Bendix Aviation Corp.

National Labor Relations Board - Board Decisions

Apr 12, 1946

67 N.L.R.B. 289 (N.L.R.B. 1946)

In the Matter of BENDIX AVIATION CORPORATION ( ECLIPSE -PIONEER
DIVISION and AIRCRAFT WORKERS UNION OF NEW JERSEY, INC.
In the Matter of BENDIX AVIATION CORPORATION ECLIPSE-PIONEER
DIVISION and SPECIAL POLICE GUARDS' UNION, LOCAL No. 233f8,
A. F. OF L.
Cases Nos. 2-C-5685 and 2-C-5805, respectively. Decided
April 12, 1946
DECISION
AND
ORDER
On June 20, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled consolidated proceeding, finding that the respond-
ent 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 copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the respondent's
action in transferring five of its plant guards to different plants and
shifts on November 12, 1944, was not an unfair labor practice and rec-
ommended that the complaint be dismissed with respect thereto.
Thereafter, the respondent and counsel for the Board filed exceptions
to the Intermediate Report and supporting briefs. Subsequent thereto,
the respondent filed a motion to reopen the record for the purpose of
adducing evidence as to an agreement allegedly entered into between
the respondent and Police Guards' Union and, upon the receipt into
the record of such evidence, to dismiss the complaint. On January 31,
1946, the Board directed that the record herein be reopened and the
proceeding remanded to the Regional Director for the purpose of ad-
ducing evidence as to the execution of the alleged agreement and the
terms and conditions thereof. Thereafter, by a written stipulation
which the Board has accepted in lieu of a further hearing, the parties
offered into the record evidence that on July 11, 1945, the respondent
and Police Guards' Union executed a collective bargaining agreement
with respect to the guards employed at the respondent's Eclipse-
Pioneer Division. A copy of that agreement was annexed to and made
part of the stipulation. The parties stipulated further, that the evi-
67 N. L. R. B, No. 39.
692148-46-vol 67-20
289
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence as to the execution and the terms and conditions of the agreement
was offered subject to an objection by Aircraft Workers. The Air-
craft Workers' objection is hereby overruled; the stipulation of the
parties and the evidence therein set forth are hereby made part of the
record herein. The respondent's motion to dismiss the complaint is
hereby denied.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the additions and modifications hereinafter
set forth.
We find, in agreement with the Trial Examiner, that as a result of the
respondent's action in transferring the plant guards to the hourly pay
roll, the guards were deprived of certain rights and benefits which
they had enjoyed as salaried employees.' The respondent concedes
that as a result of its action the guards were deprived of certain rights,
but it contends that they were compensated for such loss by the adjust-
ment in their compensation when they were transferred to the hourly
pay roll. The respondent further contends, in substance, that certain
of the benefits which salaried employees received were not theirs as
a matter of right but were "contingent on the discretion of the super-
visor" and revokable at the will of the respondent and, therefore, that
the loss of those benefits was "not in any real sense injurious to the
[guards] ". We find no merit in these contentions. The evidence
establishes that the adjustment in pay did not adequately compensate
the guards for the rights admittedly lost. Whether or not any of the
benefits were revokable at will or contingent upon the discretion of a
supervisor, it is clear that as salaried employees the guards were
enjoying those benefits and had a present expectancy of future enjoy-
ment thereof.2
The respondent admits that it transferred the guards to the hourly
pay roll because the guards had designated Police Guards' Union as
their bargaining representative ; it contends, however, that the transfer
was not violative of the Act because it was motivated not by a desire
to discourage the organizational activities of its employees, but by a
desire to "prepare for collective bargaining with the selected bargain-
ing representative." We find no merit in this contention. Admittedly
the transfer was made because the employees in the bargaining unit
' In this connection , we find, contrary to the Trial Examiner , that the guards' right to
group insurance was in no way affected by the change in their status from salaried to
hourly paid employees . The record reveals that, premiums and all other conditions being
equal, guards were eligible to the same amount of insurance whether they were salaried
or hourly-paid employees.
2 Matter of General Motors Corporation , 59 N. L. R. B. 1143, enforced as modified 150
F. (2d) 201 ( C. C. A. 8).
BENDIX AVIATION CORPORATION 291
had designated Police Guards' Union as their representative; absent
the designation, the transfer would not have been made. We are
satisfied and find that the respondent effected the transfer with an
intent to discriminate in regard to terms and conditions of employment,
thereby discouraging membership in Police Guards' Union; in any
event, we find that the transfer was of such a character as to have a
natural tendency to discourage union membership.3 It is plain, more-
over, that the respondent's action tended to discourage membership
in Aircraft Workers no less than in Police Guards' Union. At the
time the guards were transferred to the hourly pay roll, Aircraft Work-
ers was engaged in organizing other salaried employees in the respond-
ent's Eclipse-Pioneer Division. The threat of a similar change in
their status was obvious. Indeed, the respondent asserts that its uni-
lateral action with respect to the guards was taken pursuant to an
established policy applicable to all its salaried employees.
We find, in agreement with the Trial Examiner, that the respondent,
by changing the status of its plant guards from that of salaried employ-
ees to that of hourly paid employees, because they designated Police
Guards' Union as their bargaining representative, discriminated in
regard to the terms and conditions of their employment, thereby dis-
couraging membership in Police Guards' Union and in Aircraft Work-
ers, and interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
THE REMEDY
Having found that the respondent, by its conduct in changing the
status of its guards from salaried to hourly paid employees, violated
the Act, we shall order the respondent to cease and desist from such
conduct. We shall not, however, direct that the guards be restored
to a salaried status or that they be made whole for any losses which
they may have suffered by reason of their transfer to the hourly pay
roll. As previously set forth, by a collective bargaining agreement
entered into between the respondent and Police Guards' Union on
July 11, 1945, Police Guards' Union agreed that the respondent's
plant guards shall be hourly paid employees. This agreement does
not dissipate the respondent's unfair labor practices, nor does it in any
manner diminish the tendency of such conduct to discourage union
membership. Nevertheless, in view of the agreement and under all
the circumstances of this case, we do not deem it necessary, in order
to effectuate the policies of the Act, to direct that the guards be re-
stored to the salary pay roll or that they be made whole for any losses
which they may have suffered by reason of their transfer to the hourly
pay roll.
3 Matter of General Motors Corporation , cited, supra, footnote 2.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Bendix Aviation Corpora-
tion (Eclipse-Pioneer Division), at Teterboro and other places in
New Jersey, and its officers, agents, successors, and assigns shall :
1. Cease and desist from discouraging membership in Special Police
Guard' Union, Local No. 23318, A. F. of L., Aircraft Workers Union
of New Jersey, Inc., unaffiliated, or any other labor organization of its
employees, by changing the status of its employees from that of sal-
aried employees to that of hourly paid employees, or by otherwise
changing the status of its employees, because they have designated
a representative for the purposes of collective bargaining.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plants at Teterboro, Hackensack, Englewood, North
Bergen, East Orange, Little Falls, and Hawthorne, all in New Jersey,
copies of the notice attached hereto and marked Appendix "A."
Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced
or covered by any other material;
(b) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith;
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent engaged in unfair
labor practices by transferring, on November 12, 1944, Floyd Potter,
Joseph Sullivan, Philip McKee, John Houck, and David Folie, to dif-
ferent plants and shifts.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
BENDIX AVIATION CORPORATION 293
We will not discourage membership in Special Police Guards'
Union, Local No. 23318, A. F. of L., Aircraft Workers Union of
New Jersey, Inc., unaffiliated, or any other labor organization of
our employees, by changing the status of any of our employees
from that of salaried employees to that of hourly paid employees,
or by otherwise changing their status, because they have desig-
nated a representative for the purpose of collective bargaining.
All our employees are free to become or remain members of the above
named unions or any other labor organization.
BENDI% AVIATION CORPORATION ECLIPSE-PIONEER DIVISION),
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.
INTERMEDIATE REPORT
Mr. Jerome I. Macht, for the Board.
Messrs. Cassells, Potter and Bentley, by Mr. William H. King, of Chicago, Ill.,
for the Respondent.
Mr. Henry Mayer, by Mr. Alexander Eltman, of New York, N. Y, for Aircraft
Workers.
STATEMENT OF THE CASE
Upon charges duly filed by Aircraft Workers Union of New Jersey, Inc., un-
affiliated, herein called Aircraft Workers, and by Special Police Guards' Union,
Local No. 23318, A. F. of L., herein called Police Guards' Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the Second
Region (New York, New York), issued its complaint,' dated May 3, 1945, against
Bendix Aviation Corporation (Eclipse-Pioneer Division), Teterboro and other
places in New Jersey, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint, accompanied by notice of hearing thereon, were duly served upon the
Respondent, Aircraft Workers, and Police Guards' Union.
With respect to the unfair labor practices, the complaint, as amended during
the hearing,' alleges in substance: (1) that during the period from November
3 to 12, 1944, the Respondent, unilaterally and without prior consultation or col-
lective bargaining with either Aircraft Workers or Police Guards' Union, changed
the status of its plant guards from salaried to hourly paid employees ; deprived
them of their sick leave with pay, increased their hours of work, and decreased
the amount of their vacations with pay ; transferred Floyd Potter, Joseph Sulli-
van, Philip McKee, and John Houck from its Teterboro, New Jersey plant, and
David Folie from its Hackensack, New Jersey plant, to other plants and to less
desirable work-shifts than they formerly enjoyed, and thereafter refused to re-
These two cases were consolidated by order of the Board , dated May 1, 1945.
2 Notice of intention to amend the complaint at the hearing , by adding subparagraph
fta thereto , was duly served on the parties on May 14, 1945 . The motion to amend by the
Board's counsel was granted by the Trial Examiner without objection , and an amended
complaint was received in evidence without objection.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store to the said employees all of the benefits that they previouly enjoyed , because
they joined and assisted Aircraft Workers and/or Police Guards' Union, and
engaged in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection ; and (2) by the aforesaid acts, the Respondent
interfered with , restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On May 21, 1945, the Respondent filed its answers admitting 6ertain allegations
of the complaint in respect to the character and operations of its business. Also
that on or about November 3, 1944, the method of payment of its plant guards
was changed from salary to hourly rate, without prior consultation or collective
bargaining with either Aircraft Workers or Police Guards' Union, and that
this method of payment has not been changed back from hourly rate to salary,
but denying the commission of any unfair labor practices as alleged in the com-
plaint.
Pursuant to notice, a hearing was held at New York, New York, on May 25
and 26, 1945, before the undersigned, W. P. Webb, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the Respondent, and Aircraft
Workers were represented by counsel and participated in the bearing q Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
At the beginning of the hearing, the Respondent's counsel moved separately to
dismiss the original complaint in respect to both cases, on the grounds (1) that
Aircraft Workers has no interest in the proceedings, and (2) that Police Guards'
Union bargained with the Respondent during the period from November 2, 1944,
the date on which it won a consent election, to March 24, 1945, the date on which
it filed charges against the Respondent without protesting against the change of
the plant guards from salary to hourly rate, which occurred on November 3, 1944.
Both motions were denied by the Trial Examiner.
At the conclusion of the Board's case, Board's counsel moved to conform the
pleadings to the proof in respect to formal matters. The motion was granted
by the Trial Examiner, without objection.
At the conclusion of the hearing, both the Board's counsel and the Respond-
ent's counsel argued orally , on the record, before the Trial Examiner . A brief
has been received from the Respondent's counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Bendix Aviation Corporation (Eclipse-Pioneer Division)
is a Delaware corporation, having offices and places of business at the following
places in the State of New Jersey : Teterboro, Hackensack, Englewood, North
Bergen, East Orange, Little Falls, and Hawthorne, where it is engaged in the
manufacture, sale and distribution of aircraft accessories and instruments, and
related products. During the fiscal year ending May 1, 1945, the Respondent
purchased metals, steel bars, electric sheets, and other materials valued in excess
of $1,000,000, of which approximately 75 percent was obtained outside of New
Jersey. During the same period, the Respondent manufactured finished products
3 The Trial Examiner granted , without objection , the motion of the Respondent ' s counsel
to amend paragraph 3 of the Respondent ' s answer to include a denial of paragraph 6a
of the amended complaint , but admitting that certain specific transfers of the guards were
made by the Respondent.
* Police Guards ' Union was not represented at the hearing.
BENDIX AVIATION CORPORATION 295
valued in excess of $1,000,000, of which approximately 90 percent was sold and
distributed to points outside of New Jersey. The Respondent concedes that it
is engaged in commerce within the meaning of the"Act'
II. THE ORGANIZATIONS INVOLVED
Aircraft Workers Union of New Jersey, Inc., unaffiliated, and Special Police
Guards' Union, Local No. 23318, A. F. of L., are labor organizations admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The change in employment status
On November 2, 1944, a consent election, pursuant to stipulation, was held
among the Respondent's plant guards in the Eclipse-Pioneer Division to deter-
mine whether these employees desired Aircraft Workers, Police Guards' Union
or neither to represent them. Police Guards' Union won the election,' and the
parties were so notified on that day. On November 3, the next day after the
election, the Respondent notified all of the guards that they had been trans-
ferred from salaried to hourly paid status.' This action was taken unilaterally
by the Respondent, without previous notice to, or consultation with, either Police
Guards' Union or the employees involved. On November 4 Aircraft Workers
filed objections to the conduct of the election. On December 13 the Regional
Director recommended to the Board that the objections be dismissed. On Jan-
uary 18, 1945, the Board dismissed the objections and certified Police Guards'
Union as the exclusive representative of the plant guard unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
Immediately after the Respondent had issued the above notice converting
the guards from salaried to hourly paid employees, John McEntee, business
representative of Police Guards' Union, was informed by some of the guards
that they objected to this change. McEntee immediately contacted David
Irving, the Respondent's director of industrial relations in the Eclipse-Pioneer
Division, and requested the reasons for the change. Irving replied that it was
the Respondent's policy. McEntee then informed Irving that Police Guards'
Union was the sole bargaining representative of these employees and requested
that the Respondent restore them to their former salaried status. Irving re-
plied that the Respondent was not required to negotiate with Police Guards'
Union until it had been duly certified as the bargaining agent s
The Respondent concedes that the conversion of the guard unit from salaried
to hourly paid employees was done because these employees had selected and
designated a collective bargaining agent, and it seeks to justify this action on
'The foregoing facts were alleged in the amended complaint and admitted by the
Respondent. This proceeding is concerned only with the employees of the Respondent in
the Eclipse -Pioneer Division.
' There were 92 eligible voters in the guard unit 89 valid votes were cast, 50 for
Police Guards Union, 36 for Aircraft Workers , and 3 for neither. There were no
challenged or void ballots
This notice reads as follows :
In accordance with a rearrangement of payrolls , all Police Guards are transferred
as of November 3, 1944 , from the nonexempt salaried payroll to the hourly payroll.
At the time of the transfer , individual pay rates have been adjusted to compensate
for the difference in vacation allowance As a result of the transfer, no employee
will be paid less money for the same amount of work.
' The complaint does not allege a violation of Section 8 (5) of the Act.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ground that it was its "corporate policy", which it had followed since 1941
In view of this position of the Respondent and the fact that no such conversion
would have been made if there had been no election and these employees had not
designated a bargaining representative, a finding that the employees in the
guard unit have been discriminated against by the Respondent because they
joined and assisted a labor organization for their mutual aid and protection,
becomes mandatory.
The Respondent contends that the conversion had no substantial adverse
effect upon the rights, privileges, and benefits which these employees enjoyed
prior to the conversion because their hourly rate of pay had been adjusted to
compensate for the difference in vacation allowance and 6 paid holidays, and as
a result of the conversion, no employee would be paid less money for the same
amount of work.1P This contention is without merit. The record discloses and
the undersigned finds that, by the conversion, these employees were deprived of
substantial benefits, both tangible and intangible, some of which were as follows :
Vacation with pay: Salaried employees with one year or more of service
were eligible for two weeks annual vacation with pay. Hourly paid em-
ployees were eligible for annual vacations of only one week with pay. "
Separation pay: Salaried employees with service of one year or more
were eligible for separation pay based upon a certain percentage of their
base pay, upon recommendation of their supervisors. Hourly paid employees
were not eligible for such payment.
Sick leave pay: Salaried employees were eligible for sick leave, up to
23 days a year with pay, calculated upon the basis of one day for each
month's service, provided it was approved by their supervisors. Hourly paid
employees were not eligible for any sick leave with pay.
Retirement pay: Salaried employees, 35 years of age or over, with three
years service whose base pay was at least $250.00 a month were eligible for
participation in this plan. There was no retirement plan for hourly paid
employees.
Holidays: Salaried employees were paid for all established holidays,
whether they worked or not. Hourly paid employees were paid for holidays
only when they worked.
Group insurance: Both salaried and hourly paid employees could par-
ticipate in the Respondent's group insurance plan, but some salaried em-
ployees were eligible for more insurance than hourly paid employees.
Payment for absent time: Salaried employees were paid for certain peri-
ods of time that they were absent from work, such as reporting late for
work, and leaving before the shift ended, provided such absences were
approved by their supervisors. Approval was usually given if the reasons
g The Respondent has made similar conversions , for the same reason , at Its Zenith
Carburetor Division, Detroit, Michigan ; Metallurgical Department, South Bend, Indiana ;
Philadelphia Division ; Pacific Division, North Hollywood, California ; and Illinois Division,
Chicago, Illinois. These conversions were made unilaterally, without consultation or
bargaining with the bargaining representatives concerned. M A. Heidt, the Respondent's
general director of industrial relations, testified that, since 1941 it had been the policy
and practice of the Respondent to convert salaried employees to hourly paid status when-
ever they became members of a bargaining unit
1s According to Palmert, the Respondent's wage and rate supervisor, a converting factor
of 1 0442 was established for the purpose of reimbursing the guards for the loss of one
week's vacation with pay and 6 holidays with pay, after they had been converted to
hourly paid employees.
11 The Respondent and Aircraft Workers have a contract covering the hourly paid
employees . This contract provides for one week 's vacation with pay to employees having
one to three years' service.
BENDIX AVIATION CORPORATION 297
were satisfactory . There is no comparable policy for hourly paid em-
ployees. They were paid only for the time they actually worked.
With respect to the foregoing benefits and privileges , the Respondent con-
tends that they were granted at its discretion , and therefore revocable at its
option, and therefore have no substantial value. The undersigned is not in
accord with this theory, and finds that they were as much a part of the em-
ployees' compensation for services rendered as the.actual money paid to them.
They were a part of the known and established conditions of employment, and
of substantial pecuniary and other value. There is no evidence in the record
to indicate any intention on the part of the Respondent to deprive other salaried
employees of these benefits and privileges, so long as they remain unorganized.
The evidence is to the contrary. The guards were actually enjoying these bene-
fits and privileges at the time they selected the Police Guards' Union to repre-
sent them and they had "a present expectancy of future enjoyment of those
benefits." " The losses, in this respect, which were sustained by the guards
were due solely to the discriminatory and unilateral action of the Respondent.
Upon the basis of the foregoing findings of fact and the entire record in the case,
the undersigned concludes and finds that the Respondent, by unilateral action
and without the benefit of collective bargaining, converted all of its employees
within the guard unit from salaried to hourly paid employees, changed the terms
and conditions of their employment, deprived them of rights, privileges and bene-
fits previously enjoyed, and thereafter refused to restore these employees to their
former salary status, because they joined and assisted Police Guards' Union and
designated it as their bargaining representative. The undersigned further finds
that by the aforesaid acts and conduct, the Respondent discriminated in regard
to the hire and tenure of employment of its employees, discouraged membership
in Police Guards' Union, and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. Interference, restraint, and coercion
The Board contended that the action of the Respondent in converting the guards
from salaried to hourly paid employees immediately upon their designating a
bargaining representative, constituted a violation of the Act, not only in respect
to the guards unit, but also with respect to the other salaried employees of the
Respondent who were being organized by Aircraft Workers. According to
A. R. Dufour, president of Aircraft Workers, in September 1944, at the request of
it group of the Respondent's salaried office employees, Aircraft Workers began a
campaign to organize those employees into a separate unit from that of the guard
unit. Circulars were distributed and efforts were made to secure signed authori-
zation cards. These efforts were very successful until the conversion of the
guards, after which, the employees lost interest in Aircraft Workers. Dufour's
testimony in this respect reads as follows :
When the actual signing up began it went very rapidly We had very good
results until the guards' election, and then it started dropping off. When I
inquired as to the reason for the slowing up of the applications, I got the same
report from all of the contacts that we had, that people were afraid that what
had happened to the guards would also happen to them . . . Knowing that
the Board required a certain amount of applications, we made a very special
effort to try to get the required amount, as we were asking for an election,
and it was quite evident that the people were, let us say, very timid after this
happened about signing up, and I heard reports from various sources that
" See Matter of General Motors Corporation , 59 N L R B 1143.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the company-minded individuals had been preaching along the line
that we had better look out or it would happen to them."
The evidence is clear and the undersigned finds that the other salaried em-
ployees of the Respondent had every reason to believe, and in fact did believe,
that if they joined and assisted Aircraft Workers and selected it as their bar-
gaining representative, the Respondent would follow its corporate policy and
convert them to hourly paid employees, as it had done with the guards. The
evidence supports the presumption that the Respondent would have done so.
The undersigned concludes and finds that by converting the guards from sal-
aried to hourly paid employees because they designated Police Guards' Union
as their bargaining representative, the Respondent also discouraged member-
ship in Aircraft Workers, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
C The alleged discrimination
The amended complaint alleged in substance that on or about November 12,
1944, the Respondent transferred guards Floyd Potter, Joseph Sullivan, Philip
McKee, John Houck and David Folie to less desirable work shifts than they
had formerly enjoyed, because they joined and assisted Police Guards' Union,
thereby discriminating in regard to their hire and tenure of employment and
discouraging membership in this labor organization, in violation of Section 7 of
the Act" The undersigned finds no merit in this contention.
On or about November 8, 1944, the Respondent issued a written order, effective
November 12, 1944, transferring 13 guards and 1 sergeant to different plants
and/or shifts.16 Some of the guards affected complained to McEntee, and the
latter immediately contacted William H. Broderick, the Respondent's plant-
protection manager, and requested that the guards be returned to their former
plants and shifts, until the matter could be adjusted by negotiations with Police
Guards' Union. Broderick replied that the Respondent had the right to shift
the guards around whenever it is desired. Later, in reply to a similar request of
McEntee, Broderick promised to investigate the situation and said that any
deviation from the Respondent's policy would be corrected. No further action
was taken by the Respondent.
13 This testimony was substantially corroborated by J. S. Jacobson , secretary of Aircraft
Workers, and also by salaried employee , Harry R . Muller, who assisted Aircraft Workers
in the organizational campaign.
14 The original complaint contained no such allegations.
"The order reads as follows:
The following assignments shall be effective , Sunday November 12th 1944:
Patrolman Benton from Englewood to 4-12 P Teterboro.
Patrolman Wells from Englewood & Hackensack Relief to Englewood 4-12 P.
Patrolman Potter from Teterboro 4-12 to Englewood 12-8 P.
Patrolman Folie from Hackensack 12-8 P to Englewood & Hackensack Relief.
Patrolman Houck from Teterboro 4-12 to Hackensack 12-8 P.
Patrolman Laverty from Teterboro 12-8 to Little Falls 12-8 P.
Patrolman Dorer from Little Falls 12-8 P to Little Falls & Hawthorne Relief.
Patrolman Patterson from Little Falls & Hawthorne Relief to Teterboro 12-8 P.
Patrolman Coleman from North Bergen 12-8 R to Teterboro 12-8 R.
Patrolman McKee from Teterboro 12-8 R to North Bergen 12-8 R.
Patrolman Sullivan from Teterboro 12-8 R to North Bergen 4-12 R.
Patrolman Rossi from Teterboro 8-4 R to Teterboro 4-12 R.
Patrolman Kendel from Teterboro 8-4 R to Teterboro 12-8 R.
Sgt. Binder from Teterboro 8-4 to North Bergen 4-12.
S. B. Huss,
Chief of Plant Police.
(Legend : 12 means midnight , P means permanent ; R means rotating,)
BENDIY AVIATION CORPORATION 299
The evidence disclosed that the aforesaid five guards , together with three other
guards, were the most active in the organizational campaign of the Police Guards
Union Only two of the five guards mentioned in the amended complaint testi-
fied at the instant hearing.
According to Guard Sullivan his only complaint in respect to his transfer from
Teterboro to North Bergen was that while working at Teterboro he had two
riders in his motor car and, on that account, was able to purchase more gasoline,
and he lost these two riders after the transfer. Sullivan's testimony in this re-
spect reads as follows :
I don't mind the shift I work, as far as rotating. If I could have a couple
of riders I could get gasoline. It is quite an expensive thing, you can't get
gasoline . . . You must have riders to get gasoline.
Sullivan admitted that after about 3 months he secured two other riders.
Sullivan lived about half way between Teterboro and North Bergen. The work at
North Bergen was the same as it was at Teterboro, except that the shift was
different. Both were rotating shifts.
According to Guard Potter, he lived about 4 miles from Teterboro and about
the same distance from Englewood. He had no particular objection to Engle-
wood, but did not like the midnight to 8: 00 a. in. shift because it was difficult to
sleep in the daytime. His testimony in this respect reads as follows :
A permanent 12: 00 to 8: 00 shift is undesirable because you are working
nights and sleeping days, which is not any too pleasant, particularly in the
summertime when it is difficult to sleep in the daytime in the hot sun . . .
I did used to be able to go out occasionally. I don't find it possible anymore
because of these hours.
Both Sullivan and Potter testified that they had been employed by the Re-
spondent as guards for approximately 21/2 years at the Teterboro plant, and this
as the first time that they had been transferred to another plant. Also that
it was customary for the guards to file applications with their superiors when
they desired to be transferred from one plant to another and such applications
were usually granted when there were vacancies in the plants desired. Accord-
ing to Potter, this custom was not followed in one instance when there were
some lay-offs at North Bergen and it was necessary to fill the vacancies.
The record disclosed that, at the time of the election, the Respondent operated
7 different plants in New Jersey, which were served by approximately 92 guards,
50 of whom voted for Police Guard's Union in the election. It is unlikely that
after Pollee Guards' Union had won the election, the Respondent would have
selected these five particular guards out of this large unit for the purpose of dis-
criminating against them because of their union activity, by changing them to
other plants and shifts. The transfer order affected 13 guards and 1 sergeant, but
.only 5 guards are complainants in this case and only 2 of those testified at the
hearing Guard Patterson appears in the transfer order and the record shows
that he was equally as active in the organizational campaign of Police Guards'
Union as were the five complainants. However, he is not included in the amended
complaint. The undersigned was not impressed with the reasons given by guards
Sullivan and Potter for objecting to their transfers. When McEntee contacted
Broderick and requested that the guards be returned to their former plants and
shifts, the latter stated that he would investigate it and, if there had been any
violation of the Respondent's policy, it would be corrected. The record shows
that there was a turn-over of five or six guards a month among the plants, which
necessitated replacements and a certain number of shift and plant transfers.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned concludes and finds from the entire record in the case that
Floyd Potter, Joseph Sullivan, Philip McKee, John Houck, mul David F41ie
were, on November 12, 1944, transferred to different plants and shifts by the
Respondent for reasons other than those alleged in the amended complaint, and
that by such transfers the Respondent has not engaged in any unfair labor
practice within the meaning of the Act.
The record disclosed that up to about November 10, 1944, the guards had
been working 48 hours a week, thereby making 8 hours overtime each week at
time and one half. On that date the Respondent reduced the working hours
throughout the various plants and the guards were permitted to average only
44 hours a week. One week they worked 48 hours and the next week 40 hours.
This continued until about March 15, 1945, at which time they resumed the 48
hour week each week. Also, prior to December 10, 1944, the guards had been
allowed 15 minutes a day at time and one half, as "line-up time" for the purpose
of inspection, transmission of orders and going to and from their posts. On
that date, the Respondent discontinued this practice. However, on March 26,
1945, this "line-up time" was restored.
The record shows and the undersigned finds that the aforesaid action was
taken by the Respondent for economic reasons. According to O'Donnell, per-
sonnel director, this action was taken because it was necessary to reduce work-
ing hours on account of "certain production changes in schedule," and that it
affected most of the salaried employees. O'Donnell's testimony with respect to
this reads as follows :
Sometime during the month of December, I received permission from the
area director of the War-Manpower Commission in that area ; that is, in
the area of our plants in New Jersey to reduce the hours because of cer-
tain production changes in schedule, the number of working hours. The
reduction was effected among most of the employees except the emergency
or exceptional cases including guards. The change in hours necessitated a
change in shift for the guards to provide adequate transportation, so as a
result of the change effected by the director of the plant protection, there
was an interval or a period when this condition you refer to did exist and
had to exist because of the over-all cut in hours . . . Salaried workers, for
instance, wkre reduced to 44 hours a week or less, depending upon the jus-
tification for their services, and many other departments including hourly
and salaried workers were reduced, principally the salaried workers.
The undersigned accepts the Respondent's explanation of the temporary sus-
pension of the 48-hour week and the "line-up time" and finds from the entire
record in the case that by such action the Respondent has not engaged in any
unfair labor practices within the meaning of the Act.
IV. THE EFFHCr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening.. and ob-
structing commerce and the free flow of commerce
V. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce , it will be recommended that it
BENDIX AVIATION CORPORATION 301
cease and desist therefrom and take certain affirmative action which the under-
signed finds will effectuate tye policies of the Act.
It has been found that the Respondent by transferring the plant guards from
a salaried to an hourly status, thus depriving them of certain rights, privileges,
or benefits, discriminated in regard to their terms and conditions of employment.
Therefore in order to restore the status quo it will be recommended that the
Respondent restore these employees to the salaried pay roll and, in addition
thereto, restore to them all the terms and conditions of employment including
rights, privileges or benefits in effect on November 2, 1944. It will be further
recommended that the Respondent make whole each of these employees, who
was transferred from the salaried pay roll to the hourly pay roll on November
3, 1944, for any loss. if pay or other loss, if any (such as vacations, holidays, pay-
ment for absent time, separation pay, etc.), which he has incurred as a result
of the Respondent's discrimination against him during the period from November
3, 1944. to the date that the Respondent restores him to his former salaried
status.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CowcLtsioNs oB' LAW
1 Aircraft Workers Union of New Jersey, Inc, unaffiliated, and Special
Police Guards' Union, Local No. 23318, A F. of L., are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire, tenure, terms, and conditions of
employment of its plant guards, thereby discouraging membership in Special
Police Guards' Union, Local No. 23318, A. F. of L., and Aircraft Workers Union
of New Jersey, Inc., the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3).
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent, by transferring Floyd Potter, Joseph Sullivan, Philip
McKee, John Houck, and David Folie to different plants and shifts on November
12, 1944, has not engaged in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondent, Bendix Aviation Corporation (Eclipse-
Pioneer Division), at Teterboro and other places in New Jersey, its officers, agents,
successors, and assigns shall :
1 Cease and desist from :
(a) Discouraging membership in Special Police Guards' Union, Local No.
23318, A. F of L., Aircraft Workers Union of New Jersey, Inc., or any other labor
organization of its employees, by discriminating in regard to the hire or tenure
of their employment or any term or condition of their employment :
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Special Police Guards' Union, Local No. 23318, A. F. of L.,
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Aircraft Workers Union of New Jersey, Inc, unaffiliated, pr any other labor
organization, to bargain collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Restore all plant guards to the salaried pay roll and to all the terms and
conditions of employment, including all rights, privileges or benefits which were
in effect on November 2, 1944;
(b) Make whole all plant guards who were transferred from the salaried to
the hourly pay roll on November 3, 1944, for any loss of pay, or other loss, if any,
(such as, but not limited to, vacations, holidays, payment for absent time, separa-
tion pay, etc.) which they may have sustained as a result of the transfer to the
hourly pay roll on November 3, 1944, to the date that the Respondent restores
them to salaried status ;
(c) Post at its plants at Teterboro, Hackensack, Englewood, North Bergen,
East Orange, Little Falls, and Hawthorne, all in New Jersey, copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be furnished by
the Regional Director of the Second Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Second Region on or before ten (10)
days from the date of the receipt of this Intermediate Report what steps the
Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
It is further recommended that the amended complaint, insofar as it alleges that
the Respondent, by transferring Floyd Potter, Joseph Sullivan, Philip McKee,
John Houck and David Folie, to different plants and shifts on November 12,
1944, has discriminated against them in regard to the hire, tenure, terms or
conditions of their employment, within the meaning of Section 8 (3) of the Act,
be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, 25, D. C. an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or ob-
jections) as he relies upon together with the original and four copies of a brief
in support thereof.
Immediately upon the filing of such statement of exceptions and/or brief, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
BENDIX AVIATION CORPORATION 303
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the Board.
W. P. WEBB,
Trial Examiner.
Dated June 20, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self -organization , to form labor or-
ganizations , to join or assist Special Police Guards ' Union, Local No. 23318,
A. F. of L., and Aircraft Workers Union of New Jersey, Inc., or any other
labor organization , to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
We will restore all plant guards to the salaried pay roll and to all the
terms and conditions of employment , including all rights , privileges, or
benefits which were in effect on November 2, 1944, without prejudice to any
seniority or other rights and privileges previously enjoyed, and make them
whole for any loss of pay, or other loss, if any , suffered as a result of the
discrimination.
All our employees are free to become or remain members of the above-named
unions or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or conditions of employment against
any employee because of membership in or activity on behalf of any such labor
organizations.
BENDIx AVIATION CORPORATION ( ECLIPSE-PIONEER DIVISION),
Employer.
Dated -- ------------------ By------------------- -------------------
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof , and must not
he altered , defaced , or covered by any other material.