Beiser Aviation Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1962

135 N.L.R.B. 399 (N.L.R.B. 1962)

BEISER AVIATION CORPORATION 399
CONCLUSIONS OF LAW
1. The Unions are labor organizations within the meaning of Section 2(5) of
the Act.
2. All truckdrivers, packers, craters, order fillers, checkers, warehousemen, loaders,
helpers, and working foremen employed by the employer-members of the Committee
and within the jurisdiction of the Unions, excluding all other personnel constitute,
and at all times material constituted , a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act.
3. At all times material since July 30, 1956,.the Unions have been the exclusive
bargaining representatives of all employees in the aforesaid unit within the meaning
of Section 9(a) of the Act.
4. By failing to bargain collectively with the Unions as the exclusive bargaining
representatives of the employees in the appropriate unit and by entering into indi-
vidual contracts with the lease drivers, the Committee and its employer-members
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) 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 and Moore
Air Base Independent Employees Association , Party to the
Contract . Case No. 23-CA-970. January 23, 1962
DECISION AND ORDER
On August 24, 1960, Trial Examiner Vincent M. Rotolo issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Respondent filed exceptions to the Intermediate Report. The Gen-
eral Counsel filed a brief in support of his exceptions and partly in
support of the Intermediate Report and Respondent filed a brief
in' support of its exceptions.
Pursuant to the provisions of Section 3(b) of the 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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications.
135 NLRB No. 33.
400 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
1. For the reasons set forth in the Intermediate Report, we find, in
agreement with the Trial Examiner, that the Respondent violated
Section 8(a) (1) of the Act by: Threatening employees with reprisals,
including the closing of the Moore Airbase, if they supported the
Charging Party, hereinafter called Local 2219, and promising bene-
fits if they would not choose Local 2219; discriminatorily enforcing
a no-solicitation rule; 1 transferring and restricting employee I-Till
to the electric shop, threatening him for his activity in behalf of
Local 2219, and also threatening him with discharge for complaining
about Inspector Miller's violation of the no-solicitation rule in behalf
of the Employees' Committee; and engaging in surveillance of a
meeting called by Local 2219.2
However, contrary to the Trial Examiner, we find that the con-
duct of the Respondent, 2 days before a Board-conducted election,
in distributing for wear by its employees cards which bore facsimiles
of the voting boxes appearing on the Board's election ballots, and
were premarked with an "X" in the "No," or against Local 2219,
boxes, was further violative of Section 8 (a) (1) of the Act. In so
finding, we regard it as immaterial whether, in the process of distribut-
ing the cards, the Respondent accompanied such distribution by
independent coercive conduct. It is sufficient in the circumstances
of this case that by placing an employee in a position where he must
declare himself as either for or against Local 2219, the Respondent
coerced employees in violation of Section 8 (a) (1).4
2. The Trial Examiner also found that the Respondent violated
Section 8(a) (2) and (1) of the Act by assisting the Employees' Com-
mittee and its successor, the Moore Air Base Employees Independent
Association (herein called the Independent), but that it did not. domi-
nate or interfere with the Committee or the Independent in its forma-
tion or administration. We disagree with the Trial Examiner to the
extent that we find that the evidence establishes that the Respondent
also dominated and interfered with these labor organizations in vio-
lation of Section 8(a) (2) and (1) of the Act.
1In the absence of exceptions , we shall adopt, pro forma, and without expressing our
opinion as to its merits , the Trial Examiner's finding that the no-solicitation rule was
validly adopted.
2 We read the Trial Examiner 's findings in this connection as a finding that Respondent's
Supervisors Sprayberry , Malone, and Wilburn went to Pharr for the purpose of engaging
in surveillance and actually engaged in surveillance . In any event , it is clear that the
record supports such finding which we make.
We need not pass upon the General Counsel's contention that President Beiser's state-
ment on -November 3 contained a misrepresentation of fact and therefore was violative
of section 8(a) (1) since , even if found to be so, any such finding would be merely
cumulative.
3 The Chas V. Weise Co , 1337(NLRB 765 We note , however, the Fisher incident men-
tioned in the Intermediate Report and other record evidence indicating that Respondent
did accompany such distribution by independent coercive conduct.
4 The Chas V. Weise Co , supra See Brown and Root Caribe, Inc , 123XNLRB 1817 ;
California Compress Company , Inc, 121, NLRB 1388 , enfd . 274 F 2d 104 (C.A. 9).
BEISER AVIATION CORPORATION 401
As shown by the factual recital in the Intermediate Report, and
other facts in the record not adverted to by the Trial Examiner, the
Respondent initiated and participated in the formation of the Com-
mittee and the Independent. Thus, the evidence shows that in the
initial suggestion for the formation of the Committee came from the
Respondent's President Beiser. In August 1959,5 in response to an
expression of dissatisfaction with the Respondent's vacation policy,
Beiser told an inspector, one Miller, to form a committee and that he,
Beiser, would negotiate with such committee. Apparently Miller did
nothing about this suggestion before leaving on his vacation. On
Miller's return, Beiser sought him out, and again suggested that
Miller do something agout forming a committee. On later occasions,
as the record shows, Beiser made similar suggestions to Acting Crew
Chief Byrd and employee Hill; and on October 23, at a meeting
which Beiser called for the purpose of voicing his objection to "out-
side unions," 9 Beiser told the employees to form a committee and
promised that if they organized one, he would deal with it.
Pursuant to Beiser's suggestions, Inspector Miller with Respond-
ent's approval' conducted elections in various areas of the base, asking
employees to vote for representatives to serve on an employees' com-
mittee, but not submitting to the employees the question whether they
did or did not favor that form of organization. A number of Respond-
ent's supervisors helped run the elections, voted therein, and some
were elected to serve on the Committee.' Moreover, the Respondent
permitted the elections to be conducted on company time in violation
of a rule against all solicitation on company time which it had recently
adopted as the result of Local 2219's organizational campaign among
the employees. The evidence also shows that soon after the Committee
had been formed, Respondent again assured the employees and, subse-
6 Except where specifically otherwise indicated , all events occurred in 1959.
6 Respondent 's reference to an "outside union" was to the Charging Party, Local 2219,
which was then engaged in actively organizing the Respondent ' s employees and had filed
a representation petition with the Board.
4 Miller 's own understanding that Respondent knew and approved of his activities is
fully corroborated by such events as Chief Sprayberry ' s direction to Acting Crew Chief
Byrd, who had protested Miller 's running an election in the JEFM shop , to permit it.
and by Supervisor Pinkerton 's threat to employee Hill, who had similarly protested.
against expressing opposition to Miller ' s running an election in the electric shop.
8 Crew Chief R McMullen ran the elections in his section and helped count the ballots,
and Acting Crew Chief David Byrd helped Inspector Miller run the election in the JEFM
shop ( see footnote 7). Crew Chief Bowen voted in an election McMullen was elected as
a representative and a short time later, after the representative from his section left
Respondent ' s employ, Crew Chief Daum also became a representative. Although Respond-
ent concedes that Acting Crew Chief Byrd was a supervisor , it denied that the other crew
chiefs were supervisors . However, the record shows that the crew chiefs exercised the
authority responsibly to direct the work of other employees , and their supervisory status
is also reflected in the Respondent 's job descriptions for these individuals In view thereof
and, moreover , in view of Respondent's admission as to Acting Crew Chief Byrd, we find,
contrary to Respondent , that its crew chiefs are supervisors within the meaning of the Act.
634449-62-vol. 135-27
6r
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quently, the members of the Committee, that it approved its formation
and supervisory participation therein, and would meet with it.
The evidence further discloses that Respondent from the very outset
played a significant part in the Committee's functioning, and accepted
the Committee's claimed authority to act for the employee body with-
out even questioning whether the Committee had ever been endorsed
by a majority of the employees. Thus, on the occasion of his initial
meeting with the Committee on October 30, President Beiser "strongly
advised" the Committee against intervening in the pending representa-
tion proceeding before the Board and seeking a place on the ballot.
Furthermore, stating at this meeting that he "sensed" that the Com-
mittee desired to function as a complete labor organization, Beiser and
Superintendent Slack, who was also present, left the meeting; but
they nonetheless instructed Slack's personal secretary to remain and
take the minutes of the meeting. Ina subsequent bulletin issued jointly
with Miller, Beiser advised the employees that he could no longer deal
with them individually, and must deal with the Committee members
who had-been chosen; 9 Beiser also stated at the same time, however,
that collec{Sive bargaining would be furthered if the employees formed
a "bona fide and permanent" labor organization. The Committee im-
mediately took steps to convert its organization to the form suggested
by the Respondent. However, no meeting of employees was ever called
by the Committee to decide whether the employees wanted a so-called
"bona fide and permanent" labor organization, and no opportunity
was afforded the employees to express their sentiments about the for-
mation of such organization.
On November 12 to 19, about 2 weeks after Beiser's aforementioned
initial meeting with the Committee, Miller and other members of the
Committee circulated cards prepared by the Respondent which, when
signed, attested only to an employee's membership in an existing
organization, and these cards were thus distributed immediately after
Beiser's November 11 joint bulletin with Miller made clear that Beiser
favored the signing of such cards and that he promised benefits there-
for. The Committee drafted a set of bylaws and a constitution for
the proposed labor organization patterned after those of a similar
organization functioning at the Respondent's Marana Airbase, and
the Committee adopted them without ever submitting them to the em-
ployees for their approval.lo
The record shows further that the Committee, without the
employees' consent or knowledge, was thereafter designated as the
' Even If President Beiser may have preferred no employee organization of any kind,
an inference drawn by the Trial Examiner which we consider somewhat doubtful, this
does not alter the fact that , in the circumstances of this case , he did prompt the forma-
tion of the Committee and its successor, the Independent, because he preferred that type
of organization to an "outside" union.
'0 The evidence shows that copies of the bylaws and constitution were furnished to
the Committee through Beiser as conduit , and with Beiser 's express consent.
BEISER AVIATION CORPORATION 403
Independent's board of representatives, and that this board of repre-
sentatives elected from among its members the officers of the organiza-
tion and an executive committee which was to deal with the Respond-
ent. Here, again, the evidence shows that the executive committee
included Respondent's supervisory personnel.li
The Independent did not manifest the characteristics of a labor
organization capable of representing employees independent of man-
agement. Thus, apart from the role played by Respondent's super-
visory personnel, the Independent was completely dependent on the
Respondent for financial and other support, had no treasury, collected
no dues, and had no other source of income. It retained no attorney of
its own and relied on the Respondent's own attorney for whatever legal
services it required. Neither its bylaws nor constitution had any pro-
vision for regular meetings by all employees nor for regular meetings
by the executive committee or the board of representatives for con-
sideration, apart from management, of any strictly intraunion affairs.
Such meetings that were held apart from management were held on
company time and property with Superintendent Slack's secretary or
another of Respondent's secretaries in attendance for the taking of
minutes, and the individuals participating were paid for their time by
the Respondent.
In addition, the record establishes that the executive committee, the
alleged bargaining arm of the Independent, did not engage in what
could be called arm's-length bargaining with the Respondent. Thus,
the executive committee, together with a Respondent-appointed board
of supervisors,13 together constituted a so-called joint board. The
agenda for joint board meetings had to be approved by both sides in
advance of the meeting. At the meetings, instead of the employee-
elected representatives actively and independently advancing the in-
terests of the employees, the joint board operated by voting openly on
questions coming before it until unanimous agreement of all was
reached. No provision was made for the arbitration or other dispo-
sition of grievances past the joint board in the unlikely event that
unanimous agreement could not be reached.13 Moreover, such matters
as how employees initially should present grievances to their own
representatives were made a concern of the joint board'14 thus giving
11 Crew Chief R. Daum was elected as one of its five regular members and Crew Chief
McMullen as an alternate
11 It is of interest to note that the Independent 's bylaws provided that it was the organi-
zation's purpose to bargain with a "Board of Supervisors" representing the Respondent
11 There is no evidence that at any meeting at which grievances were considered the
committee members ever voted contrary to the wishes of management.
16 It is interesting to note that in supplement No 5 to the so-called employment agree-
ment, actually a recognition agreement entered into on or about February 8, 1960, the
Independent gives up its right under the Act to have a representative present at the first
step of the grievance procedure.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent further effective control over the administration of
the Independent.15
When the foregoing evidence is viewed in its complete context, and
note is taken of the Respondent's strong hostility to its employees
choosing representation by an "outside" union, as against the many
benefits Respondent accorded the Committee and the Independent, we
are fully convinced that the Respondent not only assisted and sup-
ported the Employees' Committee and its successor, the Moore Air
Base Independent Employees' Association, as the Trial Examiner
found, but that it also dominated and interfered with the formation
and administration of the organizations . Accordingly, we find that by
such conduct the Respondent violated Section 8(a) (2) and (1) of
the Act.ia
3. We agree with the Trial Examiner that the Respondent, com-
mencing May 6, 1960, relieved employee David Byrd 11 of his normal
work, seated Byrd in the center of its jet engine room, and demoted
him to the job of ordinary mechanic as a reprisal for testifying as a
witness for the General Counsel in the instant proceeding," and that
such conduct on the part of the Respondent violated Section 8(a) (1)
of the Act because it clearly indicated to employees, generally, that
they also would be subjected to reprisals for similarly testifying.
"Further evidence of the Independent ' s subjection to the Respondent appears in the
so-called employment agreement . (Ibid.) In It the Independent binds itself to appoint an
executive committee consisting of a chairman and duly elected employee representatives
for the purpose of negotiating with the Respondent , thereby waiving the right to change
its structure . We find , also, in view of the Respondent 's expressed hostility to "outside"
unions and to "outsiders" representing its employees , that the parties also understood
that by such clause the Respondent was waiving the right to have any "outsider" assist it
in negotiations , thereby drastically surrendering its right to function as a truly independ-
ent organization.
18 Also, as indicated, we agree with the Trial Examiner that the Respondent unlawfully
assisted and supported the Employee 's Committee and its successor organization, the
Independent. We think it proper, nevertheless , to find additionally that in recognizing
and bargaining with the Independent on and after February 8, 1960, after the Regional
Director had sustained Local 2219 's objections to the election in the representation case,
the Respondent violated Section 8(a) (2) under the Board ' s Midwest Piping doctrine.
Midwest Piping & Supply Co., Inc., 63 NLRB 1060. Also see National Container Corpora-
tion, 103 NLRB 1544, enfd . 211 F. 2d 525 ( C.A. 2). Further , we find that the Respondent,
in recognizing and bargaining with the Independent prior to February 8, 1960, was also
in violation of Section 8(a)(2), as the question concerning representation initially raised
by Local 2219 's petition had not ceased to exist because Local 2219 had filed objections
to the election
Even apart therefrom , we do not agree with the Trial Examiner that prior to February 8,
1960, the Respondent was in anywise obligated to recognize and bargain with the Inde-
pendent. The Trial Examiner apparently overlooks his contrary finding, amply supported
by the record, that the Respondent unlawfully assisted and supported the Independent
and that such unlawful assistance and support warranted an order directing the Respond-
ent to cease and desist from recognizing or bargaining with it. Thus , any obligation
which might have been imposed upon the Respondent would have been an obligation to
desist from giving further unlawful support to the Respondent through recognition or
bargaining.
1S As noted above, Byrd has been acting crew chief of the jet engine shop. However, in
December 1959, Respondent appointed Eduardo Leal as crew chief of the shop and assigned
Byrd to recordkeeping duties only . It is clear , and we find , that after Leal ' s appoint-
ment, Byrd neither retained nor exercised any supervisory authority under the Act.
18 The Respondent treated Byrd in this fashion while, at Respondent's request, this
hearing was in adjournment.
BEISER AVIATION CORPORATION 405
We find, however, that the Trial Examiner erred in not permitting
the General Counsel to amend the complaint to allege that this con-
duct of the Respondent also violated Section 8(a) (4) of the Act. We
do not believe that the General Counsel's request, which came before
the close of this phase of the case, was untimely made ; the request
to amend is hereby granted. And as the facts were fully litigated, we
therefore find that, by engaging in the foregoing conduct, the Re-
spondent violated Section 8(a) (4) of the Act. Moreover, we believe
it imperative, in order to protect the integrity of Board processes,
that such specific finding be made, as Respondent's conduct consti-
tutes a flagrant interference not only with employees' rights but also
with the orderly processes of this Act.19
4. We find, contrary to the Trial Examiner, that the Respondent by
discharging Fred Keas violated Section 8 (a) (3) and (1)- of the Act.
We are of the opinion, as alleged by the General Counsel, that Keas
was discharged for his activities in behalf of Local 2219, and that
the ground asserted by the Respondent as justification for his dis-
charge was a mere pretext.
It is not disputed that Keas was an active proponent of Local 2219,
and that Respondent had knowledge of his activities. It is also clear
that the Respondent was actively opposed to this organizational ac-
tivity, and we have already found that Respondent's course of action
to defeat such organizational efforts among its employees involved
violations of Section 8(a) (4), (2), and (1) of the Act.
The attitude of the Respondent to the organizational activities of
Keas and other employees is reflected in a report, submitted on Octo-
ber 23, by Respondent's jet engine chief, Sprayberry,20 to his superior
shortly after Local 2219 began organizational activities in which he
recommended the discharge of Keas, Cowan, and Byrd. Sprayberry
reported that Keas and another employee, James Cowan, were solicit-
ing union membership on company time with the approval and active
connivance of their acting crew chief, David Byrd,21 attributing a
slowdown in work by Keas to these concerted activities. Sprayberry
thereupon recommended Keas' discharge for the alleged slowdown and
for "harassing" his fellow workers, despite the fact that the Re-
spondent at that time had no rule against solicitation .21
10 Although the General Counsel alleged a violation of Section 8(a) (3) of the Act, the
Trial Examiner did not find such violation . As the General Counsel did not except
thereto, we find it unnecessary to decide whether such conduct was also violative of
Section 8 ( a) (3).
20 As noted above, Sprayberry was one of three respondent supervisors who engaged in
surveillance of Local 2219 's October 24 meeting.
211n contrast to this recommendation for Byrd 's discharge , it is noteworthy that the
Respondent not only did not disapprove or Byrd's later participation , on company time,
in electing representatives to the Employees' Committee , but, through Sprayberry, actu-
ally encouraged and endorsed such supervisory conduct
22 The Respondent first adopted a rule against solicitation on October 23 after receipt
of Sprayberry 's report. As found above, the Respondent disparately applied this rule by
permitting adherents of the Employees ' Committee to violate it while enforcing it against
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent apparently took no action on these recommenda-
tions of Sprayberry, but on November 11, within a matter of less
than 3 weeks, Sprayberry again recommended Keas' discharge, this
time on the alleged ground that Keas had been careless in performing
his work. The Respondent asserts that it acted on Sprayberry's rec-
ommendation and discharged Keas on November 24.
The specific incident which purportedly caused Keas' discharge
concerned a failure to install a baffle in the rear part of a jet engine
worked on by Keas and mechanic's helper Francisco Perez. The Re-
spondent does not deny that Perez, to whom the particular work had
been assigned because it was relatively simple, was the one who com-
mitted the error, nor does it claim that Keas was at fault in assigning
this particular work to Perez. Respondent does contend that it dis-
charged Keas for "certifying," on the work report covering the en-
gine, that the necessary work had been done when in fact it had not.
However, the record shows that Sprayberry, who recommended Keas'
dismissal, did not mention such error in his report, did not even
know at the time that Keas, rather than Perez, had signed that the
work had been done, and that Sprayberry did not learn of it until
after Keas was discharged. It is thus obvious that "certification"
did not play a part in Sprayberry's recommendation and that such
"certification" was a mere afterthought of the Respondent.
Respondent further alleges that the failure to install the baffle
could have had serious consequences and that it was justified in dis-
charging Keas because lie was responsible for Perez' failure to do
his work properly. But Keas' discharge was not recommended because
of the baffle incident. Rather, Sprayberry's recommendation of dis-
charge was purportedly based upon Keas having displayed an "in-
different attitude and lackadaisical work in the past." We must,
therefore, determine what Sprayberry meant by such alleged "indif-
ferent attitude and lackadaisical work in the past." The Respondent
concedes that it had no criticism of Keas' work since Sprayberry's
earlier report which recommended the discharge of three employees,
one of them Keas. Indeed, Sprayberry testified that Keas had made
a sincere effort to improve his "attitude" and production since such
earlier report. It is therefore clear and we find that, in referring to
Keas' "indifferent attitude and lackadaisical work in the past," Spray-
berry meant, as we have noted above, Keas' activities on behalf of
Local 2219. As the Respondent's discharge of Keas was based upon
such recommendation, we find that it discharged Keas for reasons of
his union activities 23
adherents of Local 2219 . See N .L.R.B v Avondale Milla , 242 F 2d 669, 671 (C A 5), affd
357 U. S. 357.
23 It Is significant that the remaining two individuals mentioned by Sprayberry in his
earlier report , and recommended for discharge , were subsequently discharged on grounds
which the Board is finding to have been discrimnatoiy See ]35 NLRB 433, con-
BEISER AVIATION CORPORATION 407
Furthermore, our conclusion that the incident of the baffle was a
mere pretext for Keas' discharge is further supported by evidence
that comparable if not more serious errors were made by other em-
ployees without their receiving anything more than a reprimand, if
that. Thus, for example, Sprayberry merely reprimanded employee
Klepfer, a 'senior mechanic like Keas, when a screwdriver belonging
to him was discovered in the firewall of an already installed and flown
engine; Sprayberry did not even reprimand Inspector Miller, the
leader of the Respondent-favored Employees' Committee and Inde-
pendent, when tools were left by him in an aircraft ready for flight;
and Respondent's supervisors did not attempt to learn from the shop
records the identity of employees who had failed to put baffles in
engines which had been installed and flown 24 Moreover, neither
Inspector Dalton, who also signed the work report indicating that
the work had been done, nor mechanic's helper Perez, who was re-
sponsible for the failure to install the baffle, was in anywise disciplined
for the error; and it also appears that Respondent took no steps to
revise its inspection procedures to avoid recurrence of such errors25
Furthermore, the Respondent's contention that it considered the
Keas' error so serious as to require his discharge is not supported by
the record. The record shows that Sprayberry's recommendation was
on Superintendent Slack's desk for 2 weeks without any further at-
tention being paid to it, and that Keas was permitted to perform his
usual work. If, indeed, the error was as serious as Sprayberry
claimed, there is no reasonable explanation for Sprayberry' s failure
to relieve Keas of his duties and reassign him to less exacting work, or
his failure to contact either President Beiser or Duckworth, Super-
intendent Slack's assistant , who unquestionably had the authority to
act in Slack's absence , for immediate action on the matter.26
In view of the foregoing and on the record as a whole," we find that
the Respondent discharged Keas because of his activities on behalf
currently issued (David Byrd ) See 135 NLRB No. 35, concurrently issued (James Cowan)
As to the Respondent 's discriminatory change in Byrd's working conditions , see supra
24 Respondent seeks to justify the disparate treatment accorded Keas on the ground
that the other Incidents of negligence were discovered at an earlier point In the process
of overhauling and testing the engines . As noted , the evidence is to the contrary.
25 Contrary to the Trial Examiner , the Respondent did not assert as a basis for its dis-
charge of Keas that Its contract with the Air Force "required" it to do so Rather, the
record shows that the Respondent merely speculated that the Air Force might take such
action if it ever learned of the error Moreover , the Respondent could not have reason-
ably felt that It was required to discharge Keas, since it had taken no comparable action
in any of the other cases involving alleged serious error
29 The record also does not support the Trial Examiner ' s finding that Sprayberry ordered
Keas, after the missing baffle had been installed , to move the engine over to the testing
line and to remove the yellow tag affixed after the earlier testing On the contrary,
Sprayberry 's own testimony Is that Sprayberry merely asked if Keas was planning to move
It over and upon receiving a negative response then commented that he, himself, would
take care of it. It Is apparent , therefore , that the Respondent 's contention that Keas
was also discharged because of his refusal to obey such order has no basis in fact
27 We have taken official notice of the record and findings in 135 NLRB 433 and 135
NLRB 450, companion cases issued concurrently.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Local 2219, and that in so doing it violated Section 8 ( a) (3) and
(1) of the Act.
THE REMEDY
Having found in agreement with the Trial Examiner that the Re-
spondent is engaging in and has engaged in unfair labor practices,
we shall order it to cease and desist therefrom and to take affirmative
measures which will effectuate the policies of the Act.
We have also found, contrary to the Trial Examiner, that the Re-
spondent has dominated and interfered with the formation and ad-
ministration of the Employees' Committee and the Moore Air Base
Independent Employees Association in violation of the Act. We shall
order the Respondent to withdraw and withhold all recognition from,
and completely disestablish, the Employees' Committee and the Moore
Air Base Independent Employees Association. Because of such viola-
tion, and apart from the Respondent's other violations herein which
would require a similar remedy,28 we shall also order the Respondent
to cease giving effect to any agreement, oral or written, made with
the Moore Air Base Independent Employees Association : Provided,
however, That nothing herein shall require the Respondent to vary or
abandon any wage, hour, seniority, or other substantive feature of
its relations with its employees which the Respondent has established
in the performance of these agreements, or to prejudice the assertion
of any rights acquired by them thereunder.
As we have also found, contrary to the Trial Examiner, that the
Respondent discriminatorily discharged employee Fred Keas, we
shall direct Respondent to offer reinstatement to Keas 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 which he normally would have earned as wages,
from the date of this discharge on November 24, 1959, 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
policy enunciated in the 'Woolworth 29 case. However, in accord with
our usual practice, where a Trial Examiner has recommended dis-
missing a discrimination allegation, backpay will be tolled from the
date of issuance of the Intermediate Report to the date of this Decision
and Order So
As Texas has a right-to-work law, we shall delete from the Order
herein the proviso "except to the extent that such right may be af-
21 See footnote 16 hereof.
21 F. W. Woolworth Company, 90 NLRB 289.
50 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 Employer'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
BEISER AVIATION CORPORATION 409
fected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959."
The Trial Examiner recommended only a narrow cease-and-desist
order. Because we believe, from the Respondent's past conduct, and
even apart from our finding of a discriminatory discharge, 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 obviously would
be futile. We shall therefore order that the Respondent, in the event
it has ceased such operations, mail signed copies of said notice to all
employees who were in its employ between August 15, 1959, 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 the Respondent, Beiser Aviation
Corporation, Mission, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of the Employees' Committee and the Moore Air Base Independ-
ent Employees Association or of any other labor organization of its
employees, and from contributing financial or other support to any
labor organization, and from otherwise interfering with the repre-
sentation of its employees through a labor organization of their own
choosing in violation of Section 8 (a) (2) and (1) of the Act.
(b) Recognizing or bargaining with the Employees' Committee
or the Moore Air Base Independent Employees Association, or any
successor thereto, ,as the representative of any of its employees for the
purpose of dealing with the Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment.
(c) Giving effect to any agreement, oral or written, made with the
Employees' Committee or the Moore Air Base Independent Employees
Association : Provided, however, That nothing herein shall require the
Respondent to vary or abandon any wage, hour, seniority, or other
substantive feature of its relations with its employees which the Re-
. 31 Ibid.
410 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
spondent has established in the performance of these agreements, or
to prejudice the assertion of any rights acquired thereunder.
(d) Discouraging activity on behalf of Millwright and Machinery
Erectors Local Union No. 2219, of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO,' or of any other labor
organization, by discharging any of its employees, or by discriminating
against them in any other manner.
(e) Placing its employees in a position where they must declare
themselves either for or against Millwright and Machinery Erectbrs
Local Union No. 2219, of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor organization, or
otherwise interrogating its employees regarding their exercise of rights
guaranteed by the Act in a manner violating Section 8(a) (1) of
the Act.
(f) Threatening to discharge or restricting the movements of em-
ployees who engage in activities on behalf of Millwright and Machin-
ery Erectors Local Union No. 2219, of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any other labor
organization, during working hours on its premises while permitting
such activities by adherents and representatives of any other labor
organization.
(g) Prohibiting the representatives of Millwright and Machinery
Erectors Local Union No. 2219, of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or any other labor or-
ganization, from soliciting members on its premises while permitting
the representatives of any other labor organization to engage in such
activities.
(h) Advising and warning its employees that the United States
Air Force disapproves of union representation of its employees by out-
side unions with national or international affiliation and that it would
close down the base if they selected such an organization to represent
them.
(i) Promising to use its influence with the United States Air Force
to approve and give additional benefits to its employees where such
approval was necessary under its contract with said Air Force pro-
vided they do not select an outside union with national or international
affiliation to represent them for collective bargaining purposes.
(j) Coercing and changing the conditions of work of any employee
because he has given testimony in a National Labor Relations Board
case.
(k) Engaging in or attempting to engage in surveillance of con-
certed or union activities.
(1) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist Millwright and Machinery Erectors Local Union No.
BEISER AVIATION CORPORATION 411
2219, of the United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action, which the Board finds, will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish, the Employees' Committee and the Moore Air Base In-
dependent Employees Association, as the representative of any of its
employees for the purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
(b) Offer Fred Keas immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole in the manner set
forth in the section hereof entitled "The Remedy" for any loss of pay
he may have suffered by reason of the discrimination against him.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amount of back-pay
due Keas under the terms of this Order.
(d) Restore to David Byrd the same working conditions that he
enjoyed prior to his having given testimony against the Respondent
in these proceedings.
(e) Post immediately at the Moore Air Base near Mission, Texas,
copies of the notice attached hereto marked "Appendix." 32 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
third Region, shall, after being duly signed by the Respondent's
authorized representative be posted by it immediately upon receipt
thereof and maintained for 60 consecutive days thereafter in conspicu-
ous places at said base, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(f) Send a signed copy of the notice attached hereto marked "Ap-
pendix" to all employees in its employ between August 15, 1959, and
June 30, 1960, if it has ceased operations at Moore Airbase.
(g) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
n 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 "
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OF OUR EMPLOYEES WORKING AT THE
MOORE 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 dominate or interfere with the formation or the
administration of the Employees' Committee or the Moore Air
Base Independent Employees Association or any other labor
organization or contribute financial or other support thereto.
WE WILL NOT recognize the Employees' Committee, or the
Moore Air Base Independent Employees Association, or any suc-
cessor thereto, and we hereby permanently withdraw recognition
from and disestablish them as representatives of any of our
employees for the purpose, in whole or part, of dealing with or
discussing grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work.
WE WILL cease giving effect to any agreement, oral or written,
made with the Employees' Committee or the Moore Air Base
Independent Employees Association, Provided, however, That
nothing herein requires us to vary or abandon any wage, hour,
seniority, or other substantive feature of our relations with our
employees which we have established in the performance of these
agreements, or to prejudice the assertion of any rights acquired
by them thereunder.
WE WILL NOT discourage membership in or other activity on
behalf 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, by dis-
charging Fred Keas or any of our employees, or by discriminating
against them in any other manner.
WE WILL NOT place our employees in a position where they must
declare themselves either for or against Millwright and Machin-
ery Erectors Local Union No. 2219, of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or any other
labor organization, or otherwise, interrogate our employyees re-
garding their exercise of rights guaranteed by the Act in a man-
ner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1) of the Act.
WE WILL NOT threaten to discharge or restrict the movements of
employees who engage in activities on behalf of Millwright and
Machinery Erectors Local Union No. 2219, of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, or any
BEISER AVIATION CORPORATION 413
other labor organization, on our premises during work hours
while we are not enforcing our rule prohibiting such activities
against adherents and representatives of any other labor
organization.
WE WILL NOT prohibit the representatives of Millwright and
Machinery Erectors Local Union No. 2219, of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, from
soliciting members on our premises while we are permitting the
representatives of any other labor organization to engage in such
activities.
WE WILL NOT advise or warn our employees that the United
States Air Force disapproves of union representation of our
employees by outside unions with national or international affilia-
tion and that it would close down the base if they selected such an
organization to represent them.
WE WILL NOT promise to use our influence with the United
States Air Force to approve and give additional-benefits to our
employees where such approval was necessary under our contract
with said Air Force, provided they do not select an outside union
with national or international affiliation to represent them for
collective-bargaining purposes.
WE WILL NOT coerce or change the conditions of work of David
Byrd, or any of our employees, because of testimony in a National
Labor Relations Board case.
WE WILL NOT engage in or attempt to engage in surveillance of
concerted or union activities.
WE WILL offer to Fred Keas immediate and full reinstatement
to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges; and WE WILL
make Fred Keas whole for any loss in pay by reason of the dis-
crimination against him.
WE WILL restore to David Byrd the same working conditions
that he enjoyed prior to his having given testimony in these
proceedings.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to join or
support any labor organization of their own choosing, to refrain
from doing so, or in the exercise of the other rights guaranteed
by Section 7 of the National Labor Relations Act. Under the
guarantees of Section 7 of 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
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
BEISER AVIATION CORPORATION,
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 no-
tice or if they have information that its provisions are being violated.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On February 4, 1960, Millwright and Machinery Erectors Local Union No. 2219,
of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, here-
inafter referred to as Local 2219, filed an amended charge against Beiser Aviation
Corporation, hereinafter referred to as the Respondent, alleging that said Respond-
ent had violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act,
as amended. On February 5, 1960, the Regional Director for the Twenty-third
Region (Houston, Texas), issued a complaint against the Respondent based upon
the above-mentioned charges. This complaint, as subsequently amended, alleges in
substance that: (1) Beginning with on or about October 15, 1959, the Respondent
engaged in various acts of interference, restraint, and coercion against its employees
which were violative of Section 8(a)(1) of the Act; (2) on or about October 28,
1959, it formed, contributed support to, and dominated a labor organization of its
employees in violation of Section 8(a) (2) of the Act; (3) on or about November 24,
1959, it discharged employee Fred Keas because of his activities on behalf of Local
2219, in violation of Section 8(a)(3) of the Act; and (4) on or about May 6,
1960, it coerced and changed the working conditions of employee David Byrd in
violation of Section 8 (a) (1) and (3) of the Act because he had given testimony in
support of the charges filed by Local 2219 in these proceedings.
The Respondent filed an answer to the above complaint denying the commission
of the unfair labor practices alleged therein. A hearing on said complaint and an-
swer was held before the Trial Examiner at Edinburg, Texas, on various dates
during the month of May 1960. At said hearing all parties were represented and
were afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce oral and documentary evidence. Motions made at the hearing by
the Respondent's counsel to dismiss the complaint were denied. At the end of the
hearing the case was argued orally on the record. A brief as filed with the Trial
Examiner by the General Counsel's representative after the hearing. Although the
Respondent's counsel filed his brief out of time I have considered it in making my
findings and conclusions set forth below.
Upon the entire record in the case, and from the Trial Examiner's observation
of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation of the State of Arizona with its principal office
and place of business located at Tucson, Arizona, where it is engaged in the business
of furnishing pilot training and aircraft maintenance and repair services to military
branches of the United States Government. During the year prior to the issuance
of the complaint in these proceedings the Respondent furnished, by contract with the
United States Government, all the necessary labor and equipment to maintain and
BEiSER AVIATION CORPORATION 415
repair military aircraft of the United States Air Force Training Command located
at its Marana Base near Tucson, Arizona. Also by contract with the United States
Government it furnished , during the same period, aircraft maintenance and repair
services to the United States Army at its Electronic Proving Grounds located at Fort
Huachuca , Arizona. During the same period it also operated , under a contract with
the United States Government, one of the Air Force Training Command's Primary
Pilot Training Schools located at Moore Airbase near Mission, Texas. Under this
contract it furnished all the necessary labor and other services and equipment to
operate said school and to maintain and repair the pilot training aircraft and other
property of the Air Force located at the base. In connection with the performance
of all of the above-mentioned contracts the Respondent purchased materials and
equipment which were valued in excess of $50,000, which were shipped to it from
places located outside the State in which it was engaged in the performance of said
contracts . The total amount of the above-mentioned contracts with the United
States Government , which were in effect and being performed by the Respondent
during the year 1959, was in excess of the sum of $3,000,000.
Upon the foregoing facts I find that the Respondent is engaged in an enterprise
which has a substantial impact not only upon commerce between the States but also
upon the United States Government' s national defense program . Accordingly I
conclude that the Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that its operations meet the Board's existing standards
for the exercise of its jurisdiction over enterprises which have a substantial impact
upon the national defense program. Ready Mixed Concrete & Materials, Inc.,
122 NLRB 318.
II. THE LABOR ORGANIZATIONS INVOLVED
The record shows that Local 2219 is a party to a collective -bargaining contract
with the South Texas Chapter of the Associated General Contractors Association of
America covering the wages , hours, and work conditions of certain types of em-
ployees employed by the members of said Association at construction projects lo-
cated throughout the southern part of Texas . I find , therefore , that Local 2219 is a
labor organization within the meaning of Section 2(5) of the Act.
The record also shows that on or about October 28, 1959, the employees of the
Respondent 's aircraft maintenance department at Moore Airbase organized an
Employees ' Committee from among the employees of that department which com-
mittee was to act jointly with a board of supervisors of Respondent for the discus-
sion and solution of mutual problems including group and individual grievances of
the employees of that department.
Upon the basis of the foregoing findings of fact, I find that the Employees' Com-
mittee organized by the employees of the Respondent 's aircraft maintenance depart-
ment on October 28, 1959, was a labor organization within the meaning of Section
2(5) of the Act . See NL .R.B. v. Cabot Carbon Company and Cabot Shops, Inc.,
360 U.S. 283.
The record also shows that on November 23, 1959, the employees of the Respond-
ent's maintenance and supply departments organized the Moore Air Base Inde-
pendent Employees - Association. The members of the Employees ' Committee or-
ganized on October 28, 1959, solicited the memberships of the employees in this
organization , drafted its constitution and bylaws , voted for the adoption of said
constitution and bylaws, and elected its officers . The Committee incorporated itself
into the new organization and became its governing body as its board of representa-
tives. ^ An Executive Committee of the new organization took over the functions
of the Employees ' Committee to act jointly with a board of supervisors of the
Respondent to discuss and solve matters of mutual interest , including group and
individual employee grievances . Said Executive Committee was also authorized to
act as the new organization 's bargaining committee for the purpose of negotiating
and executing collective-bargaining agreements with the Respondent . On Febru-
ary 9 , 1960, the new organization executed a collective -bargaining agreement with
the Respondent which contained a clause recognizing the new organization as the
exclusive collective -bargaining agent of the Respondent 's aircraft and maintenance
and supply department employees.
On the basis of the foregoing, I find that the Employees ' Committee of October
28, 1959, which I have heretofore found to be a labor organization, organized the
Moore Air Base Independent Employees Association and incorporated itself and
its functions into said organization . I also find that said Independent was organized
and functioned as a labor organization and that it is the same or a successor or-
ganization of the Employees ' Committee which was established on October 28, 1959.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The basic facts
For several years prior to July 1, 1959, the California Eastern Aviation Company
operated, under a contract with the United States Government, the United States
Air Force Training Command's Primary Pilot Training School located at Moore
Airbase near Mission, Texas, employing about 650 employees to do so. About 225
of these employees were used to maintain and repair the aircraft used to train the
pilots and the other equipment located at the base which belonged to the United
States Air Force. On July 1, 1959, Respondent took over the operation of the
training school under a 1-year contract it executed with the United States Govern-
ment. The Government reserved the privilege, however, of renewing the contract
for an additional period up to a maximum of 2 years without advertising for new
bids. Under the terms of this contract the Respondent gave the Air Force the right
to impose strict regulations and procedures upon it in matters dealing with the
training of the pilots, the purchase of equipment and materials, and the proper
maintenance and repair of all Air Force aircraft and other equipment located at
the base. The contract also specifically gave the Air Force the right to finally
determine whether an employee should or should not be retained in the Respondent's
employ. Under the terms of this contract also the Respondent undertook to make
detailed written reports to the Air Force Training Command of all work being per-
formed by the Respondent under the contract at the base and of all debts incurred
and expenditures made in connection with the operation of the training school.
The Government undertook to reimburse the Respondent for said expenditures
when approved by the Air Force.
At the time the Respondent took over the operation of the training school
it agreed with the Air Force that all of the employees of the former contractor,
California Eastern Aviation Company, were to be continued on the Respondent's
payroll and the Respondent undertook to assume the obligation of the California
Eastern Aviation Company to pay the vacation pay earned by the employees under the
previous contract upon their termination by the Respondent. The Air Force agreed,
however, to permit the Respondent to determine when and for what periods the
employees were to take their vacations. In August 1959 the Respondent announced
that employees were no longer free to arrange their vacation schedules as they
wished, as had been the practice while they were working for the California Eastern
Aviation Company, and that only a limited number of employees would be permitted
to take their vacations during the summer and fall seasons. It also announced that
employees would no longer be permitted to split their vacation periods between the
summer and fall or winter seasons.
The announcement of this new vacation policy by the Respondent caused con-
siderable agitation among the oldtime aircraft maintenance employees working
at the base and particularly among those who had already earned their maximum va-
cation pay credits under the previous contract of California Eastern Aviation Com-
pany. During the month of September 1959, there was considerable sentiment among
the employees of this department to take group action to compel the Respondent to
cancel or modify the new vacation policy so as to give them greater freedom to arrange
their vacations at such times of the year and for such periods as fitted their individual
desires. One group of these employees, led by Aircraft Inspector Theodore C.
Miller, was in favor of forming an Employees ' Committee , composed,of representa-
tives selected by the employees of each section of the aircraft maintenance department,
which was to act jointly with a board of supervisors of the Respondent to discuss and
solve matters of mutual interest , including individual and group grievances of the
employees . The idea for the formation of such a joint board or council came from
some of the employees who had worked for the Respondent at the Marana Air Force
Base located near Tucson , Arizona , where such a joint council existed. However,
another group of aircraft maintenance employees advocated seeking the assistance
of an outside union with International affiliation to represent them not only for the
purpose of handling grievances of the employees but also to act as their collective-
bargaining agent in matters dealing with their wages, hours of work , and other terms
and conditions of employment. Toward the end of September 1959, the group favor-
ing the selection of an outside union to represent them took the initiative and sent a
committee of seven employees to Local 2219 to request that it organize the Respond-
ent's aircraft maintenance employees for collective-bargaining purposes. Robert
Burghardt, a business representative of Local 2219, met with this committee on Octo-
ber 2, 1959, and after giving them union authorization cards, instructed them to so-
licit and obtain the signatures of the aircraft maintenance employees and to return
the signed cards to him as soon as possible so that Local 2219 could file a petition
BEISER AVIATION CORPORATION 417
with the Labor Board to be certified as the bargaining agent of said employees.
Among the members of this committee were employees David Byrd, Fred Keas, and
Marion Hill. During the first 2 weeks of October 1959, the members of this organiz-
ing committee solicited and obtained the signatures of a substantial number of the
Respondent's aircraft maintenance employees. Most of said signatures were obtained
from the employees on the base and during both work and nonwork time. On
October 15, 1959, the Respondent received a letter from Local 2219 requesting recog-
nition and bargaining rights as the representative of its aircraft maintenance em-
ployees. Shortly thereafter it also received a letter from the Board's Regional Office
in Houston, Texas, that Local 2219 had filed a petition to be certified as the bargain-
ing agent of the Respondent's aircraft maintenance employees.
The Respondent's president , Frank D . Beiser , testified that he became aware of a
union movement on behalf of Local 2219 among the employees of the aircraft main-
tenance department 2 or 3 days prior to the receipt of the letter from Local 2219
requesting recognition and bargaining rights. He further testified that he then in-
structed the superintendent of the aircraft maintenance department, Paul Slack, to
make an investigation of the movement and report in what sections it was concen-
trated and what the employees' grievances were which had led to the movement.
Slack in turn instructed the supervisors of the various sections of the aircraft main-
tenance department to report any dissatisfaction or grievances which the employees
in their respective sections had which might have led the employees to seek outside
union representation. He also instructed them to report whether union activities were
being carried on during work hours.
About October 23, 1959, Houston D. Sprayberry, chief of the Respondent's jet
engine field maintenance section of the aircraft maintenance department made a
written report to Slack concerning "general conditions" in his section. Sprayberry
reported that beginning with October 14, 1959, he had noticed a slowdown of the
work of certain employees in his section and that on October 19, he became aware
that some of the employees were engaged in union activities on behalf of Local 2219.
He also reported that he made an investigation to determine if these activities were
causing the slowdown of the work in his section and found that employees Fred
Keas and John Cowan were soliciting union membership among the employees during
their worktime with the approval and connivance of their crew chief, David Byrd.
Sprayberry further reported he had called the employees together on October 21 and
warned them to cease union activities during worktime. He then recommended to
Slack that Keas, Cowan, and Byrd be discharged for having caused a slowdown of
the work in his section. Slack discussed this report and recommendation with
President Beiser who decided to issue a rule prohibiting any further union activities
on the base during working hours. He rejected, however, the recommendation that
Keas, Cowan, and Byrd be discharged. On the same day, October 23, 1959, Presi-
dent Beiser gathered the aircraft maintenance employees together and read to them
a bulletin entitled "Union Activities ." In this bulletin , Beiser advised the employees
that Local 2219 was engaged in a campaign to organize them and that it had filed
a petition for an election with the Board . He also informed them that some em-
ployees had engaged in union activities on behalf of Local 2219 during work hours
and had slowed down the work but that no action would be taken against them.
He warned the employees, however, that union activities during work hours would
no longer be tolerated and any employee who did so would be discharged. After
reading the bulletin he told them he, personally , was disappointed that any of the
employees were seeking union representation because he did not like unions. An
employee then asked him what he intended to do about the new vacation policy.
Beiser answered he would not discuss it with them all or individually and suggested
they appoint a committee to do so.
On Saturday, October 24, 1959, Local 2219 held a meeting of the Respondent's
aircraft maintenance employees at the Texan Hotel in the nearby town of Pharr.
Although Local 2219 had publicized the holding of this meeting by circulars and
notices posted on the base , only 55 of the approximately 220 aircraft maintenance
employees attended.
On or about Monday, October 26, Burghardt went to the base to talk with the
Air Force representatives and to get a clarification of the Air Force's policy con-
cerning union representation of the employees working at the base He was told that
the Air Force had no policy and that it would maintain a strictly neutral attitude
in the matter . Burghardt then requested Beiser for permission to address the em-
ployees on the base . Beiser rejected the request.
On or about October 26, 1959, an aircraft inspector of the Respondent's aircraft
maintenance department, Theodore C. Miller, began the organization of an Employee
634449-62-vol. 135-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee among the aircraft maintenance employees. This committee was to be
composed of representatives selected by the employees of each of the sections which
composed the Respondent's aircraft maintenance department. Going to each section
during his working time Miller requested the employees to select a representative to
act on an Employees' Committee which was to act jointly with a board of supervisors
of the Respondent to discuss and make recommendations to the Respondent on mat-
ters of mutual interest, including group and individual grievances of the employees.
When some of the Local 2219 adherents attempted to stop Miller from interrupting
the work of the employees and complained to their supervisors that Miller was being
allowed to engage in union activities during work hours in breach of the Respond-
ent's rule against such activities which had been announced on October 23, 1959,
they refused to take any action to stop Miller and in one instance the supervisor
threatened to discharge one of the Local 2219 adherents if he interfered with Miller.
On October 29, 1959, President Beiser issued another bulletin to the aircraft main-
tenance employees entitled "Employees Committee-Aircraft Maintenance." In this
bulletin Beiser told the employees that the Employees' Committee which was being
formed was not the Respondent's idea but that if the employees wanted one he would
deal with it.
During the evening of October 29, 1959, Miller called Beiser at his home and
informed him that the employees of the aircraft maintenance department had com-
pleted the organization of the Employees' Committee and that it wished to meet
with him. Beiser suggested that they meet in the on-the-job training room located
on the base at 8 p.m. on the following day. When Beiser met with the Employees'
Committee at 8 p.m. on October 30, 1959, the Committee informed him that it
intended to form an independent inside union for collective-bargaining purposes.
This announcement took Beiser by surprise. He told them that in view of the
Committee's plan to form the inside union, he would not engage in any discussions
with the committee until it formally organized the inside union and it submitted
proof that the new organization represented a majority of the aircraft maintenance
employees. He also told the Committee that he intended to go to the Board's
Regional Office that afternoon to consent that an election be immediately held
among the aircraft maintenance employees to determine whether they desired Local
2219 to represent them for collective-bargaining purposes. He told them also that
the Committee could intervene in the election proceedings and get on the ballot if
it wished but "strongly advised" them not to do so and to wait until the election
was over before taking any action to form the inside union. Beiser then left the
meeting but left Madeline Keppler, Slack's private secretary, to take the minutes of
the meeting which the Employees' Committee began about 8:30 that morning. The
Committee then formally met with Miller acting as chairman. The Committee
then formally voted to form an independent inside union to represent the aircraft
maintenance employees for collective-bargaining purposes. It also voted that the
acting chairman of the Committee, Miller, appoint a constitution and bylaws com-
mittee to draft the constitution and bylaws of the inside union and to recommend a
name for it. Miller then appointed a committee of five from among those present
who with himself would work to draft the constitution and bylaws of the new
organization. The committee then voted that the same employees act as a grievance
committee to represent the employees until the new organization was formed.
Between October 30 and November 5, 1959, the date when the election on Local
2219's petition was held by the Board, the Respondent and the members of the
Employees' Committee engaged in the vigorous campaign among the aircraft main-
tenance employees to induce them not to select Local 2219 as their collective-
bargaining agent. In this campaign the Respondent issued circulars among the
employees on the base, made speeches to them, and distributed "vote no" cards
advocating the rejection of Local 2219 as their collective-bargaining agent.
On Saturday, October 31, 1959, Local 2219 held another meeting of the em-
ployees of the Respondent's aircraft maintenance department at the Texan Hotel in
Pharr, Texas. However, only 59 of the approximately 220 aircraft maintenance
employees attended this meeting.
On November 3, 1959, President Beiser called a general meeting of the aircraft
maintenance employees on the base and addressed them concerning the forthcoming
election which was to be held by the Board on Thursday, November 5, 1959. In
this speech be made it clear to the employees that he was against their being rep-
resented by any union but stated that if they insisted upon having one he would
rather they select an inside union. He also informed them, unofficially, that the
Air Force frowned upon outside unions representing employees working on its bases.
When one of the Local 2219 adherents asked him what an inside union could do
for them which an outside union could not do, he answered that an outside union
BEISER AVIATION CORPORATION 419
would have to strike to get any benefits and that it would have to reckon with the
Air Force while an inside union would not need to strike as "there were other ways
to bring pressure" upon the Air Force to get its approval for him to give them addi-
tional benefits. Beiser then told them that plants or companies which had contracts
with the Air Force were generally not organized or represented by outside unions
He then urged them all to go to the polls to vote on November 5, 1959, and that if
they stayed away from the election they would be helping Local 2219.
When word of this speech reached Burghardt he again came to the base and
requested Beiser 's permission to address the employees on the base but Beiser again
rejected the request.
On November 5, 1959, the election on Local 2219's petition for certification was
held by the Board agents at the base. Two hundred of the two hundred and eighteen
eligible employees of the Respondent 's aircraft maintenance department participated
in the election . The results of the election showed 55 ballots cast in favor and 165
against Local 2219.
On November 11, 1959, Miller, the acting chairman of the Employees' Com-
mittee, contacted Beiser and told him that the Employees' Committee desired to
discuss some grievances with him especially the grievance concerning the Respond-
ent's new vacation policy. After some discussion between them they decided to
issue a joint declaration to the employees . In this declaration Miller told the
employees that now that Local 2219 was out of the picture it was time to organize
the inside union and urged the employees to sign membership cards in the new
organization which would be distributed among them. He also told them the
Respondent was ready to recognize and deal with the inside union as soon as it was
formally organized . In the meantime he urged them to send in their grievances in
writing so that they would be taken up by the grievance committee of the new
organization as soon as it was formed . In the same document , Beiser informed the
employees that he and Miller had agreed to hold up all discussions on grievances
until the new organization was formed. He told them also the Respondent was
ready to recognize and deal with the new organization as soon as it submitted proof
that it represented a majority of the employees. He also urged them to prepare
and send in their written grievances to their representatives on the Employees'
Committee in the meantime so that an agenda could be agreed upon for discussions
to begin between the Respondent and the new organization as soon as it was formed.
Between November 12 and 19, 1959, Miller and others on the Employees' Com-
mittee solicited and obtained the signatures of 197 employees working in the Re-
spondent 's aircraft maintenance and supply departments on mimeographed sheets,
which he had prepared by the clericals working in Slack's office. These statements
indicated that the signatories were members of the "Moore Air Base Independent
Employees Association." Miller testified that he and the other members of the
-Employees ' Committee obtained these signatures on the base , during both working
and nonworking time . During this period also Miller obtained a copy of the
constitution and bylaws of the joint council which operated at the Marana Airbase
and prepared a draft of the constitution of the new independent union. In the
meantime and specifically on November 10, 1959, Local 2219 had filed objections
-to the conduct of the election of November 5, 1959 . These objections were received
by the Respondent and by the Board's Regional Office on November 12, 1959.
On November 23, 1959 , the Employees ' Committee met again in the Respondent's
,on-the-job training room located on the base to formalize the Moore Air Base
Independent Employees Association as a labor organization and to elect officers.
Miller, the acting chairman of the Employees ' Committee , submitted the draft of the
constitution which had been prepared by the committee of five selected at the meeting
of October 30, 1959. The draft was approved with minor changes. Under the
-terms of this constitution the Employees ' Committee became the governing body of
-the Independent , known as its board of representatives . The board of representa-
tives in turn selected an executive committee which was to act jointly with a board
of supervisors of the Respondent to discuss and recommend solutions to the Re-
spondent on matters of mutual interest , including individual and group grievances.
Bylaws for this executive committee were then adopted . Under these bylaws the
executive committee was also to act as the bargaining committee of the Independent
to negotiate and execute collective -bargaining contracts.
After this meeting Miller submitted a copy of the Independent's constitution and
a copy of the bylaws of its executive committee to the Respondent together with
the statements of 197 employees working in its aircraft maintenance and supply
departments and requested that a date be fixed to discuss the Respondent's new
-vacation policy. The Respondent's board of supervisors and the Independent ex-
'ecutive committee met on December 5, 1959 , and began discussion on this grievance
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees. In the meantime and specifically on December 4, 1959, Local
2219 filed charges against the Respondent charging it, among other things, of forming
and dominating the affairs of the Independent. These charges were served upon
the Respondent on December 5, 1959. The Respondent's board of supervisors
continued to meet with the Independent's executive committee during the month of
December 1959, to solve the grievance of the employees against the Respondent's
new vacation policy. Agreement was reached between them on this grievance
sometime toward the end of December 1959. On January 13, 1960, they met again
and agreed upon a formal grievance procedure for the handling of individual and
group grievances of employees. As these agreements were reached they were re-
duced to writing.
On February 4, 1960, Local 2219 amended its charges against the Respondent so
as to eliminate an 8(a ) (5) allegation which had been included in the original charge.
On the basis of the allegations of the amended charge, which alleged violations of
Section 8(a)(1), (2), and (3) of the Act, the Director of the Board's Regional
Office in Houston, Texas, issued a complaint against the Respondent on the following
day alleging, among other things, that the Respondent had formed, contributed
support to, and dominated the Independent. On the same day he issued his report
on objections to the election which was held on November 5, setting aside the same.
Copies of the complaint and of the report on objections were sent to the Respondent
who received them on February 8, 1960. A copy of the complaint was also served
upon the Independent at the same time, although it then was not formally a party
to the proceedings.
On February 8, 1960, the Respondent met with the executive committee of the
Independent and executed a written document entitled "Employment Agreement"
which contained a provision whereby the Respondent formally recognized the In-
dependent as the collective-bargaining agent of its employees working in its aircraft
maintenance and supply departments. It also agreed not to make any changes in
the wages, hours, and work conditions of these employees without prior notice to
and consultation with the Independent. The agreement was to be in effect until
December 31, 1962. The contract also provided that all agreements previously
reached between the Respondent and the Independent and which would be reached
in the future would be reduced to writing and attached to the contract as supple-
ments thereto. The agreements reached on the vacation policy and the grievance
handling procedure were then attached to the contract. The executive committee
of the Independent submitted this document to the Independent's board of repre-
sentatives at a meeting held on the base at 4 p.m. on the following day, February 9,
1960. The contract was ratified and Miller executed it as chairman of the Inde-
pendent's board of representatives. On the same day Miller received the copy of
the complaint issued by the General Counsel of the Board which accused the Re-
spondent of forming and dominating the Independent. Miller became concerned
that he would be individually involved in these accusations. He requested Beiser
to eliminate his name from the contract signed between the Respondent and the
Independent. It was agreed that both signatures be cut off from the document but
that its terms would be followed. During February 1960, the Respondent and the
Independent's executive committee met and agreed upon two additional terms of the
contract. These were reduced to writing and attached to the unsigned contract. In
March 1960, another agreement was reached. This too was reduced to writing and
attached to the unsigned contract.
B. The alleged independent acts of interference, restraint, and coercion
The General Counsel's representative alleges that as soon as the Respondent be-
came aware of the movement among the employees to have Local 2219 represent
them for collective-bargaining purposes it engaged in various acts of interference,
restraint, and coercion against its employees which were designed to prevent them
from selecting or continuing to select said organization as their collective-bargaining
agent These alleged acts will be discussed and considered under separate headings
below in the order of their alleged occurrence.
1. The alleged restriction of employee Marion Hill to the Respondent's Electric shop
on or about October 13, 1959, because of his activities on behalf of Local 2219
By October 12 or 13, 1959, the Respondent was perfectly aware that Marion Hill,
one of its aircraft mechanics working in the flight line section of its aircraft main-
tenance departments, was one of the active proponents of union representation by
Local 2219 among the aircraft maintenance employees. Hill testified that during
these days he was openly soliciting signatures for Local 2219 among the mechanics
BEISER AVIATION CORPORATION 421
of the flight line section both during working and nonworking hours. He also
testified that he did so because there was no rule in effect then prohibiting such ac-
tivities on the base during work hours. About October 13, 1959, Hill was ordered
by his supervisor, William Malone, to go to work in the electric shop located on
the base and to stay there until he was notified otherwise. An employee named
Kent, who was then working in the electric shop, was transferred from the electric
shop to replace Hill on the flight line Hill credibly testified that he was not per-
mitted to leave the electric shop during work hours to go to any other section of
the aircraft maintenance department and that this situaion coninued until about 1
week after the election of November 5, 1959, when he was returned to the flight line.
The General Counsel's representative contends that Hill's- transfer to the - electric
shop and his restriction to that area in the period prior to October 23, 1959, was a
violation of the Act because this conduct of the Respondent was motivated by a
desire to prevent him from engaging in union activities during work hours at a
time when there was no rule in effect prohibiting such activities. He also contends
that the continued restriction of Hill to the electric shop after October 23, 1959,
was also a violation because the Respondent permitted Miller to engage in union
activities for the formation of the Employees' Committee on the base during work
hours in breach of its rule against such activities which had been announced on
October 23, 1959. The Respondent denies that the transfer of Hill to the electric
shop and his restriction to that area was caused by his activities on behalf of Local
2219 among the flight line mechanics. It contends that Hill's transfer to the electric
shop was caused by the need for his services in that shop and that his restriction
there until after the election of November 5, 1959, was necessitated by an accum-
mulation of electric shop work on parts which were needed on engines which were
awaiting installation in aircraft. The evidence in the record does not support this
explanation and I reject it. The record shows that when Hill was transferred to
the electric shop, another employee who had been working there, named Kent, was
transferred to the flight line to replace Hill. If as the Respondent contends there
was an accummulation of electric shop work on engines awaiting installation in air-
craft, Kent would have remained in the electric shop instead of being sent to the
flight line to replace Hill. Furthermore, Hill crediby testified that Pinkerton, the
Respondent's chief of base shops, told him at the time of his transfer into the
electric shop that he had been removed from the flight line because he had been
soliciting the employees there to sign union cards for Local 2219. Hill also credibly
testified that Pinkerton threatened to discharge him if he did not stop bothering the
employees at their homes at night to join Local 2219.
In view of the foregoing I find and conclude that the transfer of Hill from the
flight line to the electric shop on or about October 13, 1959, was a violation of
Section 8(a).(1) of the Act. I also find that his restriction to that shop during
work hours until the election of November 5, 1959, was also a violation of `Section
8(a)(1) of the Act, firstly, because in the period prior to October 23, 1959, the
Respondent had no rule against union activities on the base during work hours,
and secondly, because in the period after October 23, 1959, it was discriminatorily
applying the rule by permitting the advocates of the Employees' Committee to carry
on their activities for the formation of such a committee during work hours
2. The alleged discriminatory adoption and enforcement of Respondent's rule of
October 23, 1959, prohibiting union activities on the base during working hours
The evidence in the record shows that on or about October 12 or 13 the Re-
spondent's supervisors became aware that there was a union movement going on
among the Respondent's aircraft maintenance employees on the base for the selec-
tion of Local 2219 as their collective-bargaining agent. During this period the mem-
bers of the organizing committee of Local 2219 among the Respondent's employees
were openly soliciting the signatures of the employees on the base during both work-
ing and nonworking hours. This situation was reported to President Beiser some-
time about October 23, 1959, when he received a report from Paul Slack, the
superintendent of the aircraft maintenance department, that these union activities
during.working time were slowing down the work in his department. Accordingly
on October 23, 1959, President Beiser issued a bulletin to the employees which he
read to them at a meeting of all the employees of the aircraft maintenance depart-
ment in which he warned them that in the future the union activities of employees
during working hours at the base would be cause for discharge.
The General Counsel's representative contends that the adoption of this rule by
the Respondent was a violation of Section 8 (a)fl) of the Act for two reasons: (1)
Because of the nature and location of the base and of the homes of the employees
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the,manner in which they traveled to and from the base, it was difficult for Local
2219 to communicate with the employees and thus the rule was an, unreasonable
impediment to Local 2219's right to communicate with the employees; and (2) the
Respondent adopted the rule to discriminate against Local 2219 because it began
itself to address the employees concerning union activities during work hours and it
permitted the opponents of Local 2219 among its employees to carry on union
activities during work hours which were designed to defeat Local 2219's efforts to be
selected as the employees' bargaining agent d reject the General Counsel's first
contention because the record does not contain evidence to support the conclusion
that Local 2219 had difficulty in communicating with the employees. What the
General Counsel's representative seemed to imply at the hearing was that Local
2219 had difficulty in communicating with the employees in a body as the Respondent
was doing on the base. The evidence shows that Local 2219 was able to distribute
circulars and other union material at or near the base and that notices of its meetings
were posted on the base. Also it had the home addresses of all the employees work-
ing in the Respondent's aircraft maintenance department and that it mailed circulars
and other union materials to their homes. The fact that the union meetings which
Local 2219 held on October 24 and 31, 1959, were poorly attended is no proof
that Local 2219 could not or did not communicate with the employees These
meetings were well publicized by circulars distributed among the employees at or
near the base and by notices of the time and place of the meetings which were posted
on the base. Burghardt testified that he was requesting Beiser to permit him to
address the employees on the base because the Respondent was able to address at
least 150 employees at one time while he could address only 50 at a time off the base.
However, this alone cannot be the basis for invalidating an otherwise valid rule
against employee union activities during work hours. The Respondent had The right
to address its employees at any time and it also had the right to exclude professional
union organizers from its premises. The fact that the Respondent had the advantage
of being able to address more employees at one time on the base than Local 2219
could off the base, might be an unfortunate handicap for Local 2219 in reaching
large numbers of the employees to orally refute the arguments and statements being
made to them by Beiser in his speeches but it cannot be the basis for a finding of a
violation of the Act against the Respondent. Local 2219 was able to communicate
with the employees through circulars sent to their homes and to answer Beiser's
arguments and statements in these circulars The Act does not guarantee any par-
ticular form of communication between employees and labor unions.
For the foregoing reasons, I conclude that the Respondent's rule against union
activities during work hours did not constitute an unreasonable impediment to the
employee's right under the Act to be in communication with labor organizations.
Nor do I find that the rule was adopted for the purpose of discriminating against
Local 2219 The evidence indicates that Beiser promulgated the rule when Slack
reported that the union activities of Local 2219 adherents during work hours was
causing a slowdown of the work in his department The rule is valid on its face and
its adoption for legitimate reasons must be presumed. See Walton Manufacturing
Company, 126 NLRB 697; Star-Brite Industries, Inc., 127 NLRB 1008: Republic
Aviation Corporation v. N.L.R.B., 324 U.S. 793; N L.R.B. v. Babcock & Wilcox Coin-
pany, 351 U.S. 105; N L.R B. v. United Steelworkers of America. CIO (Nutone,
Inc.), 357 US. 357 The General Counsel has not submitted sufficient evidence to
overcome this presumption.
The General Counsel's representative contends, however, that even if the rule was
validly adopted in the first instance the Respondent violated the Act by discriminating
in its enforcement in favor of one of two rival organizations contending for the
support of the employees during a critical period prior to a Board election. There
is merit to this contention since the record clearly shows that the Respondent allowed
Miller and the other members of the Employees' Committee which was formed on
October 28, 1959. to carry on their activities against the selection of Local 2219 as tb-
employees' bargaining agent during work hours on the base. The committee itself
was formed by Miller during his working time and after its formal establishment on
October 30. 1959, it was a potent and vigorous opponent to the efforts of Local 2219
to induce the employees to vote in its favor at the election of November 5 1959
The enforcement of the rule against the employees who were in favor of Local 2219
while the Employees' Committee was being permitted to carry on its activities at the
base both before and after the election of November 5. 1959. was clearly a violation
of Section 8(a)(1) of the Act and I so find . See Walton Manufacturing Company
and Star-Brite Industries Inc., supra.
BEISER AVIATION CORPORATION . 423
3. The alleged surveillance of Local 2219's meeting of October 24, 1959 by the
Respondent 's supervisors
Local 2219 called a meeting of the Respondent 's aircraft maintenance employees
at the TexanHotel in Pharr , Texas, at 10 o'clock in the morning of October 24, 1959.
Pharr is a town located near Moore Airbase where the employees worked. Notice
of the time and place of the meeting was widely publicized by the adherents of
Local 2219 , both on and off the base during the workweek prior to the scheduled
meeting. Circulars advising employees of the time and place of the meeting were
distributed by Local 2219 representatives at a road stop about 7 miles from the
entrance to the base.
Fred Keas, one of the Respondent 's employees who attended the meeting , credibly
testified that shortly before the meeting started he saw William Malone, the super-
visor of the Respondent 's flight line aircraft mechanics , and Houston D. Sprayberry,
the supervisor of the Respondent 's jet engine mechanics , walking in front of the
hotel entrance.
Guy Lulow, a flight line mechanic who also attended the meeting , credibly testi-
fied that he saw Supervisors Malone and Sprayberry seated in a car parked at a place
on the street near where the hotel is located from which they could observe the en-
trances to the hotel and that they remained there for about a half hour. He also
credibly testified that another supervisor of the Respondent , Ernest Wilburn , joined
them while they were seated in the car and that he remained with them until shortly
before they left.
Both Malone and Sprayberry admitted at the hearing that they were in the vicinity
of the Texan Hotel on the morning of October 24, 1959 , and that they sat in their car
near the hotel for a period of time during which Supervisor Wilburn joined them.
Sprayberry testified that on the morning in question Malone came to his home in
Mission, Texas, and invited him to join him in a cup of coffee at a coffee shop in
Mission but that he then told Malone he was going to San Juan, Texas, to visit a
barber friend there for a haircut . Malone offered to drive him to San Juan and did so
but when they arrived at San Juan the barber friend could not be located and they
decided to return to Mission . He further testified that as they were passing through
Pharr on the highway leading to Mission they decided to stop for the cup of coffee
that Malone had suggested earlier in the morning at a drugstore located on the corner
of the same block where the Texan Hotel is located. Parking their car at a place
below the entrance to the hotel on the next block , they crossed the street and walked
along the sidewalk toward the drugstore and in doing so crossed in front of the hotel
entrance . After leaving the drugstore to return to their car they again walked in
front of the hotel entrance , crossed the street again and sat in the car chatting for a
while . While doing so Supervisor Wilburn came up the street and seeing them parked
on the street , went up to the intersection of the block , circled around , and parked his
car behind them. He then joined them and chatted with them for awhile and then
left Soon thereafter they also left and returned to Mission . Sprayberry and Malone
admitted at the hearing that they knew that Local 2219 was holding a meeting at
the Texan Hotel that morning but insisted that the only reason they went to Pharr
that morning was to drink a cup of coffee at the drugstore in question because it was
a place where they frequently stopped when they were on the road . I do not credit
this explanation . In the first place it is inconceivable that Malone, who wanted his
cup of coffee earlier in the morning at Mission , should have waited until they went to
San Juan and reached Pharr on their way back to Mission before he remembered
he needed a cup of coffee . Sprayberry testified there were several coffeeshops in San
Juan where they could have had their cup of coffee . San Juan is located about 15
miles from Mission and Pharr is located about midway between Mission and San
Juan. I cannot believe that Malone decided to wait until they were on their way
back to Mission to drink his cup of coffee. Furthermore , even if their purpose in
stopping at Pharr was to drink the cup of coffee there seems to be no explanation
for remaining parked in their car near the hotel entrance for a half hour after they
had their cup of coffee . For the foregoing reasons I find that Supervisors Malone
and Sprayberry went to Pharr on the morning in question to engage in surveillance
activities of the employees going to the union meeting Such conduct constitutes a
violation of 'Section &( a) (1) of the Act . See N L.R . B. v. Vermont American Furni-
ture Corporation , 182 F . 2d 842 (C A. 2); R. & J. Underwear Co., Inc., 101 NLRB
299; National Shirt Shops of Delaware Inc, et al, 123 NLRB 1213, 1217 In any
event, even if they did go to Pharr for a cup of coffee, their conduct in remaining sta-
tioned near the hotel entrance for a half hour after they had their cup of coffee, in
full view of employees walking toward the hotel entrance to attend the union meeting,
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
created the impression of surveillance and for this reason their conduct was violative
of the Act. See R. & J. Underwear Co., Inc., supra.
4. The alleged threat of discharge made against employee Marion Hill by
Supervisor Pinkerton on October 28, 1959
On October 28, 1959, while Hill was working in the electric shop, Theodore C.
Miller, an aircraft inspector of the Respondent, entered the shop and informed
Hill that he was there to get an employee selected to represent the electric shop on
the Employees' Committee he was forming. Since this occurred during working
time Hill told him he could not do so as there was a company rule against union
activities during worktime. Miller left the electric shop but returned soon.thereafter
with Dorcey Pinkerton, the Respondent's supervisor of the base shops. Pinkerton
ordered Hill not to interfere with Miller and threatened that if he did so he would
be discharged. Pinkerton admitted at the hearing that he told Hill that Miller's
activities during work hours were none of his business but denied that he told Hill
that he would be discharged if he interfered with Miller again. I do not credit
this denial. I find that he did threaten to discharge Hill if he interfered with Miller
again. I make this finding because of Pinkerton's admission he told Hill that Miller's
activities on behalf of the Employees' Committee were none of his business and be-
cause of Pinkerton's threats to discharge Hill earlier in the month at the time he was
transferred into the electric shop. Pinkerton's conduct under the circumstances men-
tioned was a violation of Section 8(a) (1) of the Act and I so find.
5. The alleged coercive statements made by Supervisor Christian Walk to employee
Rene Gorena on November 3, 1959
Aircraft mechanic Rene Gorena credibly testified that on November 3, 1959,
Christian B. Walk, the Respondent's director of flying training at Moore Airbase,
came to him and told him that if Local 2219 was selected by the employees as their
collective-bargaining agent and it was compelled to engage in a strike against the
Respondent to enforce its demands, the Air Force would shut down the base.
Called as a witness by the Respondent, Walk admitted that he sought out employee
Gorena on the day in question to talk to him about Local 2219's efforts to be
selected as the bargaining agent of the aircraft maintenance employees. He testified
that he wanted to talk to Gorena because he was friendly with him and he had heard
that Gorena was one of the supporters of the Local 2219 movement. He also
admitted that he told Gorena that he had heard that the Air Force was planning
to close down two of its pilot training schools and that if the employees at the base
were "strongly organized" it would select the Moore Airbase training school as one
of the two schools it was planning to shut down.
General Counsel contends that these statements by Walk to Gorena were calculated
to coerce him to vote against Local 2219 at the election which was scheduled to be
be held 2 days later. The Respondent, on the other hand, claims that the statements
by Walk to Gorena were mere expressions of opinion and arguments which are
protected by the provisions of Section 8(c) of the Act.
Ordinarily an isolated prediction made by a minor supervisor to a fellow employee
of what the consequences of unionization among the employees may be from those
with whom their employer does business would not be sufficient to base a finding
of violation of Section 8(a) (1) of the Act on the part of the employer. But here
the statement was net a mere prediction or guess by a minor supervisor to a fellow
employee. Walk was the Respondent's director of flying training at the base at
the time he made the statements in question. As such he came into frequent and
close contact with the Air Force officers stationed at the base. Gorena had a right
to believe that Walk was making more than a prediction or guess concerning the
attitude of the Air Force officers towards aggressive union representation of employees
working at the base and that his warning of the danger of the base being closed
down by them if a union engaged in a strike to enforce its demands against the
Respondent was very real and not just a fanciful argument or expression or personal
opinion Furthermore, Walk's statements must be considered in the light of the
Respondent's bitter opposition to outside union representation of its employees and
its campaign to defeat Local 2219 at the forthcoming election. President Beiser had
also told the employees that he feared the disapproval of the Air Force if the em-
ployees were aggressively represented by an outside union. For these reasons, I
find that Walk sought out Gorena and made the statements he did to him to intimidate
and coerce him to reject Local 2219 as his collective-bargaining agent at the election
which was scheduled to be held 2 days later and not merely to give him his personal
BEISER AVIATION CORPORATION 425
arguments and opinions why Local 2219 would not be a wise choice as his bargaining
agent . Under these circumstances the statements in question were not protected by
Section 8(c) of the Act and constituted a violation of Section 8(a)(1) of the Act.
6. The alleged forcing of employees to publicly repudiate Local 2219 as their
collective-bargaining agent
On the day before the election , November 4, 1959, some of the aircraft main-
tenance employees of the Respondent working on the base began to wear cards
bearing facsimiles of the voting boxes appearing on the Board's ballots with an "X"
marked in the "No" box. The General Counsel's representative contends that these
cards were distributed with the "X" on the "No" box by the Respondent 's super-
visors and that conduct was violative of the Act. I find support in the evidence
for his contention that the Respondent 's supervisors were engaged in such conduct
on the day in question but do not find sufficient evidence to support a finding that the
supervisors were coercing the employees to wear such cards. The only incident of
alleged coercion on the part of a supervisor to force an employee to wear such a card
was described by employee Burton Clark who testified that he heard Supervisor
"Bud" Fisher of the Respondent 's periodic inspection hangar mechanics tell one
of the employees in his section , Rudolph Soriente , to remove a card marked with an
"X" in both the "Yes" and "No" boxes and to put on a card with an "X" marked
only in the "No" box. Clark testified that he was engaged in marking the cards
of some of the employees who had an "X" only in the "No" box with an "X" in
the "Yes" box also to neutralize the activities of the supervisors and that he marked
Soriente 's card in this manner . When Fisher saw what had been done to the card
he had previously given to Soriente , he asked him to wear a fresh one with an
"X" marked in the "No" box only and Soriente consented. I do not consider this
isolated incident sufficient evidence to support a finding that the Respondent 's super-
visors were "forcing" the employees to wear the cards. It appears that the super-
visors were engaged in electioneering against Local 2219 and that the adherents
of Local 2219 were countering these electioneering tactics by placing an "X" in
the "Yes" boxes to neutralize the "X" in the "No" box. I do not find that either
side was engaged in coercion against the employees by these acts I accordingly
conclude that the General Counsel's representative has failed to sustain this allega-
tion of the complaint and that it should be dismissed.
7. The alleged promise of benefit made by President Beiser to the employees on
November 3, 1959, to induce them to reject Local 2219 as their collective-
bargaining agent
During the day of November 3, 1959, the Respondent 's president , Frank D. Beiser,
called the employees of the aircraft maintenance department together on the base
during work hours and made an address to them concerning the forthcoming Board
election which was scheduled to be held on November 5, 1959. About 150 of the
employees attended this meeting which was held in the Respondent 's on-the-job
training room located on the base. Beiser begain his address by reading the provi-
sions of Section 7 of the Act which were printed on the copy of the election notices
which had been posted on the base by the Board agents. He then went on the give
several arguments why he believed their selection of Local 2219 to represent them
would not be in their best interests , pointing out that the tight control which the
Air Force Training Command had over the granting of additional benefits under
the contract he had with the Government gave him little discretion in the matter
and that if Local 2219 was selected as their bargaining agent and made demands
for benefits which required the approval of the Air Force, he would let the situation
go to a strike , but that if they selected an inside union it would not have to go to a
strike because , as he put it, "there are other ways of bringing pressure on the
Air Force." This idea was brought home to the employees by Beiser when one of
the Local 2219 adherents asked him what an inside union could do for the employees
which an outside union could not do. Although Geiser did not expressly tell them
the demands of an inside union would get his support and assistance if Air Force
approval was involved, his reference to "other ways" of bringing pressure on the
Air Force to grant the demands made by an inside union was a clear reference
to the assistance which the Respondent could give if it was so inclined. He made
it clear to them that if they selected an outside union , i.e. Local 2219, at the forth-
coming election , they could expect no assistance from the Respondent if the benefits
they wanted involved Air Force approval and that it would have to declare a strike
to enforce its demands . What, in effect, Beiser was doing was to promise the em-
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees that the Respondent would use its good offices with the Air Force officials,
if their demands for additional benefits required Air Force approval, but if they
selected Local 2219 at the election of November 5, they could not expect such
assistance . This message must be considered in the light of the fact that the em-
ployees knew that an Employees' Committee had already been formed and that it
was waiting for the defeat of Local 2219 at the election of November 5 to organize
an inside union to represent them. Considered in this light Beiser's statements were
very significant and pointed the way that they would get the benefits they wanted
more easily Accordingly, I conclude that these statements were violative of Section
8(a)(1) of the Act.
C. The alleged 8(a) (2) violations
1. The alleged formation of the Independent by the Respondent
The General Counsel's representative contends that the Respondent initiated and
formed the Employees' Committee and its successor organization, the Independent.
A careful analysis of all of the evidence in the record convinces me that neither the
Employees' Committee nor the Independent was formed by the Respondent. The
evidence in the record clearly indicates that Beiser did not want the employees
to have any union, whether of the inside or outside type. It is true that when
he was asked by one of the employees he addressed on October 23, 1959, what the
Respondent intended to do about the new vacation policy, he answered that he
would discuss it with them through a committee of their own selection. But I do
not interpret this as a suggestion by Beiser that the employees form a permanent
organization. All that Beiser had in mind was that the employees select a com-
mittee for the discussion of the vacation policy only and not a permanent organiza-
,tion which would function as a labor organization for the employees. Of course,
when Miller indicated that the employees wanted a more permanent employees'
committee to discuss other matters of mutual interest with a board of supervisors
selected by the Respondent, Beiser made no objection because he had a similar em-
ployees' committee functioning at the Marana Airbase and he had found it to be
a successful method of solving employee problems. When rumors reached him
on October 29, 1959, that the employees believed that he was organizing the
Employees' Committee, he issued a bulletin telling them that this was not so but
also told them that if they wanted to form such a committee, he would cooperate
with them and deal with it when it was organized. There is ample evidence to
support a finding that he cooperated with the Employees' Committee and assisted
it after it was organized but this is not a sufficient basis for finding that the Re-
spondent initiated and formed it in the first instance. I am convinced that Beiser
was reluctant to have any kind of union representation among his employees. He
made that clear to the employees more than once. I conclude, therefore, that the
Respondent did not initiate or form the Employees' Committee. I find rather that
this committee was organized by the employees and was the result of the dissatis-
faction among the employees over the Respondent's new vacation policy and other
group and individual grievances which the employees then had against the Re-
spondent. Nor am I convinced that the Respondent initiated or formed the
Independent When Beiser was told by the members of the Employees' Committee
on October 30 that they intended to organize an inside union to represent the em-
ployees for collective-bargaining purposes as well as grievances, he was surprised
by this announcement. He then told them he would not even discuss their grievances
until they showed proof that the inside union they were planning to form represented
a majority of the employees. He testified he did this in the hope that if Local
2219 was defeated at the election which was to be held on November 5, the em-
ployees would give up the idea of forming the inside union and be content with the
Employees' Committee. When after the election, the Employees' Committee
members insisted upon proceeding with their plan to form the inside union he went
along and cooperated with it when it was organized. This is not to say that he ever
wanted the Independent in the first instance. The evidence in the record indicates
otherwise and I so find. I conclude therefore that the Respondent did not initiate
or participate in the formation of the Independent.
2. The alleged support contributed by the Respondent to the formation and
administration of the Employees' Committee and the Independent
The record is clear that after Beiser was informed by Miller sometime around
October 26 that the employees wanted an Employees' Committee to discuss and
solve production and employee problems, including grievances, with a board of
supervisors, Beiser went along with the idea because he had a similar organization
at the Marana Airbase and had had good results with it from the Respondent's
BEISER AVIATION CORPORATION 427
point of view . There is no doubt in my mind that he instructed his supervisors
to permit Miller to organize the Employees ' Committee on the base and cooperate
with him in any way they could. That the supervisors received these instructions
is evident from the freedom with which Miller moved around the base during
work hours on October 26, 27, and 28 getting his Employees ' Committee members
selected by the employees in each section during work hours, despite the rule against
union activities during work hours which the Respondent had announced on October
23, 1959. And when the members of the Employees ' Committee met for the first
time on October 30, he allowed them to gather together during working hours
in one of the Respondent 's buildings on the base , paid those members of the Com-
mittee who were there on their working , time for the time they lost from their work
to attend the meeting , and provided the Committee with a secretary to take the
minutes of the meeting . All of this assistance to its employees under normal cir-
cumstances possibly would not be considered a violation . See Coppus Engineering
Corporation v. N.L.R.B., 240 F. 2d 564, 570 (C.A. 1); N.L.R.B. v. Valentine Sugars,
inc., 211 F. 2d 317, 320 (C.A. 5). But the Employees ' Committee , as contemplated
by the employees , was to perform some of the functions of a labor organization as
defined in our Act See N.L.R.B. v. Cabot Carbon Company, 360 U.S. 203. And
it was formed by the group of employees that was opposed to Local 2219's efforts to
represent the employees , at a critical period when Local 2219 was attempting to
induce the employees to select it as their collective -bargaining agent and it had a
petition for certification then pending before the Board.
Under these circumstances the assistance which the Respondent gave the Em-
ployees' Committee was a violation of Section 8(a) (2) of the Act. See N.L.R.B. v.
Summers Fertilizer Company, Inc., 251 F. 2d 514 (C.A. 1); N.L R.B. v. Brown
Paper Mill Co., 108 F. 2d 867 (C.A. 5), cert. denied 310 U.S. 651.
The Respondent gave the same assistance to the Employees ' Committee members
when they formed the Independent . He allowed them to solicit memberships for
the Independent on the base during work hours, allowed the membership blanks to
be mimeographed by its clericals in the company office, on company paper, and
allowed the committee members to meet on company premises during work hours,
paying those members who attended the meeting on company time for the time that
they lost from their work. He also allowed the Independent to use the services of
the company attorney both before and at the hearing in these proceedings. Quite
apart from these separate acts of assistance given by the Respondent to the Inde-
pendent, the Independent was the successor to if not the same organization which
was previously called the Employees ' Committee and as such it was tainted with the
unlawful assistance previously given by the Respondent to the Employees' Com-
mittee. See Tappan Stove Company, 174 F. 2d 1007 (C.A. 6). 1 therefore conclude
that the Independent was unlawfully assisted by the Respondent in violation of
Section 8 (a)(1) and (2) of the Act.'
3 The alleged domination by the Respondent of affairs of the Employees' Committee
and of the Independent
General Counsel 's representative contends that the Respondent dominated the
affairs of both the Employees ' Committee and of its successor the Independent. I do
not find any evidence in the record to support this contention . As indicated above,
the employees themselves formed both the Employees' Committee and the Independ-
ent. The decision of the members of the Employees ' Committee to expand its func-
tions and convert it into a regular independent labor union was their own and it cer-
tainly was not inspired by the Respondent . On November 11, 1959 , the Employees'
Committee members wished to begin discussions on the Respondent 's vacation policy
and other grievances of the employees against the Respondent but Beiser put them
off and insisted that they submit proof of majority representation and adopt their
constitution and elect officers first. The members of the Employees ' Committee do
not appear to have been subservient to the Respondent 's wishes. If they had been the
Independent would never have been born . There is no evidence in the record to sup-
port a finding that the Employees ' Committee was dominated by the Respondent.
I In view of this finding I do not consider it necessary to decide whether a real question
of representation on Local 2219 's petition still existed after the election of November 5,
and whether the Respondent ' s action in recognizing and executing a contract with the
Respondent on February 8, 1960, was a violation of Section 8(a) (2) of the Act under the
Board ' s Midwest Piping doctrine ( see Midwe8t Piping if Supply Co, Inc, 63 NLRB 1060)
Were it necessary for me to decide these issues I would find that this conduct of the
Respondent was an additional violation of Section 8(a) (2) of the Act. See National
Container Corporation , 103 NLRB 1544 , enfd. 211 F 2d 525 (C A. 2).
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And it does not appear also that the Independent's affairs or policies were dictated
or controlled by the Respondent. On the contrary I find that the Respondent was
compelled to recognize and bargain with the Independent when it was organized after
Local 2219's defeat at the election of November 5, 1959. Almost all of the em-
ployees of the Respondent's aircraft maintenance department were in favor of an
independent union representing them after Local 2219's defeat because they had
some real grievances against the Respondent at that time which they desired should
be handled by a militant and truly independent organization. I conclude, therefore,
that the Respondent did not dominate the affairs of either the Employees' Committee
or the Independent in violation of Section 8(a) (2) of the Act.
D. The alleged 8(a) (3) violations
1. The discharge of Fred Keas on November 24, 1959
Fred Keas was, prior to his discharge on November 24, 1959, employed by the
Respondent as a mechanic in the jet engine field maintenance section of its aircraft
maintenance department. This section was new on the base and it was necessary
for the Respondent to hire and train new personnel to do this work. Keas was one
of the few mechanics it hired to work on jet engines who had any previous experience
with this type of engine. During the period prior to December 1959, the new and
inexperienced employees hired in this section were assigned to work with an ex-
perienced mechanic to learn the work. In the latter part of October 1959, the
Respondent hired a new and inexperienced employee in this section named Francisco
Perez. He was assigned to work with Keas who was expected to train him and check
his work. On November 9, 1959, Keas and Perez were assigned to perform a 100-
hour inspection job on a jet engine . This involved the dismounting of the complete
engine, the removal and checking of its various parts, and the reassembling of the
engine. Under the procedure followed by the Respondent, a worksheet containing
a short description of the main parts of the engine to be removed and checked went
along with the engine. The particular employee who dismounted, checked, and
reassembled each part was required to initial the item so as to indicate that he had
done the work on that part of the engine. On the day in question Keas instructed
Perez to work on the rear part of the engine to dismount, remove, and check and
then reassemble a part known as the exhaust diffuser. This part consisted of a main
bearing which revolved around the motor shaft. The bearing is covered by a steel
aluminum plate, called a baffle, which had the function of protecting the bearing from
becoming overheated and to diffuse cool air around the bearing. After the engine is
completely dismounted, checked, and reassembled, the mechanic in charge is required
to call an inspector to sign off the engine to the testing room as being ready for a
test run of the motor. The inspector does not check the work which the mechanics
perform on the internal parts of the engine, his sole function being to check that the
engine has been reassembled and is ready for the test run. On the day in question,
Keas called the inspector after the engine that he and Perez had worked on was
completely reassembled and it was signed off for a test run in the testing block lo-
cated in a room adjoining the jet engine mechanics shop. Keas initialed all of the
items on the worksheet, including the exhaust diffuser, indicating that either he had
done the work himself or Perez, his learner helper, had done the work under his
supervision. The engine returned from the test block marked with a yellow tag
indicating it was serviceable and ready for installation in an aircraft. It was placed
in a certain area of the shop where the serviceable engines are lined up for delivery
to the flight line for installation in aircraft.
On the following day, Keas and Perez were assigned to make an inspection check.
While he was preparing his tools to work on the new engine Keas noticed a number
of bolts and a baffle plate in the rear section of the dock where he and Perez worked.
He suspected that Perez had failed to install the baffle plate over the bearing of the
exhaust diffuser on the engine which they had worked on the previous day. Appar-
ently he had not checked Perez' work the previous day to see if he had properly
remounted the exhaust diffuser- with the baffle plate because he went to Perez and
asked him if he had left out the baffle when he reinstalled the bearing in the exhaust
diffuser. Perez told him he thought he had but he was not so sure when Keas showed
him the baffle and the bolts he had found in the rear of the dock. Keas then went
to his acting crew chief, David Byrd, and to the aircraft inspector who had originally
signed off the engine to the test room and asked them to grant him permission to
dismount the exhaust diffuser to see if the baffle was missing. They granted him
permission to do this and he dismounted the part in question. He discovered that
the baffle had not been installed by Perez. While he was reassembling the exhaust
diffuser, Sprayberry, the jet engine shop supervisor , saw him and asked him why he
BEISER AVIATION CORPORATION 429
was working on an engine which had already been tested and was marked with a
yellow tag for delivery to the flight line. Keas told him he had "messed things up"
and explained what had happened . Sprayberry watched him until he completed the
work and merely commented that it was a serious error. After Keas finished the
reassembly of the exhaust diffuser, he called the inspector again who told him the
engine would have to be retested . Instead of placing the engine in the area where
the engines to be tested were lined up, Keas left the engine on the line where the
serviceable engines were placed for delivery to the flight line. Sprayberry noted this
but did not say anything at first expecting that Keas would have the engine moved
over to the testing line . After about one-half hour he went to Keas and asked him
why he had left the engine on the serviceable engine line with the yellow tag still on
it. Keas replied that he had not thought about it and commented that he did not
believe that the engine needed retesting . Sprayberry ordered him to move the
engine over to the testing line and to remove the yellow tag from it. Two days later
Sprayberry made a report of the incident to Department Head Slack and recom-
mended Keas' discharge for carelessness and indifference to his work. Slack was
leaving the base that day to go to Florida for about 10 days. The report remained
on Slack's desk until he returned on November 23. Slack then took the report to
President Beiser who hesitated about taking action to discharge Keas knowing he
had been an active leader of the Local 2219 movement . He asked Slack to check
the facts carefully and report back to him. Slack consulted with Sprayberry to clear
up some details of the report. On the following morning November 24, Slack re-
ported to Beiser again and told him that the facts as reported by Sprayberry were
accurate . Beiser then instructed Slack to have the dismissal papers prepared but
not to deliver them to Keas until he interrogated him to ascertain whether the facts
as reported by Sprayberry were accurate . Keas was then called to Slack 's office
where he was interrogated by Slack concerning the incident in the presence of Spray-
berry. Keas admitted that he had signed off the worksheet certifying that the work
had been properly done on the exhaust diffuser and that he had failed to check the
work of Perez before he reassembled the exhaust diffuser . He also admitted that he
became aware that the baffle had not been installed in the exhaust diffuser when the
engine had returned from the testing room and was on the serviceable line with a
yellow tag on it. After hearing these admissions , Slack delivered the dismissal papers
to Keas.
The General Counsel 's representative contends that Keas was discharged because
of his previous activities on behalf of Local 2219. To prove this contention, he
submitted evidence that other employees had omitted parts from engines that they
had worked on and that they had not been discharged. The Respondent's counsel
contends that in all of these incidents the mechanics had discovered the omission
before the engine was sent to the testing room and it was corrected . I have ex-
amined all of the incidents cited by the General Counsel 's representative and find
that in none of them had the engine been tested and put on the serviceable line
before the error was discovered . The Respondent 's counsel argued that the gravaman
of the error committed by Keas which the Respondent considered as gross negligence
warranting his discharge was his certification of Perez' work as proper without
having checked it before the exhaust diffuser was covered and by the serious conse-
quences which might have ensued had not Keas , by a fortuitous circumstance, dis-
covered the missing baffle plate before the engine was installed in aircraft . Beiser
testified that when the incident was reported to him he had no doubt that the Air
Force would require him to discharge Keas if it became aware of his carelessness.
Under the contract which the Respondent had with the Government it was obliged
to discharge any employee who endangered the safety of any Air Force property
or personnel . Had he decided to retain Keas and the Air Force representative
on the base discovered what had occurred, he would have been criticized for not tak-
ing action to discharge Keas and he would have been ordered to do so. He further
testified that when Slack reported to him on the morning of November 24 that the
facts as reported by Sprayberry were accurate , he felt he had no choice in the mat-
ter and that he was obliged to discharge him under the terms of the contract he
had with the Government.
In this case , the vital issue to be decided is whether Beiser believed the report of
his supervisors that Keas was guilty of gross negligence in the performance of his
work and that he discharged him for that reason . See Frosty Morn Meats, Inc., 127
NLRB 1586; N.L.R.B. v. John S. Swift Company, Inc., 277 F. 2d 641 (C.A. 7).
After a careful analysis of all of the evidence in the record dealing with the dis-
charge of Keas, I cannot say that Beiser acted unreasonably in the matter and that
he did not discharge Keas for carelessness in the performance of his work. So far
as the record shows it was not unreasonable for Beiser to credit the report made by
Sprayberry. In Beiser's eyes, therefore , Keas had committed an act of gross negli-
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gence in the performance of his work which could have led to serious consequences.
He also believed that the contract which he had with the Government required him
to discharge Keas. In deciding whether Beiser discharged Keas for his carelessness
in not checking the work of his helper before the exhaust diffuser was reassembled
and the engine sent to the testing room, consideration should be given to the pur-
pose of the contract provision which required the Respondent not to retain in its
employ any person who in the opinion of the Air Force commander could be a po-
tential danger to the safety of Air Force property and to personnel using that prop-
erty. This provision was included in the contract to prevent the Respondent from
overlooking serious errors of work performance on the part of its employees which
might cause damage to the Air Force aircraft or injury to the instructors and cadet
pilots who used such aircraft. In view thereof, Keas' act of carelessness was not
an inconsequential matter to Beiser and I cannot say that he was not discharged
therefor. Under all the circumstances, I am not satisfied that the complaint's
allegations in Keas' case are supported by a preponderance of the evidence. I shall
therefore dismiss the complaint insofar as it alleges that Keas was discharged in
violation of the Act.
2. The alleged coercion and discrimination against employee David Byrd during
the hearing
Employee David Byrd was one of the active adherents of Local 2219 during the
time that it was engaged in the campaign to be certified as the bargaining agent of
the Respondent's aircraft maintenance employees. During that period he was work-
ing in the Respondent's jet engine field maintenance section as a combination plant
clerical and minor supervisor, spending about half of his time making production and
work progress control records of the work being performed by the mechanics in
.the jet engine zoom and the remainder of his time checking and expediting the work
of the mechanics. Byrd had always aspired to becoming a full-fledged supervisor
of the jet engine section and he expected that when that section was permanently
organized by the Respondent, he would be given the job of crew chief. However,
when the permanent organization of the jet engine section was accomplished in
the early part of December 1959, the job of crew chief went to another employee
named Eduardo Leal. Byrd was then given the full-time job of making work
progress and other production control reports of the work being performed in the
jet engine room. His new job did not require him to check the quality of the
work of the mechanics working in that room. This function and responsibility was
assigned to the new Crew Chief Edwardo Leal. During the hearing, and specifically
on May 5, 1960, Byrd was called as a witness of the General Counsel to testify
concerning the quality of work being performed in the jet engine room to support
the General Counsel's contention that serious errors in work performance frequently
occurred and that the Respondent's supervisors took no action against the employees
committing these errors except in the case of Fred Keas.
During this testimony, Byrd testified that after Leal became crew chief there
were several incidents of employees omitting parts of engines and that in some
instances these defects were not discovered until the engines were about to be in-
stalled in aircraft. Byrd testified that he knew of at least two of these incidents
and that Leal had not taken action to recommend disciplinary action against the
employees involved. However, Byrd refused to mention the names of the employees
involved in these incidents, and was vague about the time when they occurred. Re-
spondent's counsel made no attempt during cross-examination to press Byrd for more
details concerning the identity of the employees involved in these incidents. At the
end of the hearing session of May 5, 1960, the hearing was adjourned by the Trial
Examiner, at the request of the Respondent's counsel, until May 17, 1960.
When Byrd reported for work on the morning of May 6, his supervisor, Houston
Sprayberry, told him that he had made some broad statements on the witness stand
concerning the poor work being performed by the mechanics in his section. He
then ordered Byrd to sit at a table which had been placed in the middle of the jet
engine room and instructed him to make a full report of all of the instances of em-
ployees leaving parts out of engines they had worked on and especially those in
which the engines had been sent to the flight line for installation before the error
was discovered and to give .the names of the employees involved in these incidents
as he intended to investigate the whole matter. At first Byrd refused to make the
report because he did not wish to reveal the names of his fellow employees fearing
that they might loose their jobs but later consented to do so. Byrd then asked Spray-
berry to be excused from work that day as he felt sick. Sprayberry allowed him to
go home. On Monday, May 9, 1960, Byrd did not report for work but did so on
the following day. On that day he told Sprayberry that it would take him some time
to make the report because he would have to search his memory to remember all
BEISER AVIATION CORPORATION 431
the details of the incidents and the names of the employees involved Sprayberry
told him he could take a ll the time he wanted Byrd remained at the table for the
next 3 days reading company material which Sprayberry gave him to read to assist
him in making the report.
On Friday, May 13, Byrd asked Sprayberry if he was being stationed at the
table in the middle of the jet engine room pursuant to President Beiser 's instruc-
tions . Sprayberry told him that it was his own idea and not Beiser 's Byrd then
told Sprayberry that if Beiser had not ordered his being seated at the table, his
being put there was a mistake but Sprayberry answered that he did not think so
On Monday morning, May 16, Sprayberry ordered him to work as -a mechanic in
one of the docks with a new and inexperienced man Byrd testified that he too
was not expei ienced in dismounting and mounting jet engines and both he and the
other man had difficulty in putting the engine together. After the inspection work
was done at noontime of that day , he went to the cafeteria located on the base and
there saw President Beiser seated at a table having a cup of coffee with his attorney.
Approaching Beiser he requested permission to talk to him piivately for a few
minutes . Beiser agreed and moving over to another table Byrd asked Beiser whether
he knew that Sprayberry had kept him seated at a table in the jet engine room for
several days dun ing the previous week and that he did nothing but read company
material and that he then had put 'him to work as a mechanic in the docks . Beiser
replied he knew about 'his being assigned to the table because he had instructed
Sprayberry to relieve him of all other work and to get a full report on all the
incidents of employees doing careless work of which he had knowledge . Byrd testi-
fied that when he told Beiser that Sprayberry 'had put him to work as a mechanic
that morning , Beiser expressed surprise and told him he would see Sprayberry about
that . Byrd further testified that at one point in the conversation Beiser told him
that the manner in which he had testified at the Board hearing had made him and
Sprayberry look like "horses' asses" and that he would be kept at the table until he
showed some loyalty to the Respondent. At 3 30 that afternoon Sprayberry came
to him at the dock whcie he was working and ordered him back to the table He
was still there on the following day when the hearing was resumed and he was re-
called to testify
When President Beiser was called as a witness by the Respondent 's counsel he
was asked whether he had had a conversation with employee Byrd on the previous
day in the lunchroom at the base . Beiser testified that the only conversation that
he had with Byrd at that time was that Byrd came to him protesting that Sprayberry
had put him to work as a mechanic . I do not credit Beiser's testimony that this
was the only conversation he then had with Byrd •I find rather that the conversa-
tion which took place between them at that time was that which Byrd gave when
he testified again on May 17, 1960.
In view of Sprayberry's failure to deny or contradict Byrd's testimony concerning
the treatment he received from Sprayberry following the giving of his testimony on
May 5, 1960 , 1 find that Sprayberry removed Byrd from his regular job of making
production and work progress reports and that he assigned him to a table in the
middle of the jet engine room with the statement that he was being put there because
of the manner in which he had testified on the previous day. I also find that President
Beiser was aware of Sprayberry 's treatment of Byrd during the period in question
and that he told Byrd on May 16, 1960 , that he had instructed Sprayberry to take
him off his regular job and to sit him at the table in the middle of the jet engine
room until he showed some loyalty to the Respondent . I also find that Beiser told
Byrd that he was being given the treatment he was receiving because of the manner
in which he had testified against the Respondent at the Board hearing.
There is no doubt in my mind that the above -described conduct of the Respondent
toward Byrd was violative of the Act The vital issue here is not whether the Re-
spondent was entitled to know the details of the incidents about which Byrd had
testified at the Board hearing . Had the Respondent or its attorney sought the
information from Byrd subsequent to his having testified in the proper manner to
prepare its defense or to avoid a repetition of the incidents , no violation could
be found But where , as here , the Respondent took measures against Byrd which
be and the other employees considered as a reprisal for the manner in which he
had testified at the hearing , a different situation is presented . In the first place
the Respondent made no explanation why it was necessary to seat Byrd in the middle
of the jet engine room to make the ieport. Obviously this step was taken to put
Byrd on display as an object lesson to the other employees that giving testimony
against the Respondent would result in similar treatment Secondly the removal
of Byrd from his regular job of keeping records and his being put to work as an
ordinary mechanic after a period of isolation at a table placed in the middle of the
jet engine shop could not fail to bring home to the other employees that giving
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony against the Respondent at a Board hearing was a risky thing to do. I have
no difficulty in finding that this conduct of the Respondent was calculated to intimi-
date and coerce other employees not to give damaging testimony against the Respond-
ent at a Board hearing . This conduct was clearly violative of Section 8(a)(1) of
the Act and I so find . There is no question also that the change in Byrd's work
conditions was motivated by the testimony he gave against the Respondent when
he testified on May 5, 1960. This constituted a violation of Section 8(a)(4) of
the Act but the General Counsel saw fit to allege it as a violation of Section 8(a) (3)
instead . I do not deem it necessary to here decide whether every discrimination
which is violative of Section 8(a) (4) of the Act is also a violation of Section 8(a) (3)
of the same Act. I do not decide here whether the Respondent 's conduct toward
Byrd after he testified was violative of Section 8(a)(3) as well as of Section 8(a)(1)
inasmuch as the remedy necessary to effectuate the policies of the Act would be iden-
tical in either case. The Respondent's conduct was not only a flagrant violation
of the employees ' rights under the Act but also a serious interference with the orderly
processes of the Board and it should be condemned.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in
connection with its operations set forth in section I, above , have a close , intimate, and
substantial relation to trade, traffic, and commerce in the several States and tend
to lead to labor disputes burdening and obstructing the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that the Respondent coerced and discriminatorily changed the work
conditions of David Byrd , because of his testimony against the Respondent in these
proceedings , I shall recommend that, if it did not already do so prior to the issuance
of this report and recommendation , it restore him to the same conditions of work
which he enjoyed prior to May 5, 1960, the date when he testified against the Respond-
ent in these proceedings.
Having found that the Respondent contributed unlawful assistance and support
to a labor organization , the Independent, I shall recommend that the Respondent
cease and desist from such conduct. Having found further that Respondent has
recognized the Independent as the bargaining agent of the employees working in its
aircraft maintenance and supply departments , and that said Independent was unlaw-
fully assisted by the Respondent prior to said recognition and bargaining, I shall
recommend that the Respondent withdraw and withhold recognition from the Inde-
pendent as the exclusive bargaining representative of its employees and that it cease
giving effect to any agreement , oral or written , granting the Independent such recog-
nition. Nothing in this recommendation , however, shall be deemed to require the
Respondent to vary those wages, hours of employment , rates of pay, seniority, or
other substantial provisions in its relations with its aircraft maintenance and supply
department employees that the Respondent may have established in the performance
of said agreement or to prejudice the assertion by such employees of any right they
have thereunder. In addition , nothing in this recommendation will prevent the
employees , after the unfair labor practices found here have been remedied and the
conditions for a free choice established, from adopting representation from their own
ranks or any other kind of representation , if such be their genuine desire, unfettered
by employer interference and assistance.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Beiser Aviation Corporation is, and at all times relevant hereto was , engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Beiser Aviation Corporation Employees' Committee at Moore Airbase and
its successor , the Moore Air Base Independent Employees Association, are, and at
all times relevant hereto were, labor organizations within the meaning of Section
2(5) of the Act.
3. Millwright and Machinery Erectors Local Union No. 2219, of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
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 work 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)( I) 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.
923-CA-1036. January 23, 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