Allied Aviation Service Co., of New Jersey, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1980

248 N.L.R.B. 229 (N.L.R.B. 1980)

ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 229
Allied Aviation Service Company of New Jersey,
Inc. and George Schwarz. Case 22-CA-8598
March 10, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 13, 1979, Administrative Law
Judge Thomas R. Wilks issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a reply 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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The issue presented by this case is whether the
sending of two letters by employee George
Schwarz to customers of Respondent constituted
concerted protected activity, or whether, as found
by the Administrative Law Judge, such conduct
was unprotected, and thus provided Respondent
with a lawful basis for suspending and ultimately
discharging Schwarz. For the reasons set forth
below, we find that Schwarz' activities were pro-
tected by the Act, and, consequently, that Respon-
dent violated Section 8(a)(1) by suspending and dis-
charging Schwarz on the basis of such protected
activities.
The Administrative Law Judge found, and none
of the parties now dispute, that Schwarz was sus-
pended and discharged on the basis of two letters
he wrote and caused to be sent to customers of Re-
spondent.' The first letter (hereinafter referred to
as "the Betlow grievance letter") was sent by
Schwarz on July 17, 1978, and reads as follows:
Dear Sir:
Allied Aviation requires its mechanics, to
start cart engines while hooked up to air-
planes. In order to accomplish this task you
must bypass the micro ignition interlock
system! This is a safety system specifically de-
signed to cut the ignition system whenever
any fueling hoses are out of [their] storage po-
Respondent is engaged in the business of refueling and maintenance
of commercial aircraft at the Newark, New Jersey, International Airport.
Respondent also operates what is termed the "auto-gas site" where
ground vehicles at the airport are fueled and maintained. The customers
of Respondent, to whom the letters in question were sent, are the airport
general manager and the station manager of each airline serviced by Re-
spondent.
248 NLRB No. 26
sition or the top deck, and railing are above
their normal traveling station.
Whenever a safety system is bypassed you
have created two problems which you must
acknowledge. The primary problem is safety,
and the secondary consideration is responsibil-
ity. We believe that this procedure represents
a hazzard to airline personel, equipment, facili-
ties, and customers! We also refuse to ac-
knowledge any responsibility for what may
happen during this procedure.
We the mechanics hope that you will ex-
press your opinions to management on this
subject before a tragedy does occur!
Respectfully,
George N. Schwarz
Chief Shop Steward
The second letter (hereinafter referred to as the
"auto-gas site letter") was sent on the same day as
the first. It stated as follows:
Dear Sir:
The mechanics and utilitymen, of Allied
Aviation, are concerned, with the worsening
condition of the Auto/Gas site! We believe
that this is directly related to Allieds refusal to
establish in writing, qualifications, duties, and
hours of occupation. In fact there are no stan-
dard operating procedures, or training pro-
grams for this site or its equipment!
Specifically the Auto/Gas site is managed
from 07:10 to 11:10 Monday to Friday, work
load permitting. It is manned on over-time
from 15:20 to 17:20, and 23:30 to 01:30 daily,
with additional coverage Saturday, and
Sunday 07:30 to 09:30. This overtime coverage
contradicts our Union/Management agreement
because it is only two hours.
The majority of the maintenance is per-
formed by outside contractors. Aside from the
midnight inventory we have no specific duties,
and we therefore feel, that our only purpose is
to act as a scapegoat, should a tragedy occur!
Unless something is done to correct these ob-
vious faults, then we cannot, in good con-
science continue to cover this facility. Your
opinions expressed to management would help,
and we therefore seek your assistance!
Respectfully,
George N. Schwarz
Chief Shop Steward
As noted above, the Administrative Law
Judge concluded that the sending of the
above-quoted letters constituted unprotected
activity, and provided a lawful basis for Re-
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to suspend and later discharge
Schwarz.2 His conclusion in this regard had
three distinct bases. First, the Administrative
Law Judge found that the letters did not bear
a "good-faith relationship to a truthfully publi-
cized ongoing labor dispute." Secondly, he
found that the letters were "an attack upon the
quality of Respondent's services and constitut-
ed a breach of employer-employee confi-
dence." Finally, the Administrative Law Judge
found that Schwarz' conduct "tended to be so
disruptive of the employer-employee relation-
ship as to contravene the very purposes of the
Act."
The Board has held, in previous cases, that an
employee may properly engage in communication
with a third party in an effort to obtain the third
party's assistance in circumstances where the com-
munication was related to a legitimate, ongoing
labor dispute between the employees and their em-
ployer,3 and where the communication did not
constitute a disparagement or vilification of the em-
ployer's product or its reputation.4 As noted
above, the Administrative Law Judge found
Schwarz' third-party communication unprotected
on both grounds. We disagree. 5
The relevant facts concerning the Betlow griev-
ance letter and the auto-gas site letter, more fully
set forth in the Administrative Law Judge's Deci-
sion, are as follows. With respect to the Betlow
grievance incident, the record reveals that employ-
ee Betlow received a letter of reprimand on June
23, 1978, for causing a 15-minute flight delay on
June 16, 1978, because he failed to override the
"micro-interlock system" on the fueling cart he
was operating. 6 Following this incident, Schwarz,
2 Schwarz was suspended by Respondent on July 18, 1978, after Re-
spondent received questions concerning the letters from one of its airline
customers on that day. Schwarz was terminated effective August 16,
1978.
3 Schwarz was terminated effective August 16, 1978. See Richboro
Community Mental Health Council, Inc., 242 NLRB No. 174 (1979), and
cases cited therein.
4 Compare Community Hospital of Roanoke Valley. Inc., 220 NLRB 217
(1975), enfd. 538 F.2d 607 (4th Cir. 1976), where the communication was
found not to be a disparagement of the respondent, with American Arbi-
tration Association, Inc., 233 NLRB 71 (1977), where there was found to
be disparagement of the respondent.
' Respecting the Administrative Law Judge's third basis for finding
Schwarz' conduct unprotected, i.e., disruption of the employer-employee
relationship, we find that, even if such a standard were applicable in de-
termining whether Schwarz' conduct was protected, an issue upon which
we do not pass, the record is entirely devoid of any indication that the
letters in question had such a disruptive effect. Indeed, according to the
testimony, only one airline raised questions regarding the letters, and no
other employees, apart from Schwarz, were involved in the matters.
I The micro-interlock system is a safety device attached to the fueling
carts operated by Respondent. Its function is to shut off the cart engine
while the fueling operation is taking place. The system can be overrid-
den, however, when the fuel cart is generating insufficient pressure to
pump fuel into an airplane. Overriding the system allows the cart engine
to boost the pumping pressure. In the Betlow incident, the cart operated
by Betlow was not generating sufficient pressure. Betlow chose to return
who was chief shop steward, filed a grievance on
Betlow's behalf. In representing Betlow at an ensu-
ing grievance meeting, which took place on June
16, 1978, Schwarz did not raise the issue of safety
with management. In addition, Schwarz did not
seek to raise the question of safety respecting Bet-
low's action with the joint safety committee al-
though he was familiar with the procedure for so
doing.
With regard to the auto-gas site matter, Schwarz
had filed a grievance in January 1978, alleging that
Respondent had violated the collective-bargaining
agreement by failing to establish, in conjunction
with the Union, job qualifications and classifica-
tions for the auto-gas site. Pursuant to the griev-
ance, Schwarz met with management in May 1978,
but no agreement on the matter was reached.
Again, as in the Betlow matter, Schwarz did not
raise the issue with the safety committee.7 Indeed,
until Schwarz' grievance in January 1978, no
formal action as to the auto-gas site job qualifica-
tions and classifications had been taken since the
site had become operational in 1974.8
Against this background, the Administrative
Law Judge found that the two letters sent by
Schwarz, which letters emphasized almost exclu-
sively safety issues, did not bear a sufficient good-
faith relationship to the ongoing labor disputes to
be afforded the protections of the Act. We believe
that, in so finding, the Administrative Law Judge
delineated the contours of the ongoing disputes in
too restrictive a fashion,9 and as a result erred in
concluding that Schwarz' activity was unprotected.
In previous cases, the Board has found employee
communications to third parties seeking assistance
in an ongoing labor dispute to be protected where
the communications emphasized and focused upon
his cart to the shop and use another cart in the fueling operation rather
than override the micro-interlock system. This choice resulted in the 1S-
minute delay.
I The status of the Betlow and auto-gas site grievances at the time
Schwarz sent the letters is unclear. Schwarz testified that he viewed the
grievances as still pending. Respodnent took the view that the matters
were closed. The record does indicate, however, that there were a
number of grievances which had not been resolved and were still at the
early levels in the grievance procedure. The record also reveals that
Schwarz was at odds with superiors primarily as a result of his dissatis-
faction with the Union's inaction concerning pending grievances. In this
regard, the Administrative Law Judge posited that, if Schwarz' actions
with respect to the letters were intended to pressure Respondent into
taking action on the unrelated grievances, the letters would lose their
otherwise protected status. We agree with the Administrative Law
Judge, however, in his conclusion that such a finding is not supported by
the record, and any such conclusion would be merely speculative.
8 Schwarz did testify that in 1975 the chief shop steward may have
filed a grievance concerning procedures and "protocols" at the auto-gas
site.
9 There is no dispute that employee activities regarding plant safety are
protected. Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). Thus, as
noted above, the issue here is whether the activities of Schwarz respect-
ing the letters have rendered otherwise protected activity unprotected.
See fns. 2 and 4 and accompanying text, supra.
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 231
issues cognate to the ongoing labor dispute. Thus,
in Richboro Community Mental Health Council,
Inc., 242 NLRB No. 174, the labor dispute arose
out of the discharge of an employee, while the
communication sent by the employee addressed
itself to a "decrease in the quality and quantity of
service to clients." The Board found the communi-
cation protected, however, because "it was part of
and related to [the employee's] concededly protect-
ed protest of Respondent's discharge of a fellow
employee . . . ." 242 NLRB No. 174, sl. op., p. 5.
Similarly, in Community Hospital of Roanoke
Valley, Inc., 220 NLRB 217, enfd. 538 F.2d 607
(4th Cir. 1976), the labor dispute involved regis-
tered nurse pay levels, while the statement seeking
public assistance in the dispute focused upon the
adequacy of patient care at the hospital. There the
activity was found protected because "[the] state-
ment was made in a context of, and was specifical-
ly related by [the employee] to, the employees' ef-
forts to improve wages and working conditions."
220 NLRB at 223. In both cases, therefore, the
touchstone was not whether the communication
constituted a virtual carbon copy of the specific ar-
guments raised with the respondent, but was,
rather, whether the communication was a part of
and related to the ongoing labor dispute.
In the instant case, Schwarz, in seeking outside
assistance, chose to emphasize the safety aspects of
the two ongoing disputes. Although the ongoing
disputes vis-a-vis Respondent had not arisen strictly
on safety grounds, we cannot say that the safety as-
pects emphasized by Schwarz were not part of or
were unrelated to the disputes.10
Also in this regard, much is made by the Admin-
istrative Law Judge of the fact that the safety as-
pects of these matters had not been raised with Re-
spondent through the established channels available
to Schwarz. By focusing on this issue, the Adminis-
trative Law Judge appears to be questioning the ef-
ficacy of the tactics utilized by Schwarz, rather
than seeking to evaluate the relationship between
the letters and the ongoing disputes. Yet, in decid-
ing cases of this sort, it is not the Board's function
to appraise the potential effectiveness of the tactics
utilized by employees in their disputes with man-
agement. At what point the employees determine
that third-party assistance will be of more benefit
than private talks with their employer is a tactical
'0 Indeed, were we to hold that employees must limit their requests
for third-party assistance to the strict confines of the specific arguments
raised with their employer, we would, in many cases, be depriving em-
ployees of what may be their most cogent argument for obtaining the
third party's aid. After all, the customers of Respondent here would have
little concern over whether Betlow was disciplined or the auto-gas site
jobs were classified The customers would, however, be concerned with
the incidents to the extent they are related to potential safety hazards that
could affect their own operations
decision. Thus, if the communication is related to
the dispute, the employee sending the communica-
tion is equally protected whether such a step is
taken early on in the dispute, or at a later date after
all internal avenues have been exhausted.
Having found that the letters were related to the
ongoing labor disputes, the remaining issue is
whether the letters can properly be viewed as a
"public disparagement of the employer's product
or [an] undermining of its reputation." Veeder-Root
Company, a Division of Western Pacific Industries,
Inc., 237 NLRB No. 186, ALJD, sl. op., p. 5
(1978). In finding that the letters were of such a
nature, the Administrative Law Judge simply
stated that: "It can not be gainsaid that an accusa-
tion that the Respondent performs its services in a
hazardous manner at an airport constitutes any-
thing less than a disparagement." Again, we believe
that the Administrative Law Judge was in error.
In determining whether an employee's communi-
cation to a third party constitutes disparagement of
the employer or its product, great care must be
taken to distinguish between disparagement and the
airing of what may be highly sensitive issues.
There is no question that Respondent here would
be sensitive to its employees raising safety matters
with its airline customers. Yet, we have previously
held that, "absent a malicious motive, [an employ-
ee's] right to appeal to the public is not dependent
on the sensitivity of Respondent to his choice of
forum."" In addition, as noted by the General
Counsel, application of the Administrative Law
Judge's analysis would effectively serve to pre-
clude employees from protesting safety matters
through requests for assistance from third parties.
This is so because safety, particularly in the airline
industry, is by its very nature a potentially volatile
issue.
Thus, although Schwarz' statements regarding
safety raised delicate issues which Respondent
would understandably prefer to keep out of the
public eye, we find nothing in the letters which
rises to the level of public disparagement necessary
to deprive otherwise protected activities of the
protections of the Act.' 2 Accordingly, for the rea-
sons set forth herein, we find that Respondent vio-
lated Section 8(a)(1) of the Act by suspending and
discharging Schwarz because of the letters he sent
to Respondent's customers on July 17, 1978.
a Richboro Community Mental Health Council, Inc., 242 NLRB No
174, sl. op., p. 5
12 See Firehouse Restaurant, 220 NLRB 818 (1975); American Arbitra-
lion Association, 233 NLRB 71.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent interfered with,
restrained, and coerced George Schwarz in the ex-
ercise of his Section 7 rights by suspending him on
July 18, 1978, and subsequently discharging him ef-
fective August 16, 1978, and thereafter, we shall
order that Respondent cease and desist therefrom
and take certain actions intended to effectuate the
policies of the Act. We shall order Respondent to
offer George Schwarz immediate and full reinstate-
ment to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him
whole for any loss of earnings he may have suf-
fered as a result of the discrimination practiced
against him, with backpay computed in the manner
prescribed in F. W Woolworth Company, 90 NLRB
289 (1950), and with interest thereon in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).13
CONCLUSIONS OF LAW
1. Allied Aviation Service Company of New
Jersey, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. By suspending and discharging George
Schwarz for his protected concerted activities, Re-
spondent has engaged in unfair labor practices
within the meaning of Section 8(a)(l) and Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Allied Aviation Service Company of New Jersey,
Inc., Newark, New Jersey, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Suspending and discharging employees be-
cause of their protected concerted activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer George Schwarz immediate and full re-
instatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
13 See, generally, Isis Plumbing d Heatring Co., 138 NLRB 716 (1962).
rights and privileges previously enjoyed, and make
him whole for any loss of earnings he may have
suffered as a result of the discrimination practiced
against him, as provided in the manner 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 copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Newark, New Jersey, facility
copies of the attached notice marked "Appen-
dix."' 4 Copies of said notice, on forms provided by
the Regional Director for Region 22, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
14 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 Pursu-
ant 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
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post
this notice. We intend to abide by the following:
WE WILL NOT suspend or discharge employ-
ees because of their protected concerted activi-
ties.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
their exercise of the rights guaranteed them in
Section 7 of the Act.
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 233
WE WILL offer George Schwarz immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and WE
WILL privileges previously enjoyed, and WE
WILL make him whole for any loss of earn-
ings he may have suffered as a result of the
discrimination practiced against him, with in-
terest.
ALLIED AVIATION SERVICE COMPA-
NY OF NEW JERSEY, INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: This
case was heard at Newark, New Jersey, on April 23,
1979, based upon a complaint and notice of hearing
issued by the Regional Director for Region 22, on De-
cember 7, 1978, pursuant to an unfair labor practice
charge filed by George Schwarz, an Individual, on July
20, 1978. The complaint alleges that Allied Aviation Ser-
vice Company of New Jersey, Inc., herein called the Re-
spondent, discriminatorily discharged George N.
Schwarz because of his union activities and/or protected
concerted activities in violation of Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended. The
Respondent, in its duly filed answer, denies the commis-
sion of any unfair labor practices.
After the close of the hearing, the Respondent and the
General Counsel filed briefs.
Upon the entire record herein, the briefs and oral ar-
guments made at the hearing, and my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New Jersey corporation, has, at all
times material herein, maintained its principal office and
place of business at Newark International Airport, and is
now, and has been, continuously engaged at said terminal
in refueling and maintaining commercial aircraft and re-
lated services. The Respondent's Newark Airport place
of business is its only facility involved in this proceeding.
In the course and conduct of the Respondent's business
operations during the 12-month period preceding the is-
suance of the complaint, the Respondent provided and
performed aircraft refueling and maintenance service
valued in excess of $50,000, of which aircraft refueling
and maintenance services valued in excess of $50,000
were provided and performed within the States of the
United States other than the State of New Jersey wher-
ein the Respondent is located.
It is admitted and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted and I find that District 100, International
Association of Machinists and Aerospace Workers,
herein called the Union, is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
111. THE AlI._EGED UNFAIR ABOR PRACTICES
A. The Issues
The General Counsel alleges that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act by suspending
and discharging George Schwarz, chief shop steward of
the mechanics employed in the unit represented by the
Union at the Respondent's Newark place of business, be-
cause Schwarz distributed letters to the Respondent's
customers and to the Port Authority of New York and
New Jersey, which letters publicized certain alleged
labor disputes involving the Respondent and the Union.
The General Counsel also alleges that the Respondent
was motivated in its discharge because of Schwarz' past
activities as a shop steward. The Respondent admits the
suspension and discharge of George Schwarz in part be-
cause of his distribution of certain letters, but also alleges
that he was discharged because of his instigation of a
concerted refusal to work overtime in violation of a no-
strike clause contained in a contract between the Union
and the Respondent. The Respondent denies that
Schwarz' past activities on behalf of the Union formulat-
ed any part of the basis for its decision to suspend and
discharge him. The General Counsel implicitly concedes
that Schwarz' activity with respect to the concerted re-
fusal to work overtime is unprotected under the Act, but
rather argues that such activity was not the motivating
factor for the Respondent's conduct, and that, in any
event, the Respondent nevertheless violated the Act by
premising part of its motivation upon Schwarz' protected
activity with respect to the distribution of the aforesaid
letters.
B. Background
Since 1973 the Respondent has maintained fuel storage
and underground delivery systems, and performed air-
craft refueling operations of commercial aircraft at
Newark International Airport pursuant to a contract
with the Port Authority of New York and New Jersey,
which entity operates the airport.
Since 1975 the Respondent has operated a terminal
service station for ground support vehicles at the airport.
That facility which is commonly referred to as the auto-
gas site is located between terminals A and B, and con-
sists of 4 underground storage tanks and 12 fuel dispens-
ing pumps. The fuel is purchased by the airlines, but the
Respondent maintains the facility and performs a nightly
inventory of fuel dispensed and fuel retained in storage.
Each airline and the Respondent possess a set of keys for
the pumps and draw fuel for its ground support vehicles
at their discretion.
With respect to commercial aircraft fuel, the Respon-
dent maintains the equipment and facilities at the fuel
storage areas known as the North and South Tank
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farms. The Port Authority owns both the tank farms
and the equipment there. The Respondent owns all of
the aircraft refueling vehicles. The South Tank Farm is
located in Elizabeth, New Jersey. Fuel is maintained
under pressure in underground tanks at the farm, and is
routed through an underground hydrant system to termi-
nals A and B. There is a garage located there which con-
tains a locker room for the employees, and which also
contains the employee bulletin board.
The North Tank Farm is located in Newark, New
Jersey. It stores fuel for use in refueling trucks at the
north terminal and air cargo facilities at the airport. The
Respondent performs the inventory control of fuel dis-
pensed to the various commercial aircraft. It does not
purchase the fuel. The airlines purchase fuel directly
from the oil companies, and the Respondent performs a
fuel delivery service.
A ramp is located at the jet aircraft docking area for
passengers' embarkation. The Respondent is responsible
for refueling the equipment of commercial aircraft at that
ramp.
The International Association of Machinists has repre-
sented the Respondent's employees at the Newark air-
port since it commenced operation there in August 1973.
It has represented the Respondent's mechanics, fuelers,
and utility persons since that date. As of July 1978, there
were approximately 24 mechanics, 57 fuelers, and 7 util-
ity persons. There were also 22 nonbargaining unit em-
ployees, either supervisors or persons employed in classi-
fications that were not included in the bargaining unit.
Local 1445 represented the mechanics, fuelers, and
utility men from 1973 through 1976, and administered a
contract during that period of time. District 100 of the
International Association of Machinists has represented
those same employees since 1976, and has administered
the contract currently in effect.
George Schwarz was hired by the Respondent on or
about August 23, 1973, as a mechanic. He worked as a
mechanic until April 15, 1978, at which time he became
a "lead mechanic." He worked as a lead mechanic
through July 18, 1978, and has not worked for Allied
since that date; i.e., the date of his termination.
There are three shifts on which the Respondent's em-
ployees are employed: day, afternoon, and midnight. The
respective times are 7:30 a.m. to 4:30 p.m., 3 p.m. to mid-
night, and 11:30 p.m. to 7:30 a.m.
Schwarz' job duties, at all material times herein, were
similar to those of other mechanics. He worked in the
garage at the South Tank Farm on the average of 1 day
per week. His duties entailed preventive maintenance and
repairs pursuant to instructions by the supervisors, who
at times were either John Montacano, William Sefton,
and Charles Landon. Schwarz was assigned to the ramp
on the average of 2 days per week. At times when he
was assigned to the ramp, he was summoned to the air-
port gates to make repairs on refueling carts, trucks, and
the underground piping system.
Schwarz was assigned to the South Tank Farm ap-
proximately 2 days per week, and engaged in the mainte-
nance and repair work on the company equipment, in-
ventory control, inspection of equipment, analyzing fuel,
receiving fuel deliveries, and paperwork. He was as-
signed to the North Tank Farm sporadically, and on
those occasions his duties entailed receiving and dispens-
ing fuel to Allied trucks and to trucks owned by Butler
Aviation, which entity provides fuel services to private
and noncommercial aircraft.
Schwarz held the office of safety committeeman for
the Union in 1975 for approximately 6 to 8 months. He
was appointed at that time by the chief shop steward
among the mechanics, Robert Drake. In that position,
pursuant to the collective-bargaining agreement,
Schwarz was responsible to the employees with respect
to their recommendations regarding safety in the shop
and working areas and with respect to the reference of
their complaints to management.
Schwarz became shop steward in early 1976 and held
that position until he became chief shop steward for me-
chanics and utility persons on or about September 1977.
He held the position of chief shop steward for mechanics
and utility persons until his suspension on July 18, 1978.
During that period of time, there were four shop ste-
wards and one safety committeeman subordinate to
Schwarz. His duties as chief shop steward obliged him to
enforce the collective-bargaining agreement and to pro-
cess any grievances of any of the employees that arose
under the collective-bargaining agreement.
C. The Events Leading to the Alleged Unfair Labor
Practices
The record reflects that Schwarz actively performed
his duties as a union representative. Article 28 of the col-
lective-bargaining agreement provides for the establish-
ment of a joint safety committee consisting of two repre-
sentatives of the Respondent and two representatives of
the Union. The purpose of the committee is to investi-
gate all claims of unsafe working conditions submitted by
the employees, and to maintain a record of its meetings
the claims submitted, and the actions taken thereon. De-
cisions of the committee may be appealed to the Respon-
dent's general manager at the Newark International Air-
port. Thereafter, appeal may be made by the "general
chairman" to the director of safety of the Respondent lo-
cated in New York, New York. As a safety committee-
man, Schwarz referred 20 to 30 complaints to the Re-
spondent's Newark Airport general manager or to its
maintenance manager. The maintenance manager was
Charles Nelson. The general manager is Harold Mortis.
As steward and thereafter chief shop steward,
Schwarz processed between 30 and 40 grievances. The
collective-bargaining agreement under article 23 provides
that a grievance may be submitted in 10 days by the em-
ployee, through the shop steward, to the department
head who will "hear the same" within 10 days after re-
ceipt by the Respondent in writing. The second step in
the grievance procedure provides that the Union may
appeal an unsatisfactory disposition to the Respondent's
labor relations department in New York City within 20
days following the unfavorable disposition at step 1. A 5-
day period is provided during which the Respondent is
to provide an answer to the second-step grievance. Step
3 provides that, if the Union receives an unsatisfactory
response at step 2, and if the grievance involves a dispute
involving interpretation, application, or performance of
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 235
the terms of collective-bargaining agreement, then, at the
written request of the party requesting arbitration, the
parties shall proceed to arbitration.
Schwarz testified that, during the course of his pro-
cessing of the 30 or 40 grievances, he did not "attend a
grievance hearing." He testified that he processed 13
grievances to the second step of the contractual griev-
ance procedure. Of those grievances, three were for-
warded to the Union's general chairman, Adam Dom-
broski, in May 1978 "requesting action on the griev-
ances." Schwarz received no response from Dombroski.
On the balance of the grievances, Schwarz submitted
them directly to the Respondent's director of labor rela-
tions in New York City early in July 1978. He testified
that he sent these grievances to the Respondent's labor
relations director in New York so that they might "be
able to arbitrate the other 10." He explained that it was
"just another avenue" that he attempted to take in order
to "get the grievances settled." He testified without con-
tradiction that he has received no response to those
grievances. Of other grievances filed by Schwarz, five or
six settled. None of the grievances processed by Schwarz
proceeded to the third step. According to Charles
Nelson, the maintenance manager of the Respondent,
Schwarz filed the most grievances of all the stewards.
However there is no evidence in the record as to how
many grievances the other stewards did in fact file.
In the course of processing grievances, Schwarz had
occasions to engage in direct discussions with General
Manager Mortis in 1977 and 1978.
There is no evidence of any background animosity or
hostility directed by the Respondent to Schwarz or any
other steward because of their activities in processing or
filing grievances. In late June 1978, Schwarz apparently
became disaffected with the Union's general chairman,
Dombroski. On or about June 26, Schwarz posted a
series of correspondence composed by him and ad-
dressed to the Respondent's director of labor relations
and to the president of the International Union in Wash-
ington, D.C. The thrust of the correspondence reveals
accusations by Schwarz as to the alleged ineptitude of
Dombroski, an alleged breakdown in relations between
the Union and the employees, desire for the removal of
Dombroski, and, in the event of nonremoval of Dom-
broski, a disaffiliation of the unit employees from the
Union and an assignment to a "trucking or automotive
local." In a June 18 letter addressed to the Respondent's
director of labor relations, Schwarz requested a direct
meeting in order to settle the 10 enclosed grievances. In
the June 26 letter to the Respondent's director of labor
relations, Schwarz alluded to a verbal confrontation be-
tween himself and Dombroski and a "complete and [un-
reconcilable] breakdown in relations between the em-
ployees and District 100." He requested that, in the inter-
im prior to the receipt of an official response from the
Union, all union business between the employer and the
employees be conducted through himself. In a July 2
letter addressed to the director of labor relations of the
Respondent, Schwarz commented on a lack of response
to his prior correspondence, and urged a meeting be-
tween himself and the director of labor relations for the
Respondent, inasmuch as he alleged that negotiations
with General Manager Mortis were "at an impasse."
The correspondence was posted on or about the dates
indicated on the letters; i.e., late June and early July
1978. Schwarz testified that Mortis engaged in a conver-
sation with him wherein Mortis requested that Schwarz
remove the correspondence because, in Mortis' opinion,
they did not come within the purview of the terms of
the collective-bargaining agreement. In fact, Schwarz
disregarded Mortis' instructions and left the correspon-
dence posted for an entire week. As he testified, "[T]hey
were removed eventually." Mortis' doubt as to the pro-
priety of the posting of the literature is based upon the
fact that it was not drafted on stationery with an official
union letterhead, nor did it appear to have an official sig-
nature of the Union as set forth in article 14 of the con-
tract, which provides that the Respondent shall supply
bulletin boards for the use of the Union, and that "all no-
tices placed on such boards shall relate solely to official
union business and shall have the official signature of the
Union." This encounter is the sole evidence adduced by
the General Counsel as to the purported hostility of the
Respondent toward Schwarz' union activity prior to his
termination, apart of course from his conduct which lead
up to the termination.
The Concerted Refusal To Work Overtime: The Respon-
dent's mechanics and utility persons are called upon to
engage in a substantial amount of overtime work. Be-
tween January I and July 8, 1978, the overtime hours
worked by mechanics and utility people averaged nearly
19 percent of the straight-time hours worked. During the
week commencing Sunday, July 9, 1978, the overtime
work of the mechanics and utility people fell to 10.6
hours or less than 1.5 percent of the straight-time hours
worked. Ultimately, virtually all of the mechanics and
utility people refused to work. Admittedly, this occurred
at the instigation and leadership of Schwarz. This was
Schwarz' first attempt to lead such a concerted refusal to
work overtime, and it proved to be a resounding suc-
cess.' Schwarz testified that the purpose for the 1978
concerted action was to compel the Respondent to
answer the Union's outstanding grievances, and to dem-
onstrate the employees' concern over those grievances.
The collective-bargaining agreement under article 3,
subsection (c), states the following:
It is understood and agreed that the Company will
not lock out any employee covered hereby, and the
Union will not authorize or take part in any strike
or picketing of Company premises during the life of
this Agreement. It shall not be a violation of this
Agreement and no disciplinary action will be taken
against an employee, or group of employees, who
refused to fuel the aircraft of any airline whose em-
ployees are on a legal strike.
On July 14, a Friday, Schwarz engaged in a conversa-
tion with General Manager Mortis in his office in the
A concerted refusal to work overtime occurred in 1977 and lasted
for several months. Schwarz testified that he had lead no prior refusals to
work overtime, and there is no evidence that the Respondent suspected
that Schwarz instigated or in any way lead the 1977 concerted activity
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presence of Manager Nelson. Mortis told Schwarz that
he was aware of an overtime ban among the employees,
and that he was concerned about its impact on the oper-
ations. Nelson indicated that much equipment was in
need of mechanical maintenance service, and that the
impact upon the operations by the refusal to work over-
time was detrimental. In the course of the conversation,
Mortis indicated that he intended to telephone the Re-
spondent's director of labor relations, a Mr. McIntyre,
who was located in New York City. Mortis excused him-
self and conversed with McIntyre on the telephone in
privacy. After he finished the telephone conversation, he
rejoined Nelson and Schwarz. Mortis stated that the
message he received from Mcintyre was that McIntyre
would appoint a representative who would visit the
Newark airport location the following week for the pur-
pose of discussing pending grievances. However,
Schwarz was also told that McIntyre did not wish the
overtime action to continue, and Mortis stated that he
would discharge an employee every day as long as the
strike continued, and that the first employee to be dis-
charged would be Schwarz himself. Mortis then asked
Schwarz if the employees would commence working
overtime over the weekend. Schwarz responded that he
would do what he could to contact the employees, to
urge them to resume work, and to make them aware of
Mortis' statements and intentions.
Thereafter, on the same day, Schwarz communicated
with his fellow workers and urged them to return to
work, including those employees on the midnight shift.
He also told his fellow workers that McIntyre was to
appear the following week to discuss the "grievance pro-
cedure." Schwarz himself told his peers that he would be
available for overtime work commencing Monday,
which was his normal day of work. Schwarz appeared at
the plant on Saturday for the purpose of urging employ-
ees to comply with Mortis' directive to accept overtime
work. As of Monday, July 17, the employees com-
menced accepting overtime assignments, and the concert-
ed refusal to accept overtime work had ended.
The Betlow Grievance: Ronald Betlow, a mechanic, was
assigned to the first shift. On June 16, 1978, a fueler by
the name of Frank Turner informed Betlow that the fuel
hydrant cart 369 was in need of repair, inasmuch as it
had a flat tire, and it could not generate sufficient air
pressure in order to properly activate the pumping action
which is necessary to obtain the fuel from the hydrant to
which its hoses are attached and connected to the air-
craft. Thereafter, Betlow was in the process of tracking
down cart 369 when he was summoned by the dispatch-
er to tend to a problem at gate 58. He proceeded to gate
58 and found that cart 369 had its hoses attached to the
fuel hydrant and to the aircraft, but was not properly
able to pump fuel into the aircraft's fuel tank. Betlow ob-
served that the air pressure was insufficient; i.e., from the
necessary 56-60 pounds it was down to a mere 25
pounds.
Two alternatives were opened to Betlow. First, he
could have activated the engine on the hydrant cart
pump in order to build up the pressure. Normally the
engine is shut off during the pumping procedure. A
safety device called the "micro-interlock system" auto-
matically turns off the engine of a hydrant cart when its
hoses are disengaged from their retracted traveling posi-
tion, or when a platform on the cart is raised from its
normally lowered traveling position. Betlow could have
bypassed or "choked" the micro-interlock system started
up the engine to build up the pressure. However, a
second alternative lay open to him, and that is the one to
which he resorted; i.e., he retracted the hoses and the
platform of the hydrant cart, interrupted the fueling op-
eration of the aircraft, returned the cart for servicing,
and thereafter substituted a different cart. Consequently,
Betlow caused a delay of approximately 15 to 20 minutes
in the fueling operation, which in turn impacted the
flight schedule of the airplane.
Subsequently, Betlow was summoned to Maintenance
Manager Nelson's office for an investigative disciplinary
hearing concerning the delay in the fueling procedure.
Nelson was attended by Chief Shop Steward, Schwarz.
At the hearing, Nelson asked why the delay had oc-
curred, and Betlow explained what had transpired and
the alternative that he had chosen. Nelson then inquired
of Betlow why he did not start the fuel cart. Betlow re-
sponded, according to his testimony, as follows: "I
couldn't hear-it had a bad air leak, and I couldn't hear
whether or not-where the air leak was coming from, so
I didn't see any reason to start it." Nelson concluded that
he would issue a disciplinary letter to be placed in Bet-
low's file, and that concluded the meeting.
Nothing was stated or contended by either Betlow or
Schwarz at the investigative hearing to the effect that
Betlow chose the second alternative for safety reasons.
Betlow conceded on cross-examination that he has on
past occasions chocked the micro-interlock system in
order to build up pressure so that the hydrant cart could
pump fuel. The rules and regulations issued to employees
by the Respondent state, in part, that hydrant cart en-
gines are not to be run while an aircraft is being fueled
except when a mechanic is in attendance and is building
up air pressure "in accordance with established proce-
dures." Betlow conceded that at no time in the past had
he ever filed a grievance over such a practice.
On June 23, Betlow received a letter of reprimand. A
copy was served upon him, and the original was placed
in his personnel file. The reprimand stated, in part:
"[t]hrough your carelessness in not following procedures
to build up air pressure we received an aircraft delay."
On July 4, a standard grievance form was signed by
Schwarz pursuant to the step I grievance procedure,
which alleged a violation of section 23(d) of the collec-
tive-bargaining agreement by the Respondent's issuance
of a reprimand letter to Betlow on June 23. On July 17,
Mortis issued his step 2 answer denying the grievance.
According to Schwarz' testimony, he received no
answer from Mortis, and, in his opinion, the grievance
was still "open" as of the date of the instant hearing. 2
The Gas-Site Grievance: Schwarz testified, without con-
tradiction, that in January 1978, he filed a grievance
which alleged that the Respondent violated article 2(e)
2 Mortis' step 2 answer. dated July 17, was attached to G.C. Exh. 5,
the admission of which was stipulated by the parties. G.C Exh 5, 1, con-
stitutes the July 4, step I grievance.
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 237
of the collective-bargaining agreement. That section
states as follows:
If the Company establishes a new or different job or
classification under this Agreement, the parties shall
promptly meet and attempt to agree in writing upon
qualifications and rates of pay for such new or dif-
ferent job or classification.
It was Schwarz' contention in that grievance that the
Respondent failed to meet with the Union to establish
qualifications, work requirements, and rates of pay at the
auto-gas site, which had commenced operation in 1975.
To Schwarz' knowledge, since 1975, there had been no
reduction in writing of the qualifications and rates of pay
concerning the auto-gas station site. Mortis took the posi-
tion, according to the uncontradicted testimony of
Schwarz, that there was no violation of the contract.
Schwarz testified that he proceeded to step 2 of the
grievance procedure by forwarding the grievance to
Union Representative Dombroski in May 1978. He testi-
fied that he talked to Mortis in May 1978 concerning
that grievance.
Schwarz conceded on cross-examination that he had
never filed a grievance concerning any of the safety pro-
cedures at the auto-gas site, nor had he filed grievances
concerning the staffing or the job content at the auto-gas
site. Schwarz conceded that in 1975 the then chief ste-
ward may have filed a grievance concerning the proce-
dures and "protocols" at the auto-gas site. With respect
to safety procedures, he speculated that perhaps some
were filed by other employees in 1975 or 1976 which
concerned the auto-gas site, but he appeared to have no
awareness of any. On cross examination, Schwarz ex-
plained that his grievance was filed because neither he
nor any of the unit employees ever received "anything in
writing as a supplement to our collective-bargaining
agreement concerning the auto gas site." He explained
that he proceeded to step 2 of the grievance procedure
by processing the grievance to the Union, but that no ar-
bitration had resulted. Furthermore, Schwarz conceded
that, since the inception of the gas-auto site in 1975, me-
chanics have normally been assigned to that site as well
as utility people classifications. Normally fuelers are not,
and have not, been assigned to the auto-gas site. On oc-
casions, Schwarz himself has been assigned to the auto-
gas site. Schwarz conceded that he is aware of no acci-
dents having occurred at the auto-gas site.
The Letters: Schwarz composed two letters which are
dated July 10, 1978, but which were deposited in the
mail on July 17, 1978. The letters were addressed to the
general manager of the Newark International Airport,
and copies were forwarded to the airline station manag-
ers; i.e., the airlines which are serviced by the Respon-
dent at the Newark International Airport. The letters are
as follows:
Dear Sir:
The mechanics and utilitymen, of Allied Avi-
ation, are concerned, with the worsening condition
of the Auto/Gas site! We believe that this is direct-
ly related to Allieds refusal to establish in writing,
qualifications, duties, and hours of occupation. In
fact there are no standard operating procedures, or
training programs for this site or its equipment!
Specifically the Auto/Gas site is managed from
07:10 to 11:10 Monday to Friday, work load permit-
ting. It is manned on over-time from 15:20 to 17:20,
and 23:30 to 01:30 daily, with additional coverage
Saturday, and Sunday 07:30 to 09:30. This overtime
coverage contradicts our Union/Management agree-
ment because it is only two hours.
The majority of the maintenance is performed by
outside contractors. Aside from the midnight inven-
tory we have no specific duties, and we therefore
feel, that our only purpose is to act as a scapegoat,
should a tragedy occur! Unless something is done to
correct these obvious faults, then we cannot, in
good conscience continue to cover this facility.
Your opinions expressed to management would
help, and we therefore seek your assistance!
Respectfully,
George N.Schwarz
Chief Shop Steward
Dear Sir:
Allied Aviation requires its mechanics, to start
cart engines while hooked up to airplanes. In order
to accomplish this task you must bypass the micro
ignition interlock system! This is a safety system
specifically designed to cut the ignition system
whenever any fueling hoses are out of their storage
position or the top deck, and railing are above their
normal traveling station.
Whenever a safety system is bypassed you have
created two problems which you must acknowl-
edge. The primary problem is safety, and the sec-
ondary consideration is responsibility. We believe
that this procedure represents a hazard to airline
personnel, equipment, facilities, and customers! We
also refuse to acknowledge any responsibility for
what may happen during this procedure.
We the mechanics hope that you will express
your opinions to management on this subject before
a tragedy does occur!
Respectfully,
George N. Schwarz
Chief Shop Steward
On the afternoon of July 18, Frank Woodruff, station
manager of Piedmont Airlines, telephoned Mortis and in-
formed him that he had received letters from Schwarz.
Mortis immediately proceeded to Woodruff's office and
obtained the letters. At that time, Mortis and Woodruff
discussed Schwarz' letters with James Lynch, assistant
operations manager for the Respondent.
Mortis left Woodruff's office with the two letters, and
returned to his own office where he telephoned Sandy
Woldridge, the assistant to the president of the Respon-
dent for fueling in New York. Mortis read the letter to
Woldridge on the telephone, and asked Woldridge what
he wanted Mortis to do about it. Woldridge told Mortis
to send the letters to him immediately. Mortis thereafter
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forwarded the letters by messenger to Woldridge on the
same day. Subsequently on the same day, July 18, Wol-
dridge telephoned Mortis, told him that he had received
the letters, and told him that he would keep "in touch."
Mortis left his office at 7:30 p.m. on July 18. At or about
9 p.m., at his home, he received a telephone call from
Woldridge. Woldridge told Mortis that he had talked to
"labor relations," and that Mortis should suspend
Schwarz immediately, "because of the letter," until a
formal hearing could be held. Woldridge thereafter asked
Mortis if there was anyone available at the New York
Airport who could suspend Schwarz immediately.
Mortis replied that he himself would go down and per-
sonally suspend Schwarz. Approximately 10 minutes
later, Mortis left his home and appeared at the mainte-
nance building at the airport, and proceeded into his
office to which Schwarz was summoned and told that he
would be suspended. Schwarz was told by Mortis that
Mortis had a copy of the letters that had been sent to the
airlines, and told him, "I'm suspending you without pay
until a formal hearing can be held and you will be noti-
fied of the disciplinary action that will follow." Schwarz
responded, "if that's the way it is." Mortis then took pos-
session of Schwarz' badge and other paraphenalia.
Mortis testified that nothing further was said at that
meeting.
On July 19, Mortis drafted a telegram pursuant to
Woldridge's prior instructions to be forwarded to
Schwarz. The telegram was issued at approximately 4:14
p.m. on July 19, and thereafter received by Schwarz. It
stated that Schwarz was suspended pending a disciplin-
ary hearing "upon the charge that you distributed dam-
aging materials regarding Allied's operations at Newark
Airport to Allied's customers."
On July 20, 1978, Schwarz filed the unfair labor prac-
tice charge in this case with the Board's Regional Office.
The time stamped on that form reflects an entry of 11:26
(presumably a.m.). The Respondent denies receipt of a
copy of that charge on July 20 or 21. In his brief, the
General Counsel requests that I take judicial notice that
intracity delivery of mail takes 1 day, and that the
charge was received by the Respondent on the morning
of July 21, 1978. There is no basis, however, upon which
such notice can be taken. Intracity delivery of mail
varies widely from geographical location to geographical
location within the same city, and depends to a great
extent on the time of day, time of year, and a multitude
of other factors. There is no evidence of the date that
the Regional Director deposited a copy of the charge ad-
dressed to the Respondent in the mail.
On July 20, after Mortis received a confirmation copy
of his telegram that had been sent to Schwarz, he en-
gaged in a conversation with Woldridge on the tele-
phone. Woldridge asked Mortis to read the telegram to
him. After it had been read back, Woldridge told Mortis
that he had misunderstood his prior instructions, and that
he should send another telegram notifying Schwarz that
he was being suspended for additional reasons; i.e., be-
cause he lead the concerted refusal to work overtime
action in violation of the no-strike clause in the contract.
This occurred on the morning of July 20. Thereafter, the
Respondent's representative, O'Neill, visited the airport,
and he and Mortis drafted a mailgram which was tele-
phoned to the Respondent's New York office, which in
turn had it issued over Mortis' signature. That mailgram
was sent at 10:10 a.m. on July 21, and set forth the addi-
tional basis for the suspension of Schwarz; i.e., the viola-
tion of the contractual no-strike clause. That mailgram,
like the first telegram, indicated a time, date, and place
for a hearing that would be held prior to final disciplin-
ary action. In fact, Schwarz never did receive a copy of
the mailgram, and was not aware of it until it was shown
to him by the General Counsel in preparation for the
hearing.
Mortis testified that he was not aware of the filing of
an unfair labor practice charge by Schwarz at the time
he was instructed to send the second mailgram. The
copy of the unfair labor practice charge was sent to the
Respondent's place of business at the New York airport.
There was no indication of a copy having been sent to
the New York office. The General Counsel urges that
Mortis ought to be discredited in view of the fact that
his pretrial affidavit made no reference to the issuance of
a second mailgram. Although Mortis was present at the
Board offices in the accompaniment of the Respondent's
attorney, he did not volunteer that information in writ-
ing. He explained that he did not do so because there
was no specific inquiry as to that mailgram.
The General Counsel argues that Mortis was aware
that the issue in this case was the motivation of the Re-
spondent, and, therefore, had the overtime ban been part
of the Respondent's true motivation for the discharge,
reference would necessarily have been made to it in
Mortis' pretrial affidavit. I am not convinced that the
failure to refer to the July 24 mailgram in the affidavit
reflects seriously upon Mortis' credibility. It is obviously
true that the Respondent's motivation was the critical
issue in the investigation of the case, and that Mortis un-
derstood that it was. However, the affidavit obtained
from him addressed itself very carefully to objective
conduct and events that occurred up to and including
Schwarz' suspension. There was no reference in the affi-
davit not only to the second mailgram, but also there
was no reference with respect to the events leading up to
the suspension of Schwarz. He did not set forth in that
affidavit the specific motivation for the Respondent's de-
cision to terminate Schwarz. I therefore conclude that
Mortis explanation for the failure to allude to the issu-
ance of the second mailgram is reasonably and believable
in the light of the full context of the affidavit. As a wit-
ness I found Mortis' demeanor to be responsive, certain,
convincing, and straightforward. I credit his testimony.
On August 16, the Respondent's labor relations repre-
sentative, O'Neill, sent a letter to Schwarz notifying him
that, inasmuch as a hearing on his behalf was held on
August 11, 1978, with Union Representative Dombroski
and Local 1445 Representative Knolles, who was unat-
tended by Schwarz (who had refused to attend the hear-
ing), and inasmuch as the Respondent's evidence as gath-
ered from the investigation of Schwarz' conduct went
uncontested, it was the decision of the Respondent to
terminate Schwarz' employment.
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 239
D. Conclusions and Findings
Allegation of Discharge Motivated by Past Utlion Activity:
Despite Schwarz' past union activities, which appear to
have been substantial, there is negligible evidence in this
record as to any animosity of hostility of the Respondent
directed toward Schwarz, or to any other union repre-
sentative for that matter, because of their union activi-
ties. The June 1978 incident wherein Mortis requested
Schwarz to remove his correspondence from the bulletin
board does not clearly reveal any animus of the Respon-
dent because of Schwarz' involvement in an internal
union dispute or because of his union activities. Mortis'
refusal was based upon a reasonable doubt he entertained
as to whether Schwarz' correspondence constituted offi-
cial union business within the definition of the collective-
bargaining agreement. A union bulletin board had been
maintained in the past. No harassment was demonstrated
toward Schwarz or any other union representative be-
cause of the use of the union bulletin board pursuant to
the terms of the collective-bargaining agreement. The
record is unclear as to how many union bulletin boards
and how many employee bulletin boards existed in the
plant. There appears to be more than one bulletin board.
Moreover, Schwarz disregarded Mortis' instruction and
did not immediately remove the literature. Yet, in conse-
quence, he suffered no reprisal from Mortis. Further-
more, Schwarz conceded that on another date in June he
posted without interference similar correspondence ad-
dressed to unit employees that apparently related to
some difficulties he had experienced in performing his
role as chief shop steward vis-a-vis union superiors.
Based upon this record, I cannot conclude that the
evidence is sufficient to warrant an inference that
Schwarz was suspended or terminated because of his
past conduct as a union representative or because of any
past concerted, protected activities.
The Violation of the No-Strike Clause: Participation by
employees in a concerted refusal to work overtime as a
collective means of demonstrating unified support for
employee demands concerning terms and conditions of
employment is an activity protected by the Act. Gulf-
Wandes Corporation, 233 NLRB 772 (1977), enfd. 595
F.2d 1074 (5th Cir. 1979). However, where there is in
effect a no-strike clause in an existing bargaining agree-
ment, an employer may lawfully discharge a union ste-
ward who has played a leadership role with respect to
the instigation of a work stoppage in violation of the no-
strike contractual ban. Russell Packing Company and
Peerless Packing Company, 133 NLRB 194 (1961);
Chrysler Corporation, Dodge Truck Plants, 232 NLRB 466
(1977); J. P. Wetherby Construction Corp., 182 NLRB 690
(1970).
The contractual proscription against strikes in this con-
tract clearly refers to "any" strikes. The meaning of the
contractual ban would appear to be unambiguous; i.e.,
any work stoppage is proscribed under the terms of the
contract with the explicit exception of a sympathy strike.
Presumably, in return for such a waiver, the Union won
the right to grievance and arbitration procedures. Ac-
cordingly, it would appear that Schwarz' admitted lead-
ership role in the work stoppage of June 1978 constituted
sufficient basis for his discharge had the Respondent
been so motivated. However, I agree with the General
Counsel's contention that Schwarz was not discharged
because of his leadership role in that strike activity,
either in whole or in part.
A similar work stoppage occurred in 1977. Although
Schwarz testified that he was not the instigator of the
1977 work stoppage, there is no evidence that the Re-
spondent attempted to hold any of the union representa-
tives responsible for the 1977 work stoppage, nor did it
attempt to discipline any union representative on that oc-
casion.
With respect to the 1978 work stoppage, Mortis
threatened to discharge employees starting with Schwarz
unless the overtime ban was lifted. Schwarz immediately
responded to Mortis that he would comply. He did so
and took immediate steps to terminate the work stop-
page. Work had resumed to normal on Monday, July 17.
No steps to terminate or otherwise discipline Schwarz
were taken until the Respondent was notified of the re-
ceipt by customer and the Port Authorities of the corre-
spondence mailed by Schwarz on July 17.
Mortis' conversations with his superiors on July 18
were restricted to what action Mortis should take with
respect to the correspondence. According to Mortis' rec-
ollection, there was no reference to the overtime ban
when he talked to Woldridge initially. When Mortis noti-
fied Schwarz that he was immediately suspended, the
reason given to him was the fact that he sent the afore-
described correspondence to the Port Authority and to
the various airlines. No reference was made to the over-
time ban. The addition of the overtime ban as a basis for
the discharge clearly appears to have come as an after-
thought to Mortis' superiors. In effect, Mortis had struck
a bargain with Schwarz during the previous week; i.e., if
the overtime ban was immediately eliminated he implicit-
ly committed himself to refraining from discharging em-
ployees, including Schwarz. The overtime ban was lifted
on Monday, July 17; Schwarz had fulfilled his end of the
deal that had been struck with Mortis.
From the testimony in the record, it is clear that, as
far as Mortis was concerned, the suspension which lead
to the termination of Schwarz was based upon his con-
duct with regard to the correspondence. No representa-
tive of the Respondent testified as to what weight was
placed by Mortis' superiors upon Schwarz' participation
and leadership of the concerted refusal to perform over-
time work. Accordingly, I conclude that the precipitat-
ing event and the only basis for the Respondent's dis-
charge of Schwarz was his conduct consisting of the
sending of letters on July 17, 1978, to the Port Authority
and to the airlines.
The Letters: In Jefferson Standard Broadcasting
Company,3 the Supreme Court held that an employer
lawfully discharged employees who, during the course of
a labor dispute and picketing, sponsored and distributed
handbills to the public whch disparaged the quality of
the company's product and its business policies in a
manner reasonably calculated to harm the company's
reputation and reduce its income. The Court observed:
' VN.L.R.B. v. Local Union No. 1229. International Brotherhood of Elec-
rrcal Workers Jefferson Standard Broadcasting Compan}yl. 346 U S 464
(1953)
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no more elementary cause for discharge of
an employee than disloyalty to his employer. It is
equally elemental that the Taft-Hartley Act seeks to
strengthen, rather than to weaken, that cooperation,
continuity of service, and cordial contractual rela-
tion between employer and employee that is born of
loyalty to their common enterprise. 4
The Court found that the fact that a labor dispute existed
concurrently with the employees' action provided no de-
fense to their conduct. In that case, the employees' dis-
paragement of the employer's product, i.e., its business of
providing television service to the community, was not
expressly related to a labor dispute. Thus, the handbill
was considered to have constituted an attack upon the
employer which was separable from the labor dispute.
The leaflet did not refer to other labor disputes, and the
subject matter described therein did not relate to the em-
ployment relationship of the employees with the employ-
er. Finally, the Court concluded that:
Even if attacks were to be treated, as the Board has
not treated it, as a concerted activity wholly or
partly within the scope of those mentioned in Sec.
7, the means used by the technicians in conducting
the attack have deprived the attackers of the pro-
tection of that section, when read in the light and
context of the purpose of the Act. 5
In subsequent cases, the Board has found similar con-
duct of disparagement of an employer's product or ser-
vice to have been beyond the protection of the Act, even
though the attack was more closely related to the con-
certed activities of the employees; i.e., the labor dispute.
In The Patterson-Sargent Company, 115 NLRB 1627
(1956), the Board found as unprotected the conduct of
employees who prepared and distributed to the public
handbills which explicitly referred to a labor dispute be-
tween those employees and the employer. The handbills
pointed out that the employer's product was being pro-
duced by strike replacements, and therefore the product
was probably of inferior quality. The Board held that
whether the disparagement was based on true or false
statements was not material, and not the test of whether
the conduct was of a protected character. The Board
said: "Statements made by employees to the public
which deliberately cast discredit upon their employer's
product or service are no less disloyal and a breach of
confidence because they are truthful."6 The Board final-
ly noted that, even though the disparagement could not
be treated as "separable" from the labor controversy, but
rather must be treated as concerted activity of the kind
intended to be "embraced in Section 7" it considered the
"means" utilized by the employees to have deprived
them of the protection of the Act. 7
4 Id. at 472.
Id. at 477-478.
6 Id. at 1629.
7 Id. at 1630 see also Coca Cola Bottling Works, Inc., 186 NLRB 1050
(1970) In that case strikers distributed leaflets to the public advising them
of the strike and the fact that strike replacements were being utilized, and
that a deleterious affect upon the employer's product would necessarily
ensue.
In the years following those decisions, the Board has
had many occasions to consider the application of those
rulings. In cases too numerous to recite herein, the Board
has distinguished many factual situations on the grounds
that the communication was not made to the public, but
rather to employees, or that the disparagement ran not to
the employer's product or service, but rather ran directly
to a matter which constituted the heart of the employees'
labor dispute, and which affected the relationship be-
tween the employees and the employer; i.e., wages,
hours, and other conditions of employment. The cases
cited by the General Counsel in support of his theory
herein falls into that category of cases. 8
In a recent case, a similar analysis was made by the
Board. In Automotive Club of Michigan, et al., 231 NLRB
1179 (1977), a group of employees instituted a class
action lawsuit against the employer which alleged that
the employer deprived them of commissions to which
they were entitled. Simultaneously, the employees' attor-
ney issued a press release which described the lawsuit,
and which stated that it was the "contention of the sales-
men that AAA [the employer] through its bookkeeping
procedures, has been able to skim off between five and
ten percent of the million two-hundred fifty-thousand
policies without paying the salesmen their rightful com-
missions." However, the same press release went on to
profess the salesmen's loyalty to the employer, to further
assert that the employer provides "the best product in
the world to sell," and that the salesmen are "proud to
represent the Company." 231 NLRB at 1180-81. It was
the finding in that case that the employees had engaged
in concerted activities which came within the protection
of the Act, and that they had not lost their protection
under the Act in that no disparagement of the employ-
er's product or service was engaged in.
Clearly, in Automobile Club, supra, the matter in the
dispute publicized was a matter that concerned the rela-
tionship of the employer and the employee, and not the
general public. The disparagement constituted an attack
upon the employer's treatment of the employees, and not
upon the employer's service to the public.
However, the Board has had occasion to follow the
rationale of Jefferson Standard, supra. In Firehouse Res-
taurant, 220 NLRB 818 (1975), the employees were cov-
ered by a collective-bargaining agreement which set
forth certain provisions as to meals to which the employ-
ees were entitled. Certain employees concluded that the
employer breached the terms of this contract with re-
spect to the quality and quality of meals served to em-
ployees, and therefore they attempted to enforce the
meal provisos of the contract. It was held in that case
that the employer engaged in unlawful discriminatory
conduct toward those employees because of their efforts
to enforce the collective-bargaining agreement, which, of
course, constituted concerted protected activity. Howev-
er, reinstatement was denied to those employees, who,
after their discharge, were responsible for newspaper ar-
ticles which disparaged the employer's restaurant by al-
8 Community Hospital of Roanoke Valley, Inc., 220 NLRB 217 (1975);
Southern Business and Industrial Development Corporation d/b/a The Jack-
son Hilton, et al., 216 NLRB 541 (1975). See also United Parcel Service,
Inc.. 234 NLRB 223 (1978).
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 241
leging that the employer served contaminated or adulter-
ated food. The employees were thus found unreemploya-
ble because of that conduct. The Board stated: "It is
clear from the record that the publicity was the result of
their attorney's plan to coerce the Respondent into set-
tling alleged grievances which were pending," (220
NLRB at fn. 1), and that the employees either condoned,
encouraged, or approved of it. In that case, it could be
argued that a tenuous relationship existed between the
subject matter of the employees' disparagement and the
subject matter of their grievance; i.e., the quality of the
food served at the restaurant. The means utilized by
them, however, was found by the Board to have pro-
ceeded beyond the protective ambit of the Act.
In America Arbitration Association, Inc., 223 NLRB 7
(1977), an employee's activity in pursuance of a griev-
ance concerning the employer's dress code culminated in
the employee's communication with the clients of the
employer. There, the employee was held to have en-
gaged in concerted activity in pursuing the grievance
concerning the dress code, which, in part, prohibited the
wearing of blue jeans at work. The employee's communi-
cation to the clients of the employer specifically stated
the basis of her complaint, i.e., the ban on the wearing of
blue jeans to the office, and further set forth that the em-
ployee had been suspended from her position as a "tribu-
nal administrator" with the employer because of her vio-
lation of that ban. The communication further suggested
that it was to the interest of the employer's clients who
utilized its arbitration services that the blue jeans issue be
settled quickly in order that the employer's staff would
be able to give their undivided attention to those clients'
cases. The employee thereupon stated that it would be
helpful if the clients would complete an enclosed ques-
tionnaire and return it to the employee as soon as possi-
ble. The questionnaire was highly derisive. Administra-
tive Law Judge Morton D. Friedman concluded that the
employee's action "went beyond the outer limits the
Congress envisioned when it established the Section 7
rights of employees. The combination of the use of the
confidential files together with the ridicule evident in the
questionnaire constitutes disloyalty for which [the em-
ployee] was discharged." 233 NLRB at 75.
The Board found that it was unnecessary to determine
whether the employee's use of the lists of clients utilized
by the employer constituted a breach of confidentiality,
inasmuch as it found that "the tone and content of [the
employee's] letter in the attached questionnaire constitut-
ed disloyalty to and disparagement of Respondent's judg-
ment and capacity to effectively perform its work." Ac-
cordingly, the Board upheld Administrative Law Judge
Friedman's Decision.
In this case, superficially, the text of both letters
appear to relate to some sort of labor dispute. The auto-
gas site letter refers to a failure of the Respondent to es-
tablish in writing qualifications, duties, and hours of oc-
cupation, standard operating procedures, and training
programs for employees. The micro-interlock system
letter refers to an action by the Respondent with respect
to its employees, i.e., a requirement that they bypass a
safety device, and implicitly contains an allegation that
the employees' safety is imperiled. Both letters appear to
assert that, as a byproduct of the Employer's action
toward its employees, the safety of the employees and
customers of the addressee will be jeopardized. The let-
ters therefore appear to constitute an appeal to the ad-
dressee to support the employees with respect to a con-
frontation between them and their employer over an
issue involving the employment relationship. However,
the protrayal of such labor disputes in those letters is not
factually accurate.
With respect to the auto-gas site letter, Schwarz as-
serts therein a "worsening condition" which he alleges is
related to the Respondent's failure to reduce to writing
"qualifications, duties, and hours of occupation," of the
unit employees. He then asserts that the Respondent
maintains no standard operating procedures or training
programs for the gas site or its equipment. He does not
indicate whether or not there is a causal relationship to
unsafe conditions, but the tone of the letter suggests
such. He further asserts a violation of the contract with
respect to overtime at the auto-gas site. The inference
again is that this also is somehow contributing to the
"worsening condition." In the last paragraph of the
letter, it becomes clear that what Schwarz is characteriz-
ing as a "worsening condition" is one of a safety hazard.
He asserts that, because the employees have no "specific
duties," the only purpose for the employees' presence at
the gas site is to act as "a scapegoat should a tragedy
occur." He clearly implies that an imminent danger exists
not only for employees, but also for those persons who
have occasion to utilize the auto-gas site.
Schwartz' gas-site letter does not specify in what way
danger exists for the employees or for other persons. The
letter does not explain how the Respondent's alleged
breach of contract and other failings with respect to its
relationship with its employees can cause danger to
either them or to other persons who utilize the auto-gas
site other than to suggest that such conduct is motivated
by a desire to set up the unit employees as a "scape-
goat." However, the letter does purport to set forth
areas of disputes between the Respondent and the em-
ployees with respect to their working conditions and
with respect to their contractual rights. However, the
only known prior grievance filed concerning some of
these subject matters was filed apparently in 1975 by the
then chief shop steward for the maintenance department,
and that grievance concerned the procedure or "proto-
cols" to be followed at the auto-gas site. Schwarz' griev-
ance of 1978 was filed despite the fact that from 1975
until January 1978 mechanics and utility persons were as-
signed to the worksite, and no dispute had arisen con-
cerning their job duties or their rates of pay during all
that period of time. Schwarz conceded that he filed no
grievances with respect to the staffing nor the job con-
tent of work performed at the auto-gas site. He was even
uncertain as to whether any other person filed such
grievances. He further admitted that he had never filed
any grievances over the safety procedures at the auto-gas
site. No safety complaints were filed or processed
through the safety committee relating to the auto-gas
site. On July 17, Schwarz' gas site grievance, according
to his testimony, had been forwarded by him to the In-
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ternational Union at the Step 2 level at which it re-
mained pending.
With respect to the micro-interlock system letter, there
is no reference in that letter to the Betlow grievance.
Presumably, the Betlow grievance is the labor dispute to
which this letter purports to have some connection. It
clearly has no connection to any other labor dispute be-
cause no dispute had, up to this point, ever existed with
respect to the safety hazard of the Respondent's policy
and practice under which mechanics, in certain circum-
stances, may bypass the micro-interlock safety device.
No prior grievance had ever been filed concerning this
practice. No complaint had ever been referred to the
safety committee concerning it. As a matter of fact, the
safety hazard claim was not even raised to the Respon-
dent in the course of the grievance presentation on
behalf of Betlow. During the initial investigatory hear-
ing, Betlow himself did not justify his actions on the
grounds of a safety hazard. Schwarz did not raise the
issue of a safety hazard at the investigatory hearing. At
the time of July 17 mailing of Schwarz' letter, he did not
even have the Respondent's response to the Step I griev-
ance. Thus, at the time of the issuance of the July 17
letter, neither the Union nor did any employee have any
confrontation with Respondent with respect to the affect
on their safety of the practice of mechanics bypassing the
micro-interlock system under certain circumstances. The
July 17 letter, however, purports to set forth the exis-
tence of such dispute, and appeals to the Respondent's
customer, the Port Authority, and to the airlines for sup-
port in its position. Furthermore, the letter asserts the ex-
istence of a practice of bypassing the safety device with-
out setting forth any qualifications as to circumstances
under which the Respondent engages in such practice.
The natural inference to be raised from the letter is that
such is the normal operating procedure of the Respon-
dent. Clearly, the record indicates that this is not a
normal everyday practice, but rather a practice to be uti-
lized under certain circumstances or in emergency situa-
tions such as, for example, in the Betlow situation, when
the hydrant cart suffered a breakdown in its air-pressure
support system.
The General Counsel argues that Schwarz' letters of
July 17 do not constitute a disparagement of the Respon-
dent's product or services, but, even if they do, they are
inextricably interwoven with ongoing labor disputes with
the Respondent. Yet the General Counsel stipulated at
the hearing that Schwarz was aware of all the proce-
dures of the grievance process and of the grievability
under the contract of all of the allegations set forth in his
letters, and was further aware of the recourse to the
safety committee and its procedures, but that he chose
not to utilize them.
The General Counsel appeared to have taken the posi-
tion at the hearing that Schwarz was protected by his
conduct as chief steward in raising complaints concern-
ing working conditions initially and directly with the Re-
spondent's customer, and with the concerned public, in
an appeal for their support, without first confronting the
Respondent, despite the fact that such appeal disparaged
the quality of the Respondent's service to its customer
and to the public.9 In his brief, the General Counsel,
however, argued in a cursory manner that the matters
raised in the July 17 letter "related directly to the par-
ties' collective-bargaining agreement and to safe working
conditions." The Respondent does not argue that
Schwarz lost his protection under the Act merely be-
cause he avoided recourse to contractual grievance pro-
cedures or to the safety committee. Rather, the Respon-
dent argues that Schwarz lost his protection under the
Act because of the manner in which he did so; i.e., the
disparagement of the Respondent's service to its custom-
er and to the public.
I conclude that Schwarz' letters of July 17 did not
constitute an appeal to the public for support of the
Union or of employees acting concertedly for the pur-
pose of causing the Respondent to yield in a bona fide,
ongoing dispute concerning unsafe working conditions.
Schwarz concededly bypassed the grievance procedure
of the contract. He bypassed the safety committee.
Clearly, the element of a safety hazard as a matter affect..
ing the employer-employee relationship had not been
raised prior to the issuance of those letters. The safety
hazard accusation was a necessary accusation in order
for Schwarz to have elicited the support of the address-
ees on the grounds of mutual concern. Yet, up to that
point, there had been no expressed concern by Schwarz,
the Union, or other employees for the safety aspects and
hazards as described in the July 17 letters.
I am convinced that the raising of the safety hazard
issue in the July 17 letters was not motivated by a good-
faith concern over the safety of the employees. Accord-
ing to Schwarz' own testimony, the safety committee as
constituted under the collective-bargaining agreement
was an ongoing, active, and effective body. With respect
to the grievance procedure, according to Schwarz' testi-
mony, he had filed approximately 35 grievances. A small
portion of these were resolved in a settlement. He was
dissatisfied with the lack of aggressiveness he percieved
in the International and district representatives of the
Union with respect to the grievances that he had filed. It
might be argued that Schwarz despaired of effective pro-
cessing of a safety grievance as of July 17. However, at
some point during his career as a steward, one would
have expected him to have raised the issue long before
July 17. Furthermore, according to Schwarz' testimony,
the concerted refusal to work overtime the previous
week resulted in an agreement by the Respondent to
send to the airport, during the week of July 17, its labor
relations representative for the purpose of resolving and
discussing outstanding grievances. Yet, before the subject
matter of the alleged safety hazard could be raised,
Schwarz deposited his accusatory letters in the mail on
Monday, July 17. It can only be speculated whether
Schwarz had as his ultimate motivation in sending those
letters a desire to create some pressure on the Respon-
dent to resolve the aforedescribed outstanding grievances
with respect to other terms and conditions of employ-
ment. If that were the case, the disparagement clearly
was separable from the real labor dispute that had exist-
' It can not be gainsaid that an accusation that the Respondent per-
forms its services in a hazardous manner at an airport constitutes any-
thing less than a disparagement.
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, INC. 243
ed between the Union and the Respondent. What is clear
to me in that Schwarz' letters constituted an attack upon
the quality of the Respondent's services and constituted a
breach of employer-employee confidence, which was not
justified by a good-faith relationship to a truthfully publi-
cized ongoing labor dispute. I further conclude that
Schwarz' conduct tended to be so disruptive of the em-
ployer-employee relationship as to contravene the very
purposes of the Act, and thereby deprive him of the pro-
tection afforded by it.
Accordingly, I find and conclude that, in discharging
Schwarz, the Respondent has not violated Section 8(a)(l)
and (3) of the Act, because the activity in which he en-
gaged was not protected.
CONCLUSION OF LAW
Allied Aviation Service Company of New Jersey, Inc.,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]