Beiser Aviation Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1962

135 N.L.R.B. 433 (N.L.R.B. 1962)

BEISER AVIATION CORPORATION 433
4. By contributing assistance and support to the formation and administration of
the Beiser Aviation Employees ' Committee at Moore Airbase and to its successor the
Moore Air Base Independent Employees Association as heretofore described, the
Respondent has engaged in and is engaging in unfair labor practice within the mean-
ing of Section 8(a) (1) and (2) of the Act.
5. By making threats against , giving warnings of discharge to, and restricting
the movements of, Local 2219 supporters to prevent them from engaging in union
activities during woik hours while it did not have a rule against such activities in
effect at Moore Airbase , and later , after it adopted such a rule , applying it in a dis-
criminatory manner so as to permit supporters and representatives of the Employees'
Committee and its successor the Independent to freely engage in such activities
during work hours, the Respondent engaged in a violation of Section 8(a) (1) of
the Act.
6. By giving warnings and making other statements to its employees to the effect
that the Air Force did not approve of unionization of its employees and would close
down the Moore Airbase if they selected Local 2219 as their collective -bargaining
agent, the Respondent violated Section 8 (a) (1) of the Act.
7. By promising its employees support and assistance in getting Air Force ap-
proval for benefits sought by them, if such approval was necessary , in order to induce
them to select an independent union as their bargaining agent and telling them that
such assistance would not be forthcoming if they selected Local 2219 as their bargain-
ing agent at a forthcoming Board election , the Respondent violated Section 8 (a) (1)
of the Act.
8. By discriminatorily excluding representatives of Local 2219 from engaging in
union activities on Moore Airbase while permitting representatives of the Employees'
Committee and its successor , the 'Independent , to carry on such activities on said
base, during both working and nonworking time, the Respondent violated Section
8(a)(1) of the Act.
9. By coercing and discriminatorily changing the conditions of work of employee
David Byrd because of his testimony against the Respondent in these proceedings,
the Respondent violated Section 8 (a)(1) of the Act.
10. The aforesaid practices of the Respondent are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
11. By distributing and soliciting its employees to wear campaign material advo-
cating the rejection of Local 2219 as the bargaining agent of its employees at a
forthcoming Board election , the Respondent did not violate Section 8 ( a) (1) of the
Act.
12. By discharging employee Fred Keas on November 24, 1959 , the Respondent
did not violate Section 8 (a) (1) and ( 3) of the Act.
[Recommendations omitted from publication.]
Beiser Aviation Corporation and Millwright and Machinery
Erectors Local Union No . 2219, of the United Brotherhood
of Carpenters and Joiners of America , AFL-CIO. Case No.
23-CA-1036. January 03, 1962
DECISION AND ORDER
On February 20, 1961, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above -entitled proceeding , finding that
the Respondent had not engaged in and was not engaging in any of
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety , as set forth in the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel filed exceptions to the Intermediate Report and a supporting brief.
135 NLRB No. 34.
634449-62-vol. 135-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case , and finds merit in the General Counsel's exceptions. We there-
fore adopt the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent with our Decision and Order
herein.
The Trial Examiner found that the Respondent did not violate the
Act by its discharge of David Byrd on May 30, 1960. The General
Counsel alleges that Respondent violated Section 8(a) (4), (3), and
(1) of the Act because it was motivated to discharge Byrd for Byrd's
activities in behalf of the Charging Party, Local 2219, and Byrd's
giving testimony in Board Case No. 23-CA-970,1 and that the Re-
spondent's purported reliance on an employee-signed petition was a
mere pretext. The General Counsel further contends that, in any
event, the Respondent violated Section 8 (a) (4) and (1) of the Act
because it knew or believed that the employees signed the petition
because of Byrd's giving testimony in Case No. 23-CA-970.
It is clear, and we find, that the Respondent, and particularly its
President Beiser, were strongly opposed to the representation of its
employees by Local 2219 or by any other outside union,2 and that
President Beiser personally and actively engaged in a campaign
against Local 2219 which included conduct found unlawful by the
Board.' David Byrd, it also appears,.was one of the most active
adherents of Local 2219; he solicited authorization cards for the
Charging Party and opposed the Respondent-favored and dominated
"inside" organizations, the Committee and its successor, the Inde-
pendent. The record further establishes that the Respondent was
specifically opposed to Byrd because of such activities. Thus, on
October 23, 1959, Jet Engine Chief Sprayberry, Byrd' s superior, rec-
1 135 NLRB 399, a companion case issued concurrently.
2 In making contrary findings, the Trial Examiner , in our opinion , failed to give proper
weight to evidence which he recites in his Intermediate Report Furthermore, our doci-
slon in Case No. 23-CA-970, which he refers to, has now issued ( see 135 NLRB 399,
Issued concurrently). The Board found therein that the Respondent violated Section
8(a) (1) through various threats and other anti-Local 2219 conduct ; Section 8(a) (2)
through its domination , interference with, and support of "inside" labor organizations (au
Employees' Committee and its successor , the Moore Air Base Independent Employees
Association) ; Section 8 (a) (3) through its discharge of employee Fred Bteas for his
activities In behalf of Local 2219 ; and Section 8(a) (4) through its discriminatory change
in the working conditions of David Byrd, the same employee involved in the instant
proceeding.
8 Ibid.
BEISER AVIATION CORPORATION 435
ommended the discharge of Byrd, as well as two other employees; for,
inter alia, campaigning in behalf of Local 2219.4 And, though no
immediate action was taken as to Byrd, it is undisputed that in De-
cember 1959 Byrd was removed from the position of acting crew chief,
a supervisory position, and reassigned to recordkeeping duties only .5
And most significantly, as the Trial Examiner notes, Respondent,
commencing May 6,1960, refused to permit Byrd to perform even these
recordkeeping duties, forced him to sit at a table set out in the middle
of the jet engine shop, and demoted him to the position of an ordinary
mechanic, all under circumstances demonstrating clearly that the
Respondent's conduct was motivated by its anger at Byrd for testify-
ing against Respondent in Case No. 23-CA-970 (in which the hearing
had been adjourned on May 5 at Respondent's request), and by its
desire to demonstrate to other employees in the shop their possible
fate if they would similarly testify.6 Respondent continued such
treatment of Byrd until May 17 when, as the Intermediate Report
herein notes, the hearing in Case No. 23-CA-970 resumed and Byrd
returned to the hearing room to testify after the General Counsel
amended his complaint to include such reprisal against Byrd as an
additional violation of the Act.'
On May 30, the very first day that Byrd returned to his work after
testifying,8 he was discharged. The evidence, as reflected in the Inter-
mediate Report, shows that Beiser indicated his displeasure with
Byrd's testimony and with Byrd's adherence to Local 2219, including
his questioning Byrd as to who had originally contacted Local 2219.
The above-recited facts, which show the precipitate discharge of a
known union adherent by the Respondent in the context of the Re-
spondent's clearly demonstrated hostility to labor organizations and
to this particular employee for his union activities, point strongly to a
discharge in violation of the Act.
Respondent as one of its defenses asserts that it was justified in
discharging Byrd because he allegedly pilfered a transcript of the dis-
charge interview with President Beiser. However, not only is it clear
that Beiser had promised Byrd a copy of the transcript but, even more
4 See 135 NLRB 399 and 135 NLRB 450, companion cases issued concurrently. It
is significant that the Board is finding that both Fred Leas and James Cowan, the other
two employees recommended for discharge by Chief Sprayberry , were discriminatorily
discharged
5 This has not been alleged as violative of the Act in this case.
"The Trial Examiner in Case No . 23-CA-970 found such conduct violative of Section
8(a) (1) but declined to make, as unnecessary , a specific 8 ( a) (4) finding. The Board (see
135 NLRB 399 , companion case issued concurrently ) affirmed the 8(a) (1) finding and
additionally found such conduct violative of Section 8(a)(4). The Genera] Counsel had
originally amended the complaint to allege that such conduct was also violative of Sec-
tion 8 ( a) (3). The Trial Examiner did not make that finding and, as the General Counsel
did not except , the Board found it unnecessary to determine whether the conduct also
violated Section 8(a)(3).
7Ibad.
8 Byrd went on jury duty after be testified for the second time.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significantly, it is also clear that Byrd was given the transcript on
May 31, the day after he was actually discharged.
Thus, it is clear that this asserted defense had no basis in fact, but
arose, if at all, after the discharge was made. Respondent also asserts
that it was justified in discharging Byrd because it had received a
"Petition of Protest" purportedly signed by some employees in the jet
engine shop noting that they did not want to work with Byrd any
longer. However, the circumstances under which the petition came to
Respondent's attention were suspicious ° and President Beiser himself
questioned the petition to such an extent that he refused to believe the
date on it. Furthermore, Respondent admits that the employees did
not threaten to leave Respondent's employ.
We are convinced and find, on the entire record,10 that the Respond-
ent seized upon the alleged petition as -a pretext whereby it believed
that it might insulate itself from the consequences of its unlawfully
motivated discharge of Byrd.il Accordingly, we find that the Re-
spondent by its discharge of David Byrd violated Section 8(a) (4),
(3), and (1) of the Act 12
Moreover, assuming arguendo, that the Respondent was, in fact,
motivated to discharge Byrd because of the petition, we nevertheless
find that the discharge violated Section 8(a) (4) and (1) of the Act.
The Trial Examiner specifically credited James Cowan's testimony
that Beiser admitted to him that he, Beiser, believed that the employees
signed their petition because of their dissatisfaction with Byrd's testi-
mony. That Respondent's discharge of Byrd was based on this belief
is further substantiated by Superintendent Slack's testimony that at
9 Chief Sprayberry, who brought the petition to Beiser and allegedly investigated it,
did not testify . It will be recalled that Sprayberry on October 23, 1959, had recommended
Byrd's discharge for, inter alia, his activities in behalf of Local 2219
10 We have taken official notice of our decisions in 135 NLRB 399 and 135 NLRB 450,
companion cases issued concurrently
n The Trial * Examiner in incorrectly posing the issue as whether the Respondent would
have discharged Byrd but for the petition ignores the actual issue in all Section 8(a) (4)
=and (3 ) cases, that is, what in fact motivated the Respondent to discharge an employee
If the motivation was discriminatory , then any excuse seized upon to justify such dis-
-criminatorily motivated discharge is, as we have found above , a mere pretext . Indeed,
the Trial Examiner by finding that the Respondent wanted to discharge Byrd and was
"pleased that the petition enabled him to be rid of" him, also was finding that the
petition was a pretext.
'a We find no merit in the Respondent ' s contention before the Trial Examiner that Byrd
was an "untrustworthy" employee . The facts show that Byrd, as well as other em-
ployees , had testified in Case No 23-CA-970, 135 NLRB 399, companion case issued
concurrently , that many errors had been committed by employees in the jet engine shop,
some of which had not been caught, and Byrd further testified that when he was acting
crew chief , he did not bring all errors he learned of to the attention of his superior,
Sprayberry . However, many of the errors testified to by him and other employees were
committed after the Respondent appointed Eduardo Leal crew chief in December and re-
lieved Byrd of any supervisory duties. Further , Leal testified, similarly to Byrd, that he
did not bring all of the errors committed by employees to the attention of Sprayberry
In addition , as noted, the Respondent relieved Byrd of all supervisory duties in December,
when it assigned him to recordkeeping duties alone And as any alleged "untrust-
worthiness" on Byrd's part was in connection with his supervisory responsibilities, there
was no reason why the Respondent should discharge Byrd from his nonsupervisory,
recordkeeping position.
BEISER AVIATION CORPORATION 437
least one employee told him during his questioning of them as to their
reasons for signing the petition that it was done because of Byrd's testi-
mony. Thus, Respondent's discharge of Byrd constituted, if made
on this basis, a termination because of employees' opposition to Byrd's
testimony.13 Accordingly, we find that by acquiescing in such oppo-
sition Respondent violated Section 8(a) (4) and (1) of the Act.14
We also find, contrary to the Trial Examiner, that Respondent by
asking Byrd on May 30, 1960, if he had been "the one who contacted
the outside union," interrogated Byrd in a manner constituting re-
straint and coercion and thereby violated Section 8(a) (1) of the Act.
In the circumstances herein, we do not agree with the Trial Examiner
that such conduct is so isolated a violation as to preclude the issuance
of a remedial order based upon it.
THE REMEDY
Having found, contrary to the Trial Examiner, that the Respondent
discriminatorily discharged employee David Byrd, we shall direct Re-
spondent to offer reinstatement to Byrd and to make him whole for any
loss of pay he may have suffered as the result of the discrimination
against him, by payment to him of a sum of money equal to the amount
he normally would have earned as wages, from the date of his dis-
charge on May 30,1960, less his net earnings during said periods. Such
loss of pay shall be computed on the basis of separate calendar quarters,
in accordance with the policies enunciated in the Woolworth 16 case.
However, in accord with our usual practice, where a Trial Examiner
has recommended dismissing a discrimination allegation, backpay will
be tolled from the date of issuance of the Intermediate Report to the
date of this Decision and Order.16
Having also found, contrary to the Trial Examiner, that the Re-
spondent interfered with, restrained, and coerced its employees in their
exercise of Section 7 rights by unlawfully interrogating employee
Byrd, we shall order the Respondent to cease and desist therefrom and
to take affirmative measures which will effectuate the policies of
the Act.
w The Trial Examiner attaches undue weight to what he termed the "slim connection"
between Byrd's testifying and the employees' motivation As noted above, the ultimate
issue here is the Respondent 's motivation . The employees ' motivation is relevant only
insofar as it sheds light on Respondent 's motivation . And it is clear that the Respondent
believed that the employees had signed the petition because of Byrd's testifying.
'IN L.R B. v. Newton Brothers Lumber Company, 214 F 2d 472 (C.A. 5) ; cf. Altamont
Shirt Corporation, 131 NLRB 112 In our opinion, N L R B. v Edinburg Citrus Associa-
tion, 147 F 2d 353 (CA. 5), relied upon by the Respondent, clearly is inapposite.
ii F. W Woolworth Co., 90 NLRB 289.
19 The Intermediate Report in Case No 23-CA-1072, 135 NLRB 450, a companion
case issued concurrently , and of which we take official notice, indicates that the Em-
ployer's operations at Moore Air Force Base ceased on December 31, 1960 However, the
record in that case does not definitely establish that fact Accordingly, we shall leave
the question of the possible effect of this cessation on the Respondent's reinstatement
and backpay liability to the compliance stage of the proceeding
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because we believe from the Respondent's past conduct that Re-
spondent's commission of similar and other unfair labor practices
reasonably may be anticipated, we shall issue a broad cease-and-desist
order, forbidding the Respondent from infringing in any other man-
ner upon the rights of its employees as guaranteed by the Act.
If the Respondent has ceased its operations at the Moore Air Force
Base," the posting of the usual notice to employees would be obviously
futile. We shall, therefore, order the Respondent, in the event it has
ceased such operations, to mail signed copies of said notice to all
employees who were in its employ between May 5 and June 30,
1960.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Beiser Aviation Corpora-
tion, Mission, Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and other activity on behalf of
the Millwright and Machinery Erectors Local Union No. 2219, of
the United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, or in any other labor organization of its employees, by discharg-
ing employees, or in any other manner discriminating against them
with respect to their hire, or tenure of employment, or any other term
or condition of employment.
(b) Interfering in any manner with respect to the right and duty
of David Byrd or any other employee to give testimony under the
Act.
(c) Interrogating employees regarding union activities in a man-
ner constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority and
other rights and privileges, to David Byrd in the manner set forth
in the section of the Decision entitled "The Remedy."
(b) Make whole David Byrd for any loss of pay suffered by rea-
son of the Respondent's discrimination against him, as set forth in
the section of the Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secur-
ity payment records, timecards, personnel records and reports, and
17 Ibid.
BEISER AVIATION CORPORATION 439
all other records necessary to analyze the amounts of backpay due
under the terms of this Order.
(d) Post at its plant at Moore Air Force Base, near Mission, Texas,
copies of the notice attached hereto marked "Appendix." 18 Copies
of said notice, to be furnished by the Regional Director for the
Twenty-third Region, shall, after being duly signed by the Respond-
ents' representative, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Send a signed copy of the notice attached hereto marked "Ap-
pendix" to all employees who were in its employ between May 5 and
June 30, 1960, if it has ceased operations at Moore Air Force Base.
(f) Notify the Regional Director for the Twenty-third Region,
in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL OF OUR. EMPLOYEES WORKING AT THE
MOORS AIR FORCE BASE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in or other activity on be-
half of Millwright and Machinery Erectors Local Union No.
2219, of the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or of any other labor organization of our
employees, by discharging employees or in any other manner
discriminating against them with respect to their hire, or tenure
of employment, or any other term or condition of employment.
WE WILL NOT interfere in any manner with respect to the right
and duty of David Byrd or any other employee to give testimony
under the Act.
WE WILL NOT interrogate employees regarding their union
activities in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to join or sup-
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port any labor organization of their own choosing, or to refrain
from doing so, or in the exercise of the other rights guaranteed
by Section 7 of the National Labor Relations Act, including their
right to give testimony under the Act in a formal proceeding
before the National Labor Relations Board. Under the guaran-
tees of Section 7 of the said Act, all our employees are free to
become or refrain from becoming members of, or applying for
membership, assisting, or expressing interest in, Millwright and
Machinery Erectors Local Union No. 2219, of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, or any
other labor organization, or to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
WE WILL offer to David Byrd immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
WE WILL make David Byrd whole for any loss in pay by
reason of the discrimination against him.
BEIsER AVIATION Coxro1ATIoN,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 650 M & M Building, 1 Main Street, Houston, Texas (telephone
number CApitol 2-7201), if they have any question concerning this
notice or if they have information that its provisions are being
violated.
INTERMEDIATE REPORT
This case involves allegations that Beiser Aviation Corporation , Mission , Texas,
herein called the Respondent, has since on or about May 30, 1960, interfered with,
restrained , and coerced its employees by interrogating them about Millwright and
Machinery Erectors Local Union No. 2219, of the United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, the Charging Party, herein called the Union;
and discharged employee David Byrd on or about May 30, 1960, and thereafter
failed and refused to reinstate him, because he joined or assisted the Union or
engaged in other concerted activities , and because he filed chrages or gave testimony
under the National Labor Relations Act, as amended (61 Stat. 136), herein called
the Act. It is alleged that this conduct violated Section 8(a) (1), (3), and (4) of the
Act. After the issuance of a complaint by the General Counsel 1 and the filing of
an answer by the Respondent, a hearing was held before me at Edinburg , Texas, on
August 10 and 11 , 1960. All parties were represented and participated fully in the
bearing. After the close of the hearing, the General Counsel and the Respondent
filed briefs , which have been duly considered.
1 The term "General Counsel " refers to the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing
BEISER AVIATION CORPORATION 441
Upon the entire record herein,2 and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION
The complaint alleges, the answer admits, and it is found , that at all material
times the Respondent has been an Arizona corporation, with its principal office
and place of business at Marana Air Force Base, Tucson , Arizona (herein called
Marana ). It also operates Moore Air Force Base , Mission , Texas ( herein called
Moore or simply the base ) and Fort Huachuca Division , Fort Huachuca , Arizona.
At the two airbases , Marana and Moore, the Respondent operates under cost-plus
contracts with the Department of the Air Force. At Fort Huachuca the Respondent
is under contract with the Department of the Army.
The complaint further alleges , and the answer denies , that the Respondent will
furnish services to the United States Government valued at more than $3,000,000,
annually, which "have a substantial impact on the national defense."
The Respondent maintains that the General Counsel "has failed to [ make any]
showing whatsoever of jurisdiction ." On April 26, 1960, during a hearing before
another Trial Examiner of the Board in a different proceeding , Case No. 23-CA-970,
Frank D. Beiser, president of the Respondent , stated that at Moore the Respondent
operates and maintains the base and furnishes flying instructions , and that at
Marana and Fort Huachuca it performs aircraft maintenance service work. He
further stated that in the year then past the Respondent received a total of ap-
proximately $ 3,000 ,000 from its contracts at all three bases. Beiser further testified
in that hearing that from July 1959 to April 26, 1960 , the Respondent 's gross fees
for Moore and Fort Huachuca amounted to from $70,000 to $75,000. In the
instant case , I granted the General Counsel 's motion to take administrative notice
of these statements and testimony of Beiser in the previous hearing as admissions
against interest . Based on these - admissions of Beiser I find that, on April 26, 1960,
and during the year prior to that date , the Repondent 's operations exerted a sub-
stantial impact upon the national defense sufficient to bring them within the Board's
standards for the assertion of jurisdiction.3
But, urges the Respondent , "the jurisdictional facts . ,'. could be entirely dif-
ferent" on May 30 , 1960 , when the alleged unfair labor practices are supposed to
have been committed than they were on April 26, 1960 . This argument fails to
take into account the rule that a state of affairs once established is presumed to
continue , unless the contrary is shown .4 Absent evidence indicating that a substantial
change in the Respondent's operations took place between April 26, 1960, and May
30, 1960 , it is found that at all times material herein the Respondent 's operations
exerted a substantial impact upon the national defense . Accordingly, the Board's
so-called "national defense" standard has been met.5
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges that the Union is, and at all material times has been, a
labor organization within the meaning of the Act. But the Respondent argues that
"there is absolutely no showing that the . . . Union is a labor [organization]
within the meaning of the Act." Robert Burghardt, a representative of the Union,
testified credibly and without contradiction that the Union's purpose is "to bargain
2 On January 24, 1961 , the transcript of testimony was corrected in certain respects.
It is hereby further corrected as follows
Page 55, line 5: Strike the number "23-CA-790" and substitute therefor the num-
ber "23-CA-970."
Page 200, line 18: Strike the word "Do " and substitute therefor the word "Did "
Page 215, line 21: Strike the word "They " the first time it appears and substitute
therefor the word "You "
2 Ready Mixed Concrete & Materials , Inc., 122 NLRB 318, 320 ; and Gray, Rogers,
Graham & Osborne, 129 NLRB 450. It should also be noted that the Respondent herein
admittedly operated in two States at that time . Compare Southwest Hotels, Inc. ( Grady
Manning Hotel ), 126 NLRB 1151
4 Bordo Products Company, 117 NLRB 313, 314.
6 It may well be that the Board is obligated to exercise jurisdiction herein even if the
Respondent ' s operations do not now meet its jurisdictional standards See Eugen
Pedersen v N L R B , 234 F 2d 417 (C A. 2). But that question need not be decided here.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between management and labor for wages, hours and conditions of employment,"
that the Union represents some groups of employees for the purpose of collective
bargaining with management, and that the Union solicited membership from the
Respondent's employees and sought recognition as their bargaining representative.
I so find . Accordingly, it is concluded that the Union is, and at all material times
has been, a labor organization within the meaning of the Act .6
M. THE STATUS OF DAVID BYRD
David Byrd was employed in the Respondent's jet engine field maintenance shop
at Moore, herein called the JEFM shop.? He was classified as an all-frame and
powerplant mechanic, herein called A & P mechanic-the only one so classified
among the 30 to 35 employees in the JEFM shop. At all material times Houston
Sprayberry, chief of JEFM, was in charge of the JEFM shop. Sprayberry's im-
mediate superior was Paul Slack , the Respondent 's superintendent of aircraft main-
tenance at Moore.
Before December 8, 1959, Byrd received a higher rate of pay than any other
employee in the JEFM shop, except, of course, Sprayberry. During that period,
Byrd could effectively recommend the hiring, transfer, and promotion of employees
in the JEFM shop and could also adjust grievances ; in Sprayberry's absence, Byrd
was in charge of the shop . Byrd voted without challenge in, and acted as an observer
at, a consent representation election conducted by the Board among the Respondent's
aircraft maintenance employees in the fall of 1959 (Case No. 23-RC-1462). All
parties agree that, before December 8, 1959, Byrd was a supervisor within the mean-
ing of the Act.
In September 1959 a gradual transition began at Moore from the use and main-
tenance of reciprocating engine aircraft to that of jet engine aircraft. This resulted
in an increase in the work of the JEFM shop and the number of workers employed
there. The transition was about 75 percent complete by December 8, 1959. On that
date the Respondent issued the following memorandum:
Chief, JEFM 8 DECEMBER 1959.
See Distribution
Delegation of Authority
The following action is forwarded for your concurrence or disapproval.
From this date on , ALL engine buildup work, including R-1300 and 1470
engines will be a part of the JEFM Shop. Along with this change , and due
also to the anticipated expansion of the JEFM program, it has become necessary
to re-delegate authority of the properly rated and qualified people within this
section.
Effective immediately, Mr. Eduardo Leal, Crew Chief, will be directly in
charge of all shop work and will be responsible to the Chief of JEFM. Mr.
Leal's assistants will be Mr. David Byrd, A & P Mechanic, and Mr. Guadalupe
Martinez, Engine Buildup Leadman
Since the upkeep and maintaining of records and Air Force Forms in the
JEFM program is of the utmost importance and an ever increasing problem,
Mr. Byrd's principle duty will be in this category. Mr. Martinez will assist
in the T-1300 and 0470 engine change and buildup section until further notice.
As in the past, Mr. Leonard Haider, Chief Test Cell Operator, is in charge
of all Test Call Operators and responsible to the Chief of JEFM.
HOUSTON D. SPRAYBERRY,
Chief, JEFM.
(Reviewed and concurred
in 12/8/59)
[S] P. SLACK.
Distribution:
Supt, Aircraft Maintenance
Mr. Eduardo Leal
Mr. David Byrd
Mr. Guadalupe Martinez
Mr. Leonard Haider
In accordance with this memorandum, Eduardo Leal was transferred into the
JEFM shop, classified as crew chief (a new classification in the JEFM shop), and
'Ingersoll-Rand Company, 119 NLRB 601.
7 At the JEFM shop, jet engines are overhauled , maintained , and inspected.
BEISER AVIATION CORPORATION 443
given a higher rate of pay than Byrd was receiving. All parties stipulated that,
from December 8, 1959, on, Leal was a supervisor within the meaning of the Act.
The only dispute is regarding Byrd's status after Leal came into the shop: the Gen-
eral Counsel and the Union contend that such a substantial change occurred in
Byrd's functions that he no longer possessed supervisory authority. The Respondent,
conversely, maintains that whatever change took place was insubstantial and did not
materially affect Byrd's authority or status as a supervisor.
Based on a reading of the December 8 memorandum, the testimony of Slack,' and
the fact that Leal received a higher rate of pay than Byrd, I conclude that Leal was
inserted into the supervisory hierachy of the JEFM shop between Sprayberry and
Byrd. Taking this fact into account, and based upon the testimony of Byrd and
former employee James E. Cowan, and the admissions of Beiser while testifying in
Case No. 23-CA-970 9 I conclude that after December 8, 1959, Byrd no longer
possessed any substantial part of his former supervisory powers, and spent virtually
all his time on paperwork. It follows that after that date he was not a supervisor
within the meaning of the Act.io
N. THE DISCHARGE OF DAVID BYRD
A. Events
The Respondent in Case No. 23-CA-970, Beiser Aviation Corporation, is the Re-
spondent herein. On May 5 11 Byrd testified at the hearing in Case No. 23-CA-970
as a witness for the General Counsel. The next morning, May 6, Byrd was re-
lieved of his regular duties by Sprayberry and assigned to sit at a table "out in the
center of the [JEFM] shops." Sprayberry gave Byrd a book entitled "Company
Policy" and directed him to read it. He also directed Byrd to compile a "full re-
port" of every infraction of company rules and every maintenance error "detri-
mental to life and Air Force property" which had come to his attention, "with times,
names and dates." Sprayberry stated that he did not want Byrd to work on any-
thing else "until the mess was straightened out." When Byrd asked : "Pertaining
to the trial?" Sprayberry answer "Yes." Byrd then inquired: "You mean I am
going to sit at the table because I testified at the trial?" and Sprayberry responded:
"Yes." 12 Byrd went home ill that morning. He returned to the base on May 10
and spent May 10, 11, and 12 at the table pursuant to Sprayberry's orders. He was
home ill on May 13 and returned to the base on May 16. Although he had not
yet submitted any written report to Sprayberry, Byrd was assigned to his pre-May
5 duties and did not spend any time at the table. At lunch time that day (May 16)
Byrd had a conversation with Beiser in the mess hall. It went substantially as
follows :
BYRD: Do you know I have been sitting at a table out in the middle of the
base shop?
BEISER: Yes, I know it. You are going to sit there until you learn a little bit
of loyalty for this company.
BYRD: Mr. Beiser, all I done was testify to the truth on the stand.
BEISER : Yes, I know, but you made me and Mr. Sprayberry look like a
couple of horses ' asses.
8 "Q. I am sorry , was Mr Byrd Mr. Leal's assistant ? A. Yes, I would any he [Byrd]
was assistant to him [Leal], to a degree the same as both were assistants to Mr.
Sprayberry."
9 Beiser there testified that an A & P mechanic possessed none of the attributes of a
supervisor listed In Section 2 ( 11) of the Act . On motion of the General Counsel I took
administrative notice of this testimony as constituting an admission against interest.
1o Hereafter reference will be made to a petition dated April 17, 1960, and signed by
employees from the JEFM shop, stating "we don't want to work with or for David Byrd
any longer ." The Respondent argues that the use of the words "or for" shows that the
employees considered Byrd their "boss." I cannot agree . The entire phrase "with or
for," in my opinion , merely demonstrates that the employees were uncertain whether
Byrd was their equal or their superior . Accordingly, I do not look upon the wording of
this petition as militating against the conclusion I have reached as to Byrd's status.
The conclusion that Byrd was not a supervisor after December 8, 1959, is bolstered by
the admission in the answer of the allegation in the complaint that "Respondent did dis-
charge David Byrd , employee of said Respondent ." [ Emphasis supplied ]
n All dates hereafter refer to the year 1960 unless otherwise noted
12 The findings of fact regarding this conversation are based upon Byrd's undenied testi-
mony. Sprayberry did not testify.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BYRD: I am sorry, I didn't mean to do that.
BEISER: You are going to stay until you learn a little loyalty.
}B̂YRD: Mr. Sprayberry put me to work on an engine this morning.
BEISER: He did?
BYRD: Yes.
BEISER: I will call him and see about that. I would fire you right now if
it wasn't for the Labor Board causing more trouble.13
That afternoon Sprayberry told Byrd to return to the table in the morning. The
next morning, May 17, Byrd accordingly returned to the table fora short while, then
was again called upon to, and did, testify as a witness for the General Counsel in
Case No. 23-CA-970. For the remainder of that hearing day and the next 2
hearing days (May 17, 18, and 19), Byrd attended the hearing in Case No.
23-CA-970 and during at least part of that time sat at counsel table with the attorney
for the General Counsel. The hearing ended on May 19. The record is not clear
as to Byrd's whereabouts on May 20.
From Monday, May 23, through Friday, May 27, Byrd was subpenaed to jury
duty and Beiser was out of town; neither was on the base that week. On either
Friday, May 20, or Monday, May 23, Sprayberry delivered to Slack a petition signed
by 20 employees of the JEFM shop.14 The petition's heading read.
PETITION OF PROTEST
TO: H. D. Sprayberry
17 April 1960
We, the employees of the J E.F.M. shop, do state by our signed names, that we
don't want to work with or for David Byrd any longer.
Slack retained the petition until Beiser returned to the base on the morning of
May 30. Then he gave it to Beiser, asking: "What should we do, talk to Byrd?"
Beiser replied : "Yes, we should." Byrd was then summoned to the office, and Beiser,
conferred with him in the presence of Slack and Dell Ek, Beiser's secretary, who
recorded in shorthand most of what was said. According to the testimony of Byrd
and Slack,15 the significant portions of the conference were somewhat as follows:
BEISER [to Ek] : Take notes please. [To Byrd] Dave, we are going to have to
part company.
BYRD: Can you give me a reason?
BEISER: You are being discharged because the employees have expressed the
desire not to work with or for you. Furthermore, you have shown through your
own admission that your work in some cases was not trustworthy and that it is
not desirable to have you in the type of work you have been doing.
BYRD. Am I going to get a copy of the notes of this before Mr. Toothaker
gets hold of it?
BEISER: Yes, you will get a copy of it. We will go over it after Mrs. Ek has
transcribed it, and see if we can agree that it is accurate.
The boys in the shop don't want to work with you. I have is petition signed
by the men in the shop dated April 18, which was in error, signed by about 20
men, possibly 3 of them are inspectors.
BYRD: May I see it?
BEISER: Yes. I knew you wouldn't believe me unless you could see it
[shows above-described petition to Byrd].
BYRD: How did you get these men to sign that petition?
BEISER : I did not do it.
BYRD: Did the men threaten to quit if 'I am not fired?
BEISER' No, I don't think our people are like that.
BEISER : You went to court on May 17, 18, and 19 Did you ask any of
your supervisors for permission to stay away from the base for that period of
time?
13 The findings of fact regarding this conversation are based upon Byrd's uncontradicted
testimony Beiser did not testify.
" Slack testified that Sprayberry said he had found the petition on his desk that day or
the day before. Sprayberry did not testify In view of the unsatisfactory nature of such
hearsay testimony, I decline to make any finding as to the time when or the circumstances
under which Sprayberry came into possession of the petition
is Neither of the other two persons present-Beiser or Ek-testified Whenever Byrd's
testimony differs from that of Slack, Byrd's version is credited as the more accurate.
BEISER AVIATION CORPORATION 445
BYRD: I had Mr Pinkerton's 16 permission to go. I was sitting at a table
out in the middle of the base shop doing nothing whatever. I have been asked
to turn in a report. I haven't turned it in yet. I don't want to incriminate any
of the men in the shop.
BEISER: Who were you helping when you were up there in court for those
3 days?
BYRD: I wasn't paid 1 red cent for that. I had been subpenaed previously
and it was not necessary for me to be resubpenaed.
BEISER: You called your boss a liar.
BYRD. You were told the truth. I believe you lied, Mr. Beiser.
BEISER: Yes, and you lied too, Dave.
BYRD: Did I lie about that conversation in the mess hall?
BEISER: You could have.
BYRD: Are you saying I didn't tell the truth about that conversation?
BEISER : You told some truth but you also told some lies. You charged
some of the men with some faulty work on the stand.
BYRD: I deny this. There were some names mentioned on the stand, but I
don't believe the record will show I mentioned anybody's name.
BEISER: Were you the one who contacted the outside union?
BYRD: Mr. Beiser, you were at the trial . You heard what was said. No,
sir, I did not contact anybody in any other city. I was not the one who did it
originally, which the trial will prove itself on the record.
BEISER [to Ek]: We will go off the record [to Slack]. How can we go
about clearing him out, so he wouldn't have to go back to the shop to save him
embarrassment?
BYRD: You want to save me embarrassment? This is kind of late in the
game, Mr. Beiser, after having me sitting at the table all that time doing
nothing constructive whatsoever.
BEISER: Dave, what do you want me to put on your termination papers?
BYRD: What do you mean, Mr. Beiser? What can you put on them?
BEISER: Well, if I put down incompatibility, if I put that on the record,
you will never be able to get another government job. Somebody will phone
up here and ask me.
BYRD: Well, I don't want that on there.
BEISER : If you want to resign , I could put down either resigned or termi-
nated. I would put that in my personal file and it wouldn't go into your 201
file. If anybody called it would be you terminated or resigned. What do you
say to that, Dave? For the record, would you rather have something on your
termination paper other than the fact you were relieved because you could not
get along with people? And that people would not work with you?
BYRD: I need some time to think about it. Can we leave this open until
tomorrow, at which time I will come back and give you my decision?
BEISER : All right.
After leaving Beiser's office, Byrd obtained base clearance and a "severance no-
tice" signed by Beiser, Slack, and Sprayberry. The reason for severance was left
blank. Byrd was paid off, then interveiewed by Isham Tatum, administrative
assistant . When Tatum asked Byrd why he was leaving the Respondent's employ,
Byrd replied that he did not wish to make a statement at that time, that he wanted
to consult someone for advice, and that he would make a statement the next
morning. The "exit interview" report, signed by Tatum's secretary and by Byrd,
leaves blank the type of separation; under "Reason for Separation: Supervisor's
Statement" appears: "Deferred until tomorrow, 5-31-60"; under "Reason for Sepa-
ration: (Employee's Statement)" appears: "No statement at the present time"; and
there is a blank under "Reasons for Separation: (Interviewers Statement)." Ac-
cording to Tatum, such a method of filling in the report was unusual.
On the next day, May 31, Byrd returned to the base and saw some typewritten
documents on Ek's desk. He asked if they were transcriptions of Ek's shorthand
notes of the conference held the previous day. Ek replied that they were. Byrd
stated: "I guess one of these is mine." When Ek answered: "Yes," Byrd took one
of the copies and put it in his pocket. The following conversation with Beiser then
took place:
BEISER [to Ek] : Where are the copies?
BYRD: I have one of them.
BEISER : You have? Where is it at?
BYRD : It's in my pocket.
is Pinkerton is not further identified.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BEISER : Give it here.
BYRD: Ain't I going to get to read it?
BEISER : Let me have it.
BYRD: Well, you have one right in front of you.
BEISER: Are you going to give it back or not?
BYRD: No, sir; not until I read it.
BEISER (loudly) : Okay. That does it.
BYRD: Does that mean I am fired?
BEISER (angrily) : Oh, get out of here.I7
Byrd then left the base. Sometime between May 17 and August 10 (the first
day of the hearing herein) Byrd completed his written report concerning rules
infractions and faulty maintenance and turned it in to Sprayberry.18 He has never
returned to Beiser the copy of Ek's transcription, possession of which he obtained
on May 31, as described above.
On June 6 Cowan had a discussion with Beiser in Slack's presence. Beiser stated
that Cowan was in the same position that David Byrd had previously been in; that
this was due to the fact that they had both testified "against the men" in the
hearing; that the men were all "very mad" at Byrd for testifying "against them"
and had drawn up a petition which gave Beiser "the power to fire . . . Byrd."
Beiser further said that the main reason he discharged Byrd "was on account of
that petition. He [Beiser] had several men refuse to work with him [Byrd], he
had to either fire Dave [Byrd] or let the rest of the men go" and he added that he
[Beiser] "was kind of mad at Dave Byrd for his attitude . . . he [Byrd] had a poor
attitude toward the whole thing. He didn't think he [Byrd] did him [ Beiser]
right." 10
B. Contentions of the parties
The complaint alleges that the Respondent discharged Byrd on or about May 30,
and thereafter failed and refused to reinstate him, because "he joined or assisted
the Union or engaged in other concerted activities" and "because Byrd filed charges
or gave testimony under the Act." The General Counsel contends that the real
reason for Byrd's discharge was "a desire to make an example out of him because of
his union activity and prior testimony" and that the petition "is certainly no more
than a pretext." Alternatively, the General Counsel argues that even if the Re-
spondent discharged Byrd because of the petition, the petition was based upon and
caused by Byrd's testimony, a fact known to Beiser, and Beiser therefore violated
the Act when he acquiesced in the employees' demand that Byrd must go.
The answer admits that the Respondent discharged Byrd on or about May 30,
and that it thereafter failed or refused to reinstate him. But the Respondent main-
tains that this was "because the men had expressed the desire that they did not want
to work with him or for him . [and] it would have been awkward to have
continued with Byrd in Jet Engine Field Maintenance with that many men not
wanting to work with him"; and also because he "pilfered" a copy of Ek's tran-
scription from her desk and refused to return it to Beiser upon demand. Finally, the
Respondent insists that, as there was "no evidence submitted as to what Byrd's testi-
mony was [in Case No. 23-CA-970], . . . no determination [can] be made [that]
he `gave testimony against his employer."'
C. Conclusions
Let us first look into the question of who made the decision to discharge Byrd.
Slack testified that, although he normally would have had authority to discharge
Byrd without consulting Beiser, Beiser had asked him to refrain from any such action
for the reason that Beiser himself "wanted to handle all the situations involving
Byrd." Slack could not recall being consulted regarding what action, if any, Beiser
should take in reference to Byrd, but testified that "it had been a topic of discussion."
In view of Slack's undenied testimony I am convinced, and find, that the final decision
to discharge Byrd was made by Beiser alone.
The General Counsel insists that the real motivating cause of Byrd's discharge
was Beiser's determination to set up Byrd as an example because of Byrd's "union
17 The findings of fact regarding the events of May 31 are based upon Byrd's uncon-
tradicted testimony. Neither Ek nor Belser testified.
19 At one point, Byrd testified that he turned In this report on May 17 or 18. But, as
described above, on May 30 lie told Belser he had not turned it in yet.
" The findings of fact regarding this conversation are based upon Cowan's credited testi-
mony. Beiser did not testify. Although Slack testified concerning this conversation, his
testimony neither corroborated nor contradicted that of Cowan
BEISER AVIATION CORPORATION 447
activity and prior testimony." So far as Byrd 's "union activity" is concerned, the
only such activity shown was that Byrd served as an observer in the election-but that
was in the fall of 1959 , many months before his discharge . Moreover , there is
nothing to indicate that Beiser generally had any union animus or was annoyed
specifically by Byrd's acting as an observer . Hence it would seem clear, and I
find, that Byrd 's union activities , other than his testimony in Case No . 23-CA-970,
had no part in Beiser 's decision to discharge him. But what about Byrd 's testimony?
That undoubtedly angered Beiser , as shown by his remarks on May 16 that Byrd
lacked "loyalty," that he had made the Respondent 's officials "look like a couple of
horses' asses" and that Beiser "would fire [Byrd ] right now if it wasn't for the Labor
Board causing more trouble ." But the last-quoted remark , in addition to indicating
anger and displeasure , displayed Beiser 's fear of taking such a drastic step as dis-
charge and his reluctance to risk further Board action . In short , on May 16, angry
as he was at Byrd for his testimony, Beiser clearly had no intention of going so far
as to discharge Byrd therefor. Thus it cannot reasonably be argued that Byrd's
discharge on May 30 was due to the testimony he gave prior to May 16 . Has the
General Counsel shown that Byrd 's discharge was due to the testimony he gave
after May 16 ? I think not . There is no convincing evidence that Beiser 's attitude
toward testimony given by Byrd underwent any substantial change after Byrd's final
appearance on the witness stand on May 17. The General Counsel argues in his
brief: "it would only be reasonable to assume that the hard feeling toward Byrd
continued for 13 days until May 30." I agree. By parity of reasoning, it would
likewise only be reasonable to assume that Beiser's reluctance to discharge Byrd
because of the testimony also continued until May 30 . I so find.
What then , was the factor which caused Beiser to overcome this reluctance and
to discharge Byrd on May 30? His first words to Byrd that day, "We are going
to have to part company," indicated clearly that his mind was then made up. Only
a short while before , he had been shown the petition , the existence of which had not
previously been known to him . The General Counsel contends that Beiser seized
upon the petition as a "pretext" and labels the Respondent 's defense based upon the
petition "absurd." In support of his position the General Counsel argues: (a) At
the time of the discharge, Beiser "argued with Byrd about testimony at the prior
hearing" and interrogated him about the Union; (b) Byrd had already been discrimi-
nated against because,of his testimony by being placed at a table in the center of the
shop ;_(c) the Respondent gave inconsistent reasons for discharging Byrd ; (d) the
Respondent failed to "verify " the petition ; and (e ) Byrd 's discharge was a "spur of
the moment-this is what we 've been waiting for" decision . Let us examine these
arguments seriatim . As to ( a) there is no doubt that , after having arrived at the
decision to discharge Byrd , Beiser exhibited his displeasure at Byrd's testimony.
Indeed , this was repeated a week later to Cowan . But what this really shows-
especially the remark that the petition gave Beiser "the power to fire . . . Byrd"-is
that Beiser was pleased that the petition enabled him to be rid of someone whose
testimony had irked him, but who (absent the petition ) was insulated by the Act
from discharge because of that testimony . As to (b), that issue was raised and liti-
gated in Case No. 23-CA-970 and is now pending before the Board . It is not before
me, and I do not understand that any party seeks my ruling regarding it. Accordingly
it would be improper for me to base any findings thereon 2° As to (c) it will be
assumed without deciding , that there is no merit in the Respondent 's defense that
Byrd was dismissed because of "pilfering." Even so, the assertion of a defense lack-
ing in merit , while of some probative value, hardly can be taken as a substitute for
affirmative evidence that other defenses are not meritorious . As to (d), it is true
that neither Slack nor Beiser personally "verified" the petition . However, Slack
received a report from Sprayberry that Sprayberry had personally verified the signa-
tures by asking each individual whose name appeared on it if he had signed . In view
of this circumstance, it is hard to understand why the Respondent 's failure to take
further verification steps is indicative that the Respondent did not actually rely on
the petition . Finally, as to (e), it may well be, as the General Counsel points out,
that Beiser 's decision to terminate Byrd was somewhat "hasty." But that fact in
itself does not indicate that the decision was any the less genuine or legitimate.
The General Counsel also points out that the men who signed the petition did not
threaten to quit if Byrd were not discharged, and that Beiser knew they would not
leave even if Byrd were retained. But Slack testified , and it is not controverted, that
if Byrd had remained in the JEFM shop at his former duties much longer, there
was danger that an awkward situation might develop . Under the circumstances, any
2° Compare Peyton Packing Company, Inc ., 129 NLRB 1358.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonable executive would be tempted to act promptly in the interest of plant
efficiency, as Beiser did, rather than waiting to see if more serious complications
might ultimately arise. I conclude that Beiser dismissed Byrd because of the petition,
and that absent the petition there would have been no discharge.
But this does not dispose of the matter. As the General Counsel correctly states,
the authorities condemn as a violation of the Act any surrender by an employer to
his employees of his right to discharge,21 except where the employees are motivated
by considerations other than union activities. Therefore, if the employees who
signed the petition did so because of Byrd's testimony in Case No. 23-CA-970, and
the Respondent knowing this to be so acquiesced in the employees' demands, a
violation of the Act has occurred. Let us see if this was the employees' reason.
No employee who signed the petition took the stand and testified to his reason
for doing so. Nor does the wording of the petition itself explain why the men did
not want to work with or for Byrd. The reason must be sought elsewhere in the
record, if indeed it is obtainable at all. The General Counsel, in urging that the
motive behind the petition was the men's dissatisfaction with Byrd's testimony in
Case No. 23-CA-970, attempted to show (a) that Beiser so believed; and (b) that
the men who signed the petition so informed Byrd.
The record indicates that Beiser may well have believed that anger caused by
Byrd's testimony was the motivating force behind the petition. Thus, he told
Cowan that the men were all "very mad" at Byrd for testifying "against them"
and had drawn up a petition. Indeed, Beiser apparently found it difficult to accept
at face value and had doubts concerning an undisputed fact which indicated the con-
trary, namely, the petition's date. For he told Byrd the date was in error, and he
wrote on the petition itself:
Date is probably in error. Should be 17 May according to Paul Slack although
these people could have held it that long.
F. D. B. 5/30/60.
Nevertheless, Beiser's speculation as to why the men did not want to work with
Byrd is not very helpful in attempting to ascertain the employees' motives.
Slack testified that he talked to John H. Dalton, one of the employees who signed
the petition. Slack's testimony was:
Q. What did Dalton give you for the reason he had signed it?
A. The fact that he didn't know what Mr. Byrd was going to do. He might
go so far as to set up a situation and make him the goat on it.
Q. Dalton said he didn't like the way Mr. Byrd testified on the stand?
A. I don't think Dalton ever heard of the testimony. [Emphasis supplied.]
Q. What is the situation, Dalton was afraid Mr. Byrd was going to set up the
situation and make him a goat?
A. Just that there had been some testimony, well, I will put it this way, some
circumstances cited during the hearing that involved other people and they did
not feel they-they knew they were not involved in it.
Q. Is that what Dalton told you?
A. Yes.
21 Wilson & Go, Inc v. N L R B., 123 F. 2d 411, 417 (C.A. 8) ; N L.R B. v. Hudson
Motor Car Company, 128 F. 2d 528 (C.A 6) ; N.L R.B v. Goodyear Tire & Rubber Co ,
129 F. 2d 661, 664 (C.A. 5) ; NLRB. v. Fred P Weissman Co, 170 F. 2d 952 (CA 6),
cert. denied 336 U.S. 972; N.L R B. v. Newton Brothers Lumber Company, 214 F 2d 472,
475-476 (C.A. 5) ; Detroit Gasket and Manufacturing, Company, 78 NLRB 670; Majestic
Metal Specialties, Inc., 92 NLRB 1854; Paramount Textile Machinery Co, 97 NLRB 691,
693-694; Fry Products, Inc., 110 NLRB 1000; Lincoln Brassiere Co, Inc., 117 NLRB
1237, 1240-1242; J P. Florio & Co., Inc, 118 NLRB 753; Local 138, International Union
of Operating Engineers, AFL-CIO and Thomas A. Eichacker, an Individual (Nassau and
Suffolk Contractors' Association, Inc. and its Members), 123 NLRB 1393; and Larkin
Coils, Incorporated, 127 NLRB 1606.
The Respondent cites N L R B v. Edinburg Citrus Association, 147 F 2d 353 (C A. 5).
See also NLRB v. Wytheville Knitting Mills, 175 F. 2d 238 (C A. 3) and N L R.B v
I. Spiewak & Sons, 179 F. 2d 695 (C.A. 3). With all respect for the courts which de-
cided these cases, as a Trial Examiner I must follow the Board's enunciated rules until
the Board or the United States Supreme Court decides otherwise. Novak Logging Com-
pany, 119 NLRB 1573, 1575-1576; Scherrer and Davisson Logging Company, 119 NLRB
1587, 1589; and Insurance Agents' International Union, AFL-CIO (The Prudential
Insurance Company of America), 119 NLRB 768, 772-773.
BEISER AVIATION CORPORATION 449
Byrd himself, after his discharge , asked some of the men who had signed the
petition why they had done so . Some indicated that their reason related to the
Board hearing in which Byrd had testified , others did not.22 In evaluating such
testimony it should be borne in mind that under such circumstances , in attempting
to spare Byrd's feelings or to avoid embarrassing themselves , some of his fellow
employees may have been less than candid . In any event , the slim and predomi-
nantly hearsay testimony pointing in the direction of any casual connection between
Byrd's testimony in Case No . 23-CA-970 and the petition is completely destroyed
by one undenied and admitted fact 23-the petition bears the date of April 17, more
than 2 weeks before Byrd first took the witness stand. In view of that fact, a find-
ing of any relationship between the petition and Byrd's testimony would appear
to be "pure conjecture ." 24 I conclude that the General Counsel has failed to prove
that the petition was related to Byrd 's testimony in Case No. 23-CA-970 and that
therefore he has likewise failed to establish that Beiser 's acquiescence in the petition
was connected with activities protected by the Act, or constituted a violation of
the Act. 25
V. INTERFERENCE, RESTRAINT, AND COERCION
The complaint alleges, and the answer denies, that since on or about May 30 the
Respondent, through Beiser, interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act by interrogating them
about the Union. As found above, during the conference of May 30, Beiser asked
Byrd if he was the person who originally contacted the Union. It may well be that
this question reasonably tended to coerce Byrd, and that such interrogation therefore
violated Section 8(a) (1) of the Act.26 Assuming that to be so, such conduct would
constitute no more than a minor isolated violation, insufficient standing alone to
warrant the issuance of a remedial order. A decision on this issue is therefore, in
my opinion, unnecessary.27
Upon the basis of the above findings of fact and upon the entire record herein, I
make the following:
CONCLUSIONS OF LAW
1. Beiser Aviation Corporation is, and at all material times has been, an employer
within the meaning of Section 2(2) of the Act and its operations affect commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Millwright and Machinery Erectors Local Union No. 2219, of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, is, and at all ma-
terial times has been, a labor organization within the meaning of Section 2(5) of
the Act.
3. From December 8, 1959, until May 30, 1960, David Byrd was an employee
of Beiser Aviation Corporation within the meaning of Section 2(3) of the Act, and
not a supervisor within the meaning of Section 2 (11) of the Act.
4. The General Counsel has failed to prove that the Respondent's discharge of
David Byrd on May 30, 1960, constituted an unfair labor practice within the mean-
ing of Section 8(a) (1), (3), or (4) of the Act.
5. The General Counsel has failed to prove that the Respondent violated Section
8 (a) (1) of the Act in a manner sufficiently serious to require remedial action.
[Recommendations omitted from publication I
22Among the "nots": James Henley ("it was something personal He wouldn't tell
me") ; H. Sullivan ("there Is a lot of pressure I . . . have nothing against you") ;
James Poole ("I have nothing against you whatsoever ") ; and Slim Henley ("I wouldn't
pick cotton for you").
22 The General Counsel does not contend the date on the petition Is in error. At oral
argument , the following colloquy took place:'
TRIAL EXAMINER: You think possibly the petition might have been misdated"
Mr ENGLE: No I don't, sir. I just know it bears the date on its face of April 17th.
There is certainly a discrepancy somewhere.
24 American Dredging Company, 123 NLRB 139, 142.
25 Compare Studebaker Corporation, 110 NLRB 1307, petition for review denied sub
nom. Kovach v. N.L.R.B., 229 F 2d 138 (C.A. 7). In view of this disposition of the
legality of Byrd's discharge , I deem it unnecessary to consider other defenses thereto
raised by the Respondent.
26 Compare Blue Flash Express, Inc., 109 NLRB 591 , 592-595.
21 Compare Hotpoint Co., a Division of General Electric Company, 120 NLRB 1768, 1772.
634449-62-vol. 135-30