Brantly Helicopter Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1962

135 N.L.R.B. 1412 (N.L.R.B. 1962)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. Employees engaged as electricians, currently represented by the
International Brotherhood of Electrical Workers, Local 112, are en-
titled to operate overhead electric cranes at the Employer's North
Richland, Washington, machine shop.
2. Accordingly, International Association of, Machinists, Lodge
No. 1743, AFL-CIO, is not and has not been lawfully entitled to
force or require J. A. Jones Construction Company to assign the work
of operating such overhead electric cranes to employees engaged as
machinists, who are currently represented by International Associa-
tion of Machinists, Lodge No. 1743, AFL-CIO.
3. Within 10 days from the date of this Decision and Determination
of Dispute, International Association of Machinists, Lodge No. 1743,
AFL-CIO, shall notify the Regional Director for the Nineteenth
Region, in writing, whether or not it will refrain from forcing or
requiring J. A. Jones Construction Company by means proscribed
by Section 8(b) (4) (D) to assign the work in dispute to machinists
rather than to electricians.
Brantly Helicopter Corporation and Lodge 1476, International
Association of Machinists , AFL-CIO. Case No. 16-CA-1518.
February 28, 1962
DECISION AND ORDER
On November 29, 1961, Trial Examiner Frederick U. Reel 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 therefrom and take
certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by, the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered.the Inter-
mediate Report, the exceptions and brief, and the, entire record in this
case, and hereby adopts the findings, conclusions, and recommenda:
tions of the Trial Examiner with the following amplification.
We agree with the Trial Examiner that the Respondent violated'
Section 8(a) (1) by discharging Lynch aliriost'a month after it had
135 NLRB No. 137.
BRANTLY HELICOPTER CORPORATION 1413
condoned his participation in a concerted refusal of some employees
in the fuselage department to work Saturday, June 3, 1961. Respond-
ent admits that it condoned Lynch's participation and his failure to
report his intention not to work that day, as required by a company
.rule, but urges that it did not know that Lynch was responsible for
organizing the partial walkout and that it could not, therefore, have
condoned that aspect of the unprotected activity. Respondent points
out that of the 14 employees in a total complement of 25 who stayed
away from work on June 3, 6 or 7 had complied with the rule for
giving advance notice while others gave satisfactory excuses for fail-
ing to work or to notify their supervisor that they would not be avail-
able for work that day.
We are satisfied, however, that Respondent knew on June 3 that a
number of the men had stayed away from work concertedly. Thus,
Lynch and another employee told Respondent that they had not re-
ported because they were dissatisfied with having to work that Satur-
day at straight-time rates, while the men who were waiting to be-inter-
viewed individually as to their reason for not reporting asked to meet
as a • group with Montouro, Respondent's production supervisor.
Though Respondent knew that the refusal of some of the fuselage
department employees to work that Saturday was the result of a con-
certed plan, it nevertheless condoned their action on the following
Monday, when its general manager called the absentees together, and
told them that it would overlook their failure to report on Saturday
but warned them that any future violation-of the rules against unex-
plained absences would be grounds for dismissal. He did not inform
them that he intended to investigate the matter further or to discipline
anyone responsible for instigating their concerted refusal to work the
previous Saturday or to notify the Company in advance of their inten-
tion not to work.
In the next 2 weeks Respondent received three unsolicited reports
from employees that Lynch, on June 2, had asked the employees to
sign a paper that they-would not work the next day or notify the Com-
pany of their intention not to" report. Respondent claims that it
decided on June 20. to discharge Lynch because of these reports, al-
though it made no effort to investigate their truth. Lynch was not
discharged, however, until June 30.- The reason given him for his
termination was "Inability to work in the best interests of the Com-
pany." The Respondent never -gave him any more specific reason for
his discharge.
Although it must have realized that the June 3 incident signified
something more important than the coincidental absence of 14 individ-
uals from work that- day,-Respondent decided the next working day
thatrit would take no disciplinary action against any of the partici-
pants. -Its decision must have taken into account the almost certain
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probability that concerted activity of such scope had to be proposed
by someone, yet it neither advised the absentees that it considered
anyone primarily responsible for the incident or that it intended to
conduct any further investigation of the matter. Its decision, in
short, was to forgive and forget all aspects of the incident, including
both leadership and participation. Having once condoned the matter,
Respondent's subsequent change of heart and determination to punish
Lynch for his reputed instigation of the concerted activity was in re-
prisal for his engagement in such activity.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order 2
MEMBER RODOERS took no part in the consideration of the above
Decision and Order.
1 Alabama Marble Company, 83 NLRB 1047, enfd . 185 F. 2d 1022 ( C.A. 5). Cf. Com-
plete Auto Tran8it, Inc., 134 NLRB 652, where the Board found that the employer,
while condoning participation In an unprotected concerted activity, specifically saved his
right to discipline those persons responsible for its instigation.
2 The following is to be inserted in the notice immediately below the sentence beginning
"This notice must remain posted . . ": Employees may communicate directly with the
Board 's Regional Office ( Room 2093, Federal Center , 300 West Vickery, Fort Worth,
Texas ; Telephone Number , Edison 5-5341 , Ext. 284) if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The sole issue tendered by the pleadings and the evidence in this case, heard
before Frederick U. Reel , the duly designated Trial Examiner, in Lawton, Okla-
homa, on October 16, 1961 , is whether Respondent's admitted discharge of Don
Lynch on June 30, 1961 , violated Section 8(a)(1) and ( 3) of the National Labor
Relations Act, as amended (61 Stat . 136, 73 Stat. 519).
At the conclusion of the hearing , General Counsel argued orally on the record,
and thereafter Respondent and General Counsel filed briefs which have been duly
considered . Upon the entire record in the case , my observation of the witnesses,
and consideration of the arguments advanced by each side , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that Respondent is engaged
in manufacturing helicopters at Frederick, Oklahoma, that it annually both re-
ceives from and ships to points outside the State products valued at over $50,000,
that it is engaged in commerce within the meaning of the Act, and that Lodge 1476,
International Association of Machinists , AFL-CIO, herein called the Union, is a
labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The June 3 episode
The employees in Respondent 's fuselage department normally worked a 40-hour,
5-day week , and when required to work on Saturdays ordinarily received overtime
pay for that day. When, however, Saturday work was required in a week in which
the employees had enjoyed a' holiday, they received only straight time for the
BRANTLY HELICOPTER CORPORATION 1415
Saturday work as they did not work in excess of 40 hours in that week. Some of
the employees were dissatisfied with this condition of employment which occasion-
ally required them to work Saturday at straight time rather than overtime rates of
pay.
Respondent had a rule, well known to the employees, that if an employee did not
intend to report for work on a particular day, he was to notify his foreman. Observ-
ance of this rule was of some importance to Respondent's operations as the men
worked in teams, and the unexpected absence of one member of the team had a
disruptive effect on Respondent's production.
The week commencing Sunday, May 28, 1961, included a holiday, May 30, on
which the fuselage employees did not work. On Friday, June 2, their leadman
notified them that they were to work the following day. This was the customary
time for the employees to -receive such notification. That afternoon a number of
them discussed the matter together and apparently determined that they would not
report for work on Saturday and would not advise the Company of their intended
absence.
On Saturday, June 3, approximately 14 of the approximately 25 fuselage depart-
ment employees were absent, many of them without having given notice. Respond-
ent, disturbed over the unusually high degree of absenteeism, had its production
supervisor, Vincent Montouro, communicate with some of the absentees to ascer-
tain their reasons for being absent. Montouro spoke to two of the men that
morning by telephone, and also interviewed seven more, individually, in the plant
office that same morning. While some of the men had explanations which Mon-
touro found satisfactory, at least two, Don Lynch and Alvin McQuilliams, indicated
that they were dissatisfied with working Saturday at straight-time rates, and that
this was the reason for their absence.' During the course of the individual inter-
views, Montouro received word through another supervisor that the men waiting to
be interviewed wished to see him as a' group, but Montouro insisted on conducting
the interviews on an individual basis.
The employees who had been absent Saturday returned to work Monday, June 5.
That day Company General Manager A. P. Hoover called a meeting of the
Saturday absentees at which he explained to them the reason for the Company's rule
requiring the reporting of expected absences, and warned them that any future viola-
tion of the rule would be grounds for dismissal. Hoover indicated, -however, that
the Company was willing to overlook the June 3 absences. He made no mention of
any intention on the part of the Company to ferret out the leader of, or person re-
sponsible for, the June 3 episode, and indeed Respondent made no further in-
vestigation of the matter, other than to receive unsolicited reports of Lynch's re-
sponsibility therefor, as detailed below.
B. The employment history of Don Lynch
Lynch, the legality of whose discharge on June 30 , 1961 , is at issue here, was
employed in the fuselage department of Respondent 's plant , where ( apart from a fist
fight with a fellow employee in the summer of 1960 ) his performance had apparently
been exemplary . Originally hired at an hourly rate of $1 .25 in 1956 or 1957,
Lynch, by November 1960 , was being paid $ 1.78 an hour, and in that month received
a merit increase from $1 .78 to $1 . 83. On or about Monday, June 12 , 1961, less
than 3 weeks before Lynch's discharge but over a week after he had engaged in
the refusal to work on June 3 , 1961 , Respondent promoted him to the position of
"acting group leader" with the promise that if he "worked out" in that capacity he
would become a full-fledged "group leader" with a raise in pay . When notifying
Lynch of his promotion Montouro repeated that Respondent would "forget what
had been done and let it go as it was," or words to that effect , a statement which
Lynch understood (and I find) referred to the June 3 episode.
During the last week of June 1961 , the Union commenced organizational activity
in the plant . Beginning about June 24 , Lynch handed out over 100 union cards to
employees , more than were , distributed by any other union supporter . Lynch him-
self signed a' union card June 28 or 29 . Respondent's officials testified that they had
3 Lynch testified that he "forgot" to give notice that he would not work on June 3.
Although in general Lynch impressed me as a credible witness; his demeanor in answering
a series of questions on his failure to give notice was such as to convince me that the
truth was exactly the opposite of his testimony; he did not "forget" but be deliberately
failed to give notice See Dyer v. MacDougall, 201 F. 2d 265, 269 (C.A 2), quoted with
respect to a Labor Board matter in N.L.R.B. v. Howell Chevrolet Co., 204- F. 2d 79, 86
(C.A. 9), affd . 846 II S: 482.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no knowledge of this activity, or of any other union, activity in the plant prior to
July, and that they, had no reason to believe that Lynch was engaging in union
activity.
According to Respondent, it received through its foreman, Gene Hill, unsolicited
reports from employees that Lynch had been primarily responsible for the June 3
episode. The first of these reports was received a week or 10 days after June 3, i.e.,
either just before or just after Respondent promoted Lynch to acting group leader.
Respondent took no. action with respect to the matter until it received two more
such reports by (approximately) June 20. At that time, according to Respondent,
it decided to discharge Lynch for having instigated the June 3 episode. The infor-
mation Respondent received and on which it determined to act was that on June 2
Lynch had asked the employees to sign a paper he was circulating which recited that
they would not report on June 3 and would not notify the Respondent of their
intention not to report. Respondent never saw this paper, and Lynch testified that
he had never seen any such document.
On Friday, June 30, the day the plant closed for a 2-week vacation, General
.Manager Hoover discharged Lynch, telling him that the discharge was for "inability
to work in the best interests of the Company." Lynch attempted to gain further
particulars from a company foreman, who gave him no satisfaction, and with whom
Lynch thereupon exchanged hot words. Some weeks later Lynch at his request
obtained a general letter of recommendation from Hoover on behalf of Respondent.
About the same time Lynch called on Montouro in an effort to obtain further infor-
mation as to the reason for his discharge. Montouro repeated the phrase used by
Hoover on June 30, about "inability to work in the best interests of the Company"
and added that "everything pointed towards" Lynch. Lynch understood Montouro to
.refer to Lynch's role in the June 3 episode.
C. Concluding findings
General Counsel presents three theories for finding Lynch's discharge violative
of the Act. It is urged that: (a) The activity of June 3 for which Respondent claims
to have discharged Lynch was protected concerted activity under Section 7 of the
Act; (b) even if originally unprotected, the unprotected character of the activity
was condoned or waived by the Respondent so that a subsequent discharge for such
activity would violate the Act; (c) in any event the real reason for the discharge
was Lynch's union activity during the week preceding his discharge.
The first and third contentions need not detain us long. Although the men
engaged in a concerted activity for mutual aid or protection when they decided,
after discussing the matter among themselves, not to report on June 3, their failure
to report and their failure to notify Respondent constituted a partial strike or an
attempt to work on their own terms. Under settled law, such activity, although within
the literal language of Section 7, does not enjoy statutory protection. See John S.
Swift Co., Inc., 124 NLRB 394, 397, footnote 4, enfd. 277 F. 2d 641, 646 (C.A. 7),
citing L. W. Scott, doing business as Scott Paper Box Company, 81 NLRB 535,
546-548, and C. G. Conn Limited v. N.L.R.B., 108 F. 2d 390 (C.A. 7). See also
International Union, U.A.W.A., A. F. of L., Local 232, et al. (Briggs & Stratton
Corp.) v. Wisconsin Employment Relations Board, et al., 336 U.S. 245, 257,
expressly approving the Conn case.
As to Lynch's union activity, the record does not contain so much as a scintilla
of evidence that Respondent was aware of any union activity at this time by Lynch
or any other employee. Indeed, the record contains explicit and uncontradicted
testimony to the contrary. While I can and -do take official notice that the plant is
located in a city of some 5,500 people; this fact is an insufficient basis for a finding
that Respondent knew of Lynch's union activity. No evidence was introduced as
to the size of the plant, except that Lynch distributed about 100 cards, and that other
employees likewise distributed cards. No evidence was introduced that any man-
agement official saw Lynch or anyone else distribute cards. Lynch himself testified
that he did not pass out any cards at the plant. Upon this record, notwithstanding
the highly suspicious circumstances that Lynch was discharged within a week after
he commenced union activity and that Respondent 's assigned reason , concerns an
episode Respondent had announced it would forgive and forget, I find that General
Counsel has not sustained his burden of proving by a preponderance of the evidence
that Lynch was discharged -because of his union activity. Hadley Manufacturing
Corporation, 108 NLRB 1641, 1650; Diamond Ginger Ale, Incorporated, 125 NLRB
1,173, 1177-1178.2 1, 1
2 Lynch himself apparently did not consider that his union activity was connected' In
any way with his discharge, a factor of sonic weight, although not conclusive. N.L It B. v.
BRANTLY HELICOPTER CORPORATION 1417
This brings us to the question whether Respondent condoned or waived the
unprotected character of the June 3 episode, and, if so, to the legal consequences of
such condonation. I find that Respondent did expressly "condone" the conduct of
the employees in the sense that Respondent clearly stated that it would visit no
consequences upon the guilty parties. Moreover, as in Alabama Marble Company,
83 NLRB 1047, 1048, 1058, 1060, enfd. 185 F. 2d 1022 (C.A. 5), cert. denied 342
U.S. 823, Respondent's waiver was unaccompanied by any reservation of an intention
to penalize the leader or leaders of the unprotected activity.3 The troublesome issue
in the case, however, is whether a discharge for the "condoned" activity violates.
the Act.
The Board has repeatedly held, with court approval, that an employer violates.
the Act if, upon learning that his employees have engaged in, unprotected strike
activity, he first "condones" the activity by reinstating the strikers and thereafter
discharges some or all of them for such activity. Several such cases, although often
referred to as "condonation" cases, are really "pretext" cases, i.e., the employer's
motive for discharging the employee was to penalize him for some activity protected
by the Act, and the unprotected activity was merely the pretext for the discharge.
Such cases are , of course, clearly distinguishable from the case at bar and do not
support General Counsel's case here.
A second group of "condonation" cases involve employees who, while engaged in
what was otherwise a statutorily protected strike, commit acts of misconduct which
forfeit their statutory protection. In such cases, an employer who "condones" the
misconduct and thereafter discharges the employee therefor has violated the Act
because, having waived the misconduct, he has in effect restored the statutory pro-
tection originally inherent in the strike. But cases of that nature may likewise be
distinguished here, for here the original concerted activity did not enjoy statutory
protection for any of the time the employees were engaged in it.
Not all the "condonation" cases, however, may be distinguished from the instant
case along the lines indicated above. A relatively small group of such cases in-
volved wildcat strikes or strikes in breach of contract, and the employer, after
condoning the unprotected activity by letting the employees resume work, thereafter
discharged them for having struck. In those cases the Board, relying on a "con-
donation" theory found that the discharges violated the Act. Alabama Marble,
supra; Plasti-Line, Incorporated, et al., 123 NLRB 1471, 1481, set aside on other
grounds 278 F. 2d 482 (C.A. 6); E. A. Laboratories, Inc., 80 NLRB 625, 86 NLRB
711, enfd. on this ground 188 F. 2d 885, 887 (C.A. 2), cert. denied 342 U.S. 871;
Columbia Pictures Corporation, et al., 82 NLRB 568, set aside on other grounds
191 F. 2d 217 (C.A. 9); California Cotton Cooperative Association, Ltd., 110
NLRB 1494, 1498, 1500; Fafnir Bearing Co., 73 NLRB 1008, 1013-1014; cf. Carey
Salt Company, 70 NLRB 1099. See also The Hoover Company v. N.L.R.B., 191 F.
2d 380, 391-392 (C.A. 6), and N.L.R.B. v. Aladdin Industries, Inc. 125 F. 2d 377,
382 (C.A. 7), cert. denied 316 U.S. 706, applying the "condonation" doctrine to
employees engaged respectively in a boycott for an illegal object and in a sit-down
strike.
This line of cases, and particularly the Alabama Marble case, cannot, in my view,
be distinguished in any pertinent respect from the case at bar. To be sure, some
of the considerations which might be urged to support those decisions are absent
here. Thus it cannot be urged here that a public policy of encouraging strike
settlements requires that the employer be held to his agreement, or that the em-
ployer derived any benefit (in the form of securing termination of the strike) from
his condonation. Nor can it be urged here, as could be argued in the cases involving
"breach of contract" strikes, that the original activity lost its protected character
solely by virtue of a separate document giving the employer an affirmative defense
which he could waive. As I understand the Alabama Marble and related cases,
however, they do not rest on any such rationale but rather on a ground equally
applicable here, namely that the effect of the waiver "is to preclude or estop the
employer in an unfair labor practice proceeding from asserting that the concerted
activity was unprotected." Plasti-Line, supra, 1481. Or, as stated in Alabama
Marble, supra, 1059, "It has been held that promise to reinstate strikers operates as
Polynesian Arta, Inc, 209 F 2d 846, 851 (CA 6) ; N L R.B V Pacific Mills, 207 F. 2d
905, 906 (C.A 4) ; cf. N.L R.B. v. Wilbur H Ford, d/b/a Ford Brothers, 170 F. 2d 735,
739 (C.A. 6). -
Respondent 'argues that it was unaware there, was a leader until it received the re-
ports on Lynch The situation in this regard ,is not materially different from. that in
the Alabama Marble case. Moreover, Respondent regarded the number of unexplained
absences that day as "unusual" which in itself suggests an awareness that more than
coincidence was involved.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a condonation of their strike activities and that an employer may not thereafter
repudiate such a promise without violating the Act."
This rationale finds some echo in the common law doctrine that an employer who
has condoned an employee's breach of contract may not thereafter rely on the
breach as cause for discharge .4 To be sure, the issue before us is whether Lynch's
discharge invaded a statutory, not a common law, right; but it is relevant to note that
under common law principles Respondent, having condoned.the June 3 episode,
could not urge as a lawful ground for the discharge the,fact that that episode repre-
sented an attempt by Lynch and the others to work on their own terms, which under
the Conn and Swift cases, supra, is what robbed their activity of its statutory pro-
tection. The Board's condonation theory also finds direct support in the statute it-
self, for Congress in Section 8(d) provided that an employee who struck during the
60-day waiting period "shall lose his status as an employee . . . but such loss of
status for such employee shall terminate if and when he is reemployed by [the struck]
employer." As the above-quoted "but" clause would not .be necessary to affirm the
obvious proposition that reemployment restores employment status, the explicit
provision that the prior "loss of status . shall terminate" can only mean that
reemployment puts an end to the time for allowable reprisals inflicted for past
activities.
In the instant case some of the employees, acting in concert, protested the re-
quirement that they work for straight-time pay on Saturdays. Under ordinary cir-
cumstances, a protest of that nature is one of the "concerted activities for the purpose
of collective bargaining or other mutual aid or protection" expressly protected by
Section 7 of the Act.5 As their otherwise lawful and protected protest took the
form of a "partial strike" or an attempt to work on their own terms, the employees
rendered themselves subject to lawful discharge because of what was otherwise an
activity protected by the statute. But Respondent condoned or waived the unpro-
tected aspect of the activity, and is thereafter bound as a matter of law to view the
activity without regard to its unprotected aspects, i.e., as simply a concerted activity
for mutual aid or protection. As in Plasti-Line, supra, 1481, Respondent cannot be
heard to say "that the concerted activity was unprotected." Having condoned the un-
protected nature of the activity, Respondent by subsequently visiting reprisal on the
alleged leader thereof is indicating that its real concern is with the concerted nature
of the activity, and not with its unprotected aspects. As the original issue of the
concerted activity, the refusal to pay overtime for Saturday work as such, remained
a source of disagreement and potential trouble, Respondent's discharge of the alleged
leader, viewed in the light of its condonation of the June 3 episode, suggests also
that it was concerned with the possibility of future concerted action with respect to
the employees' grievance rather than with the particular unprotected form in which
the employees had previously advanced their complaint. On this aspect of the case,
the finding of unlawful discharge follows a fortiori from Alabama Marble, supra,
where the unprotected concerted activity (strike in breach of a no-strike clause) was
in protest of a particular episode rather than, as here, of a standing unresolved dis-
agreement over working conditions.
In sum, relying on the Alabama Marble line of cases, I find that Respondent's
discharge of Don Lynch following its condonation of the June 3 episode was an
act of interference, restraint, or coercion infringing rights under Section 7 of the
Act and therefore constituted an unfair labor practice violative of Section 8(a)( I).
Although the remedy is unaffected thereby, I do not find that the discharge en-
couraged or discouraged membership in a labor organization so as to violate
Section 8(a)(3) because I do not believe that the employees who concertedly
refused to work on June 3 thereby constituted themselves a "labor organization"
' See Jones v Vestry of Trinity Parish, 19 Fed 59, 02 (C C W D N C) , Reonington
Typewriter Co v Hall. 22 Ala App 267, 115 So 73, cert denied 217 Ala 128, 115 So
74; 3 Williston, Contracts, see 725 and cases there cited
5 Respondent states in its brief (p 5) , "The record is clear that Lynch was discharged
not for his failure to report for work, and not for his violation of the company rule that
employees give notice when they will not be at work on Saturday, but because of Respond-
ent's belief that Lynch had procured several other employees to violate that rule " 'But
the rule requiring notice was itself a term or condition of employment, and procuring
concerted action to protest this rule would be a concerted activity for mutual aid or
protection The particular manifestation of the protest-a flat violation of the rule-
would not enjoy statutory protection, but its unprotected aspect could be condoned just
as the breach of contract was condoned in Alabama Marble, supra In short, the analysis
is the same whether the activity be viewed as concerted action to protest the straight-
time pay or concerted action to protest the rule on reporting absences
BRANTLY HELICOPTER CORPORATION 1419
within .the meaning of Section 2(5) of the Act. N.L.R:B. v. Hymie-Schwartz, d/b/a
Lion Brand Manufacturing Company, 146 F. 2d 773, 774 (C.A. 5); Gullett Gin
Company, Inc. v. N.L.R.B.,. 179 F. 2d 449, 502 (C.A. 5), reversed on other grounds
on Board's limited petition for cert., 340 U.S. 361; N.L.R.B. v. J. I. Case Co., 198
F. 2d 919, 923 '(CA. 8), cert. denied 345'U.S. 917; N.L.R.B. v. Buzza-Cardozo, 205
F. 2d 889,•891 (C:A'9), cert: denied 346 U.S. 923; contra: N.L.R.B. v. Kennametal,
Inc.; 182 F. 2d 817, 818 (C.A. 3).
III. THE EFFECT OF .THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above; occurring in con-
nection 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 obstructing com-
merce and the free flow of, commerce.
IV. THE REMEDY
It 'having been found that the Respondent, engaged in unfair labor practices, in
violation of Section 8 (a) (1) of the Act, it will be recommended that the, Respond-
ent cease and desist therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. -
As it has been found that the Respondent discharged Don Lynch in violation' of
Section 8(a)(1) of the Act, I will recommend that the Respondent offer him im-
mediate and full reinstatement to his former position or a substantially equivalent
position, without prejudice to his seniority or other rights and privileges (The Chase
National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB
827). It will. be further recommended that the Respondent make the aforesaid
employee whole for any loss of pay suffered by reason of the discrimination against
him. Loss of pay shall be based upon earnings which Lynch normally would have
earned from the date of the discrimination against him, to the date of his reinstate-
ment , less net earnings , computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289. It will also be recom-
mended that the Respondent preserve and, upon request, make available to the
Board payroll and other records to facilitate the computation of the backpay due.
The framing of an appropriate notice to the employees is fraught with particular
difficulty in a case of this nature, and it may well be that in these circumstances a
notice should be dispensed with altogether. In my judgment, a conventional notice
which recited merely that the Respondent would not violate Section 7 and that it
would reinstate Lynch with backpay would almost certainly be construed by the
employees to whom it is addressed as signifying that their failure to work or to-
report their intended absence on June 3 was protected by the statute and that they
could not lawfully be discharged if they repeated that activity. To order the
posting of so misleading a notice would not, in my judgment, effectuate the policies
of the Act. Accordingly I have framed a notice which, while it represents a de-
parture from Board precedent-a practice not normally to be indulged in by a Trial
Examiner with respect to so customary a part of the order-in my judgment
effectuates the statutory policies.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSION OF LAW
By discharging Don Lynch Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act, and has
thereby engaged in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusion and the entire record ,' and pursuant
to Section 10(c) of the Act, I- hereby. recommend that the Respondent, Brantly
Helicopter Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from discharging or otherwise discriminating against its em-
ployees-for having engaged in-concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
2. Take the following affirmative action which is- necessary to - effectuate' the
policies of the Act. • - •. • , ' :. • . .. - ,
(a) Offer Don Lynch immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and privileges , and make him whole for any loss of earnings he may have suffered
by reason of the Respondent 's discrimination against him as set forth in that section
of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports , and all other records • necessary to analyze
the amounts of backpay as set forth in "The Remedy" section of the Intermediate
Report.
(c) Post in its plant at Frederick , Oklahoma , copies ' of the notice attached
hereto marked "Appendix ." 6 Copies of said notice , to be furnished by the Regional
Director for the Sixteenth Region , shall, after being signed by Respondent 's repre-
sentative , be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are customarily posted . Reasonable
steps shall be taken to insure that said notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for the Sixteenth 'Region , in writing , within 20
days from the date of the receipt of this Intermediate Report, what steps have been
taken to comply with the recommendations herein made?
61n the event that these Recommendations be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
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 Labor Management
Relations Act, we hereby notify our employees that:
SECTION 7 OF THAT ACT PROVIDES: "Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8,(a) ((3) of the Act"
WE WILL NOT interfere with, restrain, or coerce any of our employees in the
exercise of the above rights.
THE FAILURE OF CERTAIN EMPLOYEES to report that they would not work on
Saturday, June 3, 1961, was NOT an activity protected by Section 7 because,
although a "concerted activity for mutual aid or protection," it represented an
attempt by employees to work on their own terms. Nevertheless, as we con-
doned this particular episode, we will not discharge or otherwise discriminate
against employees for their failure to report that they would not work on that
date.
WE WILL offer Don Lynch immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay he suffered as a
result of his discharge on June 30, 1961.
BRANTLY HELICOPTER 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.
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