Air Express International

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 478 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Air Express International Corporation and Truckdriv-
ers and Helpers Local Union No. 728. Cases 10
CA-12941 and 10-CA-13436
September 27, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On March 23, 1979, Administrative Law Judge
Marvin Roth issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, the General Counsel filed cross-
exceptions and a supporting brief, and Respondent
then filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings.2 and
i The parties have filed a number of procedural and evidentiary exceptions
to rulings the Administrative Law Judge made during the hearing. We find
no merit to these exceptions, except for the Administrative Law Judge's
exclusion of an allegedly stolen document offered by the General Counsel. It
is well established, as stated by the General Counsel, that Board practice is
to admit such documents unless it is proven that a Board agent "has been a
party to their unlawful seizure." Airline Pilots Association, 97 NLRB 929
(1951); H G Operating Corp. d/bla Raleigh Hotel, 191 NLRB 719, 728
(1971). There was no such showing herein. We therefore find that the Ad-
ministrative Law Judge erred in rejecting the document in question, but that,
in view of the ultimate conclusions herein, this ruling did not result in preju-
dice to the General Counsel.
2 In its brief, Respondent cites the recent Supreme Court decision in De-
troit Edison Co. v. N.LR.B., 440 U.S. 301, 100 LRRM 2728 (1979), as being
analogous to the situation in the instant case, and requiring a reversal of the
Administrative Law Judge's finding that Respondent violated the Act by
refusing to supply the Union with a copy of the acquisition agreement be-
tween the Company and Trans-Air Freight System, Inc. (hereinafter Trans-
Air). In Detroit Edison, the Supreme Court vacated the Sixth Circuit Court
of Appeals' enforcement order of the Board's holding that the employer was
required to release to the union representing its employees the psychological
test battery and answer sheets it utilized to determine job aptitude, as well as
employee-linked scores on these tests, and remanded the case to the lower
court for further proceedings consistent with its opinion. The employer in
Detroit Edison had offered to turn over the test score information to the
union if the employees involved would sign a waiver of confidentiality. The
Court held that, by making this conditional offer, the company fulfilled its
statutory obligation to bargain in good faith, in view of the "sensitive nature
of testing information, the minimal burden that compliance with the Compa-
ny's offer would have placed on the Union, and the total absence of evidence
that the Company had fabricated concern for employee confidentiality only
to frustrate the Union in the discharge of its responsibilities .... "(100
LRRM at 2735.)
Respondent argues that, based on the principles set out in Detroit Edison,
the press releases and the CAB order allowing the acquisition supplied to the
Union satisfied Respondent's duty to provide relevant information for the
purposes of bargaining with regard to the acquisition. Respondent's claim is
grounded on the confidential nature of the actual acquisition document and
the Company's interest in preserving that confidentiality that is allegedly
similar to the concerns of the company in Detroit Edison regarding the em-
ployee-linked test scores. We do not agree that the situations in Detroit Edi-
son and the instant case are analogous. Contrary to what occurred in Detroit
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order, 4 as modified herein.
Edison, in the instant case the public documents offered by Respondent to
the Union, dealing with the acquisition, did not provide the Union with the
necessary information to intelligently discuss the pending transfer, and there-
fore, unlike the conditional offer in Detroit Edison, no adeguate alternative
means of granting the Union's request for information was offered by Re-
spondent. Furthermore, Respondent raises the issue of the confidentiality of
the agreement for the first time in its exceptions, therefore suggesting that
there is some question herein as to the validity of Respondent's concern over
the confidentiality of the document. Accordingly, we find that the Supreme
Court's holding in Detroit Edison does not require a different result herein.
The General Counsel has excepted to the Administrative Law Judge's
recommended remedy insofar as it recommends that interest on backpay be
computed at a rate other than the 9 percent requested by the General Coun-
sel. We find no merit in that exception. See Florida Steel Corporation, 231
NLRB 651 (1977).
Finally, Respondent has alleged that the Administrative Law Judge's reso-
lutions of credibility, findings of fact, and conclusions of law are the result of
bias. While we disavow any reliance on certain gratuitous remarks made by
the Administrative Law Judge in characterizing several of the witnesses who
testified herein in adopting his ultimate recommendations in the instant case,
after careful examination of the entire record we are satisfied that this allega-
tion of bias is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Law Judge resolved
important factual conflicts in favor of the General Counsel's witnesses. As
the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Comrpanv, 337
U.S. 656, 659 (1949); "[Tlotal rejection of an opposed view cannot of itself
impugn the integrity or competence of a tner of fact." Furthermore, it is the
Board's established policy not to overrule an administrative law judge's reso-
lutions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Drs, Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have examined the record carefully and find no basis for reversing
his findings.
] The Administrative Law Judge concluded that Robert Heney, district
manager of Trans-Air's Atlanta facility, was placed by Respondent, during
the pre-acquisition period, in a position where he had apparent authority to
make statements which violated Sec. 8(a)(1) of the Act. Therefore, the Ad-
ministrative Law Judge held Heney to be Respondent's agent and thereby
found that through Heney's statements Respondent violated Sec. 8(a(I) of
the Act. In so finding, the Administrative Law Judge relied on the arguments
that during this period, Heney had a contractual commitment to become
Respondent's Atlanta distnct manager, which he made known to his Trans-
Air employees; also in that posture, he answered employee questions con-
cerning the pending acquisition. The Administrative Law Judge also specu-
lated that, during his contacts with Respondent por to the acquisition,
Heney was indoctrinated with the antiunion company policy and was urged
to aid in its implementation. Respondent has excepted to this conclusion and
we find merit in its exception.
Contrary to the Administrative Law Judge, we find no evidence in the
record to support the holding that Hene) was authorized by the Company to
act as its spokesman at the Trans-Air facility, or that the Trans-Air employ-
ees reasonably believed that such a relationship existed between Heney and
Respondent. It is apparent that the Administrative Law Judge's conclusions
in this area are based solely on speculation. Furthermore, while it is true that
Heney, among other Trans-Air employees, had signed an employment con-
tract with Trans-Air which was to be assigned to Respondent upon the suc-
cessful ompletion of the acquisition, this contract cannot be relied upon to
establish an agency relationship because at least one Trans-Air manager who
signed such a contract was released from this commitment and did not re-
main with Respondent after the acquisition. Based on the above discussion,
we find. in accord with Respondent's contentions, that Heney was not an
agent of Respondent during the preacquisition period. Accordingly, contrary
to the Administrative Law Judge, we find Respondent did not violate Sec.
8(aXI) of the Act by Heney's statements.
Member Truesdale would exclude Carl Herrington from the unit in accord
with his dissent in Tops Club, Inc, 238 NLRB 928 (1978).
In view of the serious unfair labor practices committed by Respondent,
the Administrative Law Judge, in his recommended Order and notice, in-
cluded a broad order provision as a remedy under the doctnne set out in
N.L.R.B. v. Entwistle Mfg. Co., 120 F2d 532, 536 (4th Cir. 1941), enfg. 23
NLRB 1058 (1940). In our opinion, the egregious misconduct engaged in
herein by Respondent, as evidenced by its attempt to exclude the Union
245 NLRB No. 69
478
AIR EXPRESS INTERNATIONAL
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low,5 and hereby orders that the Respondent, Air
Express International Corporation, East Point and
College Park, Georgia, its officers, agents, successors.
and assigns, shall take the action set forth in the rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Threatening employees with discharge, loss of
jobs, loss of pay raises, closure of the Company's fa-
cility, or other reprisal because of union activity;
threatening employees with no additional hiring be-
cause of union claims of representation; and warning
employees not to engage in union activity."
2. Substitute the following for paragraph 2(a):
"(a) Offer Nella Ree Dunn, Lynn Ashmore, John
Moore, Marlin Rozier, John Shepherd, and James
McCollum immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previ-
ously enjoyed, and make them whole for losses they
suffered by reason of the discrimination against them
as set forth in the section of this Decision entitled
'The Remedy.'"
3. Substitute the attached notice for that of the
Administrative Law Judge.
from its Atlanta facility by terminating almost all of the unit employees
clearly "demonstrates] a general disregard for its] employees' fundamental
statutory right." Hickmort Foods, Inc., 242 NLRB 1357 (1979). Accordingly.
we find, in agreement with the Administrative Law Judge, that a broad order
is warranted in this case.
5 We find merit in the General Counsel's exception to the inadvertent
failure of the Administrative Law Judge to include one of his findings in his
recommended Order and notice. The Board has, therefore, modified the rec-
ommended Order and notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice and to carry out its provisions.
WE WILL NOT discourage membership in
Truck Drivers and Helpers Local Union No.
728, or any other labor organization, by discrim-
inatorily terminating employees, or in any other
manner discriminating against them with regard
to their hire of tenure of employment or any
term or condition of employment.
WE WILL NOT threaten employees with dis-
charge, loss of jobs, loss of pay raises, closing our
facility, or other reprisal because of union ac-
tivity: WE WILL NOT threaten employees with no
additional hiring because of the Union's claim or
representation; and WE WILL NOT warn employ-
ees not to engage in such activity.
WE WILL NOT promise wage increases in order
to induce employees not to support Local 728 or
any other labor organization.
WE WILL NOT question employees concerning
their union membership, activities, or desires, or
as to whether they have been subpenaed to at-
tend a Board hearing.
WE WILL NOT create the impression of spying
on employee union activity by telling our em-
ployees that we have been informed that employ-
ees were talking to Board agents, and WE WILL
NOT solicit employees to refuse to give testimony
to Board agents.
WE WILL NOT refuse to recognize or bargain
collectively in good faith with Local 728 as the
exclusive collective-bargaining representative of
our employees in the following appropriate unit:
All dockmen, drivers, and agents employed by
us at our College Park, Georgia, facility for-
merly located in East Point, Georgia, but ex-
cluding all sales personnel, confidential em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to organize; to form, join, or
assist labor organizations, including Local 728;
to bargain collectively through representatives of
their own choosing; to engage in concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection; or to refrain
from any and all such activities.
WE WILL offer Nella Ree Dunn. Lynn Ash-
more, John Moore, Marlin Rozier, John Shep-
herd, and James McCollum immediate and full
reinstatement to their former jobs or, if such jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for losses they suffered by rea-
son of the discrimination against them, plus in-
terest.
WE WILL recognize and, upon request, bargain
collectively with Local 728 as the exclusive rep-
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative of all employees in the appropriate
unit described above, with regard to rates of pay,
hours of employment, and other terms and con-
ditions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WE WILL promptly furnish to Local 728 a true
and complete copy of the acquisition agreement
between us and Trans-Air Freight System, Inc.
WE WILL promptly furnish to Local 728 a
complete and accurate list of the names, job clas-
sifications, and dates of hire of all personnel em-
ployed at our Atlanta station, or by Trans-Air
Freight System, Inc., since January 4, 1978.
AIR EXPRESS INTERNATIONAL CORPORATION
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: Case 10-CA-
12941 originally came to hearing in Atlanta, Georgia, on
January 25, 1978. The charge in that case was filed on July
19, 1977, by Truckdrivers and Helpers Local Union No.
728 (herein the Union). The complaint, which issued on
August 31, 1977, alleged that Air Express International
Corporation (herein the Company or Respondent) violated
Section 8(a)(l) and (3) of the National Labor Relations Act,
as amended. The gravamen of the complaint was that the
Company threatened its employees that all pay raises were
frozen and that employees would not get pay raises because
of the Union, and discharged employee Nella Ree Dunn on
July 1 1, 1977, because of her union and concerted activities.
The Company's answer denied the commission of the al-
leged unfair labor practices. All parties were afforded full
opportunity to participate, present relevant evidence, argue
orally, and file briefs. Respondent was represented by its
labor relations consultant, Daniel M. Thompson. Respon-
dent requested and was granted to leave to file a brief, but
no briefs were filed by any party.'
On February 13 and 14, 1978, respectively, the Union
filed a charge and amended charge in Case 10-CA-13436.
On April 4, 1978, while Case 10-CA-12941 was pending
decision by me, the General Counsel issued a complaint in
Case 10-CA-13436, alleging that the Company had vio-
lated and was violating Section 8(a)(1), (3), (4), and (5) of
the Act. The gravamen of the new complaint, in sum, was
that the Company: terminated employees Lynn Ashmore,
John Moore, Marlin Rozier, John Shepherd, and James
McCollum because of their union adherence and union and
concerted activities, and because they gave testimony under
the Act; violated Section 8(a)(1) by numerous acts of inter-
i Before I opened the hearing in Case 10-CA-12941, the Regional Direc-
tor issued an order severing that case from Case 10-CA-13141, in which the
parties entered into an informal settlement argument. As will be discussed
herein, evidence concerning the subject matter of the alleged unfair labor
practices in Case 10-CA-13141 was presented by the General Counsel and
Respondent in both the original and reopened hearings, and has been con-
sidered by me in deciding the merits of the present cases.
rogation, threats of reprisal, promises of benefit, solicitation
of employees not to engage in union activity or to give
testimony to the Board, and creating the impression of sur-
veillance: and unlawfully refused to recognize and bargain
with the Union as the exclusive representative of the em-
ployees in the appropriate unit. The General Counsel fur-
ther filed with me a motion to reopen the record in Case
10-CA-12941 and to consolidate Case 10-CA-12941 and
13436; this motion was opposed by Respondent. On April
21, 1978, 1 issued a ruling and order granting the motion. I
ruled, in sum, that consolidation would effectuate the pur-
poses of the Act because the cases involved the same parties
and similar alleged unfair labor practices and that it ap-
peared that evidence adduced in either case might well be
probative as to the allegations in the other case.2 After I
issued a ruling and order denying a motion by Respondent
for a more definite statement, Respondent filed an answer
to the complaint in Case 10-CA-13436, denying commis-
sion of the alleged unfair labor practices. Thereafter, the
consolidated cases were tried at Atlanta, Georgia, on May
31-June 2, June 26-30, August 14-18, and September 25-
27, 1978. All parties were afforded full opportunity to par-
ticipate, to present relevant evidence, to argue orally, and to
file briefs. Respondent was represented by its attorney,
Jerold D. Jacobson, Esq. The General Counsel presented
an oral argument at the close of the hearing, and both the
General Counsel and Respondent submitted briefs.
Upon the entire record in the consolidated cases3 and
from my observation of the demeanor of the witnesses, and
having considered the oral arguments and briefs, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, an Illinois corporation, is engaged
throughout the United States and elsewhere in the world in
the business of air freight forwarding. The Company func-
tions as an essential link in the transportation of commodi-
ties in interstate commerce and annually receives gross rev-
enues in excess of $50,000 from such operations. I find that
the Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Since Febru-
ary 10, 1978, the Company has maintained an office and
place of business at College Park, Georgia. Prior to Febru-
ary 10, 1978, the Company maintained an office and place
of business at East Point, Georgia. It is these facilities that
are involved in the present case.4
During the reopened hearing, I ruled over the objection of the General
Counsel, that as the record in Case IO-CA- 12941 was reopened, the parties
could adduce new or additional evidence with respect to the allegations of
the complaint in that case. The parties were afforded full opportunity to do
so, and in fact, the General Counsel and Respondent did present such evi-
dence.
The official transcript of proceedings is hereby corrected in certain re-
spects.
'East Point served and College Park continues to serve the Company's
customers through the Atlanta airport, and both are located near the airport.
The facilities are sometimes referred to herein as the Atlanta facility.
480
AIR EXPRESS INTERNATIONAL
I1. THE ABOR ORGANIZATION INVOIVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICIES
A. Events Prior to the Union's Organizational Camnpaign
and Their Significance to the Case
In his closing oral argument. counsel for the General
Counsel asserted that consideration of this case should be-
gin with the arrival of Frank O'Rorke as district manager at
the East Point (Atlanta) facility in March 1976. In view of
certain arguments advanced by company counsel at the
hearing, I agree with the General Counsel, at least with
respect to the discriminatory discharge allegations, that
such consideration is warranted.
Prior to his arrival as Atlanta District Manager, O'Rorke
held a similar position in Boston, and the Company was
pleased with his performance. However, the Company was
not satisfied with its profitability in Atlanta. Company Pres-
ident Joseph Berg and company Vice President Martin
Hoffenberg instructed O'Rorke to take charge of the At-
lanta facility and to make it profitable.5
Hoffenberg and O'Rorke testified that the Atlanta facility
suffered from morale problems. However, after taking over
in Atlanta, O'Rorke told President Berg that the problem
was Regional Manager Resigno, whom O'Rorke believed
was an excessively high pressure salesman. At that time,
and until February 10, 1978, the Atlanta district manager
reported to the Company's regional office in Pittsburgh.
Pennsylvania. However, the Company's labor relations
policies were and still are formulated and directed from its
principal offices in Stamford, Connecticut.
Resigno was asked to resign, and he eventually was re-
placed as Regional Manager by Jim Pschirer. In the mean-
time, O'Rorke instituted and attempted to institute some
changes in the Atlanta operation. O'Rorke hired Kathy Lee
to serve principally, although not exclusively, as customer
service agent. Customer service work, in sum, involves re-
ceiving and answering inquiries by customers concerning
their shipments, e.g., inquiries with regard to estimated time
of arrival or reason for delay in shipment. Prior to Lee's
employment, customer service work was not assigned pri-
marily to any particular employee. In early 1977. O'Rorke
also tried to institute shift changes, which he felt would
make for a more efficient operation. At that time, the per-
sonnel complement at the East Point facility, exclusive of
sales personnel and owner-operator drivers, consisted of
District Manager O'Rorke, his immediate subordinate. Sta-
tion Manager James Broadway, Kathy Lee. and the six al-
leged discriminatees in this case. O'Rorke's plan was not
'Hoffenberg is and was at all times matenal, the Company's vice pres-
ident for administration, secretary, and general counsel. Hoffenberg, who is
an attorney, is responsible for supervising the Company's legal affairs. He
was also responsible for supervising, in all its phases including staffing and
labor relations, the Company's acquisition of the air freight forwarding husi-
nesa of Trans-Air Freight System, Inc. (herein Trans-Air). The acquisition,
which was completed on February 10. 1978, is a central factor in this case.
Hoffenberg was the Company's principal witness at the reopened hearing
fully carried out and was substantially modified, in part.
because some employees opposed the plan. However. al-
though the plan would have affected nearly the entire em-
ployee complement, the opposition was not uniform. John
Shepherd went along with the plan. followed instructions,
and accordingly transferred from the day to the night shift
(I I p.m. to 7 a.m.) instead of Marlin Rozier, as originally
planned. O'Rorke admitted that to his knowledge, only
Rozier and John Moore opposed the shift changes. Al-
though both expressed vocal opposition to the plan, only
Rozier actually refused to change shifts (in his case, from
evening to night). Notwithstanding this opposition,
O'Rorke saw the problem as one that primarily involved
Broadaway. O'Rorke had charged Broadaway with the re-
sponsibility of effectuating the plan. O'Rorke felt that in-
stead of asserting leadership, Broadaway simply let the em-
ployees have their way. On the basis of O'Rorke's
recommendation. Broadaway was terminated in late April
1977. His replacement as station manager, Mike Floyd, be-
gan work on May 27.6 In the meantime, none of the alleged
discriminatees were terminated for insubordination or for
any other reason. On the contrary. John Motxre, one of the
opponents of O'Rorke's plan, was offered a promotion
shortly before Broadaway was terminated. Other than that
relating to the proposed shift changes, no evidence was pre-
sented by the Company to show that "a group of employees
. . .were resisting management directives." The General
Counsel did, however, present testimony (denied by
O'Rorke) that, O'Rorke said, among other things, that the
employees had cut their throats by bringing in the Union.
This brings me to the arguments advanced by company
counsel at the hearing, and to the General Counsel's posi-
tion that the arguments constitute an admission that the
alleged discriminatees were, in fact, terminated in violation
of the Act. To examine this position in proper prospective,
it is necessary at this point to summarize certain salient
facts and testimony adduced at the hearing.
On June 8, the Union filed a petition for a Board con-
ducted election at the East Point facility. The election was
held on July 28, with the Union winning by a vote of 5 to 1.
On December 14, the Board certified the Union as the col-
lective-bargaining representative of the employees in the
following unit:
All dockmen, drivers, and agents employed by the Em-
ployer at its operation at 1165 Willingham Drive, East
Point, Georgia, but excluding all sales personnel, confi-
dential employees, professional employees, guards and
supervisors as defined in the Act.
In the meantime, Nella Ree Dunn, who had been excluded
from the election unit by stipulation of the Company and
the Union, upon the Company's representation that she
was a confidential employee, was discharged on July II.
Her discharge was litigated at the January 25 hearing. On
October 19, the Company and Trans-Air entered into a
written contract whereby, in sum, Trans-Air agreed to sell
its air freight forwarding business to the Company. subject
to Civil Aeronautics Board (CAB) approval. On February
t All dates herein refer to the period from April . 1977. through March
31, 1978. unless otherwise indicated.
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10, immediately following such approval, the acquisition
took place. It is undisputed that Trans-Air had facilities in
15 cities, including Atlanta (College Park), that the Com-
pany also had facilities in each of those cites, and that in
each city the facilities were merged as of February 10. It
was further stipulated that, except in Atlanta, the Company
retained all of its personnel on or after the acquisition, with
the exception of one part-time employee in Charlotte,
North Carolina, and one part-time employee in Cincinnati,
Ohio. Of the six Atlanta employees who were in the election
unit (all of whom voted), Kathy Lee was retained, Ash-
more, Rozier, Shepherd and McCollum were terminated.
and Moore was offered a supervisory position.' Lee was the
only employee who was outspoken in her opposition to the
Union. The General Counsel does not contend that the ac-
quisition and the consequent merger of facilities were un-
lawful. However, the General Counsel does contend that
Ashmore, Rozier, Shepherd, McCollum, and Moore were
terminated discriminatorily.
During the reopened hearing, company counsel sought to
question Marlin Rozier about why the employees went to
the Union after the unsuccessful plan to change shifts. The
General Counsel objected to this line of questioning and
questioned what this had to do with the alleged discrimina-
tory terminations. Company counsel explained as follows:
I have a right to show that we have an unreliable
group of employees and were certainly allowed to take
that into account in making our decision.
* *
When a group of people are told that management
wants to change shifts and they refuse to do it. That's
unreliable.
* * *
Your Honor, I have been trying to do two things.
Number one, I have been trying to show through this
witness, based upon testimony brought out by General
Counsel, that there were a group of employees there,
including himself who were resisting management di-
rectives. Number two-
JUDGE RoTH: Is it your contention that certain peo-
ple were not hired for this reason-were not hired at
the new facility for this reason?
MR. JACOBSON: Yes. It was part of an overall analy-
sis of the situation.
It is not a protected activity under the Act for an em-
ployee to refuse to perform an assigned work task, includ-
ing a change in work schedule. However, it is a protected
activity for employees, acting in concert, to protest a sched-
ule change or other work assignment. Therefore, it is a vio-
lation of Section 8(aX)() of the Act for an employer to dis-
charge an employee because he engages in such activity.
Montgomery Hospital, 233 NLRB 752, 754 (1977); Trans-
7 Moore initially refused the offer, but later accepted. The General Coun-
sel and the Company differ as to whether, as a matter of law, Moore was
terminated. McCollum, who had been a driver-dockman, went to work for
an owner-operator who performed pick-up and delivery services for the
Company.
portation Lease Service, Inc. and A llied Stores of Penn-Ohio,
d/hb/ Pomerov's Inc., 232 NLRB 95. 97-98 (1977).
The General Counsel contends that the above-quoted
statements by company counsel constitute an admission
that the alleged discriminatees were terminated in violation
of Section 8(a)(I) of the Act. To an extent, the General
Counsel is correct. With the sole exception of Marlin
Rozier's refusal to accept a shift change. the alleged resist-
ance to management directives consisted of lawfully pro-
tected vocal protests against the shift changes. Therefore, to
the extent that the Company considered those protests in
deciding to terminate the alleged discriminatees, the termi-
nations were unlawful.
Moreover. company counsel's statements are also signifi-
cant in two other respects. In the context of the present
record, they demonstrate that the Company is advancing
pretextural reasons for the terminations, and they constitute
an implied adverse reflection upon the credibility of Martin
Hoffenberg. the Company's principal witness. Hoffenberg
testified at length as to the reasons why the Company de-
cided to staff the merged facility with former Trans-Air em-
ployees, with the addition of Kathy Lee, Susan Sinclair
(who was hired after Nella Dunn was terminated),8 and
John Moore as a supervisor, and to terminate Ashmore,
Rozier. Shepherd, and McCollum. However, at no point in
his testimony did Hoffenberg claim that this decision had
anything to do with the employees' response to the pro-
posed shift changes, nor, for that matter, did Hoffenberg
even claim that the decision was based on an overall ap-
praisal of the employee's work performance or attitude.
Rather, the entire thrust of Hoffenberg's testimony was that
the Company decided to "retain" all of Trans-Air's Atlanta
employees as a group under the leadership of Trans-Air
District Manager Robert Heney, to retain as much as possi-
ble of Trans-Air's domestic freight forwarding business in
the southeastern United States. Hoffenberg further testified,
in sum, that Lee and Sinclair were retained because of their
specific job functions and Moore because of his needed ex-
pertise in international operations. Moreover, the evidence
concerning the attempted shift changes further demon-
strated that company counsel was advancing a pretextual
reason for the terminations. John Moore, who opposed the
shift changes, was offered a promotion to supervisor in 1977
and again in 1978, but John Shepherd, who cooperated
with management, was terminated with the others on Feb-
ruary 10. Therefore, it is evident that the resistance to man-
agement directives, referred to by company counsel, must
have involved something more than opposition to proposed
shift changes. Because the only such resistance engaged in
by all of the terminated employees consisted of their sup-
port for the Union (which the Company opposed), the in-
ference is warranted that the Company terminated the em-
ployees at least, in part, because of their union activity.
B. The Union Organizational Campaign and the Company's
Alleged Response
As indicated, the Union filed an election petition on June
8. This was the first knowledge that the Company had
I Susan Sinclair, who was a witness at the January 25 hearing. later he-
came Susan Henry. For convenience in reference I shall refer to her as Susan
Sinclair.
482
AIR EXPRESS INTERNATIONAL
about the organizational campaign. Upon receiving the pe-
tition, O'Rorke informed Hoffenberg, who instructed
O'Rorke to retain a labor relations consultant. O'Rorke,
with Hoffenberg's approval, retained the firm of A. Val
Bradley Associates, and Daniel Thompson of that firm be-
came the Company's labor relations consultant in Atlanta.
Thereafter, Thompson masterminded the Company's cam-
paign against unionization, subject to consultation with.
and approval by, Vice President Hoffenberg. Thompson
represented the Company in the election proceeding and at
the January 25 unfair labor practice hearing, and was still
retained by the Company in September 1978, when this
hearing closed. As will be discussed, Thompson's forte
seems to consist of freely and unabashedly advising em-
ployers to violate the Act, and of making such misrepresen-
tations to the Board as may be deemed necessary to ad-
vance his client's interests. As will be further discussed, the
Company willingly accepted his advice, and when it did
not, the Company acted otherwise for tactical reasons, and
not because of any reluctance to violate the law.
1. The wage freeze
The Company has a policy of reviewing its employees for
pay increases after their initial 6 months of employment
and thereafter annually. Until June 1977, wage increases
recommended by District Manager O'Rorke for employees
at the East Point facility were approved routinely by Re-
gional Manager Pshirer. However, the Company's first
move upon receiving the election petition was to announce
a wage freeze. O'Rorke told the employees that "pay raises
would be frozen until the Union matter was cleared up."
O'Rorke so testified at the January 25 hearing and in the
investigatory affidavit that he gave to the Board's Regional
Office. However, at the reopened hearing, O'Rorke testified
that the told Lynn Ashmore and Nella Dunn that all raises
were frozen until the National Labor Relations Board peti-
tion was cleared up. I find that O'Rorke's admission in his
affidavit and January 25 testimony is a more reliable indica-
tion of the truth than his later testimony, which was given
after company counsel had an opportunity to appraise
O'Rorke of the potential significance of his words in the
reopened case.9 Therefore, the Company violated Section
8(a)(1) of the Act by threatening to withhold pay raises
because of the Union. In either event, O'Rorke's statement
was unlawful. It is settled law that an employer's legal duty
in deciding whether to grant benefits during a union cam-
paign "is to determine that question precisely as if a union
were not in the picture." Newport Division of Wintex Knit-
ting Mills, Inc., 216 NLRB 1058 (1975). A threat to engage
in unlawful conduct is in itself unlawful. Therefore the
Company violated the Act by threatening its employees
with a wage freeze, whether because of the Union or the
pendency of the Union's petition and regardless of whether
it carried out such a policy.
4 Ashmore testified that O'Rorke said that because someone was interested
in having a union, all wages and promotions were frozen. However. in his
affidavit, Ashmore said nothing about promotions. I find that O'Rorke re-
ferred only to raises.
Nevertheless, O'Rorke attempted to minimize the of-
fense. O'Rorke testified that he and Thompson, with Hof-
fenberg's approval, agreed upon the wage freeze to avoid
the impression that the Company was trying to influence its
employees. I find this assertion incredible. Thompson had
extensive experience in Board proceedings and he must
have known (at the very least, long before January 25) that
what the Company was doing was unlawful. Moreover, the
evidence indicates that after June 8, the Company exercised
its wage increase policy in a discriminatory manner." In a
memo which O'Rorke sent to Regional Manager Pshirer
about August I, while company objections to the election
were pending before the Board. O'Rorke recommended a 6-
month pay increase for employee Kathy Lee "based upon
the idea that the Union's position here in the East Point
facility] will be weakened and the progress of ratification
deferred." O'Rorke admitted that the memo reflected
Thompson's advice. The recommendation was carried out,
notwithstanding the Company's professed wage freeze. It
was stipulated at the January 25 hearing that Lee received
her raise in late November, retroactive to October 1. In the
meantime, the Company held up raises for union adherents
Rozier and Ashmore, which had been recommended on or
about June 28. Rozier and Ashmore did not receive the
raises until January 25, and then only pursuant to the settle-
ment agreement in Case 10-CA- 13141.
Martin Hoffenberg testified that he never saw or ap-
proved the memo from O'Rorke to Pshirer. I do not believe
him. I find it unlikely that Pshirer would have acted on a
sensitive labor relations matter without routinely passing
the memo on to Stamford for Hoffenberg's attention. In
fact, this was done in a similar situation involving James
McCollum, which will be discussed, infra.' I find that the
wage freeze was imposed, and thereafter carried out in a
discriminatory manner, as part of a calculated campaign to
undermine the Union.
2. The discharge of Dunn
A hearing on the election petition was scheduled for June
26. However, on that date, the Company and the Union
m In part, this finding has necessitated consideration of evidence relevant
to the settled case (0 CA-13141) involving the allegation that the Company
discnminatorily withheld promised wage increases from Marlin Rozier and
Lynn Ashmore. I ruled at the hearing that I could properly receive and
consider such evidence, and I adhere to that ruling. The Company did not
object to the General Counsel's presentation of such evidence at the January
25 hearing and presented evidence concerning the allegation in the settled
case. The Company thereby waived any defense it might have had to the
exclusion of such matter. Moreover, the settlement agreement expressly pro-
vides that "a]ny evidence relating to issues involved in this agreement may
be introduced in the record in the hearing of Case 10-CA-12941" Even
absent such express provision, evidence involved in a settled case may prop-
erly be considered as background evidence in determining the motive or
object of a respondent in activities, which are in litigation, occurring either
before or after the settlement. Sieves Sash Door Company v. N.LR. B., 401
F.2d 676. 678 (5th Cir. 1968). If evidence from a settled case may be used in
a case which is in litigation, then afortiori, evidence from a case that has
been or is being litigated may be considered in a second case which is in
litigation
H Consequently, the inference is warranted that the memo concerning Lee
was obtained by the General Counsel in the voluminous documents turned
over by Respondent pursuant to the General Counsel's subpena duces tecum
directed to Hoffenberg's attention. Therefore, the memo was obtained prop-
erly. See General Engineering. Inc and Hanev Aluminum. 123 NLRB 586. fn.
2 (1959.
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed upon the composition of the unit, thereby obviating
any need for a hearing. The parties executed a stipulation
for certification upon consent election, which was approved
by the Board's Regional Director. Upon the Company's
representation that Nelle Ree Dunn was a confidential em-
ployee, the Union agreed to exclude her from the unit. The
Company, i.e., O'Rorke and Thompson, also represented
that Marlin Rozier and John Moore were supervisors.
However, the Company agreed to include them in the
unit." As will be discussed, all of these representations were
false.
As indicated, the election was held on July 28, with the
Union winning by a vote of 5 to I. In the meantime, on July
11, the Company discharged Dunn. Following the election,
the Company filed written objections to the conduct of the
election, stating as follows:
Company Objections
The Union caused interference with the election and
free voting choice through the confidential secretary's
misaction of disclosing confidential data that she had
access to and wrongfully gained other confidential data
and disclosed that also.
Employer objection is that such information was
union induced in that it became obvious that disclo-
sures were made purposely to allow the Union to gain
advantage in the campaign, to wit: two of the more
ardent, self-professed union supporters (Moore and
Shepherd) discredited the Company by providing con-
fidential salary data to others in the unit. The only way
they could have obtained such data was from the sec-
retary. Timeliness of these disclosures is a moot issue
in this instance since there is no effective rebuttal to
such a situation.
The Employer knew this information was being dis-
closed when others in the voting unit (Lee and Rostier)
voluntarily made such known to the District Manager.
Upon discovery of above disclosures, the Employer was
forced to discharge the secretary. Reassignment of her
to other work, or assignment of another employee to
handle confidential data was infeasable due to the na-
ture and size of the operation. The result of the en-
forced discharge itself was further used to the Union's
advantage in campaigning through discrediting the
District Manager in the eyes of all employees. The Em-
ployer was unable to rebut this issue also. [Emphasis
added.]
The Company admits that Dunn was the "confidential sec-
retary" referred to in its objections. O'Rorke further pin-
pointed the source of his information concerning the al-
leged disclosures. O'Rorke testified that Kathy Lee reported
to him that Shepherd and Moore were talking to Dunn
about Mike Floyd's salary. On December 14, the Board
t1 At the January 25 hearing, O'Rorke testified that he maintained that
Rozier and Moore were supervisors. In the reopened hearing. O'Rorke at-
tempted to back away from this admission, testifying that he described
Rozier as a "lead agent." However. when confronted with his earlier testi-
mony, O'Rorke admitted that he took the position that Rozier and Moore
were supervisors.
affirmed the Regional Director's rejection of the objection,
and certified the Union as bargaining representative.' 3
Notwithstanding its unqualified assertion that it was
forced to discharge Dunn because she was disclosing confi-
dential data, the Company has shifted throughout this pro-
ceeding from one explanation to another in an effort to
justify its discharge of Dunn. At one point in the January
25 hearing, O'Rorke conceded, defacto, that the Company
had violated the Act by discharging Dunn. O'Rorke testi-
fied that he discharged Dunn to put a stop to leaks about
what employees were making "and employees' dissention
over pay raises." Putting aside the matter of leaks for the
moment, it is a violation of Section 8(a)(1) of the Act to
discharge an employee, in whole or in part, to "stop . . .
employee dissention over pay raises." Section 7 guarantees
the right of employees to engage in such dissention, and the
Company interfered with, restrained, and coerced its em-
ployees in the exercise of that right by discharging Dunn. In
the reopened hearing, the parties were afforded full oppor-
tunity to present new or additional evidence with respect to
the allegations in Case 10 CA-12941. The Company, al-
though opposing consolidation of the cases, availed itself of
this opportunity. Company counsel was meticulous and
thorough in meeting each allegation of both complaints.
However, O'Rorke was not asked to explain or elaborate
upon his above quoted testimony. His silence speaks louder
than words, and the admission still stands.
In its objections to the election, the Company described
Dunn as a "confidential secretary" whom the Company
was "forced to discharge ... upon discovery of [her] misac-
tion of disclosing confidential [salary] data." In fact, Dunn
was not a confidential secretary. Rather, she performed
clerical and administrative functions of a routine nature. To
the extent that she dealt with "confidential" information,
such material was customer rather than employee informa-
tion. She did not participate in management discussions,
and even O'Rorke conceded that by June 28, she was not
performing any confidential duties. Moreover, the alleged
salary information leaks, if they took place at all, took place
well before her discharge on July I I. O'Rorke testified that
the leaks in question consisted of the following: (I) Dunn
passed along information as to the salary of Floyd, who
replaced James Broadaway as station manager in May; and
(2) Dunn asked for a raise because Rozier and Ashmore
had put in for raises, which was supposedly confidential
information. O'Rorke had recommended the two employ-
ees for raises on June 28. In fact, salaries and rates of pay of
East Point personnel were common knowledge among the
employees, and the Company had no rule that prohibited
employees from discussing their salaries or the salaries of
other personnel. Indeed, teletype tapes, including those
which might reflect such "confidential" information, were
1r O'Rorke testified that Vice President Hoffenberg instructed him to file
the objections because it "looked like a sound basis." Therefore, it is evident
that Hoffenberg was familiar with the circumstances of Dunn's discharge.
The Company, with Hoffenberg's approval, also filed objections alleging
threats by union agents, and claimed that a union agent improperly voted,
but withdrew those objections when it became apparent that they could not
be substantiated. On December 22. the Company, by Hoffenberg, addressed
a motion to the Board to "stay issuance of certification" and grant other
relief. In fact, the Union already had been certified. On January 27, the
Board issued an order denying the motion as "lacking in merit."
484
AIR EXPRESS INTERNATIONAL
commonly discarded in wastebaskets. In the reopened hear-
ing, Floyd, who did not testify at the January 25 hearing.
testified that everybody knew what everybody was making,
and that when employees mentioned to him what he made,
he did not even bother to inquire or find out how they
obtained such information. In sum, such information was
not confidential. Significantly, Floyd testified that it was
O'Rorke, and not himself, who complained about alleged
breaches of confidentiality.
As an adverse witness for the General Counsel at the
January 25 hearing, O'Rorke testified that, in addition to
the leaks, he discharged Dunn because she was unable to
do her job. In this connection, O'Rorke testified that in
early 1977 he gave Dunn increased responsibilities consist-
ing of routine administrative work that had thereto been
performed by Station Manager Broadaway. However, in
his affidavit that he gave to the Board's Regional office,
O'Rorke came up with a different excuse. O'Rorke stated
that the Company decided to fire both Broadaway and
Dunn (presumably in April) because business was stagnant.
In the same affidavit, O'Rorke admitted that the East Point
facility's business increased over 60 percent from January
to June 1977. As for Dunn's alleged inability to do her job,
O'Rorke admitted that he never criticized or complained
about Dunn's work, but that his knowledge in this regard
was based on the fact that Broadaway complained about it.
However, in his affidavit, O'Rorke stated that he thought
Broadaway was covering up for Dunn. If, in fact, Dunn
was not performing her work while Broadaway was station
manager; i.e., prior to May, then it is difficult to understand
why O'Rorke would have waited until July II to discharge
her for such poor performance. The Company apparently
recognized this incongruity, and consequently at the re-
opened hearing, O'Rorke presented an explanation. 4
O'Rorke testified, in sum that: (I) in April, he decided to
fire both Broadaway and Dunn because he had trouble get-
ting a replacement for her (although the Company went
without a station manager for about a month);'" and (2)
notwithstanding Dunn's alleged inability to do accounting
work, and his decision to terminate her, he continued to
gradually increase her responsibilities from February until
her discharge. I find this explanation incredible. Dunn's re-
placement, Susan Sinclair, did not begin working for the
Company until nearly the end of July. Moreover, Mike
Floyd, who was belatedly presented as a witness in the re-
opened hearing, contradicted O'Rorke. Floyd testified that
he was never told that the Company was seeking to replace
Dunn, and that he was unaware of any problems in the
accounting work until mid-June, when he allegedly first
complained to O'Rorke about Dunn's deficiencies. Rather,
Floyd inferred that O'Rorke decided in early July (while
Dunn was on vacation) to terminate her. Floyd testified
that O'Rorke then said that he would "act" on Floyd's
complaints.
"1The Company evidently felt that it was safer for O'Rorke to tesfif)
about employee work performance than about "employee dissention.
" At one point, O'Rorke testified that Broadaway was terminated in earl)
June. In fact, Broadaway was terminated in late April, and Floyd took over
as station manager on May 27.
James Broadaway. who was presented as a witness for
General Counsel at the January 25 hearing, testified that
Dunn's work was very good, that he never complained
about her work, and that O'Rorke never told him to com-
plain to Dunn about her work. Dunn testified that O'Rorke
complimented her work. I find no reason to disbelieve
Broadaway, who appeared to be a candid witness. In con-
trast, I have ample reason to disbelieve O'Rorke and Floyd,
in view of their shifting, inconsistent, and inherently im-
plausible excuses for discharging Dunn. Moreover, the fact
that O'Rorke continued to give Dunn increased responsibil-
ities until the time of her discharge further tends to indicate
that O'Rorke regarded her as a well-qualified employee. I
credit Broadaway and Dunn.
In his January 25 testimony, O'Rorke hinted at the real
reason for Dunn's discharge. O'Rorke testified "that there
seemed to be a little collusion" between Dunn and Moore
and Shepherd, the two "more ardent, self-professed union
supporters" referred to in the Company's objections to the
election. O'Rorke never directly accused Dunn of leaking
confidential information. Rather, upon summarily termi-
nating Dunn, he simply told her that he didn't "really have
any trust in her any more as a confidential secretary." In
sum, O'Rorke suspected that Dunn was involved in union
activity, and as far as he was concerned, while it was bad
enough to have the employees talking about a union, it was
too much to take to have his own secretary engaging in
such activity. After the Union agreed to exclude Dunn from
the election unit, O'Rorke saw an opportunity to get rid of
Dunn under the pretext that she had breached her role as
an allegedly confidential secretary. In fact, it is questionable
whether Dunn engaged in any union activity. Although
presented as a witness for the General Counsel, Dunn never
testified that she engaged in such activity. However,
O'Rorke discharged Dunn because he suspected that she
was participating in the Union campaign. Therefore, the
Company, by discharging Dunn, violated Section 8(a)(1)
and (3) of the Act. N.L.R.B. v. Link-Behl Compan, 311
U.S. 584, 589-90 (1941 ).
3. Monitoring of union activity
On September 30, District Manager O'Rorke sent a
memo to Regional Manager Pshirer in which he recom-
mended that John McCollum be changed from a part-time
to a full-time employee. O'Rorke advanced several reasons,
including the following: "It has also been brought to our
attention by Val Bradley Associates that we will be able to
soften the Union's control in this station by having at least
two out of the six operations people not carrying a union
card." The memo was received in Pittsburgh on October 6.
and was passed on to corporate headquarters in Stamford.
Assistant Vice President Frank Cassi referred the memo to
Hoffenberg with the following inquiry next to the above
quoted recommendation: "Marty do you agree?" Hoffen-
berg's written response was "No." However, on November
15. McCollum was made a full-time employee.
Hoffenberg testified that he answered "No" to Cassi's
inquiry' because the recommendation would indicate that
the Company was acting improperly, and because it made
no sense because the facility was either all union or non-
union. Hoffenberg further testified that the matter had
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing to do with the pending acquisition of Trans-Air's
business. I do not credit this explanation. On its face, Hof-
fenberg's terse "No" simply reflects disagreement with the
premise that the Union's strength would be undermined if
McCollum were made a full-time employee. This inference
is further borne out by other evidence in this case. The
Company had been fighting unionization for nearly 4
months. By this time, Dan Thompson and O'Rorke were
undoubtedly fully familiar with the Company's policy
toward the Union. They would not have recommended dis-
criminatory action if they had reason to believe that the
Company had scruples against violating the Act. In fact, as
heretofore found, it did not. Thompson testified that
O'Rorke told him that he had information that McCollum
was not for the Union, and Thompson advised him that if
the Company had two full-time nonunion employees (i.e.,
Lee and McCollum), they might be able to continue opera-
tions during a strikei? However, Hoffenberg was so in-
volved in fighting the Union in Atlanta that he had better
information than Thompson and O'Rorke. On cross-exami-
nation, Hoffenberg reluctantly admitted that he kept close
tabs on the union sentiments of the Atlanta employees.
Hoffenberg admitted that he made entries on a list of em-
ployees describing each as "activist," "neutral" or "op-
posed." Hoffenberg admitted that he may have made such
entries before or after the acquisition agreement, or both,
and that the entries referred to the Union's attempt to orga-
nize in Atlanta. Hoffenberg further admitted that he "cer-
tainly" referred to Kathy Lee as "opposed," that he re-
ferred to John Moore as "activist," and he may have
referred to McCollum as "neutral." In sum, Hoffenberg was
not sure where McCollum stood. For economic reasons,
including a continuing growth of business in Atlanta (see
Pshirer's memo to Cassi), McCollum was made a full-time
employee and remained in the Company's employ until the
acquisition, when he was terminated with the activists.
However, McCollum was treated in a different fashion than
Dunn, Rozier, Ashmore, and Shepherd. McCollum was ter-
minated, and thereby hopefully excluded from any possible
bargaining unit, but he was allowed to work for one of the
Company's owner-operators. As will be discussed, the
Company solved its desperate need for John Moore's exper-
tise and ability in a parallel fashion. Furthermore, it is sig-
nificant that even after the acquisition agreement, the Com-
pany continued to monitor the union sentiments or its
employees and to explore ways of undermining the Union's
position. Hoffenberg would not have been concerned if only
a few months' operation at College Park were involved.
Rather, it is evident that he was looking forward to the
staffing arrangements that would be made when the acqui-
sition was consummated.
C. The Trans-Air Acquisition and Events Culminating in
the Acquisition on February 10, including Alleged Violations
of Section 8(a)(l), (3), and (4) the Act
1. The alleged conversations between O'Rorke and Lynda
Molanders
Lynda Molanders was employed at the East Point facility
as account executive (a sales position) from January 1977,
I" Georgia law prohibits the union shop, as Hoffenberg undoubtedly knew.
until October 28, when she voluntarily quit her job to take
a position with one of the Company's competitors. Molan-
ders testified, in sum, that from June until shortly after she
left the Company's employ, she had a number of conversa-
tions with Frank O'Rorke concerning the Union and the
impact of the pending Trans-Air acquisition. Molanders
testified that a few weeks before the election, O'Rorke, in
the presence of Mike Floyd, told her that the Company
could end up closing the station and reopening as an agent
if the election came through, and that other stations had
done this.' Molanders testified that after the election,
O'Rorke told her that the Company was not going to allow
the Union at Atlanta and would ultimately get rid of the
employees who voted for the Union. Molanders further tes-
tified that in late October, during her last week at work,
O'Rorke talked to her about the impact of the pending
Trans-Air acquisition. According to Molanders, O'Rorke,
in the presence of Mike Floyd, told her that Bob Heney
would be district manager, and had contracted with com-
pany vice president Dick Friedl to take over as station man-
ager. O'Rorke added that Heney would not allow the
Union in there. O'Rorke further said that the guys at Trans-
Air were afraid to mention union to Heney, and that the
guys who voted Union would not be able to stay because
Heney wouldn't keep them, Molanders testified that 2 or 3
days before she left the Company, O'Rorke told her that he
had met with Friedl, and that the Company might or might
not keep Moore and Shepherd. However, on her last day of
work (October 28), Molanders asked O'Rorke what the
situation was with the Union. O'Rorke told her that it was
pending in Washington, and probably would not go
through, that the Company had "protested" it, but that
even if it did, "those guys" weren't going to win because
they weren't going to have jobs. O'Rorke added that "those
guys" had "cut their throats" by bringing in the union.
Molanders testified that Kathy Lee was nearby during this
conversation. Lee was not presented as a witness by either
side. Molanders testified that in a subsequent conversation,
O'Rorke told her that Trans-Air was not going to keep any
of the employees and that he was not going to worry about
them. However, he told Molanders that he had gone out on
a limb to protect the jobs of Kathy Lee and Mike Floyd. As
for himself, O'Rorke told Molanders that he would remain
a "floater" until the acquisition, and then the Company
would tell him where he was going. O'Rorke said that he
expected to be given a staff position in Stamford. Molan-
ders further testified that shortly before her resignation,
Vice President Friedl told her, with regard to the acquisi-
tion, that the Company would be Air Express, but the per-
sonnel would be Trans-Air. O'Rorke testified that Molan-
ders did, in fact, have a private conversation with Friedl:
however, Friedl was not presented as a witness.
In his testimony, O'Rorke, in sum, denied that the al-
leged conversations took place. Mike Floyd, in his testi-
mony. either denied that such conversations took place in
his presence or asserted that he could not recall such con-
versations. For the reasons discussed herein, I credit
Molanders.
7 Air Freight forwarding firms sometimes utilize an agent, rather than
maintain their own offices in particular cities.
486
AIR EXPRESS INTERNATIONAL
First, Molanders impressed me as a candid witness. In
contrast, as indicated throughout this Decision, I have been
given ample reason to question the credibility of O'Rorke
and Floyd. I do not agree with the Company's argument
that Molanders cannot be believed either because she now
works for a competitor or because she used Nella Dunn as
a reference when she applied for her job with the Company.
Molanders did not hesitate to admit facts which might seem
adverse to the interests of the General Counsel, the Union,
or herself. She candidly admitted that she solicited business
from former customers of Trans-Air and Air Express.
Molanders bore no grudge against the Company. Although
she did not think much of Susan Ward, her immediate su-
pervisor, she left the Company under amicable circum-
stances. The Company thought well of her, and both Friedl
and O'Rorke attempted to dissuade her from leaving. Al-
though intensively cross-examined by company counsel
concerning her numerous alleged conversations, her testi-
mony remained consistent, including the order in which the
conversations took place. It is unlikely that this would have
happened if she had contrived the fact of such conversa-
tions. Her answers also demonstrated a spontaneity which
would not likely have emanated from a witness who was
not telling the truth. For example, in testifying concerning a
conversation that also was referred to in her affidavit
(Judge's Exh. 4, para. 7), Molanders recalled that O'Rorke
said that the Company had "protested" the election, al-
though that word is not contained in the affidavit. It is
evident that Molanders used the affidavit only for the
proper purpose of refreshing her recollection, and that she
was testifying on the basis of her own independent recollec-
tion of the conversations.
Moreover, Molanders' testimony is corroborated by the
fact that the statements attributed to O'Rorke reflected de-
velopments that were actually taking place, or would
shortly take place, and that it is unlikely that Molanders
could have learned of some of these matters from any
source other than O'Rorke. The coincidence of statement
and fact also tends to indicate that, to a considerable extent,
O'Rorke was privy to management's planning and knew
what he was talking about. When O'Rorke said that Bob
Heney had contracted with the Company to take over as
station manager, he was speaking the truth. As a condition
of the Trans-Air acquisition, Trans-Air President Howard
Schor solicited and obtained signed employment contracts
from certain key Trans-Air personnel. The contracts, which
each had a duration of one year, were nominally between
Trans-Air and the key person (a manager or sales execu-
tive), but, in fact, were between the key person and the
Company, i.e. Air Express. The contracts, which were iden-
tical in form except for salary and position, provided that
they were conditioned upon the Company's acquisition of
Trans-Air's air freight forwarding business, and would re-
main in effect after the acquisition. Acceptance of each con-
tract was acknowledged in writing by an official of Air Ex-
press. Heney's contract, dated October 19 (as were the
other contracts) and signed by him on or about that date.
provided that he would be Atlanta district manager and
would receive a raise at the time of acquisition. As hereto-
fore indicated, the acquisition required CAB approval. The
Company and Trans-Air originally anticipated that such
approval would take place before the end of 1977; however,
the acquisition was not approved until February 9. The
employment contracts purported to constitute the entire
understanding of the parties and were silent on the matter
of union representation. However, it does not follow that
the Company and Heney had no understanding or agree-
ment concerning union representation. Although the acqui-
sition agreement was not executed in writing until October
19, the Company and Trans-Air had agreed upon the sale
in September. Thereafter, in late September. Company
President Joseph Berg and Vice President Fred Schwartz-
stein met with certain Trans-Air district managers, and
Heney met privately with Berg. This aspect of the case will
be discussed further in connection with alleged unlawful
statements by Heney and again with respect to the alleged
unlawful terminations.
When O'Rorke told Molanders that he would temporar-
ily be a "floater," he was telling the truth. As of February
10, O'Rorke became Regional Sales Manager for the Com-
pany's newly constituted Southeast Region (Charlotte and
Atlanta). However, this was only a temporary position for
him. As of the completion of his testimony in this case, in
August 1978, the Company transferred O'Rorke to New
York to become Regional Manager of its New York Metro-
politan area. Finally, "those guys" evidently referred to the
voting unit employees (all of whom but Lee were male),
who the Company believed voted for the Union. I sum, I
credit Molanders' testimony concerning her conversations
with O'Rorke. Molanders was outside the bargaining unit,
was the Company observer in the election, and O'Rorke
thought he could safely talk to her and to Kathy Lee (and
perhaps thereby get the message across to others). As men
sometimes do (and as Heney was also doing at College
Park), O'Rorke "let his hair down" when talking to a
woman. I find, as alleged in paragraphs 12, 16, 17, and 20
of the complaint, that the Company, through its supervisor
and agent Frank O'Rorke, threatened its employees with
loss of their jobs or other reprisal because of employee sup-
port for the Union and thereby violated Section 8(a)(1) of
the Act. Although not specifically alleged in the complaint,
I find that the Company further violated Section 8(a)(l)
when O'Rorke threatened that the Company might close
the Atlanta station and reopen as an agent if the employees
voted in the Union."
I further find that O'Rorke's statements provide evidence
that the Company intended to and did ultimately terminate
most of the unit employees in reprisal for their adherence to
the Union and to destroy the Union's representative status.
In addition to other factors, some of which have heretofore
been discussed, O'Rorke's statements tend to explain why
*i The alleged conversations between Molanders and O'Rorke were fully
and fairly litigated, without pertinent objection, and therefore the finding in
question is warranted. Although the conversation took place in June, and the
charge in Case 10-CA- 13496 was filed in February 1978. the time limitation
of Section 10(b) of the Act was tolled by the filing of the earlier charge in
Case 10-CA-12941, wherein the Union alleged that the Company violated
Section 8(aXI) and (3) of the Act by its discharge of Nella Dunn and by
"other acts." As the matter in question is similar to, and arises out of the
same alleged course of conduct involved in Case 10-CA-12941, Sec. 10(b)
does not bar consideration of the matter. Sec. Laborers International Union of
Nvorrh A.merica, Local No. 282 (Millsione Construciion Compan. er al.), 236
NLRB 621. 630 (1978).
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was never allegedly consulted in the staffing decisions
which Hoffenberg made for the post-acquisition (College
Park) facility. One might reasonably expect that as Atlanta
district manager, and being well regarded by management,
O'Rorke would have had some input into those decisions.
However, Hoffenberg testified that the Company's execu-
tive committee made those decisions after consulting Rob-
ert Heney, but without consulting O'Rorke. O'Rorke made
no recommendations, at least not on the basis of any non-
discriminatory considerations, because he knew long before
February 10 that the Company intended to get rid of the
Union adherents, and he concurred in that policy. O'Rorke
was willing, as he told Molanders, to stick his neck out for
Floyd and Lee, but for no one else-not even John Moore,
whose ability and expertise in the international field were
badly needed, nor John Shepherd, who had loyally gone
along with his plan to change shifts.
2. Alleged interrogation at East Point
John Shepherd testifed that on several occasions, includ-
ing one which took place a few days before February 10,
Station Manager Mike Floyd asked him and John Moore if
they were going to the Union hall for lunch. Shepherd's
testimony was not contradicted. It is undisputed that at all
times material, Floyd was and is a supervisor and agent of
the Company within the meaning of Section 2(11) of the
Act. I credit Shepherd. Floyd had no legitimate reason to
question the employees about their union activities. His
questioning occurred in the context of serious and continu-
ing unfair labor practices and was not accompanied by any
assurances against reprisal. Therefore, Floyd's conduct
tended to be coercive. See Naum Bros., Inc., 240 NLRB 311
(1979). In the context of the Company's overall course of
conduct, I further find that Floyd's questioning was, in fact,
intended to intimidate the employees in the exercise of their
statutory rights. By coercively interrogating Shepherd and
Moore concerning their union activities, the Company vio-
lated Section 8(aX)(1) of the Act.
John Shepherd further testified that on the Saturday be-
fore the January 25 hearing in this case (January 21) Frank
O'Rorke asked him if he had been subpoenaed. According
to Shepherd, he answered that he had, whereupon O'Rorke
responded that Shepherd really did not have to answer. that
he just wanted to know "if everyone was going to be down
there." Shepherd further testified that O'Rorke said that it
looked like everyone was going to be down there and that
he was concerned because he needed people to run the fa-
cility that day. The General Counsel contends, in sum, that
O'Rorke had no legitimate reason for questioning Shepherd
and that the Company, through O'Rorke and Mike Floyd,
violated Section 8(a)(l) by interrogating Shepherd and
other employees about whether they had been subpoenaed
to attend the hearing. In his testimony, O'Rorke denied that
he asked Shepherd if he got a subpoena. Resolution of the
credibility issue thus posed and of the merits of the General
Counsel's position necessitates consideration of testimony
and other evidence concerning conversations and events
which preceded the hearing and the situation on the day of
the hearing.
The hearing in Case 10-CA-12941 was originally sched-
uled for October 18. However, by order of the Regional
Director dated October 18, the hearing was rescheduled to
January 25. By subsequent order dated November 23, Case
10-CA-12941 was consolidated for hearing with Case 10-
CA-13141 on January 25. Subsequently, the General Coun-
sel served a subpena on Frank O'Rorke, which was dated
January 9. The General Counsel admitted that John Moore
and Shepherd were subpenaed to testify, but asserted that
neither was present at the hearing. The General Counsel
further conceded that Marlin Rozier and Lynn Ashmore
were present at the hearing and asserted that Moore and
Shepherd were not. Rozier's presence was noted in the tran-
script of the January 25 hearing (testimony of O'Rorke).
Ashmore testified that he was not subpenaed to attend the
January 25 hearing. Shepherd testified that he received, by
mail, a subpena from the Board in Case 10-CA-13141, but
did not attend the hearing. No specific evidence was ad-
duced as to whether Moore was present at the hearing or
whether Rozier was subpenaed. The settlement agreement
in Case 10-CA-13141 was executed on the morning of the
hearing. As that case involved the alleged discriminatory
withholding of wage increases from Rozier and Ashmore, it
may fairly be inferred that until the settlement agreement
was executed, the General Counsel anticipated their pres-
ence at the hearing, and whether by subpena or otherwise,
so informed them. It may also be inferred that the General
Counsel issued subpenas and other notices to appear on or
about the same date as that issued to O'Rorke, i.e., on or
about January 9.
By letter dated January 12, labor relations consultant
Thompson complained to the Regional Director that the
Company was "informed today, January 12, that 100 per-
cent of its operation employees have been subpoenaed,"
and requested the Regional Director to reconsider whether
he needed all of the employees. By a second letter dated
January 20, Thompson, among other things, complained to
the Regional Director that he had not received a response
to his January 12 request. In fact, Thompson had received a
response in the form of a telephone call from counsel for
the General Counsel, Paul Tamaroff. Thompson initially
testified that Tamaroff told him "that all of the people had
been subpoenaed." However, on cross-examination,
Thompson admitted that Tamaroff told him that "only a
few" had been subpoenaed, and that Tamaroff "may" have
said that he had made arrangements so that there would be
no disruption of the Company's operations. Thompson's
admissions on cross examination are a more reliable indica-
tion of the truth than the self-serving assertions contained
in his correspondence and direct testimony. I find that
Tamaroff told Thompson that only a few employees had
been subpenaed and assured him that there would be no
disruption of the Company's operations. It would not have
been difficult for counsel for the General Counsel to make
the assured arrangements. As of January 25, O'Rorke and
Mike Floyd were normally at East Point during the day;
Kathy Lee, Susan Sinclair, and John Moore worked days,
Shepherd worked from 7 a.m. to 3 p.m., Rozier and Ash-
more worked from 4 p.m. to 1:30 a.m. (evening shift), and
John McCollum worked on mid-day shift. In fact, there was
no disruption of the Company's operations. The only wit-
nesses called to testify by the General Counsel were
O'Rorke, Nella Ree Dunn, former station manager Broad-
488
AIR EXPRESS INTERNATIONAI.
away, and Susan Sinclair. The General Counsel did not
originally plan to call Sinclair. However, her testimony was
requested during the hearing, when O'Rorke unexpectedly
failed to identify General Counsels' Exhibit 7. Rozier and
Ashmore, who were also present at the hearing, were not
scheduled to report to work until 4 p.m., and lost no time
from work. Mike Floyd admitted in his testimony that none
of the employees (presumably including Moore) missed
work on January 25. If, in fact, any employees missed work
that day, the Company's timecard records would have re-
flected that fact. However, no such records were offered in
evidence. I find that except as specifically found herein, no
employees were subpoenaed by the General Counsel or
were present at the hearing.
Moreover, it is evident from the testimony of Frank
O'Rorke and Mike Floyd that the Company was never in-
formed that "100 percent of its operations employees have
been subpoenaed," and that Thompson knowingly made a
false representation to the Board in this regard. O'Rorke
testified that he told Floyd to find out who was working on
January 25. and that some employees voluntarily told him
and Floyd that they would not be at work that day. How-
ever, O'Rorke later contradicted himself, testifying that
"within a couple of days" of the hearing, Moore said he
would be at the hearing, that he could not recall any other
employee talking to him, and that within 2 or 3 days of the
hearing (i.e., after Thompson's January 12 and January 20
letters), he expressed concern to Thompson about employ-
ees who would be absent. Mike Floyd also contradicted
O'Rorke. Floyd testified that he learned who would be pre-
sent at the hearing by questioning the employees, that
Moore said that he might be off to testify, that Rozier said
that he might be late, but that no one else, other than
O'Rorke, said that they would be away from work.
I credit Shepherd. and consequently find that O'Rorke
interrogated Shepherd about whether he had been sub-
penaed by the Board. In light of Floyd's admissions, I find
that Floyd similarly interrogated other employees.' 9 In view
of Attorney Tamaroffs assurances that there would be no
disruption of the Company's operations, the Company had
no legitmate reason to engage in such interrogation. Rather.
I agree with the General Counsel, that in light of Thomp-
son's false assertions in his January 12 letter, the inference
is warranted that Thompson was simply engaged in a
"ploy" to determine which employees could be expected to
testify against the Company. When Thompson failed to
trick or cajole the Regional Director into disclosing such
information, he instructed or advised O'Rorke to obtain
such information directly from the employees. As hereto-
fore indicated, Thompson had no reservations against ad-
vising the Company to engage in unlawful conduct to de-
feat the Union, nor did the Company hesitate to carry out
such advice. The Company's interrogation with respect to
the January 25 hearing was consistent with its repeated
"g The complaint (para. II) names only Floyd as having engaged in such
interrogation. However, company counsel did not object to Shepherd's testi-
mony on this ground, and the matter was fully and fairly litigated. Therefore
the issue of interrogation by both O'Rorke and Floyd is properly before me
for decision. Indeed, the Company in its brief (p. 100) concedes that both
O'Rorke and Floyd interrogated employees about whether they had been
subpened.
monitoring of employee union sentiments and actions taken
on the basis of such monitoring. The chronology of events.
beginning with Thompson's letter, makes clear that it was
Thompson's concern to defeat the Union rather than any
possible concern by O'Rorke that he would be shorthanded
on January 25. which led to the interrogation by O'Rorke
and Floyd.
An employer has a legitimate concern in maintaining
normal operations, and to that end may validly be con-
cerned about employee absence from work for a Board
hearing. Here, however, any possible legitimate concern
was obviated when the General Counsel's representative as-
sured Thompson that there would be no disruption of the
Company's operations. Therefore, there was no justifica-
tions for the subsequent interrogations. Rather, such inter-
rogation constituted unlawful interference with employee
rights protected by Section 7. Moreover, the interrogation
was coercive in that it was conducted for a discriminatory
purpose in the context of other unfair labor practices and
without any assurances against employer reprisal. 0 There-
fore, the Company violated Section 8(a)( ) of the Act. A. J.
Siris Products Corporation of Virginia, 90 NLRB 132, 137
(1950), enfd. 186 F.2d 502 (4th Cir. 1951); see also, Mister
F's Beef and Bourbon, 212 NLRB 462. 466 (1974).2'
3. Alleged preacquisition statements by Robert Heney
and Tony Chaffin, and the questions of single employer
and agency
Sue Denison began working in Atlanta in January 1975
for a firm known as Air Land. Robert Heney was district
manager of Air Land's facility, having been with Air Land
since March 1972. In March 1975, Air Land merged with,
or was acquired by, Trans-Air, and in October 1975, Trans-
Air moved into the College Park facility which it continued
to occupy until the acquisition by Air Express on February
10. 1978. Heney remained as district manager for Trans-
Air, and Denison also remained. She performed both secre-
tarial and customer service work. Denison continued work-
ing at College Park after the acquisition, until April 21,
when she voluntarily quit her employment with the Com-
pany because her husband had been transferred to a posi-
tion in another city.
Denison testified that in a series of conversations begin-
ning about November 1, Heney talked to her about the
pending acquisition by the Company. Denison's husband
was an organizer for the Laborer's Union, and she was par-
ticularly interested in the matter of union representation
and was prounion. About November 1, Denison, who by
then was aware of the pending acquisition, asked Heney
about what was the latest on the Union situation at Air
20 Although O'Rorke told Shepherd that he did not have to answer, he did
not say this until after Shepherd had answered his question. In his testimony,
Floyd did not claim that he told employees that they did not have to answer,
or that he gave them any assurances against reprisal.
12 In Mueller Brass Co., 220 NLRB 1127, 1138 (1975), cited by Respon-
dent, the Board found that the employer's supervisor was only trying to learn
for purposes of work scheduling why an employee had to be away from work
on a date other than a scheduled Board hearing fn. 9) Therefore. Mueller is
distinguishable on ts facts from the present case
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Express. According to Denison, Heney said that some em-
ployees at AEI were involved with the Union, had signed
authorization cards, and would be offered jobs when the
merger took effect. However, Heney allegedly added that
the employees would come over to the Trans-Air building
at the time of the merger if they were willing to forget their
union activities and not participate in the Utnion. Denison
testified that Heney repeated this theme in subsequent con-
versations, saying that the Air Express employees would
"hit the street" if they did not forget the Union. According
to Denison, Heney said that it did not look as if any of the
AEI employees would be coming over. Heney also said that
he had signed a contract to be district manager for the
Atlanta Station, and that the sales staff was being asked to
sign contracts with AEI.' IDenison testified that in Decem-
ber or January, she asked about her own job security. Ac-
cording to Denison, Heney answered that all Trans-Air per-
sonnel would remain, that the ones involved with the Union
at AEI would not come over, and that he would hire addi-
tional personnel as needed. Denison denied that Heney ever
said that they had been through previous acquisitions, and
that if the employees stuck with him everything would be
all right. Denison further testified that about January 1, she
asked Heney about a status of the employees coming over,
and about the Union's status. According to Denison, Heney
said that it appeared that only O'Rorke. Floyd, Lee, Sin-
clair. and sales employee Marilyn Francis were coming
over. 4 However, Heney added that John Moore was experi-
enced in the international field and was no expert in docu-
ments and paperwork. Heney expressed his hope that
Moore would reconsider his union activities and come to
Trans-Air after the merger.
In mid-January, Frank O'Rorke addressed two meetings
of the Trans-Air personnel at College Park, at which time
Robert Heney was present. The substance of these meetings
will be discussed under the next heading. One meeting was
for supervisory and sales personnel and the other for the
rank-and-file operations personnel. The latter meeting took
place in the evening, when Denison was normally not at
work. Denison was not notified in advance of the meeting.
and did not attend. The next day she asked Heney why she
was not told about the meeting. According to Denison.
Heney answered that he thought she would have to be
home with her children. Heney's testimony concerning this
conversation is enlightening in two respects. Heney testified
that he mentioned the children as an additional reason, but
that the first reason he gave was that Denison had seniority
and thus did not have to worry. Heney also added that
customer service was vital. If Heney was not privy to the
Company's plans, then it is difficult to see how he could be
22 Denison testified that Heney initiated this and all but one of the subse-
quent conversations. However, in her investigatory affidavit, she stated that
she initiated the first conversation by inquiring about the "union deal." In
light of the overall tenor of her description of the conversations, which tend
to center around her own inquiries, I find that Denision initiated most. if not
all, of the conversations.
U Heney testified that he told the employees that he had signed a contract
with Trans-Air so that he would be in charge when the acquisition took
place.
2 In her investigatory affidavit, Denison did not indicate that Heney men-
tioned Sinclair.
so certain that Denison had nothing to worry about. It is
also incongruous that while Heney was holding out a stan-
dard of seniority to the Trans-Air employees, the Company
(as will be discussed). steadfastly was rejecting the Union's
proposal to staff the post-acquisition facility on the basis of
dovetailed seniority of the Air Express and Trans-Air per-
sonnel.
Sue Denison further testified that in late January. Heney
asked what her husband did. Denison answered that he was
a union organizer and questioned why fteney wanted to
know. According to Denison. Heney replied that a mutual
friend applied for a job and listed her husband its a refer-
ence, adding "I hope Frank doesn't find out.-' Heney testi-
fied that he asked about Denison's husband for the reason
indicated in Denison's testimony, and that she told him, but
denied her testimony concerning the balance of the alleged
conversation. Except as heretofore indicated. Heney's testi-
mony denied the alleged conversations with Denison. and
categorically denied interrogating employees concerning
union activity or threatening employees with discharge or
other loss of jobs. However. Heney came up with an expla-
nation as to how Denison could have possibly gotten the
impression that he was opposed to unionization. (At this
point in his testimony, Heney, who was normally a self-
confident and garrulous witness, was visibly nervous).
Hene) testified that 2 or 3 years earlier, when there was
union activity at Trans-Air, if a union came in, he would
shut down the facility and operate with management and
sales personnel out of his home. IHeney's testimony was
contradicted by that of his stepson, Day Operations Super-
visor Tony Chaffin, who was presented as a Company wit-
ness. Chaffin testified that Heney has explained his policies
regarding unionization of Trans-Air "for the whole five
years I've worked there," about once a year, whenever the
Company has "trouble," meaning whenever some people
"want a Union," and has explained those policies to him
and to other employees. During the pre-acquisition period,
the Union was a topic of discussion among employees at
College Park as well as at East Point: indeed. as will be
discussed, the matter was raised at the January meeting
conducted by O'Rorke. The inference is warranted that
Hteney explained his policies concerning unionization (in-
cluding. by his own admission, threats of loss of jobs) dur-
ing the pre-acquisition period. Therefore. I credit Denison,
notwithstanding some contradictions in her testimony, and
I find that her testimony reflects, in substance, what Heney
told her.' I find that Heney, by his statements to Denison.
threatened employees with discharge or other loss of em-
ployment because of their union activities and further im-
"' Parenthetically, it might be noted that at College Park. O'Rorke was
giving similar warnings about Heney.
26 I am not impressed by the Company's argument that Denison should
not be believed because she is prounion By the same type of reasoning I
would have to discredit Heney because he is antiunion. The evidence also
fails to indicate that Denison harbored any grudge against the Company or
against Heney. Denison left the Company because of her husband's transfer,
and she even offered to train new employees. Heney never acted on her
offer). Denison testified that she understood from another employee that
Kathy Lee was present at the January meeting of Trans-Air employees con-
ducted by O'Rorke. As Denison's information was based on hearsay, I fail to
see how her mistaken understanding would reflect adversely on her credibil-
ity.
490
AIR EXPRESS INTERNATIONAL.
pliedly threatened employees with loss of employment or
other reprisal if they engaged in such activities. However, as
the Company (Air Express) is the only employer named as
a respondent in this proceeding, Heney's statements cannot
be made the basis of a finding of unfair labor practices by
the Company unless the evidence indicates that Heney was
clothed with actual or apparent authority to speak for, or
on behalf of, the Company. The complaint alleges, but the
Company denies that Heney was a supervisor and agent of
the Company during the period from October 19, when the
Company and Trans-Air executed the acquisition agree-
ment, until February 10, when the acquisition took place. I
shall now address myself to the issue thus presented.
General Counsel contends that during the period in ques-
tion, the Company and Trans-Air constituted a single em-
ployer within the meaning of the Act, and consequently
that Heney, as a supervisor and agent of Trans-Air, was
also a supervisor and agent of the Company. The General
Counsel's theory of a single employer relationship rests
upon two assertions of fact, which are set forth in para-
graphs 4 and 5 of the complaint. They are, in sum: (1) that
on October 19, the Company entered into a purchase agree-
ment whereby it agreed to purchase the equipment and fa-
cility used by Trans-Air at College Park; and (2) that on
February 10, the Company closed its purchase agreement
and moved its business operations from its East Point facil-
ity to the College Park facility previously utilized by Trans-
Air. Although the Company filed a motion for a more defi-
nite statement of the complaint, including the single em-
ployer allegation, the General Counsel made clear that it
was relying on these two alleged factors. In fact, the allega-
tions of paragraph 4 and 5 were only partially correct. On
October 19, the Company entered into an agreement
whereby it agreed to purchase the nationwide air freight
forwarding business of Trans-Air, which included facilities
in Atlanta and 14 other cities. On February 10, the Com-
pany closed its purchase agreement with Trans-Air and
moved its Atlanta facility from East Point to a facility at
College Park which consisted of the former Trans-Air facil-
ity, together with adjacent warehouse and office space
leased by the Company in November. The leased space and
the Trans-Air facility were combined to make a facility that
was capable of handling a larger volume of business than
that handled by the East Point facility prior to the acquisi-
tion. However, both the allegation of single employer sta-
tus, and that of alleged agency, are essentially allegations of
fact, and in passing upon their merits I am not limited by
the theories of the General Counsel. Therefore, I have con-
sidered all of the relevant evidence adduced in this proceed-
ing in determining the single employer issue, as well as the
related but not necessarily derivative issue of agency.
Trans-Air was a corporate subsidiary of Arrow-Lif-
schultz Corporation, whose principal was and is Sidney Lif-
schultz. Lifschultz was chairman of the board of directors
of both corporations. The chief operating officer of Trans-
Air was its president, Howard Schor. Trans-Air, like the
Company, was engaged in the air freight forwarding busi-
ness. The two firms were competitors and continued to
compete in that business until February 9, when the CAB
approved the acquisition. Arrow-Lifschultz and four other
corporate subsidiaries were engaged in business in other
areas of the freight transportation industry, e.g.. surface and
maritime shipping. They competcd with the Company
some of these areas and continued to do so after February
10. However, on and after that date. the .il:chultz con-
glomerate went completely out of the air freight forwarding
business, and Trans-Air was a defunct corporation. The ac-
quisition, so far as the present record indicates. was an
arms-length transaction between two competing entities in
the same industry. During the period in which the parties
awaited CAB approval. the Company and Trans-Air con-
tinued to conduct their separate businesses. to ser ice their
respective customers, to pursue their respectie personnel
and other business policies, and to maintain their separate
staffs. The firms did not take an' action to conmbine or to
collaborate in their business activities. even in wass which
would have been legall permissible e.g.. hb coloading.
Therefore. I am not persuaded that during the period from
October 19 to February 10. the Cornpani and Irans-Air
constituted a single employer. To a limited extent. the Com-
pany and Trans-Air were joint employers, through their
mutual agent. Trans-Air president Howard Schor. for the
purpose of soliciting and obtaining employment contracts
from key managerial and sales personnel of trans-Air, in-
cluding Heney. Compare, Springhield Retiremnen Residencc.
a Division o(!' Episcopal CommuniOr Services, Inc., anld Wle-
lan Food Services, Inc. 235 NLRB 884 (1978). However, the
evidence is insufficient to indicate that the Company used
Schor as a conduit for its labor relations policies, or that.
for an5 other reason, Trans-Air's supervisor5 personnel
should be viewed, per se, as supervisors and agents of the
Company.2'
However, this is not the end of the inquiry concerning
agencies. During the period from October 19 to February
10, many of Trans-Air's managerial personnel, from How-
ard Schor on down, including Heney, enjoyed a special re-
lationship with the Company. Each was a party to a con-
tract whereby it was understood and agreed that the
individual would take on a position with the Company
when the acquisition took place. It is not necessary to ex-
amine the relationship of each of these persons to the Com-
pany during the pre-acquisition period. Indeed. the evi-
dence is insufficient for that purpose. What is important is
the relationship which Heney had with the Compans.
Heney had a contractual committment to become the Com-
pany's district manager in Atlanta when the acquisition
took place. As of October 19, the parties anticipated that
acquisition would take place within about 2 months. HeneY
had full opportunity to, and did meet with company offi-
2" In considering and deciding these questions I have concluded that the
General Counsel acted within its allowable discretion n not naming Trans-
Air as a part) to this proceeding or giving formal notice to Trans-Air of the
proceeding. The complaint does not allege that Trans-Air committed ans
unfair labor practices. nor does the General Counsel seek anS remedial order
against Trans-Air. Therefore the General Counsel as not required to join
Trans-Air as a party The Company also has not been prejudiced h the
failure of the General Counsel to name rans-,Xr as a part> to the proceed-
ing Present or former officials of Trans-Air. who might have knowledge of1
matters relevant to the subject matter of this proceeding. could have been
subpoenaed as witnesses by the Company or ans other partl Indeed, How-
ard Schor, who was president of Trans-Air until the acqulsmtion. is now
senior vice president of the Compans Houeser. he was not called as
witness
491
DE( CISIONS OF NATIONAL LABOR RELATIONS BOARD
cials, including President Berg. before he signed the em-
ployrnment contract. I do not believe Heney's testimony that
Berg did nothing more than listen to Heney boast about
Henev's magnificent crew.2' As Heney was a normal human
being, and an experienced manager. it is probable that
Heney discussed and negotiated. or at least attempted to
negotiate the terms and conditions of his pending employ-
ment, whether he did so with Berg, Schwartzstein. Hoffen-
berg, Schor. or more than one of them. It is also probable
that the Company and Hene) discussed the union situation
at East Point, the Company's policy toward unionization.
and the probable staffing arrangements on acquisition. The
union situation at East Point was unique. It was the only
company facility at which a union was in the process of
attempting to gain recognition, and the Company was re-
sisting that effort by means lawful and unlawful. (The Com-
pany's other facilities were either nonunion or had an estab-
lished bargaining representative). It may be inferred that
Heney wanted to learn the Company's policy at the earliest
possible time, and that the Company was equally anxious
to inform him of that policy, in order that he might aid in
its implementation. The personnel at Trans-Air were aware
of the union campaign at East Point, and upon learning of
the pending acquisition, were undoubtedly concerned about
the impact of both matters upon their own positions. Heney
made no secret of the fact that he would remain as district
manager after the acquisition. Therefore, the employees
looked to Heney as the logical person to answer their ques-
tions about these matters. Heney answered their questions,
and in so doing conveyed the Company's position, i.e. he
conveyed essentially the same message which O'Rorke was
delivering at East Point. In sum, Heney was the Company's
spokesman at College Park during the pre-acquisition pe-
riod. In these circumstances, I find that in talking to Sue
Denison about the Union and the effects of the pending
acquisition, Heney was speaking for. and on behalf of, the
Company, i.e. as an agent of the Company for this purpose.
At the least, the Company placed Heney in a position
where he had apparent authority to make the statements
which he did. Therefore, the Company was responsible for
his statements and thereby violated Section 8(a)(l) of the
Act. See, Marlene Industries Corporation, et al. 166 NLRB
703, 713 (1967), enfd. sub nom Decaturville Sportswear Co.
Inc. v. N.L.R.B.. 406 F.2d 886 (6th Cir. 1969); Razco, Inc.,
d/b/a Hit' N Run Food Stores, 231 NLRB 660, 669 (1977)
and cases cited therein; see also Section 2(13) of the Act.
The General Counsel further contends that the Company
violated the Act through the statements and actions of
Trans-Air day operations supervisor Tony Chaffin. The
General Counsel's principal witness in this regard was Mi-
chael Turner, who worked for Trans-Air as a driver-dock-
man. Turner remained at College Park after the acquisition
and was still employed by the Company at the time of the
present hearing. Turner testified that in December or early
25 The Company did not call Berg as a witness, nor did it call Howard
Schor, who allegedly negotiated the employment contracts. If Schor negoti-
ated the contract with Heney, then he did so at least, in part, as the Compa-
ny's agent for that purpose because the contract was, in substance, although
not in form, an agreement between the Company and Heney. Only the Com-
pany could have promised Heney a position and a salary increase.
January. Chaffin spoke to him, possibly in the presence of
another employee. Ken Ley. According to Turner. Chaffin
said that it was his job to keep them from joining the
Union, and that he had been so instructed in a managerial
meeting. Chaffin added that the Air Express employees had
joined a union. Turner further testified that in mid-January,
Chaffin telephoned him at his home and asked him if he
had a union card. Turner answered that he did, whereupon
Chaffin allegedly replied that "if anyone of you has a union
card we'll have to fire all four drivers." At this point,
Turner responded that his card was from a shipyard in Vir-
ginia. Chaffin. in sum, denied the alleged conversations.
Chaffin testified that he did not at any material time
threaten anyone with discharge because of union activity or
solicit any employee not to engage in union activity, and
that the Company did not ask him to find out who had
signed union cards. However. Chaffin testified that he had
told the employees more than once about Heney's feelings
toward unionization, and, in sum, that he never missed an
opportunity to remind them that he was Heney's stepson.
As with Heney, the Company denies that Chaffin was a
supervisor or agent of the Company at any time prior to
February 10. The Company further denies that Chaffin was
a supervisor within the meaning of the Act at any time
material to this case.
Turner was still employed by the Company at the time of
this hearing. Ordinarily, the testimony of such a witness,
directed against the interests of his own employer, and pos-
sibly against himself, is entitled to considerable weight.
However, Turner's testimony as to this and other matters
tended to indicate that he was a somewhat less than reliable
witness. His testimony concerning O'Rorke's January meet-
ing at College Park was contradictory and demonstrably
unreliable. His testimony as to Chaffin's statements tended
to be vague and conclusory. I do not believe that Turner
was fabricating these conversations out of whole cloth. If
this were an ordinary case in which agency were not an
issue, it might be sufficient simply to find that Chaffin spoke
generally along the lines testified to by Chaffin. However,
this is not such an ordinary case. Prior to February 10,
Chaffin had no direct relationship with the Company, or
any apparent direct contact with the Company beyond his
presence at the meeting of supervisory and sales personnel
conducted by O'Rorke. Although agency may be inferred
from circumstantial evidence, Turner's testimony must be
viewed with caution, for it would tend to indicate that
Chaffin was taking a different approach than O'Rorke and
Heney. The statements made by O'Rorke and Heney pri-
marily referred to the Air Express employees and were only
inferentially directed at the Trans-Air employees them-
selves. Whether Chaffin was a supervisor within the mean-
ing of the Act (and this will be discussed further at a later
point in this Decision), Chaffin was at best a low level su-
pervisor, and he may have had an inflated opinion of his
own importance, based on his relation to Heney. Unlike
Heney, the Company did not place him in a position where
he had apparent authority to speak on its behalf. While the
matter is not free from doubt, I am not persuaded that the
General Counsel has shown, by a preponderance of the
credible evidence, that Chaffin made the statements attrib-
uted to him by Turner, or if he did, that the Company
492
clothed him with actual or apparent authority to speak to
or interrogate employees on its behalf.
4. Alleged promises of wage increases
In mid-January, the Company, through Frank O'Rorke.
conducted a meeting for Trans-Air operations employees
and another meeting for supervisory and sales personnel.
The meetings took place at the Trans-Air facility in College
Park. Robert Heney was also present at the meetings. Much
testimony was adduced concerning the employee meeting.
However, certain principal facts are not substantially dis-
puted. Employees David Coker and Paul Norton, who were
presented as company witnesses, were present at the meet-
ing. Coker testified that O'Rorke assured the employees
that everyone would have a job, and that although seniority
would be in effect, no one would lose their jobs. (The em-
ployees were aware that the Company's employees gener-
ally had been employed for longer periods of time than the
Trans-Air personnel.) O'Rorke further promised the em-
ployees that they would be reviewed twice for pay in-
creases: first within 30 to 60 days after the acquisition took
effect, and again 6 months after the acquisition. Although
the union situation at East Point was discussed at the meet-
ing, O'Rorke did not expressly relate his promises to union-
ization or lack of union affiliation." Rather, O'Rorke in-
ferred that pay increases might depend on the station's
profitability. It is undisputed that the promised increases
ran counter to the Company's usual policy, whereby em-
ployees were reviewed for increases after their first 6
months of employment and thereafter, annually. The Gen-
eral Counsel contends that the Company promised wage
increases to discourage union activity. Martin Hoffenberg
testified that he authorized O'Rorke to promise the extraor-
dinary wage reviews because Atlanta presented a unique
situation which was analogous to one encountered by
O'Rorke in Boston, where he had been district manager
before coming to Atlanta. Hoffenberg testified that in both
situations, the employees were being paid less than area
scale (and in the case of College Park, less than company
scale), and the expedited reviews were utilized as a means
of enabling them to catch up, if the growth of business
warranted increases. 0 In view of Trans-Air's tendency to
drag its feet on promised or anticipated wage increases,
Trans-Air employees may well have been earning below
area or company scale at locations other than Atlanta.
However, although the Company hired former Trans-Air
personnel at other locations, where it also anticipated a
growth in business, Hoffenberg did not indicate in his testi-
mony that he ever considered implementing expedited wage
25 Coker and Norton expressed vocal opposition to the Union at the meet-
ing. Although O'Rorke talked about the union situation, there is a lack of
credible evidence to indicate that he vocally stated the Company's opposi-
tion to unionization at the meeting. Michael Turner, the only General Coun-
sel witness who testified about this meeting, testified, in sum, that O'Rorke
expressed such opposition. However, his testimony was contradictory and
demonstrably unreliable. The four company witnesses who were present at
the meeting did not indicate in their testimony that O'Rorke expressly spoke
against the Union or solicited the employees not to support the Union. al-
though their testimony vaned as what O'Rorke said or did not say.
m The Company's Boston facility was nonunion, and I have proceeded on
the presumption that no discriminatory motive was involved there
AIR EXPRESS INTERNATIONAL
reviews anywhere else than in Atlanta. Hofenherg's expla-
nation is rendered further suspect by the speed with which
the Company gave retroactive increases to the former
Trans-Air personnel. Increases were given before the Com-
pany could reasonably have made any meaningful ap-
praisal of the growth situation in Atlanta, particularly in
view of the fact that it now had a larger staff. The Company
authorized increases for Carl Herrington and Susan Doyle.
retroactive to January 1, only II days after the acquisi-
tion.' In the meantime, the facility was in a state of confu-
sion due to the employees' lack of familiarity with company
procedures. Hoffenberg testified that the increases were in-
tended to make good on increases which Trans-Air had
promised to its personnel. However, Robert Fleney contra-
dicted Hoffenberg. Heney testified that the January in-
creases varied in amount from, and were not limited to,
increases which had been disapproved previously by How-
ard Schor. In the final analysis, this allegation of the com-
plaint depends to a considerable extent on the case of the
alleged discriminatory terminations. If the Company had
decided to discriminatorily terminate the East Point em-
ployees, then the inference is warranted that the promised
wage increases were related to that plan. As will be dis-
cussed under the next heading, I have found that the termi-
nations were discriminatory. I find that the Company. al-
ready having decided to terminate most of the East Point
employees and to replace them with Trans-Air personnel.
sought to insure their loyalty by promising them job secu-
rity (at the expense of the discriminatees) and extraordinary
wage increases. I find that the Company promised them
such increases to induce them not to support the Union,
and that the Company thereby violated Section 8(a)(1) of
the Act.
5. The alleged discriminatory terminations
On February 9, the Company and Trans-Air were noti-
fied that CAB had approved the acquisition. Closing of the
acquisition began that afternoon and was completed in the
early hours of February 10. On February 10, the Company
transferred its Atlanta facility from East Point to the loca-
tion at College Park previously described. Simultaneously.
the Company hired the entire complement of Trans-Air em-
ployees (except for two drivers who became owner-opera-
tors, performing pick up and delivery services for the Com-
pany), and discharged all of the East Point personnel except
the supervisory and sales personnel. Kathy Lee and Susan
Sinclair. As the Company questions the applicability of the
underlined words, in whole or in part, to the present situ-
ation, I shall explain further.
The Company did not retain the Trans-Air employees:
rather it hired them. The Company did not retain them
because they were not the Company's to retain. Prior to
February 10. they were employed by Trans-Air. The Com-
pany had no legal or contractual obligation to take them as
its own employees. Indeed, at the closing, the Company
adamantly insisted, in disagreement with Sidney Lifschultz,
that the Company had no obligation to hire any Trans-Air
3I Hoffenberg initially testified that the Company did not give retroactive
increases. but he promptly admitted that the Trans-Air employees were, in
fact. given increases covenng the period from January I onward.
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and had no obligation either to terminate those
employees it did not wish to hire or to pay them any ac-
crued vacation or other accumulated benefits relating to
their employment with Trans-Air.
Second, the Company did not close one facility and open
another; rather it transferred its Atlanta facility from the
East Point location to College Park. Both facilities were
near the Atlanta airport and were intended to service the
Company's customers through flights leaving from and ar-
riving at that airport." The Company moved its communi-
cations and other equipment to the new location, continued
to service its customers, and attempted to get as many
Trans-Air customers as it could.
Third, the Company discharged Ashmore, Rozier, Shep-
herd, McCollum, and Moore. When Shepherd reported to
work on the morning of February 10, Mike Floyd told him
he was terminated. Floyd called Rozier and Ashmore at
home to tell them that they were terminated. Floyd told
them that the Company had moved, and therefore they did
not have jobs. McCollum was not presented as a witness.
However, the Company, in its answer to the complaint, ad-
mitted that Ashmore, Rozier, Shepherd, and McCollum
were terminated.
As for John Moore, it is undisputed that: (I) prior to and
again on February 10, he was offered a supervisory posi-
tion; (2) he declined the offer on February 10, and was told
that there was therefore no work for him: (3) the offer was
held open until March 10, when he accepted a supervisory
position at the College Park facility; and (4) since that time,
Moore has been given increased responsibilities. Prior to
February 10, Moore was not a supervisor. The Company
did not offer to keep him in his current job. Therefore, re-
gardless of the Company's motive, Moore was terminated.
See, Wonder Markets Inc., 236 NLRB 787 (1978).
The Company's answer to the complaint affirmatively as-
serts that Ashmore, Rozier, Shepherd, and McCollum were
terminated as "an integral part of a plan of reorganization
of its nationwide and southeast operations arising out of its
purchase of certain nationwide air freight forwarding assets
of Trans-Air." In his testimony, Martin Hoffenberg elabo-
rated upon this defense. Hoffenberg's testimony, together
with testimony by company officials Herbert Bramer and
Phillip Rosso concerning the Company's general economic
situation, may be summarized as follows. For some years,
the Company had been experiencing financial difficulties.
The Company sought to improve its position in the air
freight forwarding business by acquiring the business of an-
other firm. Therefore, the Company entered into the agree-
ment to purchase Trans-Air's business. The Company was
particularly strong in the field of international operations,
whereas Trans-Air was particularly strong in domestic busi-
ness, although a negligible factor in the international field.
Therefore, the Company had reason to believe that that
acquisition would strengthen its overall position in the in-
dustry. Trans-Air was particularly strong in the southeast-
ern United States, specifically in Charlotte and Atlanta.
The Company hoped to retain (or acquire) as much of this
2 The East Point and College Park facilities were some 7 to 10 miles apart.
and located on opposite sides of the Airport, which itself is located in the
communities of Hapeville, College Park, and East Point.
domestic business as possible. They key to retaining this
business was the retention of District Manager Heney and
his crew, intact. Therefore, the Company decided to retain
Heney and his staff, with the addition of the Company's
supervisory and sales personnel, Kathy Lee, Susan Sinclair,
and John Moore. The last three were included on Heney's
recommendation because he said that he needed, in addi-
tion to his own people, one customer service employee, one
secretary, and one international supervisor, and particularly
needed John Moore's expertise in the latter capacity.
In a sense, discussion of Hoffenberg's explanation is al-
most redundant. The Company's discriminatory motive
stands exposed by the admissions and arguments of com-
pany counsel, which contradict the testimony of his wit-
nesses, by the admissions of Martin Hoffenberg, by the
statements of Frank O'Rorke and Robert Heney, and by
other evidence, both direct and circumstantial, which has
heretofore been discussed and need not be belabored.
Therefore, it is not surprising that even apart from such
evidence, the record in this case indicates that Hoffenberg's
explanation was, in fact, nothing more than a thinly dis-
guised pretext.
The Company's assertions with respect to general overall
economic considerations are hardly in dispute. The General
Counsel does not contend that the Company's acquisition
of Trans-Air was motivated discriminatorily. The Company
had experienced financial difficulties, had sought to acquire
the business of another firm, and saw in the Trans-Air ac-
quisition an opportunity to improve its own position, par-
ticularly in view of Trans-Air's relative strength in domestic
operations." It also cannot be seriously disputed (and I so
ruled at the hearing) that the acquisition, insofar as Atlanta
was concerned, necessitated a larger facility, and that in
consequence of greater anticipated business and a larger
staff, the Company, for economic reasons, decided to relo-
cate to College Park. The Company decided to relocate to
former Trans-Air facilities in other cities. However, no-
where but in Atlanta did this result in the displacement of
the Company's crew. What is demonstrably false is the
Company's assertion of alleged factors relating to Atlanta,
which led it to terminate all of the union adherents in the
bargaining unit.
13 Much testimony was adduced concerning the relative profitability of
international (overseas) shipping versus domestic shipping. In the final
analysis, it is impossible to answer this question on any generalized basis.
Too many variables are involved. Relative profitability may depend on the
freight forwarder itself and the nature of its operations and personnel, its
customers, the type of goods shipped, the volume of goods shipped, addi-
tional charges and services, type of container used, the arbitrary (charge to
gateway city for international shipment), and other factors. In sum, relative
profitability depends on subjective rather than objective factors: it depends
on one's point of view. I accept the Company's premise that from its point of
view, domestic shipping is relatively more profitable than international busi-
ness. However, it is unlikely that the Company would, if acting from purely
economic and nondiscriminatory motives, do anything tojeopardze its inter-
national business, particularly in view of its strength in that area. Interna-
tional shipping involves special paperwork and other factors which entail
employee knowledge and experience. I agree with the General Counsel's
argument that if the Company were so motivated that it is unlikely that it
would intentionally sacrifice a crew that was knowledgeable and experienced
both in international and domestic operations in favor of a crew which not
only was not familiar with the Company's operations, but also lacked knowl-
edge and experience in international operations. The Company recognized
this fact, and retained its own crews everywhere but in Atlanta.
494
AIR EXPRESS INTERNATIONAL
First, Atlanta was not as important in the overall picture
as the Company now claims it to be. Hoffenberg claimed
that Atlanta was Trans-Air's most profitable domestic facil-
ity. However, his testimony in this regard was contradicted
by a more knowledgeable witness. Company Assistant
Treasurer Herbert Bramer testified that after careful and
detailed study he concluded that Atlanta stood second or
third in this regard, and that Trans-Air's Minneapolis facil-
ity was first in terms of domestic strength. Bramer was more
knowledgeable than Hoffenberg when it came to economic
matters, although he may not have been as well attuned as
Hoffenberg concerning what it takes to win an unfair labor
practice case. I find Bramer's testimony to be more reliable
than the testimony of Hoffenberg, or the self-serving statis-
tics presented in evidence through Hoffenberg, but which
were allegedly obtained from Howard Schor, who was not
presented as a witness. The Company sought to retain
Trans-Air's Minneapolis district manager, and he, like oth-
ers, considered going with a competitor, although he ulti-
mately stayed with the Company. However, the Company
did not seek or obtain his services at the expense of losing
its own crew. In Minneapolis, the Company retained its
entire employee complement (as elsewhere) and hired only
a few of the Trans-Air personnel.
Second, the key to retention or acquisition of Trans-Air's
southeastern business, to the extent that such retention de-
pended on personnel below the level of top management.
was not Robert Heney and his crew. Rather, the key was
Trans-Air's sales personnel, and in particular, Trans-Air
National Sales Manager Joe Kelly, who was based in At-
lanta. In his testimony, Hoffenberg admitted that he knew
that Kelly was best suited to aid the Company in this re-
gard, and that Kelly was responsible for much of Trans-
Air's southeastern business. In this regard, the Company
failed dismally. Kelly went with a competitor, together with
a southeastern salesman, and took some of Trans-Air's
business with him. Another key sales figure, Trans-Air Na-
tional Accounts Sales Manager Jim Cherry (also based in
Atlanta), remained with Arrow-Lifschultz until March,
when he left (without going to the Company). Although
Herbert Bremer had a low regard for the Company's sales
staff, the Company retained that staff, while terminating
only the unit personnel.
In contrast, the evidence fails to indicate that Heney ob-
tained or had any special influence with Trans-Air's cus-
tomers. On the contrary, the evidence indicates that Heney
was at best a mediocre and at worst an incompetent man-
ager, and that the Company knew this, or could have found
this out (assuming that it made a difference to the Com-
pany). Heney padded his staff with an assortment of rela-
tives accumulated from his marriages. He created an excess
of supervisory positions (for his relatives among others) to
the point where there were almost as many bosses as work-
ers. Within a short time after the acquisition, Hoffenberg
directed Heney to reduce the number of supervisors. As a
result, the classifications of Carl Herrington and Susan
Doyle were downgraded. Heney kept on driver-dockman
Ken Ley, an incompetent employee, long after Heney's su-
pervisors, Tony Chaffin, Sue Doyle, and Dewitt Floyd, had
recommmended his termination or adversely evaluated
him. Heney admitted that in March or April, after consul-
tation with Hoffenberg and southeast Regional Manager
Glen Maddox, he terminated Ley because of his gross care-
lessness." Needless to say, Ley was not replaced by any of
the alleged discriminatees. Ley is a graphic illustration of
the kind of selection process which took place in Atlanta.
Needing a driver-dockman, the Company hired Ley, who
was known to be unqualified, yet it terminated John Mc-
Collum., who had been appraised by Pshirer as a "hard
working, conscientious employee" only a few months ear-
lier. Heney. by his own admission, cost Trans-Air some
$4000 per month by relying exclusively on Trans-Air's driv-
ers and equipment, rather than using owner-operators.
Upon the acquisition, the Company promptly instituted its
existing practice of using owner-operators. Heney also had
a reputation of sending exaggerated reports of the amounts
of freight moved by his facility, which earned him the well-
known nickname of "Mr. Billion-Trillion." a name known
even to Frank O'Rorke. In light of this fact, if no other, I
find it incredible, as the Company suggests, that company
President Joseph Berg would have accepted, at face value.
Heney's alleged claim that Atlanta was successful because
it had trained personnel and a good sales force. Indeed,
within a few months after the acquisition. the Company
sent Heney out into the field to spend at least 2 days each
week drumming up business. Increasingly, the everyday re-
sponsibilities of running the facility devolved upon none
other than John Moore, who, the Company suggests. was
busy stealing documents from the Company after Nella
Dunn was discharged.
What Heney did have was a reputation as a union buster,
and this was just what the Company wanted. In light of
Heney's modest qualifications, the Company needed to of-
fer Heney nothing more than a pay raise (which it promised
him) to insure that it would obtain his services. In fact, the
record is devoid of evidence that retention of the entire
Trans-Air crew was necessary to insure Heney's vitally
needed presence. Heney testified that he did not make re-
tention of the entire group a condition of his going with the
Company, and Hoffenberg testified that he never gave
Heney a commitment that all of his personnel would have
jobs. Heney testified that in the past, through previous
mergers or acquisitions, he had assured the employees that
if they stuck with him, he would keep them together as a
group. However, Michael Turner testified that he had no
recollection of Heney making such a promise. Heney's cor-
roboration in this matter came from his relatives by mar-
riage, Tony Chaffin and Carl Herrington. It may be that
Heney made promises of some sort of his wife or wives, but
this is not the basis for which hard-headed business deci-
sions are made.
The reasons offered by the Company for its selective re-
tention of Kathy Lee and Susan Sinclair and the manner in
which it offered employment to John Moore are also de-
" Upon the acquisition the Company's Atlanta facility was placed In the
Company's newly constituted southeast region, which included Atlanta and
Charlotte Instead of reporting to Pshirer in Pittsburgh as had O'Rorkel,
Heney reported to Maddox in Charlotte. Hoffenberg continued to direct
labor relations, and as indicated by Heney's testimony, he remained heavily
involved in personnel matters in Atlanta. The Company originally had con-
templated a larger southeast region, headed by Joe Kelly. However, when
Kelly opted fr a competitor, the Company scaled down its original plan.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
monstrably pretextual. Lee had little to recommend her
other than her outspoken opposition to the Union and her
willingness to report to the Company on the lawful activi-
ties of her fellow employees. Lee lacked a principal qualifi-
cation for her position as customer service agent, namely,
tact in dealing with people. Both Station Manager Mike
Floyd and John Moore, whose leadership abilities are rec-
ognized by the Company, had a low opinion of her per-
formance. Floyd testified that he complained several times
to O'Rorke about Lee. Floyd told John Ashmore that Lee
was not capable of doing her job, and that if he could have
his way he would terminate her, but that O'Rorke told him
not to mess with Lee. O'Rorke, in his testimony, suggested
that all of this criticism simply reflected male resentment of
an employee who could not be counted on to share in heavy
physical work when needed. However, Sue Denison shared
the views of her male counterparts. Denison testified that
Lee was "vulgar mouthed, very loud, rude."
Susan Sinclair was Nella Dunn's replacement and there-
fore reliable from the Company's point of view. Although
Hoffenberg and O'Rorke knew that Dunn had been dis-
charged because of suspected union activity (or rather, for
this reason), the Company never considered her for the sec-
retarial position which was allegedly specially needed at
College Park. Indeed, the Company's intentional failure to
consider Dunn is tantamount to a second decision to dis-
pense with her services, and is a principal factor linking
Case 10-CA-12941 with Case 10-CA-13436.
The Company's handling of John Moore contrasted
sharply with its handling of a similar situation involving
Moore less than a year earlier. In early 1977, prior to the
Union's organizational campaign, the Company wanted to
promote Moore to international supervisor. Moore did not
want the position, feeling that supervisory personnel did not
enjoy much job security at the Company. The Company
was most accommodating. Moore was given a substantial
raise and increased responsibilities, but was not required to
accept a supervisory position. However, after June 1977,
the situation had changed. Moore was an "ardent, self-pro-
fessed union supporter," and therefore had to be kept out of
a potential or actual bargaining unit at all costs, even if the
Company had to suffer the loss of his ability and expertise.
In sum, the Company, and specifically Martin Hoffen-
berg, saw in the Trans-Air acquisition a golden opportunity
to destroy the bargaining unit which had come into exis-
tence in Atlanta. O'Rorke's statements to Melanders and
Hoffenberg's internal memoranda make clear that from the
beginning the Company intended to retain only Lee and
Sinclair, plus the supervisory and sales personnel. Moore
was later added, only out of desperate need for his services,
but only if he could be kept out of the bargaining unit. I
find that the Company terminated Ashmore, Rozier, Shep-
herd, McCollum, and Moore because of their adherence to
the Union and to destroy the Union-represented bargaining
unit, and thereby violated Section 8(a)(l) and (3) of the
Act."
3 As the Company arrived at its decision to terminate the discriminatees
well before the January 25 hearing, I find that their prospective (although
not actual) testimony at that hearing was not a decisive factor in their termi-
nations. Therefore, I am recommending that the allegation that the Com-
pany further violated Sec. 8(aX4) of the Act be dismissed.
6. Alleged 8(a)(1) violations after the acquisition
(a) Threats
Sue Denison testified that during the first week in March,
Frank O'Rorke asked her if she was quitting her job. (Deni-
son had previously told Bob Heney that she was unhappy
in customer service and wanted a secretarial job). Denison
testified that during their conversation, O'Rorke said that
"legally Heney could not hire anyone until the problem
with the Union was over with." At this point, Denison
questioned why the Company had hired Greta Newsome to
do part-time work. O'Rorke, in his testimony, denied that
he ever said that there would be no hiring until employees
ceased their union activities. Between Denison and
O'Rorke, I find Denison to be the more credible witness. I
credit Denison. In fact there was no legal impediment
which would preclude the Company from hiring new em-
ployees, beyond the Company's outstanding and continuing
legal obligation to reinstate the discriminatees. It is evident
that O'Rorke was simply attempting to intimidate the new-
ly hired Trans-Air employees to discourage them from sup-
porting the Union. I find that the Company, through
O'Rorke, threatened that there would be no hiring so long
as the Union claimed to represent employees of Air Ex-
press, and thereby violated Section 8(a)(1) of the Act.
(b) The Region's investigation
As indicated, the charges in Case 1O-CA 13436 were
filed on February 13 and 14. Sue Denison testified that
about March I (while the charges were under investiga-
tion), Frank O'Rorke summoned all of the employees pre-
sent, including Denison, to a meeting. According to Deni-
son, O'Rorke told the assembled employees that one of
"my" drivers had been approached by a Board agent.
O'Rorke did not indicate that the driver was angry about
this. However, O'Rorke asserted that he considered this to
be an invasion of privacy, and that he was "here to advise
you that you don't have to ask any questions or talk to
anyone." O'Rorke added that he would hold another meet-
ing with the night shift employees, and that he did not want
any of his employees "harassed." O'Rorke further stated
that the Company would advise the employees of their legal
rights if they wanted it. Denison testified that O'Rorke did
not say that it was up to the employees as to whether they
should talk to the Board agent.
O'Rorke testified that on March 7, owner-operator John
Soublis came to him excited. According to O'Rorke, Sou-
blis complained that the Company gave the Board his name
and address. O'Rorke testified that he told Soublis that this
was not true, and that he (O'Rorke), after consulting with
company counsel, convened the meeting of employees. Sou-
blis was not called to testify, although he was still driving
for the Company at the time of this hearing and was there-
fore presumably available as a witness. O'Rorke first testi-
fied that Mike Floyd was present at this conversation, then
testified that he and Soublis were alone, and thereafter tes-
tified that Floyd was nearby. Floyd, although a company
witness, was not questioned about the alleged conversation.
O'Rorke further testified that he told the assembled em-
ployees that the Company was not giving their names and
496
AIR EXPRESS INTERNATIONAL4
addresses to government officials, that "some" employees
had been contacted, and that it was up to them to talk to
the government agent or instead. to seek advice from the
Company or Company counsel (which he offered to fur-
nish). O'Rorke subsequently contradicted himself. He testi-
fied that he told the employees that "an" employee (mean-
ing owner-operator Soublis) had been contacted. O'Rorke
further testified that no one other than Soublis complained
to him prior to the meeting, but that sometime after the
meeting employee David Coker complained to O'Rorke
that the Board's field examiner had contacted him and that
he did not want to get involved. According to O'Rorke, he
answered that the Company did not give out any names.3 6
O'Rorke was further contradicted by employee Paul Nor-
ton, who was presented as a company witness. Coker testi-
fied that he was present at the meeting of employees. How-
ever, despite leading questions by company counsel, he
testified that he could not recall O'Rorke saying anything
about names and addresses. Norton testified, in sum, that
O'Rorke told the assembled employees that an employee
complained that he was contacted at night by the Board.
that the employees did not have to answer questions with-
out counsel, that it was up to them, and that the Company
would provide counsel to those who wanted it. Although
David Coker was presented as a company witness, the
Company conspicuously failed to question him about his
alleged complaint to O'Rorke, and consequently Coker did
not testify about that matter.
The Company's conspicuous failure to produce John
Soublis as a witness or to present testimony by Mike Floyd
and David Coker concerning the alleged complaints to
O'Rorke, warrants the inference, and I so find. that had
their testimony been presented, it would have been adverse
to the Company's interests. See, Martin Luther King, Sr.
Nursing Center, 231 NLRB 15 (1977), at fn. 1.7 I do not
credit O'Rorke's uncorroborated, self-serving assertions
that employees complained to him about the Board's inves-
tigation, and that such complaints caused him to call a
meeting of the employees. Rather, the inference is war-
ranted, and I so find, that upon learning that the Board's
field examiner was talking to employees, O'Rorke, acting
upon the advice of Daniel Thompson, engaged in a calcu-
lated attempt to discourage and intimidate the employees
from cooperating in the Board's investigation. In view of
the contradictory testimony presented by the Company
concerning the meeting, I credit Denison who, as heretofore
indicated, I have found to be a substantially credible wit-
ness. O'Rorke's speech was coercive. O'Rorke made clear
that he was advising the employees not to cooperate in the
investigation. Indeed, his speech, flavored with references to
"invasion of privacy" and harassment of employees, consti-
tuted a diatribe against the Board's investigation. His
X O'Rorke further testified that he told Floyd to speak to night shift em-
ployees, but that Floyd never did, although O'Rorke personally spoke to one
of them (David Bowlden).
1' In view of the Company's failure to present testimony by persons who
allegedly made the complaints or who were allegedly present when they were
made. I do not consider the testimony of Martin Hoffenberg about what
O'Rorke said at the March 7 negotiating session to be material corroborative
evidence. Rather, Hoffenberg's testimony amounts to little more than hear-
say on hearsay.
speech occurred against a background of unfair labor prac-
tices and was unaccompanied by any assurance that there
would be no reprisal against employees who cooperated in
the investigation. I find that O'Rorke's statements. includ-
ing the offer to furnish legal advice, constituted unlawful
interference with the employees' right of free access to the
Board and an unlawful attempt to obstruct the Board's pro-
cesses. Brant Chucking Grinder Company v N.L.R.B.. 389
F.2d 565. 567 (2nd Cir. 1967), cert denied, 392 .S. 908: see
also, Florida Steel Corporation. 233 NL.RB 491 (1972), at fn.
1: Certain-Teed Products Corporation, 147 NI.RB 1517.
1519 21 (1964). Compare the "temperate" language uti-
lized by the employer in N.I. R.B. v. J. It Mortell Co.. 440
F.2d 842, 850 (1971). 1 find, as alleged in the complaint.
that the Company violated Section 8(a)(1) of the Act by
soliciting its employees to refuse to give testimony to Board
agents. Because the credible evidence indicates that
O'Rorke did not receive any employee complaints about
the investigation, but instead sought to intimidate the em-
ployees and thereby impede the investigation. I further find
that by telling his employees that one of "my" drivers had
been approached by a Board agent, and angrily denouncing
such contact. O'Rorke sought to further intimidate the em-
ployees by creating the impression of surveillance of their
union activities. For this additional reason, the Compan)
further violated Section 8(a)( I). as alleged in the complaint.
D. The Alleged Unla/id Withdraswal of Recognition and
Refisal To Bargain in Good Faith with the moion
1. Contentions of the parties
The General Counsel contends that at all times material
herein the Union was and still is the collective-bargaining
representative of the Compan,'s dockmen, drivers, and
agents at its Atlanta facility (excluding sales personnel, con-
fidential employees, professional employees, guards, and
supervisors as defined in the Act). whether that facility was
located at East Point, as it was until February 10, or at
College Park as it has been since that date. The General
Counsel contends that the Union is entitled to recognition
at the College Park location either by virtue of the Board
certification (which refers to the East Point location), or by
application of the principles of N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575, 613-615 (1969). The Company in the
present reopened proceeding, belatedly concedes that the
Union was the certified collective-bargaining representa-
tives of its East Point employees.'8 However, the Company
denies that the Union represents its employees at College
Park. The Company further argues that in view of the
pending acquisition of Trans-Air, the Company was obli-
gated to bargain with the Union only concerning the effect
of the closing of its East Point facility upon the East Point
unit employees, and that it fulfilled this obligation. The
General Counsel contends that the Company failed to meet
even this obligation. The General Counsel submits that the
"' At the January 25 hearing. Company Consultant Thompson argued that
the Board had not issued a certification. However, as a witness in the re-
opened hearing. Thompson conceded that at a meeting betveen the parties
on January 4, both the Union attorney and the company attorney advised
him that the Board had, in fact, certified the Union.
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company unlawfully failed to comply with the Union's re-
quests for a copy of the acquisition agreement with Trans-
Air, and for a list of the names, job classifications, and dates
of hire of the Trans-Air employees at C('ollege Park, and
generally failed to bargain in good faith with the Union.
The General Counsel further contends that the Company
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize the Union as the representative of its
employees at College Park on and after February 10.
2. Meetings and Correspondence Between the Company
and the Union
From November 3, 1977, through May 8, 1978, there was
an exchange of correspondence between company counsel
Jacobson and union counsel Frederick McLam, and the
parties met on three occasions: January 4, February 9, and
March 7. The operative facts concerning these contacts are
substantially undisputed. On November 3, attorney Jacob-
son sent a letter to the Union in which he noted the pending
litigation concerning the certification. Jacobson informed
the Union that the Company had entered into a purchase
agreement with Trans-Air, and that the Company was con-
sidering closing its East Point facility and relocating in a
larger facility at the Trans-Air location. Jacobson stated
that without prejudice to his client's position, the Company
was offering to negotiate with the Union concerning impact
of the probable closing on the East Point employees. By
letter of November 18 from attorney McLam, the Union
accepted the Company's offer to meet. A meeting was set
for December 20, but rescheduled to January 4 at the re-
quest of company counsel. This was the only time that the
Company requested a delay in meeting with the Union, and
I am satisified on the basis of the evidence that the Com-
pany was not dilatory in meeting with the Union.
The parties met in Atlanta on January 4. Jacobson acted
as spokesman for the Company, and he was accompanied
by Hoffenberg, Thompson, and O'Rorke. Attorney McLam
acted as spokesman for the Union, and he was accompa-
nied by union Secretary-Treasurer Albert Johnson and
union business agent Fred Thomas. Jacobson offered to dis-
cuss the impact of the closing of the East Point terminal.
Jacobson proposed that the Company would lay off all of
the unit employees and hire Trans-Air employees to per-
form their work. In fact, as heretofore found, the Company
already had decided to retain Kathy Lee and never seri-
ously considered doing otherwise. McLam asked how many
nonsupervisory employees there were at Trans-Air.
O'Rorke answered that there were about 15, excluding sales
personnel. As will be discussed, the figure was exaggerated
and misleading. Hoffenberg stated that the Company an-
ticipated that the work previously done by 21 employees
(i.e., the separate Company and Trans-Air personnel) could
be done by 15.
After receiving the Company's proposal, the union repre-
sentatives caucused and emerged with a proposal to dove-
tail the seniority of the Company and Trans-Air employees,
i.e. to staff the Company's College Park facility by laying
off, to the extent necessary, employees of the firms from a
single list, in inverse order of their seniority. Jacobson said
that the Company would take the Union's proposal under
advisement, but that the Company wanted to retain the
Trans-Air staff intact, and dovetailing would be disruptive.
The practical effect of the Union's proposal would have
been retention of most or all of the Company's employees,
including the union activists, because of their greater job
seniority. The Company knew this. Hoffenberg was in pos-
session of a dovetailed seniority list, having obtained the
pertinent Trans-Air personnel information from Bob
Heney, who had exchanged personnel information with his
then counterpart, Frank O'Rorke. (The Company did not
bring such a list to any of negotiating sessions). There is no
direct evidence that the Union had information concerning
the names, job categories, or dates of hire of the Trans-Air
personnel. However, the Union probably suspected that se-
niority would work to its advantage, in view of the length of
service of the union adherents (Rozier and Moore had
worked for the Company since 1963 and 1964 respectively)
and the relatively short history of the Trans-Air operation
in Atlanta. Indeed, Dan Thompson admitted that he and
Jacobson anticipated that the Union would propose hiring
by seniority.
McLam requested a seniority list of the East Point em-
ployees, and the Company promised to furnish one. The list
was furnished by letter of January 17 from Jacobson to
McLam. McLam also requested a copy of the purchase
agreement between the Company and Trans-Air. Jacobson
answered that the Company would take the request under
advisement, but he offered to give the Union copies of pub-
licly released announcements concerning the acquisition.
There was no discussion of the reasons for the Union's re-
quest. Hoffenberg and Thompson testified, in sum, that
McLam said that if the Company was closing down the
East Point facility, there would be no need to negotiate a
contract. (Up to this point the Company had been contest-
ing the certification, and consequently there had been no
negotiations between the parties concerning a contract that
would cover East Point or any other location). Thompson
took written notes of the meeting, which purport to be a
complete summary of the discussions, but his notes do not
reflect that McLam made the alleged statement. However,
Albert Johnson, who testified for the General Counsel con-
cerning the meetings, did not indicate that McLam did not
make the alleged statement, and was not called as a rebuttal
witness. Johnson did assert in his testimony that the
Union's dovetailing proposal constituted an implicit de-
mand for recognition at College Park. I credit Hoffenberg
in this regard, and find that McLam made the statement
attributed to him. McLam's statement was understandable,
considering the time and context in which the meeting took
place. If the Company were permanently closing the East
Point facility, opening a new and different facility, termi-
nating all of its employees for nondiscriminatory reasons,
and staffing the new facility with a different complement of
employees, then the Union would have had no basis for
demanding a contract for College Park. However, as of
January 4, the Union had no way of knowing that the Com-
pany's representations were false. In particular, the Union
had no knowledge of the arrangements between the Com-
pany and Trans-Air, and could not have known that the
Company intended to discriminatorily terminate the Union
supporters at East Point.
498
AIR EXPRESS INTERNATIONAL
The parties agreed to meet again, and they next met on
February 9. In the meantime, Jacobson sent a letter to
McLam, dated January 13, in which, in sum, the Company
rejected the Union's proposal to dovetail seniority, offered
John Moore a supervisory position, offered "C. Herrington"
a position because of that person's experience in customer
service, and offered severance pay and health coverage for a
period of time to the terminated employees. Jacobson en-
closed a copy of a news release announcing the acquisition
and stated that he was checking on whether the purchase
agreement was a public document that McLam could re-
view. The "C. Hernngton" referred to in Jacobson's letter
was Trans-Air's international supervisor. On January 17.
Jacobson informed McLam that he meant to refer to Kathy
Lee, and not Herrington. This was no compromise, as the
Company intended all along to retain Lee because of her
opposition to the Union. Lee was also lowest in seniority
among the company employees. By letter of January 23 to
Jacobson, McLam requested the Company to negotiate a
contract.
The parties met in Atlanta on February 9. Jacobson and
Thompson were present for the Company, and Albert
Johnson, Fred Thomas, and employee Marlin Rozier were
present for the Union. Hoffenberg was in Stamford, await-
ing imminent CAB approval of the acquisition, and
O'Rorke was stranded in Boston because of a snowstorm.
The parties maintained their previously stated positions
concerning the impact of acquisition. The Union submitted
a proposed contract, and the parties proceeded to discuss its
provisions. The Company agreed to a recognition clause
which referred to the East Point location, but declined to
agree that the contract would be binding on the Company's
"successors." The parties next took up article 2 of the pro-
posed contract, captioned "Union security and check-off,"
and agreed on the language of a no-discrimination clause.
Their discussions were interrupted by a telephone call to
the company representatives, who were informed that CAB
had approved the acquisition of Trans-Air. At this point, at
the Union's suggestion, the meeting was terminated, and
the parties agreed to meet again on March 1. That meeting
was later reset for March 7, because of a death in Johnson's
family.
By mailgram dated February 10, Jacobson notified the
Union that the Company had closed its East Point facility
and began "substantially expanded operations" at the for-
mer Trans-Air location. Jacobson proposed to negotiate the
impact of the closing on the unit employees at the meeting
then scheduled for March . By letter dated February 11,
Jacobson elaborated on his mailgram. Jacobson asserted
that the Company would continue to recognize the Union
as representative of the employees who worked at East
Point, but did not recognize the Union for the new location
because it was not covered by the certification and was
substantially larger and different from East Point. Jacobson
adhered t9 the proposals that were set forth in his previous
correspondence.
The parties' next and final meeting was in Atlanta on
March 7. By this time the Union had filed its charges in
Case 10-CA 13436, and they were being investigated by
the Board's Regional Office. Present at the meeting were
Jacobson, Hoffenberg, and O'Rorke for the Company, and
Johnson. Thomas and Rozier for the Union. Ihe Union
adhered to its previously stated proposal, and the Company
adhered to its position, but with modification in the case of
John Moore. The Company extended until March 10, the
time within which Moore could accept the position as inter-
national supervisory The Company also proposed sever-
ance pay and temporarN continuation of health benefits for
Moore (along with the other terminated employees) even if
he declined the offer of a supervisory position. Jacobson
further stated that the Company would favlrably consider
taking Moore as a rank-and-file employee if the Union
would make such a proposal."' The Union did not make
such a proposal. The C(ompany gave the Union a copy of
the CAB order approving the merger (which the Union had
not requested), but failed to furnish a copy of the acquisi-
tion agreement that it had requested. The Union requested
that the C'ompany consider using the terminated employees
before hiring casual help. Jacobson responded that the
C(ompany would favorablN consider this request if the
Union agreed to the Companm's position. The Union re-
quested a Trans-Air senorits list, and Jacobson said that he
would take the request under advisement. Albert Johnson
said that he would contact Jacobson for another meeting.
He did not, and there were no further meetings.
The remaining contacts between the parties ere by cor-
respondence emanating from their attornexs. B letter
dated March 15 to Jacobson, McL.am renewed his request
tbr a copy of the acquisition agreement. B letter dated
March 22 to Albert Johnson, Jacobson requested the Union
to respond to the modifications of its position which were
stated at the March 7 meeting. With respect to Moore, Ja-
cobson stated that the Company could revise its offer down-
ward if supervisory status was an impediment to Moore's
acceptance of the position. By this time, Moore already had
returned to the Company as a supervisor. In an_ event, I
agree with the Union that at no time did the Company offer
to take back Moore as a rank-and-file employee. Rather, at
the March 7 meeting and in Jacobson's letter, the Company
simply invited the Union to make such a proposal. Because
the Union was proposing dovetailed seniority, and since
Moore was not even the senior employee. the Company
then reasonably could have viewed a union proposal con-
cerning Moore as an abandonment of the Union's position.
and possibly, an abandonment of any claim that other dis-
chargees be reinstated. In these circumstances, it is under-
standable that the Union did not acquiesce in the Compa-
ny's suggestion.
Jacobson refused to furnish the Union with a copy of the
acquisition agreement, saying that relevancy was not
shown, and that the CAB decision, which he had given to
the Union on March 7. set forth the arrangements between
the Company and Trans-Air in detail. However. Jacobson
enclosed a document which purported to be a seniority list
of Trans-Air employees, with names deleted. and employ-
ees identified only by a code letter, date of hire, and classi-
' As indicated. Moore accepted the offer on March 10. In the meantime.
the Company hired Bob Warren, and he and Carl Herrington shared the
responsibilities of an international supervisor A.ter Mooire returned to work
fIr the Company. the Compan) transferred Warren to (Charloute.
*0 This finding is based on the credited testimony oi Itfienherg Jacobson
essentially restated this position in suhsequent letter
499
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fication. Jacobson claimed that the Union had not shown
relevance of actual names. The list is here reprinted in full.
In addition I have inserted my findings in brackets, based
on the record evidence of the probable identities of the per-
sonnel referred to in Jacobson's list (no company witness
ever specifically identified the employees referred to in that
list):
Rank-and-File Seniority List for Trans-
Air Freight Systems, Inc. Immediately
Prior to Effective Date of AEI
Acquisition
Code
Letter
6/19/72 Empl. A
[Carl Herrington]
7/19/73 Empl. B
[Tony Chaffin]
9/24/73 Empl. C
[Sue Doyle]
1/17/75 Empl. D
[Sue Denison]
2/4/76 Empl. E
[DeWitt Floyd]
9/8/76 Empl. F
[David Coker]
4/26/77 Empl. G
[Mike Turner]
6/16/77 Empl. H
[Ken Ley]
7/14/77 Empl. I
[Pam Chidester]
(Maternity Leave)
8/1/77 Empl. J
[Terry Bowlden]
Classi-
fication
Intl. Agent
Domnestic
Operations
Night Shift
Supervisor
Customer Service
Representative
Agent
Driver
Driver
Driver
Clerical
Intl. Agent
In addition, two Trans-Air drivers
resigned their positions and became
owner-operators for AEI effective on or
about February 10, 1978. [John Soublis
and Alan Carter.]
This was the only information that the Company fur-
nished in response to the Union's request for a seniority list
of Trans-Air employees. On the basis of the record in this
case, it is evident that the list was inaccurate in several
respects, although the Union had no way of knowing this at
the time it received Jacobson's letter. For example, the list
does not account for Paul Norton, who began his employ-
ment on April 21, 1976. Apart from the question of supervi-
sory status under the Act, Herrington, Chaffin, Floyd, and
Dolye had the title of supervisor or manager. In view of the
recent history of acquisitions and mergers which preceeded
the Trans-Air facility at College Fark, some of the alleged
dates of hire were at least open to question.
By letters to Jacobson. of April 6 and May 5, 1978, union
attorney McLam stated that the Union had not waived its
right to represent the employees at College Park and re-
quested negotiations for a contract covering College Park
and the former East Point employees. By letters of April 12
and May 8, 1978, Jacobson, in sum, rejected the Union's
demand. Jacobson stated that the Company would discuss
the impact of the closing, but would not recognize the
Union for College Park. and that the Union had previously
said that it did not represent the employees at College Park.
These were the last communications between the parties.
Reinstatement of the discriminatees was not a bargain-
able issue. Because the Company violated Section 8(a)(1)
and (3) of the Act by terminating them, the Company had a
continuing obligation to offer them immediate and full rein-
statement to their former positions. The Company's failure
to do so constituted a continuing violation of Section
8(a)(1) and (3). Therefore, it is unnecessary to determine
whether the Company further violated Section 8(a)(5) of
the Act by failing and refusing to retain them, and there-
after failing and refusing to offer them reinstatement
through the Union, their certified bargaining representative.
Since the discriminatees were terminated in violation of
Section 8(aXI) and (3), it is also unnecessary to consider the
General Counsel's alternative argument that they would be
entitled to reinstatement and backpay as a remedy for the
Company's alleged refusal to bargain in good faith over the
effects of the transfer of its facility from East Point to Col-
lege Park.
Putting aside the Company's obligation to reinstate the
discriminatees, and putting aside for the moment the ques-
tion of whether the Union represented the employees at
College Park on and after February 10, the evidence indi-
cates that the Company, on and after January 4, failed and
refused to bargain in good faith over the effects of the trans-
fer of its facility from East Point. From beginning to end,
the Company misrepresented its position and the pertinent
facts. The Company proposed to terminate all of the East
Point employees, when, in fact, it intended all along to re-
tain Kathy Lee. The Company misrepresented the number
of Trans-Air employees and belatedly furnished false and
incomplete information concerning the names, classifica-
tions, and dates of hire of the former Trans-Air employees.
The Company falsely represented to the Union that it was
closing its East Point facility and opening a new one, when,
in fact, it was simply moving its existing facility from one
location to another.
The acquisition agreement between the Company and
Trans-Air lay at the heart of the matters under discussion
between the Company and the Union, which matters even
the Company concedes it was obligated to negotiate. Rele-
vancy was self-evident and did not have to be spelled out in
haec verba by the Union. The provisions of the agreement
were actually or potentially relevant to the nature of the
changes which would take place upon acquisition, to
whether or not the Company and Trans-Air were co-em-
ployers, to whether College Park would be a continuation
of the East Point facility, and to what, if any, obligations
Date
of
Hire
500
AIR EXPRESS INTERNATIONAL
the Company or Trans-Air bore or had undertaken toward
the personnel of both employers, e.g. respecting job senior-
ity or benefits. Neither press releases nor the CAB order
allowing the acquisition (technically, an order exempting
the acquisition from the requirements of Section 408(a)(5)
of the Federal Aviation Act of 1958, as amended) were an
adequate substitute. These documents merely summarized
the terms of the acquisition agreement, and the CAB order
was not even available to the Union until after the acquisi-
tion took place. Indeed, it is questionable whether the
Union has ever seen the complete acquisition agreement.
Although a document purporting to be the agreement was
entered in evidence at my direction as Judge's Exhibit 2, the
document contains references to exhibits "annexed hereto,"
but which are not so annexed. Martin Hoffenberg testified
that Judge's Exhibit I is a complete copy of the acquisition
agreement as it existed on October 19, and that the exhibits
in question were prepared later and were included in the
closing binder. For the purpose of a remedial order, there is
no assurance that the Union has, in fact, received a com-
plete copy of the acquisition agreement as it existed on
January 4, when the Union made its demand. The acquisi-
tion agreement was relevant to a mandatory subject of bar-
gaining and was not privileged from disclosure to the Union
by any rule of law; indeed, the Company never invoked any
asserted privilege. Rather, the Company simply rested on
its erroneous position that the Union failed to demonstrate
relevancy. Therefore the Company, on and after January 4,
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to promptly furnish the Union with a copy of the
acquisition agreement. As there is no assurance that the
Company has ever furnished the Union with a true and
complete copy of the agreement, an order directing the
Company to do so is warranted.
I further find that as part of its unlawful failure and re-
fusal to bargain in good faith with the Union, the Company
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to furnish the Union with an accurate and com-
plete list of the names, classifications, and dates of hire of
the Trans-Air employees. The Company did not dispute
that the classifications and dates of hire were relevant to the
matters under discussion with the Union, i.e. impact of clos-
ing of the Trans-Air facility. However, without the names,
the Union had no way of checking on the accuracy of the
information presented by Attorney Jacobson. As indicated,
the information furnished was, in fact, inaccurate. In view
of the Company's demonstrated tendency to misrepresent
job classifications and functions to weaken the Union's po-
sition, the inference is warranted that the Company inten-
tionally misrepresented the classifications of Herrington,
Chaffin, and DeWitt Floyd. Moreover, the Company had
no legitimate reason to conceal the identity of the Trans-Air
employees. Rather, the Company's overall pattern of con-
duct suggests that it was concerned primarily with inhibit-
ing contact between the Union and those employees. There-
fore, the Union was and is entitled to the requested
information. Of course, if the Union was the collective-bar-
gaining representative at College Park on and after Febru-
ary 10, then there could be no question that the Union
would be entitled to the names of the employees at that
facility.
3. Alleged status of the Union as bargaining
representative at College Park.
I find that the Union made a timely demand for recogni-
tion at the College Park facility and did not knowingly
waive its rights in this regard. When the Union learned, or
had reasonable cause to believe, that the Company trans-
ferred its existing facility from East Point to College Park
and discriminatorily discharged the Union supporters, the
Union invoked its representational rights. Prior to February
10, the Union did not know these facts, and therefore could
not have knowingly waived its rights. Moreover, if the
Board certification were applicable to College Park, no de-
mand would have been necessary because the Union would
have continued as bargaining representative by virtue of the
certification itself.
There remains the question of whether the Union was the
collective-bargaining representative at College Park on and
after February 10, either by virtue of the certification or
pursuant to the doctrine of N.L. R.B. v. Gissel Packing Co.,
supra. Preliminary to answering this question, it is neces-
sary: (I) to determine the composition of an appropriate
unit at College Park, as defined by the language of the cer-
tification which refers to East Point; and (2) to identify the
personnel who were actually working at College Park on
February 10. The present case involves employees who
were terminated discriminatorily. Therefore, consideration
of unit composition begins with the rule that discriminatees
are "by operation of law" the employees of the employer.
and therefore deemed to be included in the bargaining unit.
Houston Distribution Services, Inc. and Southwest Ware-
house Service, 227 NLRB 960, 968 (1977), enfd. 573 F.2d
260, 266-267 (5th Cir. 1978); see also, N.L.R.B. v. Fabsteel
Company of Louisiana, 587 F.2d 689, 694 (5th Cir. 1979). As
heretofore found, except for the discrimination against
them, the Company would have retained all of the discrim-
inatees. Corollary to this rule is the further principle that in
determining unit composition for the purpose of determin-
ing a union's representative status, employees who were
hired to replace the discriminatees are not counted. See
Fabsteel, supra.4"
The certified unit does not exclude office clericals, but
does exclude confidential employees. At the time of her dis-
charge, Nella Ree Dunn was a secretary, but was not a
confidential employee. However, Dunn was excluded from
the unit, by stipulation of the Company and the Union, on
the basis of the Company's false and discriminatorily moti-
vated representation that she was O'Rorke's confidential
secretary. In the absence of any violation of law or policy,
the Board customarily finds stipulated or agreed upon units
appropriate. (Bernhard-Altmann Texas Corporation, 122
41 Fabsteel, unlike the present case, involved unfair labor practice strikers
and their replacements. However, the policy enunciated in Fabsteel is
equally applicable to discriminatonly discharged employees and their re-
placements. If the evidence indicates that certain employees probably would
not have been hired except for the Company's unlawful conduct, then count-
ing such employees as indicative of the Union's lack of majority status would
be tantamount to rewarding the Company for such conduct. Compare.
N L.R.B. v. Frick Company, 423 F.2d 1327, 1334 (3d Cir, 1970), cited with
approval in Fabsteel, supra at 694; see also, J. R. Sousa & Sons, Inc., 210
NLRB 982 (1974).
501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 1289, 1291., fn. 4 (1959), affd. 366 U.S. 731, 735
(1961). However, the Board has broad discretion, in fur-
therance of its authority to protect the self-determination
rights of employees, to modify or set aside consent agree-
ments in representation cases. See, Uveda v. Brooks, 365
F.2d 326 (6th Cir. 1966); see also, Mark J. Gerry d/b/a
Dove Manufacturing Company, 128 NLRB 778 (1960). Ex-
clusion of Dunn from the bargaining unit would unjustly
deprive Dunn of her self-determination rights, and there-
fore would contravene the policies of the Act. Since Dunn
was entitled to be included in the unit by reason of her job,
and was discriminatorily discharged, I find that by opera-
tion of law, she was an employee in the certified unit, and
was an employee in the unit at College Park on and after
February 10. Because Susan Sinclair was Dunn's replace-
ment, she cannot be counted in determining the union's
representative status. I further find that at no time material
herein did either Dunn or Sinclair perform work which
would warrant their being classified as confidential employ-
ees under Board law. Sinclair continued to perform sub-
stantially the same work as Dunn. She performed account-
ing and secretarial work (basically accounting, according to
Heney), and also did billing and customer service type
work. On and after February 10, she performed most of her
secretarial work for Heney, and also did some secretarial
work for O'Rorke. Under Board law, "confidential employ-
ees" are "persons who assist and act in a confidential capac-
ity to persons who formulate, determine and effectuate
management policies in the field of labor relations" [empha-
sis in original]. The B. F. Goodrich Company, 115 NLRB
722, 724-725 (1956). Mere access to confidential data does
not qualify one as a confidential employee. Ohio State Le-
gal Services Association, 239 NLRB 594, 598-599 (1978).
Within the Company's organizational structure, Martin
Hoffenberg formulated and determined the Company's la-
bor relations policies. Frank O'Rorke and his successor Bob
Heney were simply district managers who carried out that
policy. Moreover, neither Dunn nor Sinclair acted in a con-
fidential capacity to the district manager. They typed and
wrote letters for the district manager, and opened his mail,
thereby having access to material which might be consid-
ered confidential (principally customer information). How-
ever, this did not qualify them as confidential employees
under Board law.
The remaining discriminatees (Ashmore, Rozier, Shep-
herd, McCollum, and Moore), were, by operation of law,
employees of the Company at College Park on and after
February 10, and employees in the unit (as they were prior
to February 10). Except for the discrimination against him,
Moore would have remained a nonsupervisory employee
(as he requested) and therefore by operation of law he stood
in the same position as the other discriminatees.
As of February 10, Robert Heney was district manager at
College Park, and Mike Floyd was station manager, as he
had been at East Point. Both were and are supervisors
within the meaning of the Act, and therefore outside of the
unit. Frank O'Rorke, who became regional sales manager,
also continued to occupy a supervisory position. Kathy Lee
was the only East Point unit employee still at work. Except
for the Company's discriminatory conduct, the inference is
warranted that the Company would have retained all of its
personnel, as it did elsewhere. Therefore, Lee continued to
be in the unit.
The Company also hired the following former Trans-Air
personnel, who continued to perform nonsales work at Col-
lege Park on and after February 10: Tony Chaffin, Susan
Doyle, DeWitt Floyd, Carl Herrington. Susan Denison,
Terry Bowlden, David Coker, Ken Ley, Michael Turner,
and Paul Norton. The first four each had the title of super-
visor or manager. Whether they were supervisors within the
meaning of the Act will be discussed, infra. In his testi-
mony, Heney admitted that, with the exception of the last
named six employees, all of the former Trans-Air personnel
were either supervisory or sales personnel. Alan Carter and
John Soublis, who were employed as drivers for Trans-Air,
resigned their jobs on February 9. The next day they be-
came owner-operators, performing services for the Com-
pany. Oliver Hall, who had been an owner-operator prior
to February 10, continued to perform delivery and dock
services for the Company in that capacity. Hall employed
several helpers, including John McCollum. Neither the
General Counsel nor the Company contends that the
owner-operators of their helpers were or are employees of
the Company. Therefore it must be presumed that the
owner-operators were what they purported to be, i.e., in-
dependent contractors. Consequently, they and their help-
ers were outside of the unit. Other personnel identified as
working at College Park on and after February 10 were
either supervisory or sales personnel, or employees of Ar-
row-Lifschultz (which temporarily continued its operations
at East Point after February 9), or fell into more than one
of these categories. Susan Ward, a former employee of
Trans-Air, was sales manager. Marilyn Francis, who re-
mained with the Company, was a sales person who had
always been outside of the bargaining unit. Ann Burgess
was secretary to Jim Cherry, and both were employed by
Arrow-Lifschultz on and after February 10. Secretary Betty
Webster and driver Charlie Smith, whose names appear on
a list of College Park personnel prepared by Bob Heney as
of December 6, were identified by Heney as employees of
Arrow-Lifschultz.
Pamela Chidester was secretary to Trans-Air National
Sales Manager Joe Kelly, who, as indicated, never went
with the Company. In December 1977, she went on mater-
nity leave. Heney's list indicates that Chestene Massey was
employed by the Company on December 6, but his list does
not refer to Chidester. Heney testified that Massey was
hired as a temporary replacement for Chidester. As of Feb-
ruary 9, Massey was no longer working for Trans-Air, and
she never worked for the Company. On April 3, 1978, the
Company hired Pam Chidester, and she thereafter per-
formed secretarial, accounting, and some customer service
work. The Company contends that Chidester should be
considered as being on maternity leave on and after Febru-
ary 10, and therefore would have to be included in any
determination of a bargaining unit. I disagree. As of Febru-
ary 10, Chidester was out of a job. As previously found, the
Company never agreed to retain Trans-Air's employees as
its own employees and was adamant in this regard. Former
Trans-Air employees did not become Company employees
until they actually were hired by the Company. The evi-
dence does not indicate that the Company gave any notice
to Chidester prior to April 3, 1978, that she would be work-
502
AIR EXPRESS INTERNATIONAL.
ing for the Company. Therefore, Chidester cannot be con-
sidered as having been in the unit as of February 10, not-
withstanding the Company's self-serving assertion in its
personnel records (as of April 3, 1978) that Chidester was
"returning from maternity leave."
The General Counsel contends that day operations man-
ager (or supervisor) Anthony Chaffin, Night Shift Supervi-
sor Susan Doyle, Mid-shift (evening) Supervisor DeWitt
Floyd, and international supervisor Carl Herrington, were
at all times material herein supervisors within the meaning
of Section 2(11) of the Act, and therefore outside of any
bargaining unit. The indicated titles were those used by
Trans-Air and which the Company continued to use until
sometime after February 10, when Martin Hoffenberg con-
cluded that the station had too many supervisors. Regional
Manager Glen Maddox then directed Bob Heney to down-
grade Herrington and Doyle to the position of lead agent.
The titles of supervisor or manager are indicative of the
responsibilities of the four individuals in question, although
not conclusive evidence in this regard. Supervisors and sales
personnel were paid bi-weekly, whereas the other personnel
were paid weekly. Supervisors were usually salaried; how-
ever, at least some nonsupervisory personnel were also on
salary, and Tony Chaffin, although a supervisor, received
an hourly wage. When Frank O'Rorke came to speak to the
Trans-Air personnel in January 1978, he conducted one
meeting for the supervisors and sales personnel and a sepa-
rate meeting for the rank-and-file personnel. Robert Heney
testified that any "supervisor" could tell the employees on
his or her shift what to do, and did, that the employees were
expected to follow their instructions, and that if the em-
ployees did not, they could receive anything from a warning
to termination. Heney testified that the judgment as to what
discipline shold be imposed was normally up to him, but
that Doyle could impose discipline because she was the
only supervisor at the station during the night shift.
As an adverse witness for the General Counsel, Robert
Heney testified that Chaffin had authority to hire and fire
employees, but never exercised that authority. Subse-
quently, as a company witness, Heney backed away from
this admission. Heney testified that Chaffin did not have
authority to hire and fire employees, or to recommend dis-
charge, and that although Chaffin made such recommenda-
tions, he (Heney) did not follow his advice. I find Heney's
initial admissions to be a more reliable indication of the
truth that his later testimony, which was given after com-
pany counsel had an opportunity to appraise Heney of the
significance of his testimony. Therefore, I do not credit
Heney's later testimony, nor do I credit Chaffin's disclaimer
of authority in his testimony. I find that Chaffin did, in fact.
have authority to hire and fire employees. Employee David
Coker, who was a company witness, testified that Chaffin
was in charge of the facility during the day. Employee Mi-
chael Turner testified that Chaffin, like Heney, gave both
verbal and typewritten instructions, the latter being posted
on a bulletin board. Heney testified that Chaffin was in
charge during the day when Heney was absent. In sum,
Chaffin shouldered much of the responsibility which John
Moore later assumed after his return to the Company.
Heney testified that Chaffin did not schedule employees'
shifts or transfer employees between jobs or shifts. How-
ever, Michael Turner testified that Chaffin oversaw domes-
tic operations during the da\. In ;lis testimony, C'haffin ad-
mitted that he would expedite freight shipments, dispatch
and direct drivers, check that everything was functioning
smoothly, answer employee questions, see that maintenance
work was done, and see that shipments were picked up and
delivered. I find that Chaffin had authority to, and did re-
sponsibly direct, employees in their work, that his responsi-
bilities involved the use of independent judgment, and that
he had authority in the interest of the Compan to hire and
fire employees and to effectively recommend discipline, in-
cluding discharge. I find that at all times material herein.
Chaffin was and is a supervisor within the meaning of Sec-
tion 2( 1) of the Act, and therefore could not be included in
an appropriate bargaining unit.
As an adverse witness for the General Counsel, Robert
Heney testified that Susan Doyle had authority to hire and
fire employees. As a company witness, Heney again backed
down on his testimony. He testified that Doyle did not have
the right to hire employees. However, Heney admitted that
Doyle had authority to recommend discharge and to dis-
charge employees on the night shift because there was no
one else present at the facility with such authority. HeneN
testified that Doyle worked with three or four employees.
Heney admitted that Doyle was responsible for seeing that
employees performed their work. On the basis of Heney's
testimony and the admissions contained therein concerning
supervisors in general and Doyle in particular, I find that
Doyle was a supervisor within the meaning of the Act as of
February 10, and therefore could not be included in a bar-
gaining unit. However, the Company contends with respect
to Doyle and other personnel, that in considering the com-
position of a bargaining unit, I should take into consider-
ation personnel changes which took place after February
10. I find this argument without merit. If the Union was the
certified bargaining representative at College Park on Feb-
ruary 10, then it enjoyed the benefit of a conclusive pre-
sumption of representative status after that date. Absent
unusual circumstances, a labor organization is entitled to
the benefit of a conclusive presumption of majority status
for a I-year period following its certification in a Board-
conducted election. Ray Brooks v. N.L.R.B., 348 U.S. 96
(1954). In the present case, the Union won an election on
July 28, and was certified on December 14. Moreover, the
I-year period has not even begun to run. The Company did
not even recognize the Union at East Point until January 4.
Thereafter, the Company refused to bargain in good faith
with the Union and refused to recognize the Union as bar-
gaining representative for College Park. Therefore, assum-
ing that the Union was the certified representative at Col-
lege Park on February 10, it never received the benefit of
the conclusive presumption of majority status. No unusual
circumstances occurred after February 10 which would op-
erate to nullify the presumption. As will be discussed, the
Company maintained substantially the same size employee
complement which it had on that date. Some employees left
(e.g. Denison and Lay), and others were hired (e.g. Chides-
ter). Carl Herrington and Susan Doyle were reclassified
from supervisor to lead agent, but these were not the kind
of changes which overcome the presumption. Rav Brooks.
supra, 348 U.S. at 98-99. Therefore, I find that all times
503
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
material herein, Doyle was outside of an appropriate bar-
gaining unit.
As an adverse witness for the General Counsel, Robert
Heney testified (after an overnight break) that DeWitt
Floyd did not have the authority to hire and fire employees.
Heney testified that Floyd had been a station manager for
Trans-Air in another city and transferred into Atlanta as
station manager. However, in July 1977, after it became
apparent that he could not handle a station as large as
Atlanta, he was demoted to supervisor. Heney testified that
at that time he lost his authority to hire and fire employees.
The College Park facility had no station manager until
Mike Floyd took over on February 10. DeWitt Floyd was
mid-shift supervisor and normally worked from 2 or 3 p.m.
until midnight. Sometime after February 10, he was put in
charge of the night shift. Heney testified that DeWitt Floyd
had authoriy to direct the work of the employees with
whom he worked. The mid-shift partially overlapped the
day and night shifts. However, for much of the evening,
DeWitt Floyd would normally have been the only supervi-
sor at the facility. The inference is warranted that Floyd
had the same authority on his shift that Chaffin had on the
day shift and Doyle on the night shift. I find that DeWitt
Floyd is and was at all times a supervisor within the mean-
ing of the Act.
Robert Heney testified that Carl Herrington did not have
authority to hire or fire employees, or to recommend such
action. Heney and Mike Turner testified that Herrington
was international supervisor. However, his identity as a su-
pervisor was not widely known. Sue Denison testified that
she understood him to be an international agent. Trans-Air
did not do much international shipping. In the afternoons,
when most international work is done, Herrington worked
with Terry Bowlden, who performed both international and
domestic work. However, Herrington personally did most
of the international work. Herrington's relationship to
Bowlden was that of a more experienced employee to a less
experienced employee. They both did the same work, and
Herrington instructed Bowlden how to perform the work.
Herrington was not able to take charge of the Company's
international operations. After February 10, the Company
brought in Bob Warren. Apparently in deference to Her-
rington's sensibilities, they nominally functioned as co-su-
pervisors over Bowlden. After John Moore returned to the
Company, Moore was put in charge of international opera-
tions, and Warren was transferred out of Atlanta. I find
that Herrington was not a supervisor within the meaning of
the Act. Herrington's job substantially consisted of unit
work. The fact that he was Heney's stepson did not deprive
him of a community of interest with his fellow employees.
Tops Club, Inc., 238 NLRB 928, 929 (1978). Therefore, Her-
rington cannot be excluded from an appropriate unit on
these grounds.
In sum, I find that Chaffin, Doyle, and DeWitt Floyd
were supervisors within the meaning of the Act, and there-
fore outside of an appropriate bargaining unit. Trans-Air
had an excessive number of supervisors, and on and after
February 10, the Company also had a disproportionate ra-
tio of supervisors to rank-and-file employees. However, that
fact does not preclude supervisory status under the Act, if,
in fact, the statutory criteria are present. In the cases of
Chaffin, Doyle, and Floyd, such criteria were present.
As of February 10, the Company had an actual personnel
complement at East Point which numbered 14, exclusive of
sales personnel. Three had been with the Company (Mike
Floyd, Sinclair, and Lee), and eleven (Heney, Chaffin,
Doyle, DeWitt Floyd, Herrington, Denison, Bowlden, Co-
ker, Ley, Turner, and Norton) were former Trans-Air per-
sonnel. The Company also sought to retain John Moore as
a supervisor, and in the interim, hired Bob Warren as inter-
national supervisor. This size complement, i.e., fifteen
nonsales personnel, was wholly consistent with the Compa-
ny's plans and policies. Following the acquisition agree-
ment the Company planned a "manning scale," i.e. maxi-
mum number of employees at College Park, which would
consist of a total of 15 personnel, exclusive of sales person-
nel. Eleven were to be former Trans-Air personnel, and
four Company personnel would be retained. The Company
adhered to this plan and retained Mike Floyd, Susan Sin-
clair, Kathy Lee, and John Moore, with the addition of
Heney and his staff of 10. As indicated, the Company told
the Union at their January 4 meeting that it intended to use
only 15 employees to perform the work previously done by
21 employees. After February 10, the Company adhered to
the manning scale which took effect on that date (including
the addition of Bob Warren, who temporarily replaced
Moore). Thus, after Heney hired Greta Newsome as a tem-
porary helper, Hoffenberg instructed him to terminate her
because the station had too many employees. In sum, the
evidence indicates that the Company would not have
manned the College Park facility with more than 15 person-
nel, including the district manager and the station manager.
As previously discussed, the inference is warranted that if
the Company had acted in a nondiscriminatory manner, it
would have staffed the College Park facility with the district
manager (Heney), the East Point personnel, exclusive of
O'Rorke (Mike Floyd, the six discriminatees and Kathy
Lee) together with a sufficient number of former Trans-Air
personnel to bring the station up to its manning scale. The
number would have been six. The inference is further war-
ranted that the Company would have hired the four indi-
viduals designated as supervisors, since their titles and re-
sponsibilities indicated that they had greater responsibility,
ability, and expertise than the nonsupervisory personnel.
Additionally, they, together with Sue Denison, had more
seniority than the other Trans-Air personnel. As indicated,
Heney testified, in sum, that he indicated to Denison that
seniority would be followed in hiring the Trans-Air employ-
ees. I: is further likely that in deference to Heney, the Com-
pany would have hired Herrington and Chaffin, who were
his relatives. In view of Denison's seniority, and the Com-
pany's professed need for two customer service agents, the
Company probably also would have hired Denison. To fill
the remaining slot within its manning scale, the Company
probably would have hired one of the Trans-Air driver-
dockmen to perform such work, in addition to retaining
James McCollum.42 The remaining four former Trans-Air
42 Trans-Air had several employees designated as dnver-dockmen, and the
increased loading capacity at College Park indicates that the Company an-
ticipated more work of this type. However, the Company, unlike Trans-Air,
504
AIR EXPRESS INTERNATIONAL
employees must be considered as replacements for Ash-
more, Rozier, Shepherd, and McCollum. and cannot be
considered in determining the composition of the unit on
February 10. Since the discriminatees were at least as com-
petent as the former Trans-Air personnel (and in at least
some instances, demonstrably more so), the inference is
warranted that had the Company acted in a nondiscrimina-
tory manner: there would have been no reason for the
Company to raise its manning scale of 15. Therefore, absent
the Company's unlawful conduct, the College Park facility.
as of February 10, would have consisted of five supervisors.
as that term is defined in the Act, the seven employees who
were in the bargaining unit at East Point, and three former
Trans-Air employees. In terms of the certification, the last
ten comprised a bargaining unit at College Park.
In sum, absent the discriminatory conduct, the size and
composition of the unit at College Park would not have
"fluctuated radically" from that at East Point. See Rl
Brooks, supra, 348 U.S. at 99. The seven unit employees
would have been retained, with the addition of three nonsu-
pervisory Trans-Air personnel, to accommodate the antici-
pated increase in volume of business. This would have been
more nearly consistent with the staffing pattern followed by
the Company throughout the country (e.g. in Minneapolis,
which because of its profitability was presumably compara-
ble to Atlanta), the only exception being San Francisco,
where the Company retained its own staff and also hired
the entire Trans-Air staff. This modest increase in Atlanta
did not constitute the kind of change which would have
radically altered the composition of the certified unit. As
heretofore found, the College Park facility constituted a
continuation of the East Point operation. Both were located
in the same area, serving the Company's customers through
the same airport, functioning in the same manner, and per-
forming the same work with the same categories of em-
ployee personnel. Absent the discriminatory conduct, the
Company would have continued its operation with substan-
tially the same complement of employees. I find that on
and after February 10, the certification covered the employ-
ees at College Park. Therefore, since February 10, the Com-
pany has been and is the certified collective-bargaining rep-
resentative of the employees at College Park, as that unit is
was highly flexible when it came to driving and dock work. The Company
utilized its own practice of using owner-operators, and it did so on a larger
scale than it had done before. The Company also utilized all of its employees
(at least the male ones) to perform all facets of its operations, including
loading and unloading and followed this practice both before and after the
acquisition. Thus, the Company assigned the former Trans-Air dockmen-
drivers to perform inside office work, either primarily or as needed. There-
fore, the evidence does not indicate that the Company would have required
more than one former Trans-Air driver-dockman as a unit employee.
e Therefore, the present case is distinguishable on its facts from Fraser &
Johnson Co. v. N.LR.B., 469 F.2d 1259, 1264 (9th Cir. 1972), and Cooper
77Termoeter Corpany v. N.LR.B., 376 F.2d 684, 688-690 (2nd Cir. 1967)
cited by Respondent in its brief. Those cases involved the question (essen-
tially speculative, as found by the courts of appeals) of whether employees
who had not been discriminatorily discharged would have obtained the nght
to transfer through collective bargaining, or would have accepted such trans-
fer, if the employer had bargained in good faith with their bargaining repre-
sentative over their nright to transfer to a relocated facility. In the present
case, the status of the discriminatees was neither negotiable nor open to
speculation because they were discriminatorily fired and therefore, by opera-
tion of law, they remained the Company's employees.
defined in the certification. Neither the chaing in location
nor the increase in size of the emplo' ee complement nor Ihe
fact that the district manager reports to regional manager
in Charlotte, rather than to one in Pittsburgh. constitute the
kind of "unusual circumstances" that operate to overcome
the conclusive presumption of representative status. A
change in location within the same metropolitan area does
not vitiate a certification, even when the certification specif-
ically refers to the original location, or even I' the cmplo er
relocates to a larger facility which ma' necessitate a larger
employee complement. Saks & Co.. 160) NIRB 682. 84. fn.
2 (1966). enfd. sub norn Retail. WI'Ilesal & Departrment
Store Union, AFLI (CIO v. .VI..R. B.. 385 .2d 3()1. 3()03 3(4
(D.C. Cir. 1967): Compare. R. L. Seet l.umhcr (ompatv
207 NLRB 529. 534 535 (1973), enfd. 51 F.l2d 785. 794
(10th Cir. 1975). cert. denied. 423 U.S. 986. Iherefore. the
Company violated Section 8(a)(5) and (1) of the Act h
failing and refusing to recognize the Union as the bargain-
ing representative at College Park.
Assuming, arguendo, that the certification was not appli-
cable to College Park, I would agree with the General
Counsel's alternative contention that a finding of an 8(a)(5}
violation and issuance of a remedial bargaining order
would still be warranted under the principles of N. L .RB. v.
Gissel Packing Co., supra. * All of the elements of a Gissel
violation are present. As of February 10. the Union was the
demonstrated representative of a majority of the 10 em-
ployees in an appropriate unit, because within the previous
year, in a Board-conducted election, the Union had been
selected as the representative of seven of those employees.
By virtue of the election, the Union was the exclusive bar-
gaining representative of all of the former ast Point em-
ployees, including Dunn and Lee. Even the Company con-
ceded that it was required to bargain over the effects of the
East Point closing, including the effect upon I.ee.' The
Union demanded recognition, but its demand was refused.
The Company's massive and flagrant unfair labor practices.
including the elimination of nearly every union adherent
from the bargaining unit, constitutes the kind of conduct
which is likely to destroy the conditions for a free and fai:
choice in a Board election. Compare, Angle v. Sacks. 382
F.2d 655, 660 661 (10th Cir. 1967).4 Therefore, a bargain-
ing order is warranted.
"The complaint in Case 10-CA-13436 pleads the certification. and al-
leges that by virtue of Section 9(a) of the Act. the Union is the collectise-
bargaining representative of the Company's employees. However. the allega-
tion on its face is not based solely on the certification. Therefore, the applica-
bility of Gissel is a proper consideration in this case.
'* The Company suggests that in considering the Union's representatise
status, I should take into consideration antiunion views expressed hby em-
ployees, e.g., by Lee. If I were to apply this logic (which is questionable, as
the employees were speaking in an atmosphere of coercion and intimida-
tion). I would still have to find that the Union was the representative of a
majority of the unit employees. In addition to the five employees who voted
for the Union in the election, the Union was vocally supported by Nella
Dunn (who was improperly deprived of an opportunity to vote In the elec-
tion) and by former Trans-Air employee Sue Denison
Angle v. Sacks involved an application for temporary injunctile relief
under Sec. t00) of the Act. However, the description and analysis of the
alleged unfair labor practices in that case, in part similar to those n the
present case, are pertinent to any Gissel Inquiry. In the present case, unlike
Angle s. Sacks, the employees have not had the benefit of interim injunctive
relief.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co)N(CIlUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All dockmen, drivers, and agents employed by the
Company at its facility presently located in College Park,
Georgia, and formerly located in East Point. Georgia, but
excluding all sales personnel, professional employees.
guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been and
is, the exclusive collective-bargaining representative of the
Company's employees in the unit described above.
5. By failing and refusing to recognize and bargain in
good faith with the Union as the representative of the em-
ployees in the appropriate unit, the Company has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By discriminating in regard to the tenure of employ-
ment of Nella Ree Dunn, Lynn Ashmore, John Moore,
Marlin Rozier, John Shepherd, and James McCollum.
thereby discouraging membership in the Union, the Com-
pany has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
7. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Company has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
8. The Company has not violated Section 8(a)(4) of the
Act, as alleged in the Complaint.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(aX 1), (3), and (5) of the Act, I shall rec-
ommend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Company discriminatorily termi-
nated Nella Ree Dunn, Lynn Ashmore, John Moore, Mar-
lin Rozier, John Shepherd, and James McCollum, it will be
recommended that the Company be ordered to offer each of
them immediate and full reinstatement to his or her former
job, or if it no longer exists, to a substantially equivalent
position, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earn-
ings that they may have suffered from the time of their
discharge to the date of the Company's offer of reinstate-
ment. I reject the Company's argument that backpay
should be tolled in the case of Dunn. If a remedial order
has been delayed by reason of the consolidation of these
cases, it was justified by the Company's own continuing
course of unlawful conduct, which brought about the Gen-
eral Counsel's motion for consolidation. An employer's ob-
ligation to reinstate a discriminatee does not wait upon an
order of the Board or of an Administrative Law Judge.
Rather, the obligation commences from the time of dis-
charge, and the employer acts at his peril in failing to fulfill
that obligation, even when a decision is unduly delayed, or
when the employer acts in reliance upon a decision dismiss-
ing or recommending dismissal of the complaint, which de-
cision is subsequently reversed. See, N.L. R B. v. J. H. Rut-
ter-Rex Manufacturing Companv, Inc., 396 U.S. 258, 264-
265 (1969 ); 4. P. W. Products Co.., Inc., 137 NLRB 25. 28-
31 (1962), enfd. 316 F.2d 899 (3d Cir. 1963). As for John
Moore, he may now prefer to remain in his present posi-
tion. hlowever, he is entitled to make his choice without
employer coercion. Therefore he is entitled to an offer of
reinstatement to his former nonsupervisory position along
with the other discriminatees.
The backpay for the said employees shall be computed in
accordance with the formula in 1: W. Woolworth Company,
90 NLRB 289 (1950), with interest computed in the manner
and amount prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).47 It also will be recommended that the
Company be required to preserve and make available to the
Board, or its agents, on request, payroll and other records
to facilitate the computation of backpay due. General
Counsel's request for interest at 9 percent is, as the General
Counsel frankly concedes in its supplemental brief a re-
quest that the Board reconsider its decision in Florida Steel,
with regard to the interest rate. So long as Florida Steel
remains Board policy, I am obligated to follow that policy.
Additionally, I shall direct the Company to recognize
and, upon request, bargain with the Union as the exclusive
bargaining representative of the employees in the unit
found appropriate herein, to embody any understanding
reached in a signed agreement. to furnish the Union with a
true and complete copy of the acquisition agreement, to
furnish the Union with a complete and accurate list of the
names, job classifications, and dates of hire of all personnel
employed at its Atlanta station, or by Trans-Air, since
January 4, 1978, and to post the usual notices. In view of
the Company's demonstrated proclivity to furnish false in-
formation concerning job classifications, the list must in-
clude all personnel, whether in or out of the bargaining
unit. The bargaining order shall be retroactive to January 4.
1978. when the Company refused to bargain in good faith
with the Union.
In view of the aggravated and serious nature of the unfair
labor practices committed by the Company, which are of a
character striking at the root of employees' rights safe-
guarded by the Act (N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941)), the inference is warranted
that the Company maintains an attitude of opposition to
the purposes of the Act with respect to the protection of
employee rights in general. Accordingly. I shall recommend
that the Company be ordered to cease and desist from in-
fringing in any manner upon the rights guaranteed in Sec-
tion 7 of the Act.
7 See, generally, Isis Plumbing & Heating Co. 138 NLRB 716, 717 721
(1962).
506
AIR EXPRESS INTERNATIONAL
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 4
The Respondent, Air Express International Corporation,
its officers, agents, successors, and assigns shall:
I. Cease and desist from:
(a) Discouraging membership in Truck Drivers and
Helpers Local Union No. 728, or any other labor organiza-
tion, by discriminatorily terminating employees, or in any
other manner discriminating against them with regard to
their hire or tenure of employment or any term or condition
of employment.
(b) Threatening employees with discharge, loss of jobs,
loss of pay raises, closure of the Company's facility or other
reprisal because of union activity, or warning employees
not to engage in such activity.
(c) Promising wage increases to induce employees not to
support said Union or any other labor organization.
(d) Interrogating employees concerning their union
membership, activities, or desires, or as to whether they
have been subpoenaed to attend a Board hearing.
(e) Creating the impression of surveillance of employee
union activity by telling its employees that it has been in-
formed that they were talking to Board agents or soliciting
employees to refuse to give testimony to Board agents.
(f) Refusing to recognize or bargain collectively in good
faith with said Union as the exclusive collective-bargaining
representative of its employees in the following appropriate
unit: All dockmen, drivers, and agents employed by Re-
spondent at its College Park, Georgia, facility formerly lo-
cated in East Point, Georgia, but excluding all sales person-
nel, confidential employees, professional employees, guards,
and supervisors as defined in the Act.
(g) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their rights to orga-
nize, to form, join, or assist labor organizations, including
the above-named labor organization, to bargain collectively
through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
4 In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
2. ake the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Offer Nella Ree Dunn. Lynn Ashmore. John Moore,
Marlin Rozier. John Shepherd. and James McCollum im-
mediate and full reinstatement to their former jobs, or if
such jobs no longer exist. to substantially equivalent posi-
tions, without prejudice to their seniority or other rights.
and make them whole for losses they suffered by reason of
the discrimination against them as set forth in the Section
of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents. for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
(c) Recognize and, upon request, bargain collectively
with the above-named Union as the exclusive representa-
tive of all employees in the appropriate unit described
above, with regard to rates of pay, hours of employment
and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(d) Promptly furnish to said Union a true and complete
copy of the acquisition agreement between Respondent and
Trans-Air Freight System, Inc.
(e) Promptly furnish to said Union a complete and accu-
rate list of the names, job classifications, and dates of hire of
all personnel employed at its Atlanta station, or by Trans-
Air Freight System. Inc., since January 4, 1978.
(f) Post, at its College Park, Georgia facility, copies of
the attached notice marked "Appendix."'4 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees customarily are posted.
Reasonable steps shall be taken by Respondent to insure
that these notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
507