of
work, but that as soon as sufficient work became available,
probably in about 2 to 4 weeks, they would be recalled to
work. Each was in fact recalled to work during the first
week of December. According to Roberts and Personnel
Director Barbara Kuhn, layoffs are made by station
seniority and the seniority list received in evidence without
objections shows that Grubbs, Brannen, and Fowler were
the least senior at station 13 on the Navy line. Respondent
contends that the layoffs were made necessary by the fact
that there was no work available at station 13 on the Navy
line.
Before detailing the evidence relating to the necessity for
the layoff, some background evidence is required for an
understanding of Respondent's operations. As heretofore
stated, Respondent is engaged in the overhaul and repair of
C-130 aircraft. The greatest portion of the work is for the
United States Government pursuant to separate contracts
with the Navy and Air Force, but it also does so-called
commercial or civilian work, which is work being done
principally for the governments of Colombia and Peru. The
Navy, Air Force, and commercial contracts are performed
on separate lines and each line has designated stations. For
example, there is a station 13 on the Navy line and a
station 13 on the Air Force line, but these stations do not
necessarily perform the same operation on the planes.
When a plane arrives at Respondent's plant for work it is
assigned a sequence number, such as C-52, C-53, etc., and
if it is a United States Government plane it is assigned to
the appropriate Navy or Air Force line.
Station 13 on the Navy line is physically located in
hangar 2, which hangar can accommodate four planes.12
The work performed at station 13-Navy involves the
inspection and replacement, if necessary, of any hoses in
the engine; a check for any visibly damaged parts; removal
of the props which are sent out for any necessary repair;
and the removal of the engine, if necessary. This involves
disconnecting all hoses and cables. The actual repair work
on engines is usually performed at station 19-Air Force.
After any necessary repairs the engine and props are
returned to station 13 for installation by station 13
employees. If the repair order calls for the removal of the
wings, the outboard engines must be removed, even though
such removal might not otherwise be necessary. The work
of actually removing and reinstalling the wings is generally
done by a night crew.i 3 Station 13 employees reinstall any
engines that have been removed from the planes and
coordinate the controls with the cockpit.
In August and early September, the crew of station 13-
Navy consisted of seven employees: Supervisor Lassiter,
Leadman Glenn Barrick and five assembly mechanics,
12 Hangar I is also utilized for Navy work and can accommodate three
planes. Hangar 3 is used only for painting. Hangars 5 and 6 are used for
work on Air Force and foreign planes.
13 For reasons of safety, it is prudent to remove and reinstall wings at
times when as few people as possible are in the area.
14 According to Roberts, five other persons were transferred from the
Navy line to the commercial line from stations other than station 13. The
record does not identify those stations, nor does the complaint make any
reference to those five employees.
15 Menendez had a slightly different version of these events. According
Bradley, Brannen, Douglas, Fowler, and Grubbs. Accord-
ing to Roberts, it came to his attention that the volume of
work on his line was diminishing and he raised this subject
at a production meeting held on September 20. When John
Williams, program manager for the commercial line,
announced he could use the surplus personnel, Roberts, on
the following day, transferred Douglas and Fowler to the
commercial line.'4 Williams reported, at a meeting held
about the middle of the week of September 27-Wednes-
day was September 29-that his manpower was over his
budgeted allotment. Menendez, who was present, stated
that he "would try to work out something and he'd get
back with us as soon as possible and tell us what to do." On
Friday, October 1, Menendez issued instructions for the
layoff of the three employees from station 13.15
To support its contention that the layoffs here involved
were motivated solely by economic considerations, Re-
spondent relies basically upon the testimony of Roberts,
Lassiter, and Respondent's Exhibit 8, which is a compila-
tion logging the movement of aircraft through the facility.
Roberts testified in essence that at the time of the layoff
there were only two aircraft in hangar 2 to be worked on,
one nearing completion and the other there for a wing
modification which would take approximately 90 days,
which would leave ample time for the reduced crew to
perform the other functions required. The testimony of
Lassiter in this respect is substantially in accord with that
of Roberts. 6
The September 21 transfer of Douglas and Fowler to the
commercial project left three assemblers in station 13. On
October 1, Fowler was, for purposes of layoff, returned to
station 13 and three assemblers were laid off. Thus, after
October 1, the working crew of station 13 consisted of the
leadman and one assembler. The evidence shows that the
leadman, prior to the layoff, did no work with his tools. His
job was to schedule the work at his station, assign the work
to the men, and see that they performed their duties
properly. After the layoff, he was required to work as an
assembler, which permitted no time for other duties.
Respondent's Exhibit 8 shows the date each aircraft
arrived at Respondent's facility and the number of days
which elapsed between the arrival of a given aircraft and
the arrival of the next one. It starts with aircraft sequence
number C-39, which arrived on September 25, 1975, and
ends with sequence number C-61, which arrived December
27, 1976. The compilation does not reveal, nor is there any
other evidence to show, how long each plane remained on
Respondent's premises, nor what work was to be per-
formed on the respective planes. For the entire period the
average number of elapsed days between each arrival was
21.8 days. From the time of the layoff on October I to
December 27, 1976, the last arrival shown by Respondent's
to Menendez, he told his production manager a week or two before October
I that the transfer of people to commercial would not solve the problem and
that a layoff was necessary. Menendez further testified that he made the
decision for the layoff. on September 29, after discussion with Company
President Gumon. The latter did not testify.
16 Lassiter went on sick leave on October 8, was absent from work for
about 6 weeks, and at the time of the hearing had not resumed supervision
of the Navy project. In his absence Wendell Winko served as supervisor of
Navy project station 13, of the power plant department at Air Force project
station 13. and of the commercial project.
404
AERO CORPORATION
Exhibit 8, a total of five planes were delivered to
Respondent's plant.' 7 The average elapsed time between
such deliveries was 20.4 days. For the last five planes
delivered to Respondent prior to the layoff"' the average
elapsed time was 25.8 days.
The evidence introduced by the General Counsel,
however, shows considerably more. Leadman Barrick
credibly testified 9 that it was his duty to schedule the
work at station 13 and to assign the men to do it; that on
October I he observed no surplus of men at station 13,
having lost two men on September 21 by reason of the
transfers to the commercial project; that at the time of the
layoff there were three planes in the hangar, sequence
numbers C-52, C-54, and C-55; that the C-52 had no
wings on it, which meant that the two other engines had to
be installed and rigged when the wings were reinstalled;
that the C-54 had an engine sitting on the dock to be sent
out for work and then reinstalled and rigged; that work on
the C-55 had to await reinstallation of wings and the return
of engines before further work could be done; that the C-
56, which arrived at Respondent's premises on September
21, was brought into the hangar on October 7; that during
the week following the layoff his crew consisted of only one
man and himself and both were very busy, there being a
great deal of work; that on the following Saturday and
Sunday engines and propellers were installed on the C-52
and four were removed from the C-56 by employees from
station 19, at overtime rates, work which ordinarily would
have been performed by station 13 employees and that
such assignment of station 19 employees at overtime rates
had never occurred before; and that the engines were
removed from C-56 and later reinstalled by station 19
personnel, also work which in the past had been performed
by station 13 employees. Even Supervisor Winko admitted
that had station 13 been at full strength such personnel
would have been assigned to do all this work except for the
actual work on the internal parts of the engine and the
removal, overhaul, and reinstallation of the wings.
The evidence further shows that on October I Respon-
dent laid off five employees, all from station 27, in addition
to the three involved in this proceeding. Although the
complaint herein does not allege that the layoff of the five
employees from station 27 was discriminatorily motivat-
ed-and I make no findings in that regard-it is relevant
to note that the five employees laid off from station 27 were
recalled to work about 3 weeks after their layoff.2 0 Equally
significant is the conversation between Supervisor Brooks
and Supervisor Winko in late October, which was over-
heard by employee Deloach. As heretofore stated, Winko
succeeded Lassiter as supervisor of station 13. About 3 or 4
17 This was on October 12. October 26, November 16, December 8. and
December 27. The last plane delivered prior to October 12 was delivered on
September 21.
'1 These were delivered on June 10, June 30, July 30. August 25, and
September 21. The last plane delivered prior to June 10 was May 12.
19 In all areas where the testimony of Roberts and Lassiter conflicts with
that of Barrick. I credit the latter, because he impressed me as the more
credible witness.
20 Based on the uncontradicted and credited testimony of Jean Deloach.
21 Based on the credited testimony of Deloach and the admissions of
Brooks. Winko admits that Brooks asked him if he was going to recall the
men from station 13, but claims that his answer was that he had no authority
to do so, and that he would not have them working for him again. He claims
weeks after the October I layoff, Brooks asked Winko
when the three men laid off from station 13 were going to
be recalled to duty. Winko replied, "Those people are
never gonna work for me again." 2 1
IV. CONTENTIONS AND CONCLUSIONS
A. The 8(a)(1) Allegations
The mere presence of management officials at a public
place where the Union happens to be meeting, without
more, establishes neither surveillance nor a reasonable
basis for an impression of surveillance in the minds of
employees in attendance at the meeting. 22 To establish the
violation it must be found that the presence of the
management representative at the location was not for a
legitimate purpose or that it was for the purpose of
observing the meeting. Having discredited Patterson's
account of his actions on September 26, his reason for such
a lengthy absence from the plant in the middle of a day
when he was the official in charge, and his explanation for
his presence at Young's Park, I can only conclude, and
therefore find, that his purpose in being at Young's Park on
the occasion involved was to engage in surveillance of the
union activities of Respondent's employees, 23 and that he
in fact did so. That an employer's surveillance of the union
activities of his employees is unlawful is too well settled to
require the citation of authority. I find that Respondent
thereby violated Section 8(a)( 1) of the Act.
The interrogation of employee Grubbs by Supervisor
Brooks, I find and conclude, violated Section 8(a)( ) of the
Act. The Board has frequently held that interrogation with
respect to the union attitudes and sympathies of employ-
ees, without a legitimate purpose and adequate assurances
against reprisal, which is the situation disclosed by this
record, is inherently coercive, and hence violates Section
8(a)(1) of the Act.2 4
The evidence fails to establish that Respondent promul-
gated an unlawful no-distribution rule which required that,
in the future, all material posted or distributed must be
approved by Respondent, as alleged in paragraph 5(d) of
the complaint. I find that the incident involving the posting
of the notice of a union meeting on the various toolboxes
and racks was no more than the lawful enforcement of
Respondent's valid rule25 which prohibits distribution of
literature in work areas of the plant. The evidence leaves no
doubt that the toolboxes and racks to which the union
notices were attached were all in a work area of the plant.
Even assuming that the bulletin board is not in fact a work
area, and that Respondent could not lawfully prohibit the
posting of the union notice thereon, the mere act of
he made the latter remark because he did not want inexperienced men
working for him. He admitted that he had no knowledge as to the experience
of the men involved. To the extent that Winko's testimony conflicts with
that of Deloach and Brooks, I do not credit him.
22 Atlanta Gas Light Co.. 162 NLRB 436. 438 (1966).
23 A fact finder clearly may reJect even the uncontradicted testimony of a
witness and find that the fact is that which the witness denies. See N. LR.B.
v. Walton Manufacturing Co., 369 U.S. 404, 408 (1962). In the instant case.
however. Patterson's testimony does not stand wholly uncontradicted.
24 J.D.B., Inc., d/b/a Jim Bradle,'s Bucks Co. Country House, 223 NLRB
1163 (1976); Airborne Freight Corporation, 229 NLRB 1141 (1977).
25 Stoddard-Quirk Manufacturing Co., 138 NLRB 615. 621 (1962).
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
removing the posted material does not constitute a
promulgation of a rule absent some pronouncement or
reprimand in connection therewith. Further, there is no
allegation in the complaint that such removal was a
discriminatory application of a valid rule, a matter which
was neither raised nor litigated.
Accordingly, I recommend that this allegation of the
complaint be dismissed.
Further, because I find no evidence in the record to
establish that Production Manager Roberts, on or about
October I, interrogated an employee concerning his union
activity or the union activity of other employees, as alleged
in paragraph 5(c) of the complaint, I shall recommend that
said allegation also be dismissed.
B. The 8(a)(3) Allegations
Upon 'onsideration of the entire record, I am convinced,
and therefore find and conclude, that Respondent's layoff
of Grubbs, Fowler, and Brannen on October I was
discriminatorily motivated. The General Counsel proved
the classic indicia of a discriminatorily motivated layoff
when he established that the tenure of employment of
admittedly satisfactory employees was affected without
prior warning or notice hard upon discovery that such
employees were engaged in protected union activity. A
prima facie case having been established, the burden of
proving a lawful motive for such action then shifts to
Respondent. 26 To carry this burden of evidence Respon-
dent relies upon the compilation of aircraft arrival records
and the testimony of Roberts and Lassiter to the effect that
available work had diminished to the point that a layoff of
the men was a matter of economic necessity.
The exhibit previously referred to does not show the
necessity for the layoff. All the compilation shows is the
date each plane arrived at Respondent's plant and the
elapsed time between the arrival of a given plane and the
arrival of the next one. The exhibit shows neither the
nature and quantity of work to be performed on a given
plane nor the period of time the plane remained at
Respondent's plant. There is testimony that each work
section receives a specific manpower budget as part of
Respondent's cost control recordkeeping. Certainly, where
this type of record is kept, in a plant the size of the one
involved herein, extensive production records must also
have been maintained from which the flow, type, and
volume of work for any given period could be determined.
No such records were presented by Respondent, nor was
any reason advanced for not producing them. In this
posture, the language of the Supreme Court in Interstate
Circuit Inc. v. United States, 306 U.S. 208, 226 (1939), is
particularly pertinent. The Court there said, "The produc-
tion of weak evidence when strong is available can lead
only to the conclusion that the strong would have been
adverse." And the Board has frequently held that the
26 See J. J. Gumberg Co. and Pennley Park South, Inc., 189 NL.RB 889,
890(1971).
27 Tabulating Card Compan)y Incorporated, 123 NLRB 62, 73 (1959); New
England Web, Inc., National Webbing Inc., et al.. 135 NLRB 1019, 1025
(1962); Morrison Motor Freight. Inc., 137 NLRB 933, 939 (1962).
28 Joseph J. Lachniet d b a Honda of Haslet, 201 NLRB 855, 867 (1973).
29 As the Court of Appeals for the Ninth Circuit stated the principle in
Shattuck Denn Mining Corporation v. N.L. RB.. 362 F.2d 466, 470 (1966):
failure to introduce available business records to support
an economic defense makes the defense suspect.27
The testimony of Roberts and Lassiter regarding the
volume of work available at station 13 is substantially
contradicted by that of Barrick. As heretofore set forth, in
such areas of dispute I have credited Barrick, which in
itself leaves the defense unsubstantiated. But, even if the
testimony of Roberts and Lassiter stood uncontradicted,
Respondent's case would not be advanced, for the trier of
facts is not required to accept without question the
uncorroborated evidence of Respondent's agents that
reduced business made the layoff necessary. The best
evidence to establish that fact is, as heretofore indicated,
Respondent's books and records, and these were not
presented.28
Having concluded that Respondent has failed to estab-
lish economic considerations as its motive, and having
found that the General Counsel has presented a primafacie
case of a discriminatory motive, I conclude 29 and find that
Grubbs, Fowler, and Brannen were laid off because of
their assistance to, and support of, the Union and, hence,
the layoffs violated Section 8(aX3) and (1) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I state the following:
CONCLUSIONS OF LAW
1. The Respondent, Aero Corporation, is an employer
within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Truckdrivers, Warehousemen and Help-
ers Local Union No. 512, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in surveillance of the union activities of
its employees, and by interrogating employees with respect
to their union activities and sympathies, Respondent
interfered with, restrained, and coerced its employees in the
exercise of rights protected by Section 7 of the Act, and
thereby engaged in, and is engaging in, unfair labor
practices proscribed by Section 8(aX I) of the Act.
4. By discriminating in regard to the hire, tenure, and
other terms and conditions of employment of John
Grubbs, Theodore Fowler, and L. B. Brannen because of
their assistance to and support of the Union, thereby
discouraging membership in the Union, Respondent
engaged in, and is engaging in, unfair labor practices
proscribed by Section 8(a)(3) and (1) of the Act.
5. Except to the extent set forth in Conclusions of Law
3 and 4, above, the General Counsel has failed to prove by
a preponderance of the evidence that Respondent engaged
in any unfair labor practice alleged in the complaint.
If he Ithe trier of fact] finds that the stated motive for a discharge is
false, he certainly can infer that there is another motive. More than
that, he can infer that the motive is one that the employer desires to
conceal-an unlawful motive-at least where. as in this case, the
surrounding facts tend to reinforce that inference.
406
AERO CORPORATION
ORDER 30
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that Respondent interfered with, re-
strained, and coerced its employees in the exercise of rights
protected by Section 7 of the Act, and discriminatorily laid
off three employees, I shall recommend that it be required
to cease and desist from such conduct and take affirmative
action designed and found necessary to effectuate the
policies of the Act. The unfair labor practices found being
of a character which go to the very heart of the Act, an
order requiring Respondent to cease and desist from in any
other manner infringing upon employee rights is warrant-
ed, and I shall so recommend. N.L.R.B. v. Entwistle Mfg.
Co., 120 F.2d 532 (C.A. 4, 1941): California Lingerie, Inc.,
129 NLRB 912 (1960).
Having found that Respondent discriminatonly laid off
John Grubbs, Theodore Fowler, and L. B. Brannen, I shall
recommend that Respondent be required to make each of
them whole for any loss of earnings suffered by reason of
the discrimination against them, by paying to each
employee a sum of money equal to the amount said
employee would have earned as wages from October to the
date said employee was recalled by Respondent, less the
net earnings of that employee during that period, the same
to be computed in accordance with the Board's formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and shall bear interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). A requirement for reinstatement is not recommend-
ed as the record shows that each employee was recalled by
Respondent in early December. Respondent will be
required to restore to them any seniority or other
employment benefits lost by reason of the discriminatory
layoffs. It will also be recommended that Respondent be
required to preserve and, upon request, make available to
authorized agents of the Board, all records necessary or
useful in determining compliance with the Board's Order,
or in computing the amount of backpay due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
30 In 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 he
deemed waived for all purposes.
The Respondent, Aero Corporation, Lake City, Florida,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees regarding their membership
in, sympathies for, or activities on behalf of, Truckdrivers,
Warehousemen and Helpers Local Union No. 512, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen Helpers and of America, or any
other labor organization of its employees.
(b) Engaging in surveillance of the union activities of its
employees, or in any conduct which can reasonably be
calculated to convey to its employees the impression that
their union activities are under its surveillance.
(c) Discouraging membership in the aforesaid or any
other labor organization of its employees, by discriminato-
rily laying off employees, or changing the terms and
conditions of employment of its employees, or in any other
manner discriminating against any employee in regard to
the hire, tenure, or any other term or condition of
employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action found neces-
sary and designed to effectuate the policies of the Act:
(a) Restore to John Grubbs, Theodore Fowler, and L. B.
Brannen any seniority or other employment benefits lost
by reason of their layoff, and make them whole for any loss
of earnings they severally suffered, in the manner set forth
in the section hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Lake City, Florida, copies of the
attached notice marked "Appendix."31 Copies of said
notice, on forms provided by the Regional Director for
Region 12, after being duly signed by an authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
31 In the event the Board's Order is enforced by a Judgment of the
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."
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that paragraphs 5(c) and (d) of
the complaint herein be, and the same are, hereby
dismissed.
408