Army Aviation Center Federal Credit Union

National Labor Relations Board - Board Decisions

Feb 3, 1975

216 N.L.R.B. 435 (N.L.R.B. 1975)

ARMY AVIATION CENTER 435
Army Aviation Center Federal Credit Union and
Michel P. McComlskie . Case 15-CA-5212
February 3, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On October 31, 1974, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a brief in support of the Decision,
and Respondent filed a motion rehearing and also
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.'
Respondent advanced, inter alia, the following
contentions in support of its exceptions and motion
for rehearing:
1. The Decision of the Administrative Law Judge,
who was formerly the General Counsel of the
National Labor Relations Board, was "highly preju-
dical" because it "reflects his prior position . . . in
representing claimants over a large number of years."
He gave "absolutely no weight or credibility" to the
testimony of Respondent' s witnesses and he "end-
lessly injected himself into the trial as the advocate of
the charging party," Michel P. McComiskie.
2. The Administrative Law Judge improperly
refused to allow Respondent counsel the use of
McComiskie's pretrial statements in connection with
his cross-examination of that witness.
3. The Administrative Law Judge has not consid-
ered the affidavit of employee Dayna Meuli which
was dated October 11, 1974.
4. The Administrative Law Judge failed to rule on
Respondent' s motion to dismiss the complaint.
For reasons given below, we find no merit in the
foregoing contentions and we therefore deny Re-
spondent's motion for a rehearing:
i We agree with the General Counsel 's proposed amendment of the
remedial Order and notice to include "any loss of earnings or other
employee benefits ." We shall therefore modify the Administrative Law
Judge 's recommended Order and notice accordingly.
2 As the Supreme Court stated in N LR B v Pittsburgh S. S Company,
337 U .S 656, 659 (1969), ". . . [T]otal rejection of an opposed view cannot
of itself impugn the integrity or competence of a trier of fact."
3 See Sec. 102.35 of the Board's Rules and Regulations , Series 8, as
216 NLRB No. 75
1. Upon an analysis of the entire record, we find
no support for Respondent's allegations of prejudice
on the part of the Administrative Law Judge. There
is no basis for finding that bias and partiality existed
merely because the Administrative Law Judge
participated in the examination of witnesses and
resolved important factual conflicts in favor of the
General Counsel's witnesses.2 Indeed, it is the duty
of the Administrative Law Judge to inquire into the
facts and to examine and cross-examine witnesses.3
It is also the Board's established policy not to
overrule the Administrative Law Judge's resolutions
with respect to credibility unless the clear preponder-
ance of all relevant evidence convinces us that the
resolutions are incorrect.4 We find no basis for
reversing his findings.
2. As indicated above, Respondent also contends
that it was prejudiced by the Administrative Law
Judge's ruling refusing to require the General
Counsel to produce any pretrial statements of his
witness, McComiskie, pursuant to Section 102.118 of
the Board's Rules and Regulations, Series 8, as
amended. Respondent counsel first requested such
statements after completing his cross-examination of
McComiskie. Upon the Administrative Law Judge's
denial of this request, Respondent counsel stated that
he had no further questions but reserved "the right to
recall" McComiskie. The General Counsel then
rested his case-in-chief. Although Respondent coun-
sel did not ask for her recall, he did at a later point in
the hearing-subsequent to the appearance of six
other witnesses called by Respondent and while
another witness was on the stand-renew his request
for McComiskie's statement which the Administra-
tive Law Judge again denied.
Thereafter, McComiskie was recalled by the
General Counsel as a rebuttal witness. She testified
again on direct and cross-examination. However,
during her second appearance on the witness stand in
this case, Respondent made no request for pro-
duction of pretrial statements.
It is well established that the proper time to request
production of pretrial statements by witnesses for the
General Counsel is at the close of direct examination
so that the statements may be used for cross-
examination.5 We therefore find that the Administra-
tive Law Judge's ruling was correct.
3. The record shows that employee Meuli ap-
peared as Respondent's witness at the hearing held
amended; American Life and Accident Insurance Company of Kentucky, 123
NLRB 529, 530 (1959); "M" System, Inc, et al., 129 NLRB 527 (1960),
Bachrodt Chevrolet Co., 186 NLRB 1035 (1970)
4 Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (C A. 3, 1951).
5 Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294 (1960); Ra-
Rich Manufacturing Company, 121 NLRB 700, 701 (1958).
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on August 27, 1974, and that briefs were timely filed
with the Administrative Law Judge by both the
General Counsel and Respondent on September 27.
Thereafter , Respondent on October 21 untimely filed
with the Administrative Law Judge a supplemental
brief enclosing an affidavit of Meuli which chal-
lenged as "untrue" a statement contained in the
General Counsel 's brief.
The General Counsel moved to strike from the
record Respondent 's supplemental brief for the
following reasons : The supplemental brief was
untimely filed and no request was made for an
extension of time to file said brief. Respondent had a
full opportunity to examine Meuli at the hearing and
did not contend that it was in any way precluded at
the hearing from adducing the proposed evidence.
Although the Administrative Law Judge by inad-
vertence did not rule on the foregoing , we agree with
the General Counsel that the affidavit cannot be
accepted as part of the record and that the Adminis-
trative Law Judge did not err in not considering said
affidavit.
4. At the close of the hearing, Respondent
renewed its motion to dismiss the complaint on the
ground that Respondent 's business is too small to
affect interstate commerce and that McComiskie
resigned and hence was not discharged in violation
of the Act. The Administrative Law Judge reserved
ruling on the motion "subject to [his] reading of the
completed record" and then stated that his decision
would "constitute [his] ruling on the motion."
Although the Administrative Law Judge did not in
his Decision specifically rule on the motion as such,
it is clear from his assertion of jurisdiction and
finding of violations of the Act that his Decision is
tantamount to a denial of Respondent's motion to
dismiss the complaint.
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 as
modified below and hereby orders that Respondent,
Army Aviation Center Federal Credit Union, Fort
Rucker , Alabama, its officers, agents , successors, and
assigns, shall take the action set forth in the said
recommended Order , as modified herein:
1. Substitute the following paragraph for para-
graph 2(a) of the Administrative Law Judge's
recommended Order:
"(a) Offer Michel P. McComiskie immediate
reinstatement to her former job or , if that job no
i Respondent filed two prehearing motions. The first motion, a
generalized request for the production of all data in the possession of the
longer exists , to a substantially equivalent job,
without prejudice to her seniority or other rights and
privileges , and make her whole for any loss of
earnings or other employee benefits in the manner
set forth in the portion of the Administrative Law
Judge's Decision entitled `Remedy'."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question you about your efforts
to organize or obtain improved working condi-
tions.
WE WILL NOT threaten you because of such
efforts.
WE WILL NOT discharge or take other action
against you because you have engaged in such
efforts.
WE WILL NOT interfere in any other manner
with your lawful right to engage in organizational
activities or in collective bargaining , or to refrain
from such activities.
WE WILL offer Michel P. McComiskie her old
job or, if that job no longer exists , a substantially
equivalent job.
WE WILL also pay her for any loss of earnings
or other employee benefits resulting from her
discharge.
ARMY AVIATION CENTER
FEDERAL CREDIT UNION
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: Pursuant
to an unfair labor practice charge filed by Michel P.
McComiskie on April 5, 1974, complaint issued on May 28,
1974, alleging that Respondent, Army Aviation Center
Federal Credit Union, by interrogating and threatening its
employees concerning their protected concerted and/or
union activities violated Section 8(aXl) of the National
Labor Relations Act, as amended, and further violated
Section 8(a)(1) of the Act by discharging Michel P.
McComiskie because of her participation in protected
concerted activities. Respondent denies the commission of
unfair labor practices.
Hearing was conducted in Fort Rucker, Alabama, on
August 27, 1974.1 At the conclusion of the hearing at which
evidence was presented by General Counsel and by
Board relating to the case , was denied under authorities , cited in General
Counsel's opposition to the motion . Both the motion and the opposition are
ARMY AVIATION CENTER
Respondent, the parties waived oral argument and there-
after submitted written briefs which were received on
September 30, 1974, and have been duly considered. Upon
the entire record and upon my observation of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The complaint alleged that Respondent is a federally
chartered credit union with its principal office in Fort
Rucker, Alabama, where it is engaged in the savings and
loan business ; that Respondent during the preceding year,
a representative period, made loans to its members in
excess of $5 million in total amount, and derived payments
therefrom in excess of $50,000 directly from members
located outside the State of Alabama; that during the same
period Respondent made investments valued in excess of
$250,000 through financial lending institutions located
outside the State of Alabama; and that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
In its answer to the complaint Respondent admitted that
it is a federally chartered credit union located in Fort
Rucker, Alabama, and is engaged in the savings and loan
business . As to the financial data, however, Respondent
pleaded that it neither admitted nor denied the relevant
allegations . In its motion to dismiss (fn. 1 supra),
Respondent challenged the accuracy of these allegations
and asked for dismissal of the complaint, inter alia, on the
ground that it is not engaged in interstate commerce and
that its business is so small as not to affect interstate
commerce. In preliminary discussions following the open-
ing of the hearing, Respondent admitted the accuracy of
the jurisdictional data alleged in the complaint but
reserved its challenge to the Board's assertion of jurisdic-
tion. In its brief, submitted following the close of the
hearing, Respondent makes no reference to this issue.
Based on the financial data alleged in the complaint and
admitted at the hearing I find, on well-settled authority,
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
assertion of jurisdiction in the instant case is warranted.
East Division, Federal Credit Union, 193 NLRB 682 (1971);
Lansing Automakers Federal Credit Union, 150 NLRB 1122
(1965); Brand Airways Federal Credit Union, 189 NLRB
282 (1971).
II. THE UNFAIR LABOR PRACTICES
A. Background
Michel P. McComiskie began work for Respondent on
August 23, 1973, after an initial preemployment interview
with Tom Carter, Respondent' s manager . From that date
until her admitted discharge on March 27, 1974, McComi-
skie worked in Respondent 's Collection Department under
contained in the record herein . That ruling was reaffirmed at the hearing.
The second motion , also part of the record herein , prayed for dismissal of
the proceeding for certain jurisdictional and substantive reasons. That
motion was denied at the outset of the hearing on the ground that it raised
issues which could and should be appropriately resolved by the presentation
437
the immediate supervision of Ray Blair, Respondent's loan
officer. Both Carter and Blair are admittedly supervisors.
McComiskie was one of nine employees in Respondent's
employ. In addition to her regular duties in the Collection
Department, she also filled in on occasion as assistant
teller and as general office receptionist.
The first several months of McComiskie's employment
were uneventful. In an employee evaluation form filled out
by Tom Carter on September 10, 1973, her work perfor-
mance was rated in average or better than average
categories in the numerous aspects of work performance
set forth in the evaluation form.2 Carter did note on the
form that bluntness was a weak point in McComiskie's
performance. This shortcoming was mentioned again in
January 1974 when Carter discussed with McComiskie
several complaints he said he had received about her poor
attitude in dealing with employees and credit union
members. According to McComiskie, Carter was unable to
define the complaints with particularity and finally told her
he thought the complaints arose because she "had a
Northern accent and spoke very fast." Carter reassured
her, however, that her work was excellent .3
Ray Blair for his part testified that when McComiskie
began her employment with Respondent she was "real
good." However, he further testified, her performance later
became inadequate in several respects.
Set forth hereunder are McComiskie's activities with
respect to her fellow employees and resultant conferences
with Tom Carter and with Respondent's Personnel
Committee.
B. The Employee Petition; Meetings With Blair
and Carter
From the beginning of her employment with Respond-
ent, McComiskie engaged in numerous discussions with
her fellow employees. A principal subject matter of these
discussions concerned complaints about working condi-
tions including such matters as employees being shifted
from job to job, the lack of a pay raise policy, and the
futility of bringing individual complaints to Manager Tom
Carter. These discussions culminated at a party conducted
in the home of employee Christine Roberts on March 5,
1974, attended by McComiskie and a few other employees.
McComiskie suggested that their problems might be
resolved if all the employees subscribed to a petition
requesting that Tom Carter consider suggestions from
employees as to pay raise policy. The suggestion was
adopted.
That night McComiskie drafted a petition reciting in
substance that Carter consider their suggestions as to a pay
raise policy and that he reply to the petition within 2
weeks. McComiskie typed up the petition the following
morning, March 6, and all the employees affixed their
of evidence.
2 Carter directed that McComiskie rate herself on courtesy . She did so
3 Carter was not questioned, and did not testify , concerning this
conversation. I credit McComiskie's uncontradicted account of this
conversation
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatures.4
Upon obtaining all the signatures McComiskie, accom-
panied by fellow employee Dayna Meuli, went to Ray
Blair's office and asked him to sign the petition. Blair, after
reading the petition and agreeing that all the employees
had signed, responded, "Are you kidding? I don't want to
be associated with this petition or with you." McComiskie
then took the petition and left the office. Meuli remained.
McComiskie whose work station was directly outside the
office heard Blair tell Meuli that she would get into a lot of
trouble if she signed the petition. Christine Roberts, who
was also in the immediate area, testified that Blair told
Meuli the petition was the wrong thing to do and that the
thing to do was to talk to Carter. As McComiskie and
Roberts both testified, Meuli then came out of Blair's
office and scratched her signature off the petition.
Thereupon McComiskie tore up the petition because of the
prior agreement among the employees that it would not be
presented unless all the employees signed.5
Blair admitted that he told Carter about the petition. On
March 8, 2 days later, Carter summoned McComiskie into
his office and accused her of stirring up trouble among the
employees. McComiskie denied stirring up trouble. In the
ensuing conversation McComiskie recounted the dissatis-
factions of the employees. Carter responded that the
employees were not dissatisfied and could bring their
complaints to him. When McComiskie persisted that the
employees were dissatisfied with working conditions,
Carter told her that there would be no changes and that he
did not care what she or the other employees thought. The
conversation concluded with Carter's admonition to
McComiskie that "if you don't stop stirring up trouble and
try to organize the employees, you know what's going to
happen to you."
Carter testified as to his relationships and conversations
with McComiskie. His testimony, however, was not
altogether consistent. Initially, he disclaimed knowledge of
the circulation of any petition and denied that he had ever
discussed union organization or collective bargaining with
McComiskie. He further testified that he had never
interfered with her right to discuss matters with her fellow
employees. However, shortly thereafter he qualified this
statement by acknowledging that he had advised McComi-
skie early in March that "if she had a problem, she should
bring it and talk to me about it. That I didn't appreciate
her going out among the other employees and discussing
it." On cross-examination, moreover, Carter recalled that
he had discussed the petition with McComiskie but that he
could not remember what was said. When confronted with
an earlier affidavit he had executed, Carter acknowledged
that the discussion had to do with salary and wage scale
and that he had asked her about circulating the petition.
Carter also, in his testimony, reiterated his basic position
that employees should bring their complaints about
employment conditions to him and not discuss such
complaints with fellow employees.
4 The findings in this and the preceding paragraph are based on the
credited testimony of McComiskie corroborated in substantial part by other
employee witnesses
5 t credit the testimony of McComiskie and Roberts as to these events.
Under all the circumstances including the circumstance
that McComiskie's testimony was straightforward and
squares with other facts of record whereas Carter's
testimony was vacillating, inconsistent, and reluctant, I
credit the testimony of McComiskie.
C. Meetings With the Personnel Committee
Disturbed by Carter's hostile reaction to her presentation
of employee grievances McComiskie decided to present the
matter to Respondent's board of directors. To support her
position she enlisted the aid of her husband and the
husband of a fellow employee to draft an employee
questionnaire as to their feelings about their jobs, their
desires for improvements , and related matters . Only two of
the employees were willing to fill out the questionnaire.
Nevertheless, McComiskie persisted in her efforts to see
the board of directors. At the suggestion of its chairman,
Bernie Sheppard, the matter was referred to Respondent's
personnel committee consisting of Bernie Sheppard,
Adrian Cunningham, and Dr. Mark Hoffman. Cunning-
ham and Hoffman were also on the board of directors and
held, respectively, the offices of first vice president and
treasurer in Respondent's enterprise . Beginning March 13,
1974, the personnel committee held a series of meetings to
deal with the matters raised by McComiskie.
Minutes of those meetings , recorded by Lucy Watson,
secretary to Sheppard, while not wholly verbatim or
complete, were nonetheless, by common agreement,
substantially accurate as to what transpired. The testimony
of those present at the meeting confirms the accuracy of
the minutes which were introduced into evidence.
In sum, it was established and I find that at a meeting on
March 14, 1974, McComiskie told the committee of the
employees' concern about a wage-salary policy, the
obtaining of signatures to the petition which she had
drafted and her subsequent interviews with Blair and
Carter. Sheppard then asked McComiskie whether she was
trying to organize a labor organization and she replied in
the negative. A discussion then ensued about the nature of
the employee complaints and McComiskie's efforts in that
regard. The committee also inquired as to the degree of
employee support she had in her efforts.
A further meeting with McComiskie occurred on March
25. At this meeting McComiskie said she was not
appearing as a representative of the employees but rather
in a personal capacity complaining of harassment by
Carter because he directed her not to discuss anything with
anyone but him. McComiskie explained further that she
felt her "rights as a civilian employee were being violated
[b ]ecause [she] undertook with the other employees of the
Credit Union to form a collective bargaining unit." Further
talk ensued about organizing in the course of which
Sheppard again asked McComiskie what she thought
about organizing as a labor union. McComiskie replied
again that she thought the employees should not affiliate
with a labor organization.
Blair confirmed that the petition was presented to him, that he refused to
sign, and that he recommended that , instead, Carter be approached
personally
ARMY AVIATION CENTER
The personnel committee did not confine itself to
meetings with McComiskie . On March 13 , 1974, it met
with employee Dayna Meuli and on March 26 with
employee Nancy Meredith and with employee Bobbie
Talley. In each instance questions were directed to the
named employees about the morale of the working force,
about working conditions and about McComiskie. Inform-
ation was also sought by the committee as to whether
McComiskie was trying to organize a union.
D. The March 18 Interview Between Carter and
McComiskie
Carter was aware of the personnel committee meetings.
While they were going on Carter summoned McComiskie
to his office. The occasion was on March 18. According to
McComiskie, Carter opened the conversation with the
remark, "What am I going to do with you?" In an obvious
reference to their last interview , Carter said , "I was so mad
at you the last time I almost fired you." After a further
discussion about pay raise plans and other employee
benefits, Carter asked McComiskie whether she was
"(f)inished causing trouble." Carter then added, "Well, I
hope you're finished. If nothing else happens, I'm not
going to fire you." His parting comment to McComiskie
was not to try to organize the employees, not to discuss
with the employees either her problems or complaints or
theirs, and to bring any complaints she might have to him.6
E. The Discharge of McComiskie on March 27
McComiskie was undeterred by Carter 's remarks. Imme-
diately following the March 18 interview with Carter,
McComiskie asked for another meeting with the personnel
committee. On the morning of March 27, 1974, according
to McComiskie , she was again called into Carter 's office.
Carter handed her a paycheck and said, "I feel it's in the
best interest of the credit union that you no longer work
here ." When McComiskie asked whether the personnel
committee knew about this , Carter answered that it did.
Carter told McComiskie that her discharge was effective
forthwith.
McComiskie had her final meeting with the personnel
committee the following morning, March 28. She was told
that the hiring and firing of employees was up to the
manager and that she had no recourse to anyone else in
Respondent 's organization.
Carter testified that the reason for McComiskie's
termination was her "poor attitude" to members, to
himself, and to other employees and that there was no
other reason for the termination . Carter cited in this regard
a number of derelictions on McComiskie 's part. These
asserted derelictions will be discussed in the succeeding
section of this Decision.
6 1 credit the testimony of McComiskie as to the March 18 conversation.
For reasons already stated (subsec . B, supra) I find Carter's disclaimer in
this regard unpersuasive.
F. Analysis and Conclusions
439
1. The protected nature of McComiskie's activities
Section 7 of the Act guarantees employees the right, inter
alia, to self-organization and to engage in other concerted
activities for mutual aid and protection. Section 8(a)(1) of
the Act, the only statutory provision alleged in this
complaint to have been violated, proscribes employer
interference with the exercise of that right.
Terms and conditions of employment are indisputably a
matter for which the statutory umbrella of concerted
activities for mutual aid and protection was designed. On
this record there can be no doubt that the employees were
concerned about a number of the terms and conditions of
their employment, most particularly the lack of an explicit
wage policy for the employees. To this end, as shown,
considerable discussion took place among the employees
and, finally, a petition was drafted to Manager Tom Carter
by Michel McComiskie. As shown by undisputed evidence
this petition was signed by all the employees. A more
explicit and obvious example of concerted activity for
mutual aid and protection in the statutory sense could
scarcely be demonstrated. Floyd Epperson, et at, .202
NLRB 23, 27 (1973); Ronald Moran Cadillac, 202 NLRB
1017 (1973).
Blair and Carter, as their own testimony reveals, were
plainly aware of the concerted nature and objectives of this
activity as were the members of the personnel committee, a
fact revealed by the questions they addressed to McComi-
skie and other employees who appeared before them. To
be sure, the enthusiasm of some of McComiskie's fellow
employees quickly palled when Blair and Carter manifest-
ed their displeasure with the petition the employees had
signed. The statements made before the committee by the
employees reflected their discomfort. However, this under-
standable change of position does not negate the protected
and concerted motivation which gave rise to the petition in
the first instance. Nor is this conclusion weakened by the
fact that McComiskie protested in her second appearance
before the personnel committee that she was not appearing
as a representative of the employees but in a personal
capacity complaining of harassment by Carter. As McCo-
miskie, unsophisticated in the parlance of labor law,
explained at that very meeting her personal complaint was
that her rights were being violated because "she undertook
with the other employees of the Credit Union to form a
collective bargaining unit." The questions posed by the
committee members revealed that they, too, were under no
illusion . Their concern was with the "morale" of the
employees generally and with the critical issue whether a
labor organization was being sought.
I find and conclude that McComiskie and her fellow
employees were engaged in protected concerted activity
and that Respondent was fully apprised of what that
activity was.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Threats and interrogation in violation of
Section 8(axl)
On the basis of the evidence in the record, previously
summarized herein, and consistent with the allegations of
paragraph 6 of the complaint, I find and conclude that Ray
Blair, an admitted supervisor, threatened employee Dayna
Meuli with unspecified reprisals because she engaged in
protected concerted activities. I predicate this finding and
conclusion on the testimony of McComiskie and Christine
Roberts to the effect that Blair told Meuli she would get
into a lot of trouble if she signed the petition and that the
petition was the wrong thing to do. As already noted,
Meuli complied with Blair's ultimatum with understand-
able alacrity by scratching her name off the petition.
I find and conclude, further, on the basis of record
evidence and consistent with the allegations of paragraph
7(a) of the complaint that Respondent's manager, Tom
Carter, on March 8, 1974, interrogated Michel McComi-
skie about her activities and employee complaints, and
threatened her that if she didn't stop stirring up trouble
and trying to organize the employees she knew what would
happen to her. I further find and conclude , as alleged in
paragraph 7(b) of the complaint, that on March 18 Carter
told McComiskie that she had been causing trouble, that
she was to cease trying to organize the employees or to
discuss problems and complaints with them and that if
nothing else happened, he would not fire her. The threat
implicit in this last remark was not even veiled.
Finally, I find and conclude, consistent with the
allegations of paragraph 10 of the complaint, that the
members of Respondent's personnel committee interrogat-
ed employees concerning their protected activities. Re-
spondent in its answer to the complaint denied that the
members of the personnel committee, Bernie Sheppard,
Adrian Cunningham, and Mark Hoffman, were on
Respondent's board of directors or were supervisors.
However, each testified that he was on the personnel
committee and that he was on the board of directors. Each
also testified that he was a major officer in Respondent's
hierarchy. In these circumstances Respondent was plainly
answerable for the conduct here under scrutiny taken in
the discharge of their official functions. On the basis of the
evidence already summarized, I conclude and find that the
committee interrogated employees Michel McComiskie,
Dayna Meuli, Nancy Meredith, and Bobbie Talley as to
whether efforts were being made to organize a union, as to
the extent of employee sympathy and activity in regard to
changes in working conditions and as to the scope and
impact of McComiskie's efforts in those respects.
I conclude and find , in sum, that the interrogation and
threats here found to have been engaged in by Respond-
ent's officers and agents constituted unfair labor practices
proscribed by Section 8(axl) of the Act.
3. The discharge of Michel McComiskie
As narrated previously, Carter's statement to McComi-
skie on March 8 that if she didn't stop stirring up trouble
and trying to organize the employees she knew what would
r A violation of Sec. 8(aX3) of the Act is not alleged in this regard.
Hence, it is unnecessary to deal with those arguments and authorities
happen to her, and his further statement on March 18, in a
similar context, that if nothing else happened he would not
fire her came to fruition on March 27, 1974. McComiskie
did not cease her efforts and on March 27 Carter
admittedly terminated her employment. Absent a counter-
vailing showing, this evidence alone would support a
finding that the discharge of McComiskie was an unlawful
interference with her right under Section 7 of the Act to
engage in protected concerted activities and was a
violation of Section 8(axl).7
Respondent denies, however, that the discharge of
McComiskie was an unfair labor practice. Instead, Re-
spondent argues the discharge was attributable to a
number of asserted derelictions on her part manifesting her
poor attitude; namely, her bluntness, her excessive use of
the office telephone for personal calls, her improper
handling of customers and of an applicant for employ-
ment, and her abuse of office routine with respect to
disclosing the minutes of a board of directors meeting.
The defenses do not withstand scrutiny. As against the
numerous shortcomings now proffered to justify the
termination of McComiskie, Carter testified on cross-
examination that the reason for the termination was her
poor attitude and that there was no other reason for the
termination. In addition, Carter conceded that, attitude
aside , McComiskie's conduct as compared to other
employees was good. Nor was Carter's testimony wholly
consistent even with regard to McComiskie's poor attitude.
At one point in his testimony Carter stated that McComi-
skie's attitude steadily declined from September 1973 until
the day he terminated her employment. A few minutes
later, Carter alluded to the fact that he had made an entry
of bluntness in McComiskie's evaluation in September as a
major weakness and that this shortcoming got neither
better nor worse thereafter. Moreover, as already noted,
Carter told McComiskie in January 1974 that complaints,
which he could not specifically identify, about her
bluntness were probably attributable to her northern
accent and rapid speech, and that her work was excellent.
Absent is any explanation as to why McComiskie's
attitude, the sole reason assigned for the discharge,
suddenly became intolerable on March 27, 1974.
The substantiation of the other derelictions attributed to
McComiskie is equally lacking in persuasiveness. In
respect to excessive use of the telephone for personal calls,
McComiskie, whose testimony was candid in all respects
even where it could operate to her detriment, stated that
she could not recall any occasion where this asserted abuse
was called to her attention. Moreover, she credibly denied
having used the telephone excessively for personal calls,
and further testified that in her occasional stints of duty as
office receptionist she had frequently transferred personal
calls not only to Blair and Carter but also to other
employees.
In an attempt to buttress the claim that McComiskie's
poor attitude had an adverse impact upon Respondent's
business, Respondent's witnesses cited the fact that they
had received numerous complaints from outsiders in that
regard. However, there was a complete inability to identify
advanced in Respondent's brief in support of its position that an 8(aX3)
violation has not been established.
ARMY AVIATION CENTER 441
the complaints with any specificity. Evidence was adduced
that a Colonel Frederick had withdrawn a large account
and that this was attributable to McComiskie's handling of
Colonel Frederick. Cross-examination revealed, however,
that the account in question was a loan account , usually
delinquent in payments , and that the reason for paying up
the loan was unknown . So far as appears, Colonel
Frederick made no complaints to Respondent and it was
admitted that the attribution of fault to McComiskie in
that regard was sheer speculation.
Two other incidents were adduced to demonstrate
McComiskie's unacceptable work performance. The first
incident had to do with McComiskie's suggestion to an
applicant for employment that she seek employment
elsewhere . The applicant had a degree in computer
sciences and a bachelor 's degree in business . So far as
appears, there was no position available at the time in
Respondent 's operation calling for a person with the
qualifications the applicant had. The second incident had
to do with a situation occurring in February 1973 when
McComiskie was preparing a copy of minutes of a meeting
of Respondent's board of directors to give to a member of
Respondent who wanted the information . Notwithstanding
that the members of the Respondent were its owners,
Carter stated, albeit somewhat equivocally, that minutes of
board meetings were secret even to Respondent's members.
Mark Hoffman, a member of the board of directors,
testified to the contrary, that minutes of board meetings
were not secret information as to members . This incident,
too, which occurred in February is not a tenable explana-
tion for the termination of an employee who was told more
than a month later that if she stopped stirring up trouble
and trying to organize the employees she would not be
fired.
In sum, I am persuaded that the real reason for the
discharge of McComiskie was her persistent activity in
behalf of herself and her fellow employees and her refusal
to cease that activity despite threats of discharge. The
several reasons assigned for the discharge , some of them
adduced for the first time at the instant hearing, are
demonstrably pretextual in character and belated efforts to
justify unlawful action.
I am satisfied, and find and conclude, that a preponder-
ance of the evidence substantiates the allegation of
paragraph 9 of the complaint that Respondent discharged
McComiskie because of her participation in protected
concerted activities and her refusal to cease that activity.
Such a discharge is violative of Section 8(axl) of the Act.
Floyd Epperson, et at, supra.
IN. REMEDY
To effectuate the policies of the Act and to enforce its
mandate, I will direct Respondent to cease and desist from
the several unfair labor practices herein found. Because of
the scope of those unfair labor practices ranging from
6 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.
interrogation and threats to actual discharge , a propensity
and proclivity to violate employees' statutory rights
generally are demonstrated and a broad order forbidding
Respondent from trenching in any manner upon such
statutory rights is warranted.
Appropriate affirmative action will also be directed. I
shall order that , in order to restore the status quo ante,
Respondent offer reinstatement to Michel P . McComiskie
in the manner customarily prescribed by the Board and
with no prejudice to any rights , benefits or privileges she
formerly enjoyed. I shall further direct that she be made
whole for lost earnings, computed on a quarterly basis with
interest at 6 percent as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950) and in Isis Plumbing & Heating
Company, 138 NLRB 716 (1962). The usual provisions
regarding record keeping, reporting requirements and
notice-posting will also be included.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act , I shall recommend the following Order.
ORDER8
Respondent Army Aviation Center Federal Credit
Union, its officers, agents, successors, and assigns , shall:
1.. Cease and desist from:
(a) Coercively interrogating employees concerning their
participation in concerted activities protected under the
National Labor Relations Act, as amended.
(b) Threatening employees with reprisals for engaging in
such activities.
(c) Discharging, or otherwise adversely affecting the
terms and conditions of employment of, employees for
engaging in such activities.
(d) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, as amended.
2. Take the following affirmative action to effectuate
the policies of the National Labor Relations Act, as
amended:
(a) Offer Michel P. McComiskie immediate reinstate-
ment to tier former job or, if that job no longer exists, to a
substantially equivalent job, without prejudice to her
seniority or other rights and privileges and make her whole
for lost earnings in the manner set forth in the portion of
this Decision entitled "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,
personnel records and reports , and all other records
necessary to compute the amount of lost earnings due
Michel P. McComiskie under the terms of this recommend-
ed Order.
(c) Post at its place of business in Fort Rucker, Alabama,
copies of the attached notice marked "Appendix." 9 Copies
of said notice on forms provided by the Regional Director
9 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Region 15, after being duly signed by an authorized
representative of Respondent , shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter , in conspicuous places,
including places where notices to employees are customari-
ly posted . Reasonable steps shall be taken by Respondent
to insure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days of the date of this Order, what steps
have been taken to comply herewith.