Air 2, LLC

National Labor Relations Board - Board Decisions

Jan 30, 2004

341 N.L.R.B. 176 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
Air 2, LLC and International Brotherhood of Electri-
cal Workers Local 222. Cases 12–CA–21946–1,
12–CA–21946–2, 12–CA–21946–4, 12–CA–
21946–5, 12–CA–22043, and 12–RC–8721
January 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 28, 2003, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and Charging Party filed cross-
exceptions and supporting briefs. All parties filed an-
swering briefs, and the Respondent and Charging Party
filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
Our colleague finds it unnecessary to resolve the chal-
lenge to Tracy Blackwell’s ballot in order to decide the
representation case. We disagree. The unusual and
complicated procedure suggested by our colleague
hinges on Jeff Laslovich’s testimony that he voted for the
Union and informed the Respondent that he had done so.
She therefore proposes to count Laslovich’s ballot first
and address Blackwell’s status only if Laslovich did not
vote for the Union. We disagree. In particular, we ob-
ject to a procedure under which Laslovich’s electoral
choice is to be ascertained on the basis of his open decla-
rations. The Board’s wise policy is that employees
should be able to make their choices privately. In the
instant case, Laslovich cast his ballot privately. Unlike
our colleague, we would glean his desires from that bal-
lot, rather than from his open declarations.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We find merit in the Charging Party’s exception to the judge’s fail-
ure to order that the notice be mailed to the Respondent’s employees.
We agree that because the unit employees do not have a fixed work
site, it is necessary to mail the notice to the Respondent’s affected
employees to ensure that they are informed of our decision, and we
shall modify the judge’s recommended Order accordingly. We shall
also substitute standard language for portions of the judge’s recom-
mended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Air 2,
LLC, Miami, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(g).
“(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
2. Insert the following paragraph after paragraph 2(a).
“(b) Mail a copy of the attached notice marked ‘Ap-
pendix’ to all current employees and former employees
employed by the Respondent at any time since October
25, 2001. Such notice shall be mailed to the last known
address of each of the employees above. Copies of the
notice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent’s au-
thorized representative, shall be mailed within 14 days
after service by the Region.”
3. Substitute the following for paragraph 2(b).
“(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”

MEMBER LIEBMAN, concurring.
I agree with my colleagues except as follows.
I find it unnecessary, at this time, to decide whether
lead lineman Tracy Blackwell is a statutory supervisor.
First, I would find that Blackwell is the Respondent’s
agent, as both the General Counsel and the Charging
Party contend. On that basis, I agree with my colleagues
and the judge that the Respondent, through Blackwell,
violated Section 8(a)(1) of the Act in several respects. I
therefore need not reach the issue of supervisory status to
decide the unfair labor practice case.
Second, although Blackwell’s ballot has been chal-
lenged, I find it unnecessary to resolve the challenge to
decide the representation case. At present, the tally of
ballots shows 3 for the Union and 2 against, with 3 chal-
lenged ballots: those of Blackwell, Jeff Laslovich, and
Marty Lyons. We are sustaining the challenge to Lyons’
ballot, but overruling the challenge to that of Laslovich.
Normally, it would be necessary to resolve the challenge
to Blackwell’s ballot because it, along with Laslovich’s
ballot, would determine the outcome of the election.
And normally, if Blackwell’s ballot were counted, it
would be counted along with that of Laslovich in order to
avoid, if possible, identifying how each man voted.
341 NLRB No. 23
AIR 2, LLC

177
Here, however, Laslovich testified that he voted for the
Union and informed the Respondent that he had done so.
I would therefore count his ballot first. If he did, in fact,
vote for the Union, the ballot count would be 4 in favor
of the Union and 2 against, and Blackwell’s ballot would
no longer be determinative. Thus, the representation
case probably can be resolved without reaching whether
Blackwell is a supervisor. (If it turned out that Laslovich
did not vote for the Union, and Blackwell’s ballot proved
determinative, the Board could address Blackwell’s
status at that time.)
Like my colleagues, I reject the Union’s contention
that the judge erred in failing to find that the Respondent
unlawfully refused to hire union organizer Jason Bonner
and made unlawful statements while interviewing him.
Those allegations were not contained in the complaint,
and the General Counsel did not argue that the judge
should find those violations. Nor did the General Coun-
sel espouse the Union’s arguments in his exceptions. As
the judge correctly found, the General Counsel alone
controls the allegations of the complaint, and the Union
may not expand the complaint on its own. D&F Indus-
tries, 339 NLRB No. 73, slip op. at 4 fn. 15, 28 (2003).
Had the General Counsel ever indicated that he was pur-
suing the Union’s theory, I would be more receptive to
the Union’s argument.3

Chris Zerby, Esq., for the General Counsel.
Paul Snitzer, Esq. and Harvey W. Gurland, Jr., Esq., for the
Respondent.
Jonathan Newman, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Miami, Florida on December 16–20, 2002.
After making a demand for recognition on October 23, 2002,
rejected by the Employer on October 25, 2002, the Union filed
a petition for an election in Case 12–RC–8721 on November 1,
2001. Pursuant to a Stipulated Election Agreement approved
on November 9, 2001, a mail-ballot election was conducted
beginning on November 20, 2001. The tally of ballots was is-
sued on December 11, 2001, and showed that there were three
votes cast for the Union, two votes against the Union and six
challenged ballots.
With respect to the challenged ballots, the Regional Director
ordered that a hearing be conducted with respect to voter eligi-
bility of the following individuals: Tracy Blackwell (challenged

3 In affirming the judge’s finding that the Respondent never offered
Bonner a job, and therefore did not unlawfully withdraw such an offer,
I do not rely on the judge’s speculation as to the Respondent’s possible
reasons for its actions.
Finally, the judge found that a bargaining order is not warranted
here. No exceptions have been filed to his finding, and the General
Counsel has not requested that the Board issue a bargaining order.
by the Union as a supervisor); Jeff Laslovich (challenged by the
Employer because his ballot was received by the Board with
tape on the envelope seal); Jason Collins, James Lake, John
Flynn, and Marty Lyons (challenged by the employer based on
its contention that their ballots were not properly voided by the
agent conducting the election). In addition, the Board also
challenged the ballot of John Flynn because his name was not
on the Excelsior list.
On December 18, 2001, the Union and the Employer both
filed objections to the election.
On August 2, 2002, the Regional Director issued a report on
objections and Challenges. At the same time, she consolidated
for hearing, the representation case with the unfair labor prac-
tice allegations listed below.
The charge in Case 12–CA–21946–1 was filed on December
3, 2001 and was amended on April 26, 2002. The charge in
Case 12–CA–21946–2 was filed on December 3, 2001 and was
amended on March 29, 2002. The charge in Case 12–CA–
21946–4 was filed on December 7, 2001. The charge in Case
12–CA–221946–5 was filed on December 7, 2001, and was
amended on January 31, 2002. The charge in Case 12–CA–
22043 was filed on January 22, 2002, and was amended on
May 3, 2002.
The allegations of the consolidated complaint are as follows:
1. That from on or about February 21 through about October
15, 2001, a majority of the employees in an appropriate unit
selected the Union to represent them for collective-bargaining
purposes. The unit;

All full-time and regular part-time linemen, line crew fore-
men, and apprentices employed by the employer at its main
office located at 12515 North Kendall Drive, Miami, Florida;
excluding all other employees, including helicopter pilots,
mechanics, professional employees, and office clerical em-
ployees, guards and supervisors as defined in the Act.

2. That on October 23, 2001, the Union made a written re-
quest that the Respondent recognize it as the exclusive collec-
tive-bargaining representative for the employees in the unit
described above.
3. That on or about October 25 and 26, 2001, the Respon-
dent, by Thomas McShane, its president told employees that it
would be futile for them to select the Union.
4. That on or about October 25, 2001, the Respondent, by
McShane, threatened employees with discharge in retaliation
for their union activities.
5. That on or about October 25 and 26, 2001, the Respon-
dent, by Lou Woodward, its vice president, threatened employ-
ees with discharge in retaliation for their union activities.
6. That on or about October 25, 2001, the Respondent, by
Woodward, promised employees an apprenticeship program to
dissuade them from supporting the Union.
7. That on or about October 26, 2001, the Respondent, by
Woodward, interrogated employees about their union activities.
8. That on or about October 29, 2001, the Respondent, by
Tracy Blackwell, its crew leader and supervisor, threatened
employees with discharge in retaliation for their union activi-
ties.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
9. That on or about November 1, 2001, the Respondent, by
Blackwell, threatened not to allow strikers to return to work
unless they withdrew their support for the Union.
10. That in early November 2001, the Respondent, by
Blackwell, solicited employees to revoke their union authoriza-
tion cards.
11. That in early November 2001, the Respondent, by
Blackwell, threatened that the Respondent would shut down its
operations and reopen under another name.
12. That on or about November 12, 2001, the Respondent,
by McShane, threatened employees with the inevitability of
strikes if they supported the Union.
13. That on or about November 12, 2001, the Respondent,
by Woodward, threatened employees with the loss of benefits
including paid dinners, if they supported the Union.
14. That on or about November 13, 2001, the Respondent,
by Woodward, promised employees an apprenticeship program,
promotions and raises in order to dissuade them from support-
ing the Union.
15. That on or about November 15, 2001, the Respondent,
by Blackwell, threatened employees with plant closure and the
loss of jobs.
16. That on or about November 15, 2001, the Respondent,
by Blackwell threatened employees with reprisals including the
loss of benefits such as the loss of traveling expenses.
17. That on or about November 16, 2001, the Respondent,
by Blackwell, threatened employees and union agents with
physical harm, threatened employees with discharge, created
the impression that employees’ union activities were under
surveillance and attempted to instigate violence among em-
ployees.
18. That on or about November 16, 2001, the Respondent,
by Woodward, interrogated employees about their union activi-
ties.
19. That on or about November 17, 2001, the Respondent,
by Blackwell, threatened union agents with bodily harm.
20. That on or about November 19, 2001, the Respondent,
by Blackwell, threatened employees with discharge and inter-
rogated employees about their union activities.
21. That on or about November 20 and 21, 2001, the Re-
spondent, by Blackwell, threatened employees with layoffs.
22. That on or about November 26, 2001, the Respondent,
by Blackwell, interrogated employees about their union activi-
ties and threatened them with discharge.
23. That from November 26, 2001 through December 1,
2001, the Respondent, for discriminatory reasons delayed the
return to work of Jason Collins.
24. That on or about November 27, 2001, the Respondent,
by Blackwell, impliedly threatened employees with discharge
and interrogated employees about their union activities.
25. That on or about November 28, 2001, the Respondent,
by Blackwell, interrogated employees and promised them bene-
fits including promotional opportunities.
26. That on or about November 29, 2001, the Respondent,
by Blackwell, interrogated employees about their union activi-
ties.
27. That on or about November 29, 2001, the Respondent,
by McShane, threatened employees with transfer to prevent
them from engaging in union and concerted protected activity.
28. That on or about November 29, 2001, the Respondent,
by Woodward, created the impression that employees’ union
activities were under surveillance.
29. That on or about November 29, 2001, the Respondent,
for discriminatory reasons required that Jason Collins get a
second medical release in order to return to full duty status.
30. That on or about November 30, 2001 the Respondent by
Blackwell, impliedly threatened employees with discharge and
promised unspecified benefits.
31. That on or about December 2, 2001, the Respondent, for
discriminatory reasons transferred Jason Collins to light duty
status.
32. That on or about December 5, 2001, the Respondent, for
discriminatory reasons enforced a policy of requiring employ-
ees to wear long sleeved shirts.
33. That since December 5, 2001, the Respondent has
promulgated and enforced a policy requiring employees to
remove all stickers from flight helmets.
34. That on or about December 7, 2001, the Respondent, for
discriminatory reasons, laid off Walter Stephens.
35. That on or about December 10, 2001, the Respondent,
by Blackwell, interrogated employees and informed employees
that selecting a union would be futile.
36. That on or about December 10, 2001, the Respondent,
for discriminatory reasons issued a warning to Jason Collins.
37. That on or about December 10, 2001, the Respondent,
for discriminatory reasons, withdrew an offer to hire Jason
Bonner.
38. That on or about January 7, 2002, the Respondent, for
discriminatory reasons, refused to give Walter Stephens a com-
pany jacket.
39. That on or about January 7, 2002, the Respondent
threatened employees with various reprisals in retaliation for
filing of unfair labor practice charges with the Board.
40. That the conduct engaged in by the Respondent has
made a fair rerun election impossible and therefore the Board
should grant an order compelling the Respondent to bargain
with the Union irrespective of the outcome of the election.
At the hearing, the General Counsel withdrew an allegation
that since December 10, 2001, certain employees have engaged
in an unfair labor practice strike. (This is the same date that the
election period ended.) At the time of the hearing, no employee
who claimed that he was engaged in a strike, had asked for his
job back and therefore the Company hadn’t refused to recall
anyone. Therefore, the unfair labor practice strike allegation
was unnecessary as any violation that might occur would com-
mence upon the Respondent’s refusal to recall such strikers. In
this regard, the 10(b) statute of limitation period would not start
to run until such refusal.
The Union’s objections to the election basically tracked the
allegations of the unfair labor practice complaint. There were,
however, a few more allegations which were; (1) that the Em-
ployer’s representatives made evening visits and calls to em-
ployees, (2) that on December 3, 2001, the Employer dis-
charged John Flynn, and (3) that on December 7, 2001, the

AIR 2, LLC

179
Employer laid off Walt Stephens. As to the first of these objec-
tions, the only evidence supporting it is that during the pre-
election period, management representatives did go to job sites
where the crews were working and visited with employees at
motels where they were staying at company expense. As to the
allegation regarding Flynn, I cannot consider an objection,
which alleges discrimination under Section 8(a)(3) in the ab-
sence of corresponding unfair labor practice charges. Texas
Meat Packers, Inc., 130 NLRB 279 (1961).
The Employer’s objections to the election were as follows:
1. That the Board agent’s decision to void the ballot of
Marty Lyons was in error.
2. That the Board agent’s decision not to open the ballot of
Tracy Blackwell was in error.
3. That the Board should not open or count the ballot of Jeff
D. Laslovich whose return envelope indicated that it was tam-
pered with.
At the hearing, the Employer withdrew it Objection to the
Region’s decision to void the ballots of John Flynn, Jason
Collins, and James Lake. Therefore, there no longer is any
issue as to these persons and their ballots shall remain un-
opened and uncounted.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted that the Respondent is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. It
also is admitted that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations and Supervisory
Status of Tracey Blackwell
The Respondent is engaged in providing power line services
to electric utilities throughout the United States. It is a small
company consisting of about 20 people, of whom about 10 or
11 are workers in the voting unit. Apart from its officers, sales
and clerical staff, the work force is essentially divided into two,
or at times, three crews that go out on jobs and perform inspec-
tion, installation, or repair work on live electric transmission
lines.
Each crew will typically consist of a helicopter pilot, a heli-
copter mechanic, a journeyman lineman, and one or two ap-
prentices. And each job may take several weeks or more to
complete. During each assignment, the crew will be out in the
field, far away from the Respondent’s offices, (and from
home), and headed up by a crew leader. In this regard, there is
a dispute as to whether crew leader Tracey Blackwell has more
authority than two other individuals who also act as crew lead-
ers and therefore should be considered a supervisor within the
meaning of the Act or simply a leadman. The status of Black-
well is rather critical to this case, not only because he is one of
the challenged ballots, but because most of the alleged Section
8(a)(1) and objectionable conduct was done by him.
With respect to Blackwell, the evidence shows that in early
October 2001, he took over at least a portion of the duties of
Fleming, whom the parties agree was a supervisor within the
meaning of Section 2(11) of the Act.
The evidence shows that when crews are working in the
field, each has a crew chief, who is responsible for the day-to-
day activities of the other linemen and apprentices on the job.
(At the time of these events, Marty Lyons and J.P. Flynn were
typically the other crew leaders). For example, Blackwell testi-
fied that if he saw anyone doing something that he considered
unsafe, he would tell them to stop. And when more than one
crew works at a site, Blackwell would be the person in charge
of the combined crew. (The pilots and helicopter mechanics
have their own area of responsibility.) Because the crews work
far from headquarters and because Woodward and McShane
make infrequent visits to the sites, Blackwell is the one who
communicates any assignment changes or other matters be-
tween management and the employees of his crew.
There is evidence which shows that Blackwell, as a part of
his job responsibilities, has been involved in the hiring of em-
ployees. Even if the record is ambiguous as to whether he can
hire on his own authority, it is my opinion that the evidence
shows that he has recruited, interviewed and effectively rec-
ommended hiring.
In addition, there is evidence that Blackwell can and has dis-
ciplined employees in the field. For example, there is a memo-
randum from Blackwell to Woodward indicating that he had
suspended Tommy McKenzie for a day without pay for over-
sleeping. This memorandum was then forwarded from Wood-
ward to Susan Chetwood in human resources. Also, Blackwell
testified that he has transferred apprentices from one job to
another and has done so based on his evaluation as to the kind
of experience is needed on different jobs.
Blackwell is paid on a salaried basis as opposed to the other
linemen and apprentices who are paid an hourly based wage.
He, unlike the others, has been offered stock options. In a letter
regarding a disability claim to the insurance company, the Re-
spondent stated that Blackwell performed supervisory func-
tions. It stated inter alia; “Performs service work plus super-
vises others doing same.”
Based on the record as a whole, it is my opinion that Black-
well has some of the powers and authority enumerated in Sec-
tion 2(11) of the Act and that these were part of his regular job
functions. I therefore conclude that he is a supervisor within
the meaning of the Act. Ohio Power Co. v. NLRB, 176 F.2d
385 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949). See also
NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (6th Cir.
1948), cert. denied 335 U.S. 908 (1948); Pepsi-Cola Co., 327
NLRB 1062 (1998); and Venture Industries, 327 NLRB 918
(1999).
To perform their work, the journeymen and/or apprentices
are taken up in a helicopter where they work either through the
open door or they are landed on top of towers where electrical
equipment is located. This is, to say the least, scary and dan-
gerous work. People can and have gotten killed. And for the
most part, this work is done by a group of young men who are
energetic and daring. (They also are prone to more than the
usual amount of rowdiness.) They are also fairly well compen-
sated because there are not that many people who are willing to
do this kind of work.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
I note that the crews are sent out to jobsites where they live
and work together for extended periods of time. They work
hard and spend their off hours together at bars and restaurants.
They are, perhaps, a little rough and are, like young men, prone
to using tough and salty language. One described the group as
a bunch of rednecks.
For the most part, the employees comprising a crew, includ-
ing the crew chief, will work on a rotation basis consisting of
21 days on and 10 days off. At the end of a normal rotation, an
employee will be given an airplane ticket to return home. And
at the start of his next rotation, the Company will give him a
ticket to get from home to the job.
From the dates indicated on the authorization cards submit-
ted into evidence, it appears that the first union activity oc-
curred in February 2001. It is noted that Fleming, a person who
was in some respects replaced by Blackwell, had, at various
times, told employees that he thought it would be a good idea if
they joined a union. The parties agree that Fleming during the
time that he was employed was a supervisor within the meaning
of Section 2(11) of the Act.
Woodward testified that in the spring or summer of 2001,
some of the employees expressed an interest in getting an offi-
cial apprenticeship program. Since the Company is not affili-
ated with any union, it would have to set up an apprenticeship
program with the United States Department of Labor, which
does have such a program for linemen. In any event, it seems
that Fleming was the person delegated to look into such a pro-
gram but failed to accomplish anything in that regard before he
left in early October 2001. Thus, at some point in October
2001, before, the Union made its recognition demand, the
Company had thought about enrolling in an apprenticeship
program, but the person who was responsible had done nothing
about it. After Fleming left, Woodward took over.
B. The Events Leading Up to the Election
After obtaining authorization cards from employees, the Un-
ion, in preparation for making a demand for recognition, salted
the company by inducing one of its members, Walter Stephens,
to leave his own job and apply for work at the Respondent. He
did so and was hired on October 23, 2001, as a journeyman.
According to Stephens, when he arrived at the airport,
Blackwell drove him to the jobsite. He testified that during this
car ride, he told Blackwell that he had a union ticket and they
had some conversation as to whether union people were quali-
fied for the type of line work done by the Respondent.
Stephens testified that Blackwell said that he had belonged to
the Union but that he didn’t like them because all they did for
him was take his money. According to Stephens, he was the
one who brought up the subject of unions during this conversa-
tion.
At the risk of getting ahead of myself, I note that Stephens,
by all accounts, was an excellent employee who was, in early
2002, offered a promotion to a lead person with a substantial
increase in pay. This offer was made after he announced that
he was a “union organizer.” He quit shortly thereafter.
The Union made a written demand for recognition on Octo-
ber 23, 2001. This was rejected by the Company (in writing)
on October 25, 2001. Lou Woodward, testified that she had
heard rumors about a union some time prior to October 23,
2001.
The General Counsel presented the testimony of Walter
Stephens, Jason Collins, Jeffrey Laslovich, and Mike Muenks
regarding statements allegedly made by Blackwell, Woodward
and McShane during the period from October 25 to December
10, 2001. (Muenks testified only about a barbeque held on or
about November 16, 2001.) Their testimony was mutually
corroborative at times. But at other times it was not. Some of
their testimony was difficult to deal with either because they
had difficulty remembering what was said, or because what
they recalled was ambiguous, or they could not relate when
events happened.
With respect to credibility, I note that Muenks is a union or-
ganizer whose testimony was exaggerated in my opinion. Wal-
ter Stephens, as a union plant, was also hardly a disinterested
witness. Additionally, I note that Collins and Laslovitch were
not, in my opinion, the most convincing of witnesses. On the
other hand, Tracy Blackwell was not so stellar either. It was
acknowledged by company witnesses that he sometimes had a
tendency to shoot off his mouth.
To the extent that a chronology can be made, there is little
dispute about the following:
1. On October 23, 2001, the Union made a demand for rec-
ognition
2. On October 23, 2001, union salt Walter Stephens was
hired.
3. On October 25, 2001, there was a meeting held in Diboll,
Texas, where McShane and Woodward spoke to employees.
4. On October 26, 2001, there was a meeting held in Lake
Charles, Louisiana, where McShane and Woodward spoke to
employees.
5. At both meetings on October 25 and 26, Woodward stated
that the Company was going to implement an apprenticeship
program.
6. On November 1, 2001, the Union filed a petition for an
election.
7. On November 2, 2001, two employees (Smith and Lake),
who had left work earlier and claimed that they were on strike,
wrote notes indicating that they wanted to return to work.
(They returned on November 5 and 7, 2001.)
8. On November 9, 2001, the parties entered into a stipu-
lated election agreement.
9. On or about November 16, 2001, there was a barbeque in
Jasper, Texas, where union organizer Muenks was invited by
Jason Collins to debate Tracy Blackwell about unionization.
10. On November 16, 2001, Jason Collins injured his back,
went to the emergency room and was sent home. He was given
a prescription for Vicadin and told to see his own doctor.
11. On November 16, 2001, a union official named Jason
Bonner sent in by fax, an application for a journeyman’s job.
The fax showed, on its face, that it came from the IBEW.
There is a dispute as to whether he was ever offered a job.
There is no dispute, however, that he never did work for the
company.
12. On or about November 17, Blackwell is alleged to have
told employees that he would give a case of beer for someone
to “whip Muenks’ ass.”

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13. About November 18 or 19 2001, there was a conference
call where McShane told employees to expect ballots in the
mail.
14. On November 20, 2001, the ballots were mailed to the
employees.
15. On November 21, 2001, the employees were sent home
for the Thanksgiving break.
16. On November 26, 2001, most of the employees returned
to work. It was admitted by Blackwell that when employees
returned, he asked them how they voted.
17. On November 30, 2001, Collins returned to work but at
a different location.
18. On or about December 7, 2001, Stephens and Blackwell
were sent home. (Although Stephens testified that he was sent
home sometime between December 12 and 15, the charge in
Case 12–CA–21946–5 alleging his layoff, was filed on Decem-
ber 7, 2001.)
19. December 10, 2001, was the deadline for the receipt of
the ballots.
20. On December 10, 2001, three employees, Laslovich,
Brauning, and Clay Grant, who were employed at the Jasper,
Texas site, left work and claimed that they were on strike.
21. On December 10, 2001, Collins received a warning for
conduct that occurred on December 7 and 8, 2001. On Decem-
ber 10, he left work, claiming that he was on strike.
22. On December 10, 2001, Jason Bonner had a series of
conversations with Blackwell, Woodward, and two office em-
ployees about going to work for the Company. At about 4:30
p.m., he was told that his employment was being put on hold.
23. On or about December 10, the Company transferred an
employee named Phillips from sales to the field and offered
employment to Brandon Finley.
24. On December 11, 2001, the ballots were counted.
With that chronology in mind, let’s continue.
Immediately after receiving the Union’s demand, the Com-
pany’s president, Thomas McShane, contacted legal counsel
and received a script to read to the employees. McShane and
Woodward then went to the two locations where it had working
crews. On October 25, they visited the crew in Diboll, Texas.
On October 26 they visited the other crew in Lake Charles,
Louisiana.
McShane testified that on both occasions, he read his script
without deviation and that the only statements that Woodward
made were to the effect that the Company was going to initiate
an apprenticeship program. There is nothing in the script itself,
which is alleged to violate the Act. And most of the employee
witnesses called by the General Counsel acknowledged that it
appeared to them that McShane was reading from some papers
that he held in his hand.
The General Counsel relies on the testimony of Laslovich to
support the allegation that on October 25, at Diboll, Texas,
McShane made statements to the effect that selecting a union
would be futile. But the testimony of Laslovitch, which was
not corroborated by any other employee on this point and his
testimony does not support this conclusion. First of all,
Laslovich had a hard time remembering what was said and had
to be shown his affidavit to refresh his recollection. Moreover,
after doing so, his testimony was still ambiguous. Laslovich’s
testimony was as follows; “He was talking about the union and
he said he wasn’t going to be going—he didn’t want to be go-
ing union. He wasn’t going to go union, and he was telling us a
little information that he had to the union in Florida. He said
that the Union in Florida, if they needed money, they could pull
it from their members at any time.”
As noted, McShane and Woodward met with the other crew
in Lake Charles, Louisiana, on October 26, 2001.
Collins testified that during the meeting, McShane said that
“Air 2 doesn’t have to accept the Union and they won’t accept
the Union.” Notwithstanding this testimony, I believe that
McShane simply read from his script, which read, in part; “But
although the Union can make you promises, it’s also the law
that Air 2 does not have to agree to any of the Union’s propos-
als. We have the right to say no.”
Collins also testified that at the October 26 meeting Wood-
ward asked him if he “was for the union.” This was credibly
denied by Woodward.
There is, however, no dispute that at these two meetings,
Woodward told the employees that the Company was going to
implement an apprenticeship program. She repeated this prom-
ise later in November, before the ballots were mailed. And
indeed, the Company, in late December 2001, did and imple-
mented an apprenticeship program that was registered with the
U.S. Department of Labor.
According to Stephens, in late October 2001, at the Lake
Charles site, the men were sitting in a restaurant when Black-
well said that he was mad at Phillips for starting “this union
business.” Stephens testified that Blackwell added, “he’ll get
his for that,” or something like “he’ll have his day.” At that
time, Phillips, who was previously an apprentice lineman, had
been transferred (promoted?), to sales. (In this context, I don’t
know whether Blackwell’s statement about Phillips was meant
to be a threat or a congratulation.)
Contemporaneously with the Union’s demand for recogni-
tion, two employees, James Lake and Troy Smith, who had
signed union authorization cards, ceased working and claimed
that they were on strike. (All of the other employees remained
at work.)
According to Stephens, in November 2001, at the Lake
Charles site, he and some other employees were talking to
Blackwell in a hotel room when Blackwell received a phone
call which he said came from either Lake or Smith who wanted
to return to work. According to Stephens, Blackwell said,
“they made their bed, now they was going to have to lay in it.”
But Stephens adds that Blackwell then made a phone call to
Woodward where he said that Lake and Smith were good
workers whom he would like to have back. According to
Stephens, when Blackwell got off the phone, he said that the
two were going to come back, but that they were going to make
them sweat a little while. Stephens testified that Blackwell
opined that he thought that they would have to pull their cards,
but that they had learned their lesson and he was glad to have
them back.
With respect to the incident involving Lake and Smith, the
record indicates that on November 2, 2001, they requested to
return to work, so the phone calls described by Stephens must

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
have taken place shortly before that.1 There was no probative
evidence to show that either Lake or Smith were asked to with-
draw their union authorization cards as a condition of returning
to work or that there was any delay in having them return to
work. Indeed, they returned, respectively, on November 5 and
7, 2001. Blackwell conceded, however, that during the conver-
sation at the hotel room, he did say that they should “sweat”
before being allowed to return to work.
On or about November 16, there was a barbeque for the em-
ployees in Jasper, Texas. This was held at the house of Paul
Rupert who is a pilot for the Company.
At this barbeque, union organizer Michael Muenks showed
up, apparently at the request of employee Jason Collins.2 Ac-
cording to Muenks, he told the employees why they should
have a union and that he and Blackwell got into a heated argu-
ment. According to Muenks, Blackwell said that the company
was thinking about closing its doors and going out of business
because of this. Muenks testified that Blackwell asked if the
Union was going to provide the employees with travel ex-
penses, to which he replied that this was a negotiable item.
Muenks states that Blackwell said that the Company’s pilots
would refuse to fly with IBEW linemen and that they didn’t
want to have to train people. According to Muenks, Blackwell
said that the employees were not interested and asked why the
Union was trying to run this company out of business. At one
point, according to Muenks, he said in response to Blackwell’s
assertion that the employees didn’t want a union, that Black-
well should ask them, whereupon Blackwell pointed to each
person and asked if they were for the Union.
Stephens testified about this “debate” between Muenks and
Blackwell at the barbeque. According to Stephens, when
Muenks tried to make some pleasantries, Blackwell crossed his
arms, turned red faced and told him that he, (Muenks), had “fed
them apprentices to the wolves and the Union didn’t do nothing
for apprentices and didn’t do nothing for him.” According to
Stephens, Blackwell said that the Union would never be able to
get in because he had pilots who refused to fly with union
linemen and that the pilots can refuse to fly with anybody.
Stephens states that Blackwell said that the Union was no good,
that all it ever did for him was to take money out of his check,
and that he didn’t understand why they were there because
nobody wanted the Union. According to Stephens, Blackwell
then asked each of the apprentices if they wanted a union ap-
prenticeship. Stephens did not testify, however, that Blackwell
made any statements about going out of business or closing
doors.
Jason Collins’ recollection of the barbeque is a little different
from the version by Stephens and Muenks. According to
Collins, Muenks introduced himself and Blackwell said that if
the Union came in “we’d all lose our benefits; we’d lose every-
thing.” Collins testified that Blackwell said that the Union

1 Stephens mistakenly placed these calls in late November or early
December.
2 According to Stephens, Muenks came to Jasper and stayed at the
same hotel that the crew was staying. He also testified that Jason in-
vited Muenks to come to the barbeque and talk to the men about the
Union.
wouldn’t be good for us and then asked everybody how they
felt about the Union. Collins states that the men said that they
were for the Union and that when Blackwell asked him directly,
he told Blackwell that he was for it. According to Collins,
Blackwell said that his pilots wouldn’t fly if they went union
and that he said it was “all a bunch of bullshit”, whereupon he
walked out and said he was going to bed.
Jeffrey Laslovich testified about the barbeque but was not
too good at remembering what was said. He testified that
Blackwell asked Muenks why he was trying to bring Air 2
down and “make us all lose wages” to which Muenks said he
was not trying to bring the Company down; that he was trying
to help the Company. Laslovich recalls Muenks saying that
Blackwell was saying illegal stuff and that Blackwell re-
sponded that he didn’t know anything about the legal stuff.
According to Laslovich, Blackwell asked the employees how
they were all voting, and that he recalled Jason Collins respond-
ing to the effect that he wanted an apprenticeship program.
Blackwell testified that Muenks showed up at the barbeque
and that they had a heated argument about the Union. He states
that he made no threats and that after giving his opinion he got
up and walked away.
Stephens testified that on the following day (November 17)
he was riding with Blackwell and he said in a joking manner, “I
thought you were going to choke Mike Muenks.” According to
Stephens, Blackwell said that he was almost going to. Stephens
testified that Blackwell said that he couldn’t believe how much
Collins was hanging around Muenks all the time.
There was corroborated testimony that 1 or 2 days after the
barbeque Blackwell told some of the employees at the Jasper
site that he would give a case of beer for someone to “whip
Muenks’ ass.” In this regard, Blackwell testified that Muenks
showed up near the worksite and that (Blackwell) told Lucas
Mezner, an employee of another contractor, that Muenks was
distracting the men and that he would give a case of beer if
somebody would get him out of here.
Blackwell admitted that at some point in November he told
the crew that they no longer could wear short-sleeved shirts and
that they would have to remove all insignia from their helmets,
including union insignia. (Stephens places this in December.)
With respect to the shirts, there was testimony from both sides
that the use of short-sleeved shirts presents a safety issue be-
cause of the possibility of getting splinters. Some of the em-
ployees testified that they learned at lineman school that they
were supposed to use long sleeved shirts while at work. With
respect to the insignia, Blackwell concedes that he told the
employees to remove insignia from their flight helmets when he
saw that some of the employees had attached union insignia to
them.
Stephens testified that sometime in mid-November 2001,
Woodward and McShane held a telephone conference call with
the men at Jasper, Texas. According to Stephens, they told the
employees that they would be getting ballots in the mail when
they went home for Thanksgiving. Stephens testified that
someone asked what was going to happen if the election went
through and that Woodward said that if the Union won, every-
body would be union. He also testified that McShane said that
the Union couldn’t really force nothing down their throat; that

AIR 2, LLC

183
the only recourse the Union had was to go on strike; that even if
an employee voted against the Union, he would have to go
honor the picket line or he would be fined by the Union.
With respect to the conference call, McShane and Woodward
acknowledge that they made this call just before the employees
left for the Thanksgiving holiday and that they told them that
they would be getting ballots in the mail. They credibly denied
the assertions made by Stephens, which by the way were not
corroborated by anyone else.
The men left their respective job sites to go home for the
Thanksgiving vacation and did not return until November 26.
(As noted below, Collins did not return to work until November
30.) They all received their ballots at their homes.
Blackwell conceded that when employees returned to work
in Jasper he asked them how they voted. In this regard,
Laslovitch testified that when Blackwell asked he told Black-
well that he voted for the Union and that Blackwell said that it
was a long bus ride home to Anaconda, Wyoming. According
to Laslovitch, he laughed at Blackwell and responded that it
would be fun to take a long bus ride.
Laslovich also testified that at some unspecified time he
asked Blackwell what would happen if the Union won the elec-
tion and that Blackwell responded that the Company would
probably close and reopen under a new name. Laslovich states
that he asked Blackwell if the employees would still have jobs
and Blackwell said that they he didn’t know. This was credibly
denied by Blackwell.
Laslovich testified that before the barbeque Blackwell pulled
him aside and asked him how everybody was going to vote.
According to Laslovich, he said that he had voted no where-
upon Blackwell said that this was good news. The problem
with this testimony is that the ballots didn’t go out until after
the barbeque, so I can either assume that Laslovich is making
this up or is seriously confused about events.
In addition to the above, Laslovich, after being shown his af-
fidavit to refresh his recollection, testified that on some un-
specified date Blackwell said that Muenks had called him to
say that someone was filing charges against him and that
Blackwell wanted to know who was filing charges against him
at the National Labor Relations Board. I don’t credit this.
Stephens testified that on some unknown date before
Thanksgiving, he told Blackwell that he had heard that they
“was going to lay everybody off if it went through and start
over.” According to Stephens, he asked Blackwell if they
would do that, and that although Blackwell said he didn’t
know, he also said that the Company could lay everybody off if
they wanted to. The General Counsel alleges that this was a
threat. But, even if I credited Stephens’ version, which I don’t,
it seems likely that this conversation, which was prompted by
Stephens, was designed to get Blackwell to express an opinion
that was his own and not the Respondent’s. (This looks to me
like Stephens was asking Blackwell a leading question de-
signed to get him to make an illegal statement.)
Stephens further testified that about 2 days after returning to
work after the Thanksgiving holiday Blackwell came up to his
room and asked how he voted. According to Stephens, he re-
sponded that he hadn’t voted yet and Blackwell said he had to
circle “no” and send the ballot in. Stephens testified that
Blackwell told him that he had a good future at the Company,
that everyone liked his work, and that if the Union goes
through, “it would really goof us up on our wages and benefits
and everything else.”
C. Jason Collins
Collins, an apprentice lineman, was the person who invited
Muenks to attend the pre-Thanksgiving barbeque. He also
asserts that at some other time (indeterminate) he had a conver-
sation with Woodward when she came to the site and she asked
him why he wanted the Union. Collins states that he defended
the Union and said that he thought that with the Union, the
employees would get a really good training program.
Collins also testified that at some indeterminate date he had a
conversation with Blackwell at a bar in Jasper where Blackwell
said that he knew that Collins was going to make the right deci-
sion “come voting time.” According to Collins, Blackwell said
either that we would or he would lose everything if it goes un-
ion and that Blackwell heard that Collins was the one who was
going to testify against him at the Labor Board. This was not
corroborated by anyone and was credibly denied by Blackwell.
In any event, and whether or not one credits Collins testi-
mony regarding the alleged statements by Woodward or
Blackwell, the evidence shows that by November 16, 2001, the
Company was aware that Collins was a union supporter.
On November 16, 2001, Collins complained of a back injury
and was taken to the hospital. At the emergency room he was
given a shot of Demerol and left with a prescription for Vicadin
and the suggestion that he see his own doctor. In the morning,
Woodward called Collins and told him that she had a ticket for
him for a flight to his home in Oregon that evening. According
to Collins, he told her that he wanted to work and asked her
why she was sending him home. He states that she said that
they couldn’t afford having someone with a back injury on the
job. (Since Vicadin is a narcotic based drug, which can cause
drowsiness and disorientation, it would have been the height of
folly to allow Collins to continue to work as a lineman.)3
On November 20, 2001, the ballots were mailed out to the
employees’ homes.
On November 21, 2001, the employees were all sent home
for the Thanksgiving break. This lasted until November 26,
2001, when the employees returned to work.
On November 21, 2001, Collins went to a doctor in his home
town and got a note stating that he could return to regular work,
(without restrictions) on November 26, 2001. He faxed this
note to the Company on the same date.
According to Collins, on or about November 23 or 24, he re-
ceived a call from Woodward who told him that she hadn’t
gotten him a regular flight back to the job and that she would
get back to him when the office could arrange for another
flight. Collins testified that she also said that she would need
another doctor’s note before returning.
Collins testified that around November 26 or 27 he had a
conference call with Woodward and McShane. He states that
they told him that they had a flight for him but that instead of

3 For a description of Vicadin, one can go the website of the Na-
tional Institute of Health and use its search function. www.NIH.gov.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
going back to Jasper, Texas, he would be going to the other
crew in Louisiana. According to Collins, McShane said that
the reason was that they didn’t want him stirring up any more
trouble. Collins asserts that Woodward said that Collins was
spending most of his time with the union guy. He states that he
asked Woodward where she heard this, and that she responded
that it was from someone outside the Company and that “it’s a
small world.”
Woodward and McShane credibly denied that they made the
statements attributed to them by Collins. According to
McShane, there was a conference call with Collins after he was
injured and that he just asked Collins if he was confident that
he was ready to return to work. They deny that Collin’s union
activities had anything to do with his transfer to Louisiana.
Collins returned to work on November 30, 2001, and worked
on the crew headed up by J.P. Flynn in Lafayette, Louisiana.
When he arrived, he was told that he could not longer wear
short-sleeve shirts and that he had to remove any insignia from
his helmet.
On December 10, 2001, Collins received a warning. The
warning was based on three incidents that occurred on Decem-
ber 7 and 8. The warning stated that it was given because
Collins left a safety meeting to make a personal telephone call;
that he threatened another employee; and that he drove a vehi-
cle in an unsafe manner. Collins did not deny that he engaged
in the conduct alleged and specifically admits that he threatened
to punch another employee. And in the latter regard, Collins
acknowledges that he wasn’t kidding when he made the threat.
Collins testified that Woodward told him that any more occur-
rences would result in his discharge.
D. Walt Stephens
As previously noted, Stephens was persuaded by the Union
to leave his existing job in order to apply for work at the Re-
spondent. He did so and was hired as a journeyman. Upon his
arrival at the airport on October 23, 2001, he told Blackwell
that he had a union ticket and engaged Blackwell in a discus-
sion about unions. Blackwell’s response was that the only
thing a union ever did for him was to take money out of his
paycheck.
From October 23 to December 7, 2001, and with the excep-
tion of the Thanksgiving break (November 21 to 26) Stephens
worked every day.
According to Stephens, in early December 2001, he told
Marty Lyons (the other leadman) that he was a union organizer
and put a union sticker on his flight helmet. Stephens testified
that he handed out union T-shirts and insignia to the other em-
ployees and that when Blackwell came back from a recruiting
trip in Georgia, Blackwell told the employees that they had to
remove the insignia from their flight helmets and that they
would have to wear long sleeve shirts.
On or about December 7 or 8, the Company sent both
Stephens and Blackwell home from their work site in Jasper,
Texas. This was consistent with its policy of rotating employ-
ees back home after extended periods at work in order to give
them a break from what is, after all, a very dangerous job.
Normally, the rotation lasts for about 10 days and by this time,
there was only 15 days left before the Christmas break.
According to Stephens, when he asked Lyons if he was being
fired, he was told that he was not and that he should talk to
Woodward. Stephens states that he called Woodward who told
him that the job didn’t require him there and since he was the
last guy hired, she was going to send him home. He states that
when he asked about coming back, Woodward was noncommit-
tal and said that she would have to look at the numbers.
On December 10, after Stephens and Blackwell were sent
home, three of the apprentices who were working at Jasper left
work, asserting that they were on strike. Thereafter, the Com-
pany transferred Phillips to Jasper on December 11 and hired
Brandon Finley for that jobsite on December 13. That left, at
Jasper, a net reduction of one employee for the remaining time
before the Christmas break. (The employees went home on
December 22.)
After being sent home, Stephens went to work for another
contractor and wasn’t home when Woodward tried to call him
about coming back to work.
On December 18, 2001, Woodward, some time after being
told by Lyons that Stephens was a union plant, sent a letter to
him at his home which stated that she had been trying to reach
him about his next assignment. In the letter, she asked that he
call her on December 21 because the Company had work
scheduled which she wanted him to do if he was available.
Stephens didn’t get the letter because he had taken another job
and was away from home. Therefore, he did not manage to
contact Woodward until some time later in December. When
he finally did, Woodward told him that he could report on
Monday, January 6, 2002, to a new job in Beaumont, Texas.
Stephens arrived in Beaumont on January 6, 2002, and then
worked for 22 consecutive days until January 27, 2002, when
he was sent home again on rotation. He returned on February 8
and worked through the beginning of March 2002, when he
announced that he was going on strike and left.
The evidence shows that the Company considered Stephens
to be an excellent employee. And in this regard, Woodward, in
late February 2002, offered to promote him to a leadman with a
sizeable increase in pay. Although initially indicating that he
would accept the promotion, Stephens decided instead to leave
in early March 2002.4
The General Counsel also contends that in December 2001
the Company ordered jackets for its employees and failed to
order one for Stephens. In this regard, the evidence indicates
that Woodward ordered, from Land’s End, 15 jackets with
company logos. These were given out to those employees who
were still at work up to the Christmas break. At that time,
Stephens had been sent home and had gotten another job.
When he did return to work on January 6, 2002, he was not
given a jacket and Woodward testified that this was because
she discovered that he was a size “extra large,” and she didn’t
have that size available. So she ordered some more jackets for
Stephens and some other new people who had been hired.
Ultimately he got his jacket and in my opinion, the General
Counsel has not proven that the Employer violated the Act in
this respect.

4 Although not entirely clear, it appears that Stephens was directed
by the Union to leave.

AIR 2, LLC

185
E. Jason Bonner
The complaint alleges that the Respondent, on or about De-
cember 10, 2001, illegally withdrew a previously made offer of
employment. Curiously, it does not allege that the Company
unlawfully refused to hire Bonner or refused to consider him
for employment.5 In response, the Company simply asserts that
no authorized person ever offered Bonner a job. It did not ex-
plain why it didn’t offer him a job, although several possible
reasons could be inferred from the circumstances.
Bonner is employed by the IBEW as a union agent. Bonner
testified that in November 2001, he spoke to someone in the
Company’s office named Lynn about a job and was referred to
Tracy Blackwell. He states that he called Blackwell who said
that if Bonner was interested, he should send in an application.
On November 16, 2001, Bonner sent in a job application by
fax. This fax indicated on the top, the sender’s telephone num-
ber and specifically noted that it originated from the IBEW.
Woodward testified that when she received this fax she noticed
that it came from the IBEW and decided that Blackwell should
go ahead anyway and interview Bonner for a job.
According to Bonner, he had a series of conversations with
Blackwell, Woodward, Lynn, and another office person regard-
ing employment. And from what I can determine, all of these
took place during the course of one day; December 10, 2001.
Bonner testified that Blackwell called and asked if he was
still interested in working and that he told Blackwell that he
was. According to Bonner, Blackwell asked if he was a union
member, to which he replied that he was and asked if this was
going to be a problem. At this point, according to Bonner,
Blackwell said that they were having some problems with a
union that was trying to force themselves on the Company and
that Blackwell, had inadvertently hired a union plant. Accord-
ing to Bonner, Blackwell said “it was a f—ing nightmare.”
Bonner states that Blackwell said that if he took the job, he was
going to be considered a nonunion hand and asked if Bonner
had ever done any aerial work. After Bonner stated that he had
just finished a job in New York with two helicopters, Blackwell
said that the Company would supply the flight helmet and
tools; that the pay would be $25 per hour with a $35 per day
per diem; and that the Company also paid for hotel rooms.
Bonner testified that Blackwell said that there was a good
chance that Bonner would be hired and that he would have to
speak to the vice president (Woodward). According to Bonner,
Blackwell asked him how soon he could start.
According to Bonner, he received another phone call from
Blackwell telling him that he would be brought down on a trial
basis and that he would probably work until the Christmas
holiday and if he liked the Company, and the Company liked
him, there would be a long term project.
Bonner testified that the next phone call he got was from
Woodward who asked him a few things and also spoke about
the problem they were having with the Union. He states that
she asked if Blackwell had gone over the wages and said that
he would be brought down to Jasper, Texas, on a trial basis
until the Christmas holiday. According to Bonner, “it sounded

5 The Union takes a broader position which is that the Company re-
fused to hire Bonner for discriminatory reasons.
optimistic” that he would be employed by Air 2 by the end of
the day.
Bonner testified that the next phone call came from Lynn to
start the process of getting his paper work done. He states that
she told him they could arrange for an immediate flight from
Pennsylvania, at which point he told her that he couldn’t leave
until December 13 or 14.
Somewhat later, Bonner states that he received a phone call
from Sue Chetwood about payroll stuff and then another call
from Lynn who said that she had a problem getting him a flight
out of Wilkes Barre, but that she could arrange a flight from
Allentown or Newark.
According to Bonner, at about 4:30 p.m., he received a final
call from Blackwell who said that his employment status had
been put on hold and that he would not be starting until after
the first of they year. Bonner states that he didn’t bother asking
why because he figured that he knew the reason.
By the time that Bonner had this last conversation, I presume
that the votes had been counted and that four apprentices,
Laslovich, Grant, Collins, and Brauning, had left the job and
declared that they were on strike.6
It is noted that the employees left for the Christmas vacation
on December 22 and the new job started on January 6, 2002.
Thus, had Bonner started on December 13 or 14, he would only
have worked a week before being sent home.
It seems that no one from the Company contacted Bonner af-
ter December 10 and he did not attempt to contact the Company
until the end of January 2002. Bonner states that in late Janu-
ary, he called the Company and after leaving the Union’s phone
number, got a call from Woodward who said that the work
picture had dropped off; that they currently had two crews that
were fully loaded up; that she was trying to drum up some more
business; and that if they got a third crew going, there was a
possibility of employment.
III. ELIGIBILITY AND BALLOT ISSUES
The Union challenged the ballot of Tracey Blackwell on the
grounds that he was a supervisor as defined in the Act. I have
already discussed this issue and concluded that he did have
authority set forth in Section 2(11) of the Act. Therefore, I
conclude that the challenge to his ballot be sustained and that it
remained closed.
The Employer objected to the fact that the Board agent con-
ducting the election voided the ballot of Marty Lyons.
The election was conducted by mail ballot, no doubt because
the employees worked in the field, far away from any central-
ized location. In this respect, the employees were mailed a
package containing the ballot, a blue envelope to place the bal-
lot, and a yellow return envelope, addressed to the Board’s
office. The point was for the employees to mark their ballots,
seal them inside the blue envelope and then return them inside
the return yellow envelope. The return envelope is supposed to
contain the employee’s signature. At the count, the return en-
velopes are examined and if any party wishes to make a chal-
6 The Board reiterated in Aztech Electric Co., 335 NLRB 260
(2001), that an employer is entitled to refuse to hire a paid union agent
during the course of an economic strike. See Sunland Construction
Co., 309 NLRB 1224, 1231 (1992).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
lenge, he can do so at this point. In the absence of a challenge,
the blue envelopes are removed and when aggregated, the bal-
lots are removed and counted so that the persons marking the
ballots cannot be identified.
In Lyon’s case, he marked his ballot and put it inside the
outer yellow envelope without using the blue envelope. This
meant that upon opening the envelope containing his signature
there was the possibility that the parties would see how he
voted. Therefore, the secrecy of his ballot could be negated.
There is a paucity of recent case law dealing with this type of
situation. However, the Board’s decision in Northwest Packing
Co., 65 NLRB 890, 891 (1946), would seem to apply. That
case involved a very similar circumstance where an employee
placed his ballot into the return envelope without first placing it
in the blue envelope. There, the Board overruled the Regional
Director and held that the ballot was void. Accordingly, I shall
conclude that Lyon’s ballot be declared void.
The Employer objected to the Board agent’s decision to
count the ballot of Jeff Laslovich. In this situation, Laslovich
followed the instructions in the sense that after he initially
placed his ballot directly into the yellow return envelope, he
realized that he had made a mistake, opened the envelope, put
his ballot in the blue envelope and then resealed the yellow
envelope with the blue envelope inside. There is, in my opin-
ion, nothing nefarious about this transaction and I recommend
that the Employer’s objections in this regard be overruled.
IV. ANALYSIS
A. The Apprenticeship Program
Faced with a union organizing campaign, and particularly
with an election petition filed with the NLRB, a company may
find itself in a quandary regarding decisions to promise, grant,
or withhold benefits. In the present case, one issue revolves
around the promise of and promulgation of an apprenticeship
program.
The evidence establishes that the Company was aware that
the new employees were interested in getting an apprenticeship
program. And the evidence also shows that in the spring and
summer of 2001, before management was aware of any union
activity, the Company assigned Fleming to look into the possi-
bility of getting such a program. (Obviously, since the Com-
pany was nonunion, it couldn’t enroll in a union sponsored
apprenticeship program and would have to sign up with a pro-
gram approved by the United States Department of Labor.)
For better or worse, Fleming, who also urged employees to
join a union, didn’t follow through on this project. And by the
time that the Company became aware that the Union was orga-
nizing its employees, Fleming hadn’t done anything about ob-
taining an apprenticeship program.
When the Union made its demand for recognition on October
23, 2001, the Company, at the meetings on October 25 and 26,
2001, told the employees that it was going to get an apprentice-
ship program so that its apprentices could ultimately obtain
certification as journeymen linemen. Woodward told employ-
ees that since the Company was not unionized, if employees
were intent on getting into a union apprenticeship program,
they would have to get jobs in unionized companies and could
always return to Air 2. (I don’t consider that to be a threat as it
is simply a statement of fact).
Sometime later in November 2001, the Company repeated to
the employees that it was going to institute an apprenticeship
program. And sometime in December 2001, it did institute a
Department of Labor authorized program.
An employer who promises or grants benefits while an elec-
tion petition is pending will be held to violate the Act unless it
meets its burden of proof by showing that the increases either
had been planned prior to the union’s advent on the scene or
that they were part of some established past practice. NLRB v.
Exchange Parts Co., 375 U.S. 405 (l963); Baltimore Catering
Co., 148 NLRB 970 (l964). Further, where the announcement
of a benefit is timed so as to influence the outcome of an elec-
tion, the Board may find a violation of the Act even where the
benefit had previously been planned. In NLRB v. Pan-
del-Bradford, 520 F. 2d. 275 (1st Cir. l975), the court stated:

The Board has long required employers to justify the timing
of benefits conferred while an election is actually pending.
Justifying the timing is different from merely justifying the
benefits generally. Wage increases and associated benefits
may be well warranted for business reasons; still the Board is
under no duty to permit them to be husbanded until right be-
fore an election and sprung on the employees in a manner cal-
culated to influence the employees’ choice. [Citations omit-
ted].

In Mountaineer Petroleum, 301 NLRB 801 (1991), the
Board stated:

The validity of wage increases or other benefits during the
pendency of representation petitions turns upon whether they
are granted “for the purpose of inducing employees to vote
against the union.” . . . Under settled Board policy, a grant or
promise of benefits during the critical pre-election period will
be considered unlawful unless the employer comes forward
with an explanation, other than the pending election, for the
timing of such action.

In the present case, the evidence shows that the Employer’s
management had merely thought about getting an apprentice-
ship program before it became aware that the Union was orga-
nizing its employees. But the evidence also shows that the
person responsible for following through failed to do so. In this
regard, the evidence shows that the Company made a decision
to implement an apprenticeship program only after it became
aware of the Union’s organizational campaign and announced
this decision to the employees only after the Union made its
demand for recognition. Further, this promise was repeated
after the Union had filed its petition and so the promise was
reiterated at a time when it was obvious that an election was
going to be held.
Based on the foregoing, I would conclude that by promising
an apprenticeship program in the circumstances described
above, the Employer violated Section 8(a) (1) of the Act.7 I

7 The dilemma for the Employer and its counsel was that if the
Company had clearly made and announced a plan to get an apprentice-
ship program before the Union began organizing, it might have violated

AIR 2, LLC

187
also would conclude that inasmuch as this promise was reiter-
ated during the critical period, between the time that the peti-
tion was filed and the time that the election was held, that the
Union’s objections based on this conduct should be sustained.
Moreover, I would conclude, based on this conduct alone, that
it had a sufficient impact on the election so as to warrant that it
be set aside.
B. The 8(a)(3) Allegations
Pursuant to Wright Line, 251 NLRB l083 (l980) enfd. 662 F.
2d 899 (lst Cir. l98l), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393, 399–403 (1983), once the General Counsel has es-
tablished a prima facie showing of unlawful motivation, the
burden is shifted to the respondent to establish that it would
have laid off or discharged the employees for good cause de-
spite their union or protected activities.
In American Gardens Management Co., 338 NLRB No. 76
(2002), the Board noted that under Wright Line the General
Counsel is required to make an initial “showing sufficient to
support the inference that protected conduct was a ‘motivating
factor’ in the Employer’s decision and if such a showing is
made, the burden shifts whereupon the Employer is required to
demonstrate that the same action would have taken place even
in the absence of the protected conduct.” The Board further
stated that in order to meet the initial burden, the General
Counsel must establish four elements; (1) the existence of ac-
tivity protected by the Act; (2) the Employer’s knowledge of
that activity; (3) the imposition of some adverse employment
action; and (4) the existence of a motivational link, or nexus,
between the protected activity and the adverse employment
action.
1. Jason Collins
The General Counsel alleges that the Respondent required
Jason Collins to get another doctor’s note before returning to
work after an injury. It also is alleged that the Respondent
violated the Act by transferring Collins to a different location
after returning to work. Further, it is alleged that a disciplinary
warning given to him was discriminatorily motivated. I reject
all of these contentions.
Collins injured his back while at work and went to the local
hospital’s emergency room on November 16, 2001. While
there, the attending doctor told Collins to see his own doctor
and gave him a prescription for Vicadin, a narcotic based medi-
cation whose side effects may include drowsiness and disorien-
tation. Although insisting that he was ready to go back to
work, Woodward wisely gave Collin’s a first-class air ticket
and ordered him to return home.
Given the injury and the prescribed medication, it would
have been reckless for the Company to allow Collins to return
to a job, which was inherently dangerous. Because Collin’s job
required him to balance himself between a helicopter and a
tower, the affects of his medication could have resulted in his
demise.

the Act if it had withheld its implementation because of the pending
election.
On November 21, 2001, Collins went to a doctor and ob-
tained a note stating that he could return to regular work (with-
out restrictions) on November 26, 2001. This was during the
time when all of the other employees had also been sent home
for the Thanksgiving break.
Collins returned to work on November 30, 2001, about 4
days after the other employees returned from the Thanksgiving
break. And although it is asserted that he was transferred to
another location because of his union activity, I don’t think that
the General Counsel has proven this assertion and I do not
credit Collin’s testimony that he was told by Woodward or
McShane, during a conference call, that he was stirring up
trouble or that he was spending most of his time with the union
guy.
With respect to the warning given to Collins after his return
to work, there was no denial by him that he engaged in the
conduct that gave rise to the warning. That is, Collins admits
that he seriously threatened to punch another employee and he
did not deny the other factors leading up to the warning. The
General Counsel contends that rough language and threats of a
similar nature are common and tolerated among this group of
employees. It may be that these employees are more boisterous
than usual, but the fact is that the warning to Collins was, in my
opinion, a particularly light form of punishment for the acts
committed.
2. Walter Stephens
The complaint alleges that Walt Stephens was sent home
prematurely on or about December 7, 2001.
However, the fact is that the Respondent has a policy of ro-
tating its employees back home usually after 20 consecutive
days of work. In this instance, Stephens, except for the
Thanksgiving break, had worked well in excess of the usual
period and he was sent home at the same time as Blackwell.
And at the time he was sent home, there was only 2 weeks left
before the Christmas break when work stopped for everyone.
When he got home, Stephens got himself another job and
was unavailable when Woodward called to tell him about his
next assignment. After Woodward sent him a letter on Decem-
ber 21, 2001, Stephens finally returned her calls and was asked
if he would return to work on January 6, 2002.
Despite being aware that Stephens was a union plant, the
Company, in February 2002, decided to give him a promotion
to crew chief with a substantial increase in pay. He accepted
this job, but ultimately left after his next rotation home.
In my opinion, the credited evidence does not demonstrate
that the Company discriminated against Stephens in any man-
ner. The evidence, in my opinion, shows that on December 7
the Company followed its normal practice of rotating employ-
ees home after an extended period of time and the fact is that
both Stephens and Blackwell were sent home at the same time.
Even if the Company had wanted to recall Stephens before the
Christmas break, this was not possible because Stephens had
left his home to had take another job.
Nor do I conclude that the Company discriminated against
Stephens by failing to give him one of the newly purchased
company jackets. When Woodward realized that she did not

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
have the right size for him, she ordered new jackets including
one for Stephens.
3. Jason Bonner
The General Counsel contends that the Respondent retracted
an offer of employment that had been made to Bonner. The
Union takes a broader position, which is that the Respondent
refused to hire him for discriminatory reasons.8 The Company,
because of the way that the complaint was phrased, was content
to offer evidence only to contest the allegation that an offer of
employment was never made to Bonner. Otherwise, the Com-
pany made no explanation as to why it did not make an offer of
employment to Bonner.
Bonner is a paid agent of the IBEW. The application he sent
to the Company was faxed from the Union’s office and indi-
cates this on the top right hand corner of the document. Thus,
an observant person would have noticed that the job application
had originated from the IBEW. Woodward testified that she
saw that this was the case when she reviewed his application.
On December 10, after the ballots were counted, and after
three of the employees announced that they were going on
strike, Woodward decided to have Blackwell call Bonner about
employment. There then ensued a series of conversations be-
tween Bonner, Blackwell, Woodward, and the two office
women. Without repeating the testimony, the bottom line is
that according to Bonner, before finally being told by Black-
well that Woodward had put his employment situation on hold,
he had gotten the impression from Blackwell and the two office
workers that the Company was going to hire him, at least on a
temporary basis. Nevertheless, Bonner’s own testimony sup-
ports Woodward’s contention that there never was any explicit
offer made to him. Thus, although Bonner testified that
Blackwell told him that he would be brought down to Jasper on
a trial basis, he also testified that by the end of this conversa-
tion, it sounded optimistic that he would be employed by the
end of the day.
The facts here are peculiar. At the time that these conversa-
tions took place, it is likely that the Company was aware that
Bonner was a paid union agent but nevertheless undertook to
talk to him about employment anyway. This all occurred on
December 10, the same day that four of the unit employees
suddenly announced that they were going on strike. I also note
that Bonner, during the course of these conversations, said that
he could not leave immediately and would not be available
until December 13 or 14.
Given this set of facts, it would not be totally implausible to
conclude that a reason for failing to offer Bonner a job was
because of his union affiliation. But there would also be other
more plausible reasons, which however, were not articulated by
the Respondent. One might be that any possibility of a job
offer was withdrawn when it became apparent that Bonner was
not immediately available for work. Another might be that

8 In note however, that the General Counsel is the only party who is
permitted to control the allegations of the complaint and the Charging
Party cannot amend a complaint on its own, even though it may offer a
different theory of violation or proffer remedies other than those pro-
posed by the General Counsel to remedy a violation of a complaint
allegation. Kaumagraph Corp., 313 NLRB 624, 625 (1993).
during the day, the Respondent discovered that it could transfer
Philips from sales to the field and hire another employee, Bran-
don Finley, at a little more than half the wages of Bonner, to do
what was necessary to complete the Jasper job. A third alterna-
tive reason would be that where some of its employees an-
nounced that they were on strike, there was a high probability
that even if hired, Bonner would refuse to work. (Thus causing
the Company to expend money for airline tickets and hotel
expenses for a man who might also go on strike as soon as he
arrived at the jobsite.)
Given all of these peculiar circumstances, I do not think that
the General Counsel has met his prima facie burden of proving
that the Respondent has discriminated against Bonner.
C. Miscellaneous 8(a)(1) Allegations
I have, in the body of this decision, made a number of credi-
bility findings as to statements allegedly made by McShane,
Woodward, and Blackwell. Apart from the promise of the
apprenticeship program, which is discussed above, I have con-
cluded that Woodward and McShane did not make any other
statements which could be construed as violations of the Act.
In this regard, the evidence shows McShane read from a pre-
pared script to employees on October 25 and 26, 2001 and that
the remarks he made were permitted by the Act. The credited
evidence further establishes that shortly before Thanksgiving,
they conducted a conference call with employees to advise
them that they would be receiving mail ballots.
On the other hand, I conclude that Tracey Blackwell did
make some statements which violated Section 8(a)(1) of the
Act. In this regard, the Company asserts that Blackwell merely
stated his own opinions and that he was never authorized to
speak on its behalf regarding the union campaign. Neverthe-
less, I have concluded that Blackwell was a supervisor as de-
fined in the Act and therefore that the Company is liable for
any illegal statements he made. Moreover, even if his supervi-
sory status was viewed as being uncertain by the Employer at
the time of the election campaign, the Company could have
explicitly told the employees that Blackwell did not speak for
the Company.9
In any event, I conclude that the Respondent violated the Act
only with respect to the following statements or conduct by
Blackwell:
Blackwell ordered the employees to remove union insignia
from their flight helmets. Sears Roebuck & Co., 305 NLRB
193 (1991).
Blackwell interrogated employees about how they voted in
the election when they returned to work on November 26,
2001.
Blackwell made an implied threat to an employee when, in
conjunction with being told that the employee voted for the
Union, stated that it was a long bus ride back to Anaconda.
Blackwell threatened employees by inviting the assault on a
union organizer.
Blackwell impliedly threatened employees by stating that the
Company would make Lake and Smith sweat before allowing
9 It might also have suggested to Blackwell that because of his posi-
tion in the field, it did not want him to make any anti union statements.

AIR 2, LLC

189
them to return to work. (I think this constitutes a threat even
though these two employees returned to work soon after they
offered to go back).
With respect to the barbeque, I think the testimony was con-
fused. From what I can determine, Muenks was invited by
employee Jason Collins to come and argue with Blackwell and
this is what happened. It seems that Blackwell accused Muenks
of trying to destroy the Company, which Muenks denied.
Blackwell expressed his opinion that a union would only cost
employees money; that the pilots employed by the Company
did not want to have to train union linemen and would refuse to
fly with them; and that the employees did not want a union. At
some point, Muenks asked Blackwell how he knew the em-
ployees didn’t want a union and suggested that Blackwell ask
them. Blackwell did and got a response. This can hardly be
viewed as coercive interrogation inasmuch as it was prompted
by the Union’s agent. On the other hand, I credit the testimony
that Blackwell made a statement to the effect that the Com-
pany’s pilots would refuse to fly with or train union linemen.
This, in my opinion, could be viewed as a threat of reprisal and
in this regard, I find that the Respondent violated Section
8(a)(1) of the Act. Cf. Wake Electric Membership Corp., 338
NLRB No. 32 slip op. at 2 (2002).
D. Is a Bargaining Order Appropriate
In Aiello Dairy Farms Co., 110 NLRB 1365 (1954), the
Board held that if a union participated in an election after the
Employer had refused its request for recognition it waived a
bargaining order remedy. Under that case, if unlawful conduct
was committed before an election, the union’s sole remedy was
to have the election set aside and have a new election con-
ducted. However, the Aiello decision was overruled in 1964 by
Bernel Foam Products Co., 146 NLRB 1277 (1964), and the
Board reverted to its pre-1954 doctrine. The Board stated:

[T]he so-called “choice” which the union is forced to make
under Aiello between going to an election or filing an 8(a) (5)
charge is at best a Hobson’s choice. Although an election is a
relatively swift and inexpensive way for the union to put the
force of law behind its majority status, the procedure is highly
uncertain entailing the real possibility that because of conduct
by the employer no fair election will be held.
. . . .
Since this difficult and rather dubious “choice” is created by
the employer’s unlawful conduct, there is no warrant for im-
posing upon the union which represents the employees, an ir-
revocable option as to the method it will pursue . . . while
permitting the offending party to enjoy at the expense of pub-
lic policy the fruits of such unlawful conduct.

The rule that a union does not waive any rights to a bargain-
ing order because it proceeded to an election, was confirmed by
the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). In that decision, the Court decided four separate
cases and enforced a bargaining order where a union, initially
having obtained authorization cards from a majority of the em-
ployees, had lost an election in which the employer’s conduct
had invalidated the election.
In NLRB v. Gissel Packing Co., supra, the Supreme Court
distinguished between three categories insofar as the propriety
of granting a bargaining order to remedy an employer’s unfair
labor practices. The first category involved the “exceptional”
case where “outrageous” and “pervasive” unfair labor practices
are committed. The second category involved “less pervasive
practices” that have a tendency to undermine majority strength
and impede the election process. As to this second category,
the Court held that a bargaining order would be appropriate to
remedy unlawful conduct which had the effect of making a fair
election unlikely where, at some point, the union had majority
support. The third class of cases, concern those where minor or
less extensive unfair labor practices have been committed
which would have a “minimal impact” on an election. The
Court held that in the third category of cases a bargaining order
would be inappropriate to remedy an employer’s unfair labor
practices.
Where an election has been conducted, the Board has held
that a precondition to the granting of a bargaining order is that
the election must be set aside because of conduct interfering
with the conduct of the election. Irving Air Chute Co., 149
NLRB 627 (1964); Great Atlantic & Pacific Tea Co., 230
NLRB 766 (1977).
Had the General Counsel prevailed on all or most of the alle-
gations alleged, there would be no question that a bargaining
order would be appropriate.
But what we have here is an unlawful promise of benefit (the
apprenticeship program), and a few coercive statements by
Tracey Blackwell who is a borderline supervisor. These, to my
mind, are not the kind of “hallmark” violations that the Board
or the Courts have described in cases such as NLRB v. Jamaica
Towing, Inc., 632 F.2d 208, 212, (2nd Cir. 1980), National
Propane Partners, L.P., 337 NLRB 1006 (2002), or Parts De-
pot Inc., 332 NLRB 670 (2000).
Accordingly, I would not recommend that a bargaining order
be granted on the basis of the facts in this case. Wake Electric
Membership Corp. supra.
CONCLUSIONS OF LAW
1. The Respondent, Air 2, LLC, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, International Brotherhood of Electrical
Workers, Local 222, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By promising an apprenticeship program to employees in
an effort to dissuade them from voting for the Union, the Re-
spondent has violated Section 8(a)(1) of the Act.
4. By ordering employees to remove union insignia from
their flight helmets, the Respondent has violated Section 8(a)(1)
of the Act.
5. By interrogating employees about how they voted in the
election, the Respondent has violated Section 8(a)(1) of the
Act.
6. By implicitly threatening to lay off or discharge employ-
ees if they voted for the Union, the Respondent has violated
Section 8(a)(1) of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
7. By threatening to assault a union organizer in the pres-
ence of employees, the Respondent has violated Section 8(a)(1)
of the Act.
8. By telling employees that the Company’s pilots would re-
fuse to fly with union linemen, the Respondent has violated
Section 8(a)(1) of the Act.
9. Except as otherwise found herein, the Respondent has not
violated the Act in any other manner encompassed by the com-
plaint.
10. To the extent that these violations are coextensive with
certain of the Union’s objections to the election, the objections
are sustained and the election should be set aside.
11. The challenge to the ballot of Tracy Blackwell is sus-
tained.
12. The ballot of Marty Lyons is invalid and should remain
closed and uncounted.
13. The ballot of Jeff Laslovich should be opened and
counted.
14. Pursuant to the stipulation of the parties, the ballots of
John Flynn, Jason Collins, and James Lake should remain un-
opened and uncounted.
15. A new tally of ballots should be prepared and depending
on the outcome of the election, an appropriate certification
should be issued. In this regard, it is assumed that if the out-
come shows that a majority of the valid votes counted is in
favor of union representation the Union would obviously with-
draw its objections in favor of a Certification of Representative.
On the other hand, if the revised tally shows that a majority of
the valid votes counted was against unionization, then a new
election should be conducted based on the Union’s objections.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
With respect to the apprenticeship program, I shall not rec-
ommend that the Respondent be ordered to rescind this pro-
gram, as this would compound the effects of the unfair labor
practices.
With respect to the election, I recommend that a revised tally
of ballots be issued after counting the ballot to be opened. In
the event that a majority of the votes are cast for the Union, it is
recommended that a Certification of Representative be issued
to it. In the event, however, that a majority is cast against un-
ion representation, it is recommended that a new election be
held.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 10
ORDER
The Respondent, Air 2, LLC, its officers, agents and assigns,
shall

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1. Cease and desist from
(a) Promising an apprenticeship program, or any other bene-
fits, to employees in an effort to dissuade them from voting for
the Union.
(b) Ordering employees to remove union insignia from their
flight helmets.
(c) Interrogating employees about how they voted in the
election.
(d) Implicitly threatening to lay off or discharge employees if
they voted for the Union.
(e) Threatening to assault a union organizer in the presence
of employees.
(f) Telling employees that the Company’s pilots would re-
fuse to fly with union linemen.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 8(a) (1) of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Miami, Florida, and at any other locations where unit
employees may be assigned, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 12, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondents at any time since October 25, 2001.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
IT IS FURTHER ORDERED that the proceeding in Case 12–RC–
8721 be severed and remanded to the Regional Director for
Region 12 for further action consistent with this decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

11 If this 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

AIR 2, LLC

191
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT promise an apprenticeship program, or other
benefits to employees in an effort to dissuade them from voting
for the Union.
WE WILL NOT order employees to remove union insignia
from their flight helmets.
WE WILL NOT interrogate employees about how they voted in
the election.
WE WILL NOT threaten to lay off or discharge employees if
they vote for the Union.
WE WILL NOT threaten to assault a union organizer in the
presence of employees.
WE WILL NOT tell employees that the Company’s pilots
would refuse to fly with union linemen.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the rights guaranteed to them
by the Act.
AIR 2, LLC