Aircraft and Helicopter Leasing and Sales, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1974

209 N.L.R.B. 275 (N.L.R.B. 1974)

AIRCRAFT AND HELICOPTER LEASING AND SALES. INC.
Aircraft and Helicopter Leasing and Sales, Inc. and
Stephen H . Crowe. Case 31-CA-3587
February 28, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 19, 1973, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and also filed a motion
requesting that the decision of the California Unem-
ployment Insurance Appeals Board be received for
consideration. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
In adopting the findings and conclusions of the
Administrative Law Judge, we find the contention of
Respondent that Crowe and Fournier quit lacking in
merit and not supported by the record.
Respondent, admittedly, was never told by the
employees that they were going to "quit" if they did
not get their pay increases, but rather that they
would "walk out" if their demands were not met.
Further, when James informed Lam that he thought
that Crowse, Fournier, and Crowe would walk out
but not the other two employees, Lam instructed
James to have final checks prepared for the three
employees who James anticipated would walk out.
Although Respondent contends that it believed
that the employees meant that they would quit if
their demands were not met, such a belief had no
basis either in what the employees had told James or
in any actions of the employees. Further, such a
belief on the part of the Respondent would not alter
the protected nature of the employees' actions, when
the employees in fact did not intend to quit, but only
to put pressure on Respondent to meet their
demands by walking out.
The preparation of the employees' final checks
with the word "terminated" on them, plus the
conversations between Lam and both Crowe and
Fournier, following their termination, in which Lam
stated that he did not like being given an ultimatum
and that the employees had given him no choice,
leads us to the belief that Respondent discharged the
275
three employees before they had a chance to carry
out their threat to walk out.
Based on the foregoing and the other findings of
the Administrative Law Judge, we find that the
discharges of Crowse, Crowe, and Fournier were in
violation of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Aircraft and Heli-
copter Leasing and Sales, Inc., Sun Valley, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
I In the absence of opposition to this motion , we are accepting the
document presented However, our decision in this case has not been
influenced by the information contained therein
2 Member Kennedy would not find that Respondent discharged
Fournier According to the Administrative Law Judge's finding when
Fournier asked Service Manager James if the employees were going to.
receive a raise, James answered in the negative Thereupon Fournier said
"That's it. I am through . I'll get my tool box and leave "
If words mean anything, this was a declaration that the speaker was
quitting This meaning was emphasized by his statement that he was going
to remove his tool box. Although Respondent may have intended to
discharge Fournier, it never had the opportunity to act upon that intent In
the vernacular , Fournier beat the gun by quitting . Although not controlling,
it is significant that the California Unemployment Insurance Appeals Board
ruled that Fournier had quit his employment and denied him unemploy-
ment insurance benefits . Except as to Fournier, Member Kennedy would
adopt the Administrative Law Judge's Decision.
Members Fanning and Penello, unlike Member Kennedy , do not believe
that the language used by Fournier to James on February 9 merits a finding
that Fournier voluntarily quit . While under different circumstances, such
language may be evidence of a voluntary termination of an employee, such
is not the case herein . Before entering James' office , Fournier was aware
that Crowse, who had weakened in his resolve to stay with the other
employees in their endeavor , had received his check when he went in to talk
to James Thus the language used by Fournier is such as might be used by
anyone who expected similar treatment for engaging in concerted activity
and affords no basis for our treating Fournier differently from those
employees with whom he had been concertedly acting.
DECISION
STATEMENT OF THE CASE
RICHARD J . BoycE , Administrative Law Judge : This case
was teed before me in Los Angeles , California , on June 4
and 5 , 1973. The charge was filed February 14, 1973, by
Stephen H. Crowe , an individual , and was amended March
28.1 The complaint issued April 13, alleging that Aircraft
and Helicopter Leasing and Sales, Inc. (herein called
Respondent), had violated Section 8(a)(1) of the National
Labor Relations Act, as amended.
Issues
The issues are whether Respondent discharged its
employees, Stephen H. Crowe, Dan Crowse, and J. C.
i All dates are 1973
209 NLRB No. 43
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fournier, on or about February 9, 1973, because of their
engagement in protected, concerted activities, thereby
violating Section 8(a)(1) of the Act.
The parties were given full opportunity at the trial to
participate, to introduce relevant evidence, to examine and
cross-examine witnesses, and to argue orally. Both Respon-
dent and the General Counsel waived briefs.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS ON FAC'r
I. ITIE ]BUSINESS OF RESPONDENT
Respondent is a California corporation engaged at Sun
Valley. California, in the business of rebuilding, maintain-
ing, selling, and leasing helicopters. During the year
preceding issuance of the complaint, Respondent realized
revenues exceeding $50.000 from the shipment of goods
from its Sun Valley location directly to customers outside
California.
Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
it. THE ALLEGED UNFAIR LABOR PRACTICES
While there are the inevitable minor discrepancies in
testimony, the fundamental facts are not in dispute.
On Monday, February 5, pursuant to an earlier agree-
ment among themselves, five of Respondent's mechan-
ics-the three in question, plus Royal Wiley and George
Zuniga-confronted Jessie James, Respondent's service
manager, with demands for increased base pay, cost-of-
living pay increases, and company-provided uniforms.
Alleged dischargee Crowe was the employees' principal
spokesman. Crowe told James that the employees would
walk out if their demands were not met. James answered
that he would discuss the demands with George Lam,
Respondent's president, and report back. The employees
were not represented by a union.
That evening, the five employees met at a restaurant near
the plant, decided that Friday evening, February 9, would
be the deadline for favorable company action on their
demands, and repeated an earlier vow to walk out if their
demands were not met or if any of them should suffer
recrimination because of them. James meanwhile told
President Lam of the demands and the walkout threat,
specifying to Lam that he thought the three alleged
dischargees would walk out, but that Wiley and Zumga
would not. Lam and James did not then decide on a course
of action.
On Wednesday, February 7, Crowe and/or alleged
dischargee Fournier asked James if anything had been
decided. James replied in the negative, prompting Crowe
or Fournier to advise him of the Friday deadline. James
then met with Lam again. Lam this time authorized James
to offer Crowe a raise-$25 per month immediately,
another $25 in 30 days-but not the other employees.
On Friday, February 9, at or about lunchtime, James
and Lam met once more. James restated his belief that
Crowe, Crowse, and Fournier would walk out-he used the
term "walk out," not "quit"-if the demands were not met,
but that Wiley and Zuniga would not. The two decided at
that time, because Crowse had been less than a model
employee anyway, to "let Dan go." 2 Lam also instructed
James to have the bookkeeper prepare final checks for all
three alleged dischargees, but not Wiley and Zuniga. This
promptly was done, although the regular payday was a
week away. Finally, Lam and James decided that they
would talk to the employees singly about their demands,
but not as a group.
Toward the close of business, February 9, Crowe asked
James if a' decision had been reached. James replied that
one had, to which Crowe said the employees wished to
meet with Lam about it. James answered that neither Lam
nor he would meet with the employees other than singly.
Crowe took this information to the other employees, who,
after some soul searching, decided to meet with James on
his terms, i.e., singly. Crowse and Wiley indicated to the
others at this time that they were weakening in their resolve
to stay with the group.
Crowse was the first to meet with James. Upon entering
James' office, he said that he had changed his mind and
would like to stay if he had not already jeopardized his job
by joining in the protest. James, referring to Crowse's
shortcomings as an employee, said that Respondent could
not keep him on the payroll. He then gave Crowse his final
paycheck, the stub of which had the word "terminated" on
it. Crowse asked James, before leaving, if the employees'
recent activities to improve conditions were a factor in this
decision. James replied that they were.
Fournier succeeded Crowse in James' office. He asked,
upon entering, if the employees were going to receive
raises. James said no, prompting Fournier to state: "That's
it. I am through. I'll get my tool box and leave." James
then gave him his final check, which also had "terminated"
written on the stub.
Crowe also met with James. James offered him a raise in
accordance with the earlier authorization from Lam.
Crowe, after excusing himself briefly to consult with the
other employees, declined the offer, saying that he could
not stay and accept a raise when the others would get
none-"I have got to leave with them." As Crowe turned
to leave, James said, "Steve, you might as well take your
check with you," handing him his final check, with
"terminated" on the stub. Crowe asked, in the moment
before the import of this gesture had soaked in, "What's
this for?"
Wiley and Zuniga met singly with James as well. Wiley
told James that, because of family considerations, he was
going to abandon the group and stay on the job. His
employment since has continued unabated. James asked
Zuniga if he was "staying with me or are you going to walk
out?" adding, "Well, George, I didn't expect you to go out
with these men," and telling him that he had until the
following Monday to make up his mind. Zuniga replied, "I
must leave with the other fellows. . . . I leave the work just
2 Respondent had been seeking a replacement for Crowse for several
days, but as yet had found none.
AIRCRAFT AND HELICOPTER LEASING AND SALES, INC.
to back up my companions." Zuniga did not appear for
work thereafter, eventually receiving a final check with
"terminated" on the stub.
The next day, February 10, Crowe and Fournier
separately telephoned President Lam to wish him well on a
coming trip to Europe. Both conversations turned to
happenings of the previous day, Crowe and Fournier
stating in effect that they had entered into a pact with the
other employees and were honorbound to stay by their
word. To Crowe, Lam said, "I don't like being delivered an
ultimatum, because I am bullheaded"; and to Fournier,
"You did deliver us an ultimatum and we had no choice."
Lam volunteered to both that he would be willing to talk to
each about returning to work. 3 Such conversations never
ensued.
James testified that none of the employees, at any time
before the employees in question received their final
checks, used the term "quit"-as opposed to "walk
out"-when discussing the action they would take should
their demands not be met. James further testified, however,
as did Lam, that he considered the terms to be interchange-
able, both meaning a severance of employment.
Analysis
The General Counsel contends that the employees'
concerted demands for higher pay and work clothes,
backed by a walkout threat, were protected activities; that
Crowe, Crowse, and Fournier resultantly were fired on
February 9; and that Respondent thereby violated Section
8(a)(1). Respondent does not seriously dispute the protect-
edness of the employees' activities, instead arguing that the
employees in question voluntarily quit their jobs upon
Respondent's refusal to accede to their demands.
I find that the employees' pay and clothing demands,
coupled with the walkout threat, indeed, were protected
activities. E.g., N.L. R. B. v. Washington Aluminum Co., 370
U.S. 9 (1962). I further find, in agreement with the General
Counsel, that Crowe, Crowse, and Fournier resultantly
were discharged.
That Crowse quit is not fairly arguable. Lam admitted
that the decision was made earlier in the day to let him go;
and Crowse was told by James that he could not be
retained even though he just before stated his desire to stay
on the job and abandon the employees' protected cause.
Nor would it be arguable that Crowse was fired for inferior
work performance rather than his involvement in that
cause, given the context and timing of Respondent's action
against him and James' contemporaneous admission to
him that the employees' protest activities were a precipitat-
ing element.
The situations of Crowe and Fournier are less clearcut
than that of Crowse only in that James, rather than finng
them outright, did so when they stated an intent to leave
upon James' telling them that Respondent would not meet
the employees' concerted demands. Their reference to
3 Neither Crowe nor Fournier could recall any mention by Lam of a
possibility of their returning to work I credit Lam's testimony that mention
was made, because of the,sureness of his recall of these conversations, his
manifest probity, and -ny'farlure to see anything particularly self-serving in
his so testifying.
4 In the event no ev.ceptions are filed as provided by Section 102.46 of
277
leaving may have imparted an illusion of sorts that they
were quitting their jobs. But neither that nor their actions
otherwise conflict with their having had nothing more in
mind than conventional strike-type activity; and I find that
they-in their unschooled way--contemplated just and
only that. Union Camp Corporation, 194 NLRB 933;
Scientific Glass Apparatus Co., 150 NLRB 29, 36-38;
Nemec Combustion Engineers, 100 NLRB 1118. James'
expeditious tender of their final checks, with "terminated"
on the stubs, unlawfully aborted implementation.
Having found that Respondent discharged Crowe,
Crowse, and Fournier for engaging in protected, concerted
activities, I further find that it in each instance violated
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
I. By discharging Crowe, Crowse, and Fournier as
found herein, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(axl) of the Act.
2. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
To effectuate the policies of the Act, it is recommended
that Respondent be ordered to cease and desist from the
unfair labor practices found, and from in any other
manner interfering with , restraining , or coercing its
employees.
Affirmatively, it is recommended that Respondent be
ordered to offer Stephen H. Crowe, Dan Crowse, and J. C.
Fournier immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority and other rights and privileges; and to make them
whole for any loss of earnings and other benefits suffered
because of Respondent's unlawful discharges of them.
Their losses of earnings shall be computed as prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716, and F. W.
Woolworth Company, 90 NLRB 289.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent, Aircraft and Helicopter Leasing and Sales,
Inc., its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees for engaging in protected
concerted activities.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and Order herein shall, as provided in Section 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Stephen H. Crowe, Dan Crowse, and J. C.
Fournier immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to
any seniority or rights and privileges previously enjoyed
and make them whole for any loss of pay suffered as a
result of their discharge by Respondent in the manner set
forth above under the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order.
(c) Post in conspicuous places at the Company's place of
business at Sun Valley, California, including all places
where notices to employees are customarily posted, copies
of the attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's
representative shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of receipt of this
Order, what steps Respondent has taken to comply
herewith.
5 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held in Los Angeles, California, on June 4 and 5,
1973, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed
certain unfair labor practices in violation of Section 8(a)(1)
of the National Labor Relations Act, as amended, and this
notice is posted pursuant to that decision.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join , or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL immediately offer to reinstate Stephen H.
Crowe, Dan Crowse, and J. C. Fournier, to their former
or substantially equivalent jobs without prejudice to
their seniority and other privileges; and we will pay to
them any money lost as a result of their discharges,
with interest at 6 percent.
WE WILL NOT discharge or otherwise discriminate
against employees who take part in protected concerted
activities.
Dated By
AIRCRAFT AND HELICOPTER
LEASING AND SALES, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Building, Room 12100, 11000 Wilshire Boulevard
Los Angeles, California 90024, Telephone 213-824-7357.