Gopher Aviation, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1966

160 N.L.R.B. 1698 (N.L.R.B. 1966)

1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and employee draws closer to equilibrium, and the Board
will consider more sympathetically any substantial defenses the
respondent may proffer against a full backpay remedy. This case,
however, is not one of those infrequent cases. It follows that we affirm
our decision to award a full backpay remedy.
[The Board reaffirmed its Order of December 9, 1964, [149 NLRB
1512] in this proceeding.]
Gopher Aviation , Inc. and International Association of Machin-
ists, AFL-CIO. Case 18-CA-2057. October 10, 1966
DECISION AND ORDER
On April 14, 1966, Trial Examiner William Seagle issued his Deci-
sion 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 attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions 2
and recommendations of the Trial Examiner only to the extent indi-
cated below.
'The Respondent's request for oral argument is hereby denied as the record, including
the Respondent's exceptions and brief, adequately presents the issues and the positions
of the parties.
2 The Respondent excepts to the Trial Examiner's determinations with respect to issues
of credibility, contending in support thereof that the Trial Examiner was prejudiced.
After a careful review of the record, we conclude that the Trial Examiner's credibility
findings are not contrary to the clear preponderance of all the relevant evidence Accord-
ingly, we find no basis for disturbing his credibility findings in this case. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3) While we do not sub-
scribe to all the Trial Examiner's findings, we specifically reject the Respondent's conten-
tion of bias, there being no evidence that the Trial Examiner prejudged this case or made
prejudicial rulings. Hot Shoppea, Inc, 146 NLRP, 802. Errors in his findings and in the
analysis of the facts upon which they are based, as set forth in the Trial Examiner's
Decision , are hardly sufficient to establish bias. The (Treat Atlantic & Pacific Tea Com-
pany, Inc., 129 NLRB 757, footnote 3 at 758.
160 NLRB No. 130.
GOPHER AVIATION, INC. 1699
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (5) and (1) of the Act by refusing to bargain
in good faith with the Union, which was certified in November 1964
as the collective-bargaining representative of its employees. We do
not, however, adopt all the Trial Examiner's comments in this mat-
ter,3 but rely, in adopting his conclusion, on the following factors.
The Respondent unreasonably delayed commencing negotiations,
despite the Union's repeated requests in November and December
1964, on the ground, as stated by Personnel Director Hargesheimer,
that there should be a postponement to "let us recover from the shock
a little bit." The Respondent also unduly protracted the negotiations
after they commenced in January 1965. Moreover, it was not until
after the parties had been negotiating for months that the Respond-
ent finally made a so-called wage offer; but this offer was merely to
give the Union a lump sum of $15,000 to distribute to the employees.
In addition, the Respondent took shifting positions for rejecting
union security, refusing to agree to such a provision at first on the
ground of the Union's slim margin of victory in the representation
election, and, later, when the Union's membership had greatly
increased, claiming generally and without any convincing evidence
that employees were coerced into joining. When the Union at one
point charged the Respondent with a failure to bargain in good faith,
it was met with Hargesheimer's reply that "We only recognize we
have a situation." The Union finally asserted that it was going to call
a strike because of the Respondent's refusal to bargain in good faith,
whereupon the Respondent suggested deferring such action so that it
could present what it referred to as a "final" offer. The offer, how-
ever, turned out to be, in the Respondent' s own terms , "tentative,"
and, in fact, left many matters to be "worked out later."
We find, upon the basis of the entire record, and particularly by
reason of the foregoing conduct, that the Respondent unlawfully
refused to bargain in good faith with the Union, and, therefore, that
the strike, which began on April 23,'1965, and which occurred because
of the unlawful nature of the Respondent's bargaining with the
Union, was an unfair labor practice strike.
2. The Respondent resumed meeting with the Union 2 weeks after
the strike commenced. Its first action, however, was to withdraw all
its previous offers and all the provisions which had already been
3 We speciflcally disavow the Trial Examiner 's gratuitous comments to the effect that a
lawyer 's participation in collective-bargaining negotiations is usually an indication that
the employer does not intend to reach an agreement ; that a management prerogative
demand is the traditional mean's by which employers abort negotiations ; and that friction
and conflict would have been avoided entirely if the Respondent had agreed to a union
shop.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed on, because of the strike. Furthermore, the Respondent, dur-
ing the strike, granted those who stayed on the job wage raises, some
of which were in excess of the Respondent's customary annual wage
increase and in excess of any increase offered to the Union. During
these negotiations, the Union, in an attempt to reach an agreement,
modified its stand on several issues. For example, it reduced its
union-security demand to a request for a maintenance-of-membership
provision. The Respondent, however, countered that this was worse
than a union shop because it would cause friction between the union
and nonunion employees working side by side. We find that, by its
conduct during the strike, the Respondent again demonstrated bad
faith in its negotiations in further violation of Section 8(a) (5) and
(1) of the Act, and that this conduct, of the same nature as the orig-
inal cause of the strike, prolonged the unfair labor practice strike.4
3. The Trial Examiner found, and we agree, that the Respondent,
by unilaterally terminating its Fleming Field customer service oper-
ation and discharging the employees engaged therein, violated Sec-
tion 8 (a) (5), (3), and (1) of the Act. All of the mechanics engaged
in that operation had remained steadfast in rejecting the Respond-
ent's efforts to persuade them to abandon the strike. As that operation
was already shut down by the strike, the Respondent's announcement
was, in effect, that the operation would not be reopened when the
strike was over. The Respondent's decision of May 3 was made and
announced so precipitately 5 that the Respondent's operations man-
ager at Fleming Field was informed of the closing only hours before
the affected employees received notice of it in the mail. Moreover,
the disclosure of this action to the Union on May 5, after the letters
were received by the employees, was also timed concurrently with the
Respondent's unlawful withdrawal of its previous offers to the Union,
and the Respondent made no attempt to discuss with the Union the
termination of the operation or its impact upon the affected
employees.
Although the Respondent indicated that it had long been consider-
ing the closing of its Fleming Field operation for economic reasons,
no change in economic circumstances was shown or asserted to
explain the cessation of the operation on May 3. As late as April 27,
this very question had been referred for further study, and no credi-
ble explanation other than the strike is offered for deciding on May 3
to close, or for the immediate implementation of that decision. Under
all the circumstances, we can infer only that the underlying reason
for the Respondent's entire course of conduct in this respect was its
* See San Antonio Machine cE Supply Corp. v. N.L.R.B., 263 F .2d 633 (C.A. 5), enfg.
X47 NLRB 1112.
s Dismissal letters were mailed to the employees on May 3, the very date of the decision
not to reopen that department.
GOPHER AVIATION, INC. 1701
desire to rid itself of those strong union adherents in retaliation for
their remaining on strike. Further, in view of all the circumstances,
including the Respondent's additional violation of Section 8(a) (5)
by its failure to give the Union notice and an opportunity to discuss
the matter, we are persuaded that these discharges and the failure to
bargain on this matter prolonged the unfair labor practice strike.
The Trial Examiner's Decision in the remedy section, awards the
employees in the terminated operation reinstatement, with backpay
from the date of their termination, on the basis that the Respondent
"made it pointless for these employees to apply for reinstatement."
We see no reason, however, to deviate from the long-established
Board "practice of not awarding backpay to discharged strikers until
the strike is terminated," 6 or until the strikers have made uncondi-
tional requests for reinstatement. We shall accordingly conform with
that practice in the Board Order in this case.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended , the National Labor Relations Board hereby orders that the
Respondent Gopher Aviation, Inc., Rochester, Minnesota , its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Taking unilateral action or otherwise refusing to bargain col-
lectively in good faith with International Association of Machinists,
AFL-CIO, as the exclusive representative of all its production and
maintenance employees at its South St. Paul and Rochester , Minne-
sota, plants, including the employees of the aircraft shops , engine
shops , instrument shops , line services , radio departments , and parts
departments , but excluding office clerical employees , salesmen,
licensed pilots, professional employees , guards, and supervisors as
defined in the Act..
(b) Discouraging membership in International Association of
Machinists , AFL-CIO, or any other labor organization of its employ-
ees, by -discharging or refusing to reinstate them, or by discriminat-
ing in any other manner with respect to their hire , tenure, or any
other term or condition of employment.
(c) Soliciting its striking employees to return to work, warning
them that otherwise they would be permanently replaced , engaging
in surveillance by photographing or taking down the names of strik-
ing employees engaged in lawful picketing , or in any other manner
interfering with, restraining , or coercing its employees in the exer-
cise of the right to self-organization , to form, join, or assist labor
organizations, to bargain collectively through representatives of their
6 The Celotex Corporation , 146 NLRB 48, 49.
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, or 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, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associ-
ation of Machinists, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit described above, with respect to
rates of pay, wages, hours of employment, and other terms and con-
ditions of employment, and embody in a signed contract any under-
standing which may be reached.
(b) Offer to Donald T. Schmalenberg, Walter C. Hoffner, Stanley
E. Sokolowski, and any other former striking employees who may
heretofore have made unconditional application for reinstatment, and
upon their unconditional application, or upon the termination of the
strike, offer the remaining unfair labor practice strikers, including
the 14 Fleming Field employees named in the Trial Examiner's Con-
clusions of Law 9, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for
any losses of pay they may have suffered by reason of the Respond-
ent's discrimination by payment to each of a sum of money equal to
that which he normally would have earned as wages during the
period from 5 days after the date of such application or of the termi-
nation of the strike, to the date or his reinstatement, less his net earn-
ings, if any, during said period.
(c) Notify said employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended, after dis-
charge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of backpay due and
the rights of reinstatement under the terms of this Order.
(e) Post at its plants at South St. Paul and Rochester, Minnesota,
copies of the attached notice marked "Appendix."' Copies of this
v In the event that this Order is enforced by a decree of a United States Court of
Appeals, the words "a Decision and Order" shall be substituted for the words "a Decree
of the United States Court of Appeals , Enforcing an Order."
GOPHER AVIATION, INC. 1703
notice, to be furnished by the Regional Director for Region 18, after
being duly signed by the Company's representative, shall be-posted
by the Company immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be dismissed in all other
respects.
APPENDIX
NOTICE TO ALL EMPLOYEES
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 take unilateral action or otherwise refuse to bar-
gain with International Association of Machinists, AFL-CIO,
as the exclusive bargaining representative of our employees in
the appropriate unit noted below with respect to wages, hours
of employment, and other terms and conditions of employment.
WE WILL NOT discourage membership in the above-named
Union, or any other labor organization, by discharging or refus-
ing td reinstate employees, or by discriminating in any other
manner with respect to their hire, tenure, or any other term or
condition of employment.
WE WILL NOT solicit striking employees to return to work;
warn them that otherwise they will be permanently replaced;
engage in surveillance by photographing or taking down the
names of striking employees engaged in lawful picketing; or in
any other manner interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form, join, or
assist the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection as guaran-
teed in Section 7 of the Act, or 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
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, as modified by the Labor-Management Reporting and
'Disclosure Act of 1959.
WE WILL bargain, upon request, with the above-named labor
organization, as the exclusive representative of the employees in
the appropriate unit described below, with respect to rates of
pay, wages, hours of employment, and other terms and conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed contract. The bargaining unit is:
All the production and maintenance employees at our South
St. Paul and Rochester, Minnesota, plants, including the
employees of the aircraft shops, engine shops, instrument
shops, line services, radio departments, and parts depart-
ments, but excluding office clerical employees, salesmen,
licensed pilots, professional employees, guards, and super-
visors as defined in the Act.
WE WILL offer to Donald T. Schmalenberg, Walter C. Hoffner,
Stanley E. Sokolowski, and any other former striking employees
who may heretofore have made unconditional application for
reinstatement, and upon their unconditional application, or upon
the termination of the strike, offer the remaining unfair labor
practice strikers, including the 14 Fleming Field employees
named below, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole
for any losses of pay they may have suffered by reason of the
discrimination against them by payment to each of a sum of
money equal to that which he normally would have earned as
wages during the period from 5 days after the date of such
application, or of the termination of the strike, to the date
of his reinstatement, less his net earnings, if any, during said
period.
Fleming Field employees :
Daniel P. Badalati Paul W. Griffin
Gordon M. Hagen Wilber L. Hartley
Gale N. Henn Frederick Houseman
Donald A. Karels Dennis T. Lavicky
Stanley E. Sokolowski James C. Ostern
Hubert L. Walczak Robert C. Walczak
Charles E. Wirth Paul W. Zemke
GOPHER AVIATION, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
GOPHER AVIATION, INC. 1705
NOTE.-Notify the above-described employees if presently serving
in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, Federal Building, 110 South Fourth Street,
Minneapolis, Minnesota 55401, Telephone 334-2611.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner William Seagle at Rochester , Minne-
sota, on September 28, 29 , 30, 31, 1965, upon a complaint dated July 23, 1965,
in which it was alleged that the Respondent had violated Section 8(a)(1), (3), and
(5) of the Act,' and upon the answer of the Respondent denying the commission
of any unfair labor practices.
The principal issue presented by the pleadings is whether the failure of the
Respondent to bargain with the Union in good faith precipitated a strike which
was further prolonged by additional unfair labor practices of the Respondent in
violation of Section 8(a)(1), (3 ), and (5 ) of the Act. The unfair labor practices
alleged in the complaint include the photographing and listing of pickets; the
termination of strikers because of their participation in the strike ; the solicita-
tion of strikers to return to work with promises of permanent employment as
against strikers who did not abandon the strike ; the refusal to reinstate strikers
who wished to return to work; the unilateral decision of the Respondent after the
strike to discontinue part of its operations without notification to or bargaining
with the Union ; the unilateral grant of wage increases to employees who had not
joined the strike or abandoned the strike ; and the demand by the Respondent's
representatives that the Union agree to superseniority for employees who had
abandoned the strike.
Subsequent to the hearing , counsel for the Respondent filed a general motion
to dismiss the complaint ; a motion to strike various allegations from the complaint;
and a motion to reconsider rulings made at the hearing rejecting the Respondent's
proposed Exhibits 7, 8, 9, and 10. All these motions are denied 2
Upon the record so made, and in view of my observation of the demeanor of
the witnesses , I hereby make the following findings of fact:
1. THE RESPONDENT
Gopher Aviation, Inc., is a Minnesota corporation , which is engaged in South
St. Paul and in Rochester, Minnesota , in the sale , distribution, maintenance , repair,
and servicing of aircraft and the - component parts thereof.
During the year preceeding May 17, 1965, the Respondent, in the course and
conduct of its business operations , made sales of goods and services in an amount
in excess of $4 million, of which total an amount in excess of $2 million in serv-
ices was provided to customers situated outside the State of Minnesota. During
1 The complaint was based on a charge filed by the Union on May 13, 1965, and an
amended charge filed by it on July 21, 1965
2 The denial of this last motion in particular would seem to be something of a super-
fluity. Subsequent to the hearing counsel for the Respondent and for the General Counsel
filed briefs. In his brief counsel for the Respondent disregards the rulings rejecting the
Respondent's proposed Exhibits 7, 8, 9, and 10 and presents arguments based on them.
He also calls my attention to at least one alleged threat that occurred subsequent to,
the hearing.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this same yearly period, the Respondent purchased goods and materials used• in its
operations at South St. Paul and Rochester, Minnesota, from sources outside the
State of Minnesota, in an amount in excess of $2,700,000.
It. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists (hereinafter referred to as the Union)
is a labor organization which has succeeded in organizing the production and
maintenance employees of the Respondent at both its South St. Paul and Roches.
ter, Minnesota, plants, exclusive of office clerical employees, salesmen, licensed
pilots, professional employees, guards, and supervisors as defined in the National
Labor Relations Act, as amended.
as. THE UNFAIR LABOR PRACTICES
A. An outline of events
The Union had been attempting to organize the Gopher Aviation employees
for many years, apparently, but it did not succeed until late in 1964. In a Board-
conducted election held on November 18, 1964, in which 143 ballots were cast,
the Union prevailed by a vote of 74 to 66.3 On November 25, 1964, the Board
certified the Union as the duly designated representative of the Respondent's
employees in the bargaining unit already described.
After the election, the Union and the Respondent entered into negotiations for a
collective-bargaining agreement. Although a local was organized after the election-
Local Lodge 723-the negotiations were conducted by the Grand Lodge repre-
sentative, Monte L. Pope, who was assisted at first by an employee negotiating
committee and later on in the negotiations by Royal E. Butcher, another Grand
Lodge representative. The Respondent was represented at first by a negotiating team
consisting of Henry A. Setzer, who was vice president in charge of finance; R. E.
Decker, who was vice president in charge of operations; and R. W. Hargesheimer,
who was then the personnel manager .4 After direct negotiations had failed to pro-
duce agreement, and the Union had called on the Federal Mediation and Con-
ciliation Service to assist in the negotiations, Mandt Torrison, who is the Respond-
ent's counsel and who also represented it at the hearing, participated in the
negotiations.
The negotiations did not get under way, however, until approximately a month
and a half had elapsed after the election. There is evidence that the Respondent's
representatives were rather dismayed by the Union's narrow victory in the election,
and delayed in responding to the Union's request for negotiations. Although Pope
called Hargesheimer on the telephone several times during the following weeks,
an initial negotiating session could not be arranged until Pope had put his request
for commencing negotiations into writing,5 and the first negotiating session did not
take place until January 7, 1965. This meeting which was orginally scheduled for
January 4, moreover, had to be postponed to the later date at the request of
Hargesheimer. Furthermore, the Respondent stipulated that the negotiating sessions,
at which the employee negotiating committee was to be present, be held after
working hours.
At the meeting of January 7, 1965, the Union submitted to the Respondent's
negotiating team a proposed contract. It contained 36 articles covering 17 pages of
single-spaced type, and many of the articles were subdivided into sections. How-
ever, the Union's proposed contract did not include a proposed wage scale, which
was not submitted to the company negotiators until the meeting of February 2.
In all, there were eight direct meetings held by the respective negotiating teams
between the dates of January 7 and February 16. The eight meetings, which were
held in the conference room of the engine shop of Gopher Aviation at Rochester,
took place on January 7, 15, 19, and 29, and on February 2, 4, 15, and 16.
Since the Union's wage proposal was not submitted to the Respondent 's nego-
tiators until the meeting of February 2, no agreement had been reached, of course,
a Two ballots were challenged and one was declared void.
&At the time of the hearing, Hargesheimer was no longer connected with the Respondent.
s Pope wrote to the Respondent to request negotiations under date of December 23, 1964,
but the letter seems to have become ensnared in the Christmas mails, and was not
received by the Respondent until December 29.
GOPHER AVIATION, INC. 1707
•on the question of wages by February 16. But at the end of the eighth meeting,
which was on that date, there was still no agreement on such other crucial issues
.as seniority ; contract duration , union security , and checkoff , and 11 other issues
of considerable importance still remained unresolved, namely shift starting time,
shift premium, pay for licenses, longevity pay, vacations, leaves of absence, strikes
and lockouts, insurance, military reserve duty, safety and sanitation, and mainte-
nance of privileges. Although agreement was eventually reached on most of the 11
provisions that remained unresolved at the end of the eighth meeting, this was
-achieved only when the Union modified its request, or withdrew it altogether. At
no time during the eight negotiating sessions did the company negotiators submit to
the union negotiators an overall counterproposal in writing, and, whatever agree-
ments were reached on minor questions , were all tentative . These tentative agree-
ments represented , moreover , mere embodiments of existing company policies.
Having failed to achieve any agreement on any of the crucial issues , the Union
sought and obtained the assistance of the Federal Mediation and Conciliation Serv-
ice. Meetings were held in the offices of the service in Minneapolis, Minnesota, on
March 4, 11, and 25 and on April 5, 20, and 22 but the meetings accomplished
nothing, so far as the resolution of any of the major issues , such as wages, seniority,
contract duration , or union security , were concerned.
Indeed, the company negotiators made no counterproposal on wages until the
meeting of April 5, which was more than a month after the Union had submitted
to them its original wage proposal in writing.6 The offer made on April 5 was to
give the Union $15,000 to distribute as it saw fit, in order to mitigate or remove
wage irregularities, resulting, apparently, from the Respondent's prior practice of
giving merit increases on the basis of individual ratings. If distributed equally, the
$15,000 offered would have given each employee a 5-cent-an-hour increase, which
would have been in addition to 3 cents an hour in fringe benefits, and which would
have made a package offer of about $20,000.
On the other crucial issues, the positions of the company negotiators remained
adamant in the meetings with the mediators, as well as in all subsequent meetings
throughout the negotiations. Although the union negotiators were demanding that
any contract entered into should be retroactive to March 1, so that any wage
increases would be effective from that date, the company negotiators would agree
only to a contract effective from the date of its execution. Although the Union at
first requested a 1-year contract, the union negotiators indicated that they would
accept a 2- or 3-year contract, in order to spread wage increases over a longer
period. The company negotiators would never agree to more than a 1-year contract.
The company negotiators were equally unyielding on the issue of seniority. The
existing company policy did not recognize seniority as a basis for work or promo-
tion. Although the company negotiators had made a seniority proposal at the meet-
ing of January 19, this had been merely a codification of existing company policy.
Throughout the negotiations, the company negotiators insisted that seniority would
be recognized only if all other factors were equal, and whether this was the case
would be determined in the sole discretion of the Company.
The company negotiators also remained adamant throughout the negotiations on
the question of union security, any form of which they steadfastly refused to
accept. Until the final meeting with the Federal mediators on March 4, the union
negotiators had held out for a union shop but the union representatives made it
plain thereafter that they would accept some lesser form of union security, such as
a maintenance of membership provision. This, too, however, was rejected by the
company negotiators. On the question of checkoff, they never went beyond inti-
mating to one of the mediators at one meeting that they might accept a voluntary
checkoff of union dues.
At the meeting of April 20, the union negotiators informed the company negotia-
tors that a strike was scheduled for April 21 but the latter requested postponement
of the strike, and another meeting was arranged, which was the one that took
place on April 22. At this meeting, the company negotiators discussed the possibility
of an offer of 10 cents an hour across the board ; of a $2 minimum wage; and a
6-year progression period for wage increases. This, the company negotiators indi-
cated , they were prepared to recommend to management, i.e., the Company's board
of directors. But too many other issues than wages remained unresolved and on the
following morning, April 23, the strike commenced, and it is still in progress.
0It is in evidence as General Counsel ' s Exhibit 14.
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Picketing has been maintained by the Union at both South St. Paul and Rochester,
but, as hereinafter related, the discontinuance of the customer service operations at
South St. Paul was announced a few days after the commencement of the strike.
At the Rochester plant there are two entrances, one at the aircraft shop, and one
at the engine shop, and there were pickets at both of these entrances. During the
first 2 weeks of the strike, the pickets numbered 20 to 25 during the early hours of
the morning 7 when nonstrikers would be coming in to work, but the number of
pickets would dwindle as the day wore on. The cars of the pickets were not parked
at the plant gates but on the shoulders and sides of the road. However, at one point
in the picketing the pickets were requested by the chief of police to park on one
side of the road, and they complied with the request. While the pickets would some-
times stop a car to talk to its occupants, they made no threats and did no more
than inform them that a strike was in progress .8 There is no credible evidence that
after the strike began anything occurred that could be described as violence, nor
that the pickets ever engaged in what could properly be called "mass picketing."
There is nothing to show that anyone who wished to gain access to the plant was
prevented from doing so. The number of pickets steadily declined, moreover, and
after May 18, no more than two pickets regularly patrolled the entrances to the
plant.
Nevertheless, on the very first day of the strike, quite a few members of the
Respondent's managerial hierarchy, including President H. G. Robinson and Vice
President Setzer, as well as Personnel Manager Hargesheimer, began photograph-
ing the pickets and taking down their names. It seems that Selzer was not much of
an amateur photographer, for he attempted to take pictures by shooting against the
sun, and one of the pickets quickly brought Setzer's incompetence to his attention.
This form of assistance by a striker, if it was not derisive, is certainly a plain indi-
cation of how peaceful the pickets actually were. The picture-taking and the name-
taking by the Respondent's representatives continued into the month of June, which
was long after any considerable number of pickets were patrolling the plant gates.
This is clearly established by the testimony of a number of the pickets.9
As of the date of the strike, there were 148 employees in the bargaining unit. At
Fleming Field at South St. Paul (hereinafter referred to as F.F ), only 1
employee, D. D. Hoyne, a partsman, did not join the strike, and at Rochester only
13 of the employees in the bargaining unit did not join the strike. However, at F.F.,
1 employee, Ronald Goodman, a lineman, returned to work on April 28, and at
Rochester 42 employees returned to work between the dates of April 26 and
August 9. Subsequent to the strike, the Respondent has hired 8 temporary replace-
ments, of whom 3 are still employed , and at Rochester the Respondent has hired 15
new employees, 2 of whom are no longer employed by it, and 2 temporary student
replacements, neither of whom are presently employed. There were 18 employees-
they included strikers as well as nonstrikers-who voluntarily quit their employ-
ment subsequent to the strike. At the time of the hearing the Respondent was
operating with 65 employees.
The F.F. operations at South St. Paul had been acquired as a going concern by
the Respondent in 1960 from a firm known as Whiplinger Aircraft Service, quite a
few of whose employees had been taken over by the Respondent. The F.F. opera-
tions included sales of aircraft, aircraft training, instrument work, radio work, line
work, consisting of the fueling, wiping, washing and greasing of aircraft, and repair
and maintenance work done in a department known, apparently, as the customer
service department. It seems that, on the whole, the F.F. operations had resulted in
overall losses from the time of the acquisition of the business, and at the meeting
of the Respondent's board of directors on April 27, 1965, the board decided to
9 However, on the third day of the strike there were only four pickets
8 On one occasion, one of the pickets, whose name was Martin Joseph Dunleavy, stopped
an old Kaiser automobile to talk to its driver In friendly fashion Dunleavy draped his
arm over the car door. The driver of the car almost drove off with Dunleavy's arm.
91 reject the testimony of Setzer concerning the duration of the picketing, for he made
it quite obvious that his memory on this subject was most vague Asked how long the
picture-taking went on, he first testified "I would say a week or two weeks " But a
moment later he was testifying, "I would say it probably extended from April 23, to
roughly May 15" (which would be a period of more than 3 weeks). Finally during
friendly cross-examination by his own counsel, he reverted to a period much closer to his
first estimate "Well," he testified, "I think it was somewheres about a week or a little
longer perhaps , I am not certain of this."
GOPHER AVIATION, INC. 1709
leave it to the operating committee, consisting of Hoffman,1° Decker, and Setzer, to
decide "what would be the best thing to do" about the F.F. operations. Apparently,
the decision reached by May 3 was not to reopen the customer service department
at South St. Paul but to continue with the operation of the other departments. This
decision was made without any notification to or bargaining with the Union, either
with respect to the discontinuance of the operation, or its effect upon the employ-
ees at F.F.
Indeed Pope learned of the closing of the repair shop at F.F. only indirectly. On
May 4, he had a telephone call from one of the F.F. employees who told him that
he had received a termination notice from the Company. Termination notices had
indeed been sent on May 3 to 14 of the 19 employees in the bargaining unit on the
date of the strike." The termination notices, which were signed by Robinson, the
president of the Respondent, read as follows:
Your employment with Gopher Aviation, Inc., is hereby terminated, effective
immediately. This termination is necessitated by the fact that the South St.
Paul operations have been carved on a loss for several years. The company
can no longer afford these losses and therefore this step is necessary for eco-
nomic reasons.12
Under date of May 5, Robinson also sent an identical letter to 13 of the striking
employees at Rochester,13 the letter reading as follows:
The company's business and commitments at the present time require the serv-
ices that you are able to perform. This company requirement must be fulfilled
promptly and unless you return to work on or before Monday, May 10, 1965,
your position will be permanently filled by a replacement.
An identical letter, except that the deadline for return was May 13, was sent under
date of May 11 to 18 other striking employees at Rochester.14 An identical letter,
except that the date for return was July 26, was sent, under date of July 20, to 38
additional striking employees at Rochester. The three letters, warning the recipients
to return to work or face permanent replacement, had little effect. Of the 13 employ-
ees who received the letter of May 6, only 2, Gordon Kappedal and Norman Han-
son, returned to work-on July 7 and 16, respectively. Of the 18 employees who
received the letter of May 11, not a single one returned to work. Of the 38 employees
who received the letter of July 20, only 2, A. R. Bole and Donald T. Schmalenberg,
returned to work-on August 9.
The Respondent also sought to induce the terminated F.F. employees, with the
exceptions of Sokolowski and Wirth, who were linemen , to accept employment at
Rochester. Under date of May 14, 1965, a letter was sent to them offering them jobs
at Rochester. It was explained in the letter that the Company had felt that the strik-
ing Rochester employees were entitled to resume their jobs if they so desired but
that, since a substantial number of them had refused to return to work, jobs could
now be offered to the terminated F.F. employees at Rochester and that they could
10 He was Robinson's predecessor as president of the Respondent.
"The 14 employees who received termination notices were Daniel P. Badalati, Paul W.
Griffen, Gordon M. Hagen, Wilbur L Hartley, Gale N Henn, Frederick Houseman, Donald
A. Karels, Dennis T. Lavicky, Stanley E Sokolowski, James C. Ostern, Hubert L. Walczak,
Robert C Walczak, Charles E. Wirth, and Paul W Zemke The five employees who did not
receive notices of termination were L. M. Aldrich, C. L Eittreim, G B. Starry, D. D
Hoyne (who has already been mentioned as a nonstriker), and M M Lumby.
02During one of the prior negotiating sessions, the company negotiators had complained
that they were losing money on the F F. operations, and Gordon Hagen, who was a mem-
ber of the union negotiating committee, had attempted to suggest ways of making the
operations profitable. But none of the company negotiators had stated or even intimated
that any of the F.F. operations would be shut down. Indeed, Torrison, the Company's
counsel, had advised the Company that shutting down the F.F. operations during the
negotiations would constitute "rocking the boat "
13These 13 employees were Norman Hanson, Chris Von Wald, Ronald Harcey, Gayle
Schmidt, Martin Dunleavy, William Buske, Duane Robinson, Hiram McCoy, Gordon Hap-
pedal, Merrill Wondrow, Leon Wegner, Joseph Farmer, and Terry Smith
14 These 18 employees were Dean Drewes, Paul Passe, Dean Growden, Larry Drinkall,
Joseph Drees, George Book, Earl Holets, Lowell Brusse, Glenn Richardson, Willard
Daschner, Grant Cocker, James Lyckberg, James Mindt, Donald Warmke, Van Sindelar,
Clifford Walker, Eugene Ludlow, and Rodney Burt.
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider these jobs as "permanent against any claim of those Rochester employees,
who have been invited and who have refused to return." However, not a single one
of the 12 terminated F.F. employees accepted the offers of jobs at Rochester.
In the meantime, the Respondent's negotiators had resumed contact with the-
union representatives. The first contact between the parties was an informal one,
and occurred on April 26 at the Rochester Airport Terminal Restaurant a few days
after Royal E. Butcher, the other Grand Lodge representative, had come to Roches-
ter to assist Pope in the negotiations. Butcher was then introduced to Setzer; Decker,
and Hargesheimer, and in the ensuing discussion at the airport restaurant Butcher
asked the company representatives whether they had considered a modified union
shop, and they stated that it warranted further inquiry.
In addition, there were nine formal post-strike meetings between the parties before
they abandoned their efforts to settle the strike as futile. These meetings took place
on May 5, June 2 and 10, July 6 and 14, August 4 and 10, and September 7 and 16.
All but four of these meetings were held in the offices of the Federal Mediation Serv-
ice in Minneapolis, and with the assistance of the Federal mediators. The meeting
of June 10 was held at the Minnesota Club in Minneapolis, and included a private
discussion between Pope and Torrison over martinis and lunch. The meetings of
August 4 and September 7 were held in the State Office Building at St. Paul, Min-
nesota, and State conciliators participated, apparently, in these meetings. The meet-
ing of August 10 was held at the Kahler Hotel in Rochester, and involved, appar-
ently, only Setzer, Decker, and Butcher. Setzer was not present at all at the June 10,
July 14, and September 16 meetings. In fact Torrison alone represented the Respond-
ent at the June 10 and July 14 meetings.
The company attorney had hovered in the wings during the negotiating sessions
that had proceeded the strike. In the post-strike negotiations, he occupied the center
of the stage as principal spokesman for the Respondent. The evidence is too sketchy,
however, to permit the establishment of precise order of business at each meeting,
or to give even a summary of the dialogue between the parties at each meeting. It
is possible only to develop the highlights of some of the meetings.
The highlight of the May 5 meeting was a prepared statement read by Torrison
to the union representatives who were present at the meeting.15 This statement was.
to the effect that he had been directed by the board of directors of the Respondent
to inform them that they were shutting down the machine shop at the F.F. opera-
tion at South St. Paul but that they could use 25 more employees at Rochester at
that time; that they were withdrawing all of their previous contract proposals; 16
and that they would not agree to any form of union security whatsoever. It seems
that at some point in the May 5 meeting Pope was asked to withdraw the Union's
pickets but refused to do so. This refusal could hardly be described as surprising,
considering the nature of the statement which had just been read to him. Indeed, it
was after the May 5 meeting that Pope filed the unfair labor practice charges against
the Respondent.
The first meeting after the strike at which the parties really resumed discussion
of the outstanding issues was the meeting of June 2. But what this discussion was
exactly is extremely obscure, for neither Setzer nor Decker testified concerning this
meeting.17 Only Pope did so, and even his testimony is limited to the discussion of
the seniority problem. When the problem of seniority was brought up, Torrison
declared that they, now had an additional problem arising from a promise that the
Company had made to the loyal employees who had gone through the picket lines
that they would have permanent jobs. This declaration led Pope to accuse Torrison
of demanding superseniority for the "scabs," and the discussion became heated and
acrimonious , with Setzer and Butcher joining the fray. The union representatives
"These did not include Butcher who, on May 5, was attending a funeral
10 Pope so testified, and I accept his testimony. Torrison contends that he only stated
that the Respondent was withdrawing its wage offer, because it had become unrealistic.
But Setzer , his own witness , agreed that Torrison declared that "everything on the table-
is withdrawn because of the strike," except that Setter could not recall whether Torrison
had said it was "because of the strike." Moreover, Torrison, although he took the stand
as a witness for the Respondent, notwithstanding his appearance as counsel in its behalf
at the hearing , did not testify at all with respect to the statement that he had read at
the May 5 meeting.
17 Setzer himself was not even sure that he was present at the June 2 meeting, although.
Pope's testimony would indicate that he was there.
GOPHER AVIATION, INC., 1711
told Torrison that they would never agree to superseniority. Neither at the June 2
meeting, nor at any subsequent meeting, did any company representatives ever
explain, however, just how the striker-replacements were to be taken care of.
At the June 10 meeting at the Minnesota Club, the first subject of discussion,
after the exchange of amenities, was the Union's demand for union security. Torri-
son, who was the principal witness concerning what happened at the June 10 meet-
ing, conceded that, although the Federal conciliators may have "pedaled back and
forth between separate meetings in the past on the question of some form of union
security," Pope told him at this meeting that he was "no longer firm on the neces-
sity of a union shop." Nevertheless, Torrison attempted again to assure permanence
of employment to the striker-replacements, which only led Pope to repeat that Torri-
son was advocating superseniority. So far as the subject of wages was concerned, it
*as not discussed at all at the June 10 meeting. Torrison also conceded that he
told Pope that he would not recommend a modified union shop to the Respondent
because "it caused innumerable complications to have a non- union man and a
union man working elbow-to-elbow, one calling the other a free loader or a free
rider or a scab and various things." Torrison added: "I much preferred to rec-
ommend, if anything, a straight union shop." At the June 10 meeting Torrison also
discussed the problem of seniority with Pope but he only repeated to the latter that
his concern was to take care of the striker-replacements.
The July 6 meeting was opened by the Federal mediator with a statement con-
cerning what the open issues were. The available evidence shows, however, only
what the discussion was with reference to the employment at Rochester of F.F.
employees.18 Torrison made the statement at this meeting that the South St. Paul
operation would be reopened "if the union could show them how they could make
money on that operation." Torrison also inquired at this meeting about whether the
F.F. employees would be interested in working at Rochester, and Pope told Torri-
son that this would depend on the nature of the strike settlement. Torrison also
made similar inquiries on a number of subsequent occasions.
The July 14 meeting was a long one; it lasted all afternoon; and it included sepa-
rate meetings between the mediators and' Torrison, and between the mediators and
the union representatives. In the separate discussion with the mediators, the latter
suggested to Tornson that the Union might accept, in lieu of a binding union-
security provision, a policy declaration by the Respondent on the subject. Such a
declaration had been used, apparently, in settling a labor dispute in Ripon, Wiscon-
sin, but Torrison objected to the language of the proposed declaration, and the
mediators then told him that there was no point in submitting it to the Union.
However, when Torrison and the union representatives finally met in joint session,
he announced to them that he was willing to reinstate all the tentative agreements
that had been reached-as Pope expressed it, "to put them back on the table"-
including the 10-cent-an-hour across-the-board wage offer, which would be limited
to those employees who had not already been granted wage increases on their anni-
versary dates in accordance with the Company's established practice. But Torrison
also reaffirmed the Company's opposition to any union-security proposal, and con-
tended that, in view of the many concessions which he was making and which
"infringed on what are usually considered to be management prerogatives," he
would insist on a management prerogatives clause, a draft of which he then and
there submitted to the union representatives.19 According to Torrison, Pope and
Butcher "immediately stated they wouldn' t sign any such contract," and he then
launched into a discussion of the many problems, created by the strike, including
the loss of business, and the problems arising from the striker-replacements. Torri-
son admitted that Pope then offered to use the good offices of the Union in secur-
ing for the Respondent a renewal of the contract which it had had with North Cen-
tral, one of its important customers.
At the August 4 meeting, the union representatives, in a vain effort to secure
agreement, submitted to the Respondent's representatives in writing modifications
is Torrison must have been mistaken in testifying that there was such a discussion at
the June 10 meeting.
'B under the terms of this proposal, which is in evidence as General Counsel's Exhibit
16, the Company would have had the right "to hire, lay off, assign, transfer and promote
employees and to determine the starting and quitting time and the number of hours to be
worked ; and all other rights and prerogatives, including those exercised unilaterally in the
past, subject only to such regulations and restrictions governing the exercise of these
rights as are expressly provided in this agreement."
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union's proposals on seniority, wages, and union security. The company
representatives also submitted a counterproposal on seniority, the language of which
differed from their original proposal but was substantially the same, since it pro-
vided that, in laying off and recalling employees, seniority would govern only when
ability was equal, and that the Company's decision was to be final and binding in
determining equality and ability. The modified union proposal on seniority provided
in its key sentence : "Lay-off and recall after layoff shall be by seniority, provided
the employee is capable of performing the required work." This recognized in prin-
ciple that ability was to be a factor, as well as length of service, which was what the
Company was contending for, except that the Company would not be the final judge
in weighing the two factors. The modified union proposal on wages read: "Ten (10)
cents per hour increase in all classifications , and ten (10) cents per hour for pro-
gression for these employees presently below the maximum rate in their classifica-
tion." The Union's proposal on union security provided for a modified union shop
under the terms of which present employees, who were union members, would be
required to maintain their membership; new employees would be required to become
union members, and to maintain their membership; but present employees, who
were not union members, would not be required to become members as a condition
of continued employment.
The August 10 meeting at the Kahler Hotel was suggested by one of the Min-
nesota State conciliators. At this meeting Pope and Butcher represented the Union,
and Setzer and Decker represented the Respondent. The parties worked out a tenta-
tive wage proposal for submission to the management of the Respondent. There
was provided in this proposal a starting rate of $2.10 an hour with automatic pro-
gression from $2.10 to $2.40 an hour; a scheme of classification with a $3.30 top
rate for aircraft maintenance and service mechanics and the same rate for engine
overhaul mechanics; a 2-year progression from $2.10 to $2. 80 an hour for linemen
and stock clerks; and a single truckdriver rate of $3.10 an hour. It was understood
at this meeting that the company representatives would contact Butcher about
another meeting but, when they did do so, they informed him that they had been
instructed not to meet with the Union's representatives unless Torrison were present.
The tentative wage proposal worked out at the August 10 meeting was pursued no
further.
There was a meeting scheduled for September 1 for which the union representa-
tives appeared, only to have the State conciliator read them a letter telling them
that the company representatives would be unable to be present at the meeting.
When the parties met again on September 7 it was only to be told that the Com-
pany could not afford the tentative wage agreement arrived at when the parties had
met on August 10. The meeting of September 10 was arranged at the behest of the
office of the Federal Mediation Service in Washington, D.C., and an airline coordi-
nator from the National Capital was present. Torrison gave a general review of the
negotiations and dwelt on the subject of the money the Company was losing at
South St. Paul. The problem of union security was also discussed briefly and Torri-
son declared again that no offer of any form of union security would be forthcom-
ing. This was the last meeting between the parties prior to the hearing.
13. Concluding findings with respect to the course of bargaining
Under well-settled principles of collective bargaining, an employer is not required
to agree to any particular proposal, or to make any particular concession but he is
nevertheless required to bargain with an open mind, and with a sincere desire to
achieve agreement, if possible. He may not bargain with a union representing his
employees in bad faith, or engage in mere surface bargaining 20 The allegation of
23 As the court explained in one of the leading cases, N L R B. v. Reed & Prince l7anu
facturing Company, 205 F.2d 131, 134-135 (C.A. 1) ; "It is true, as stated in N.L.R.B.
v. American National Ina. Co., 1952, 343 U.S. 395, 404, . . . that the Board may not 'sit
in judgment on the substantive terms of collective bargaining agreements' But at the same
time it seems clear that if the Board is not to be blinded by empty talk and and by the
mere surface motions of collective bargaining, it must take some cognizance of the reason-
ableness of the positions taken by an employer in the course of bargaining negotia-
tions . . . . Thus if an employer can find nothing whatever to agree to in an ordinary
current-day contract submitted to him, or in some of the union's related minor requests,
and if the employer makes not a single serious proposal meeting the union at least part
way, then certainly the Board must be able to conclude that this is at least some evidence
GOPHER AVIATION, INC. 1713
the complaint that the.Respondent bargained with the Union with the fixed intention
of not entering into a collective-bargaining agreement is in effect an allegation that
the Respondent engaged in bad-faith bargaining. It is often not easy to distinguish
between hard bargaining and bad-faith bargaining,, since this involves an evaluation
of subtle psychological factors, which are, of course, of a subjective nature. But it
would seem reasonably clear from the evidence in the present case that the Respond-
ent failed to discharge its collective-bargaining obligation toward the Union both
before and after the strike.
The evidence of bad-faith bargaining is usually entirely circumstantial. It is an
unusual feature of the present case, however, that there is a good deal of direct
evidence that the Respondent's representatives were merely going through the
motions of bargaining with the Union, notwithstanding their attendance at the bar-
gaining sessions with the Union. This evidence suggests that while they were sitting
at the 'bargaining table, their' minds were not' on the, objective-•of--achieving but--of--
defeating agreement. '
When, on'the day of the election; after the'result became known, Pope had sug-
gested a meeting to Setzer and Hargesheimer, who always apparently had difficulty
in concealing what was uppermost in his mind, the latter had blurted out before he
could stop himself: "Gee, Monte, let us recover from the shock a little bit," and
indicated that this would take several weeks. He thus revealed how dismayed the
Respondent's representatives were at first by the result of the election. Harges-
heimer's remark, was not, moreover, facetious, for it did take weeks to get the
negotiations under way. But the Respondent's representatives soon took heart, appar-
ently, from the fact that the Union had won the election by the narrow margin of
51 percent, and they were soon explicitly advancing this as a reason for resisting
some of the Union's basic demands. It is evident that they had concluded that if
they only sat tight, and frustrated the hopes of the Union, it would soon lose its
support among the employees. In one of the early meetings , Hargesheimer, in
explaining why the Respondent's representatives would not accede to the union-
security demands, remarked that it had taken the Union 7 or 8 years to win bar-
gaining rights, and they wanted another election as soon as possible. In a somewhat
similar vein, the first time that the duration of the contract was discussed, Harges-
heimer remarked that "we do not want longer than a one-year agreement and
shorter if possible." After the cancellation of the scheduled February 11 meeting,
Pope participated in a telephone conference call with Selzer, Decker, and Harges-
heimer, and in the course of the discussion Pope reproved the Respondent's repre-
sentatives by telling them that they seemed to be unwilling to recognize that they
had a certified bargaining representative to deal with. The irrepressible Harges-
heimer could not resist replying: "We only recognize we have a situation." The
most unmistakable of the direct manifestations of the intentions of the Respondent's
representatives occurred, however, in a conversation on May 4 between Lyle Daniel-
son, a brother-in-law of Robinson, the Respondent's president, and Walter Hoffner,
one of the Respondent's employees. Danielson called Hoffner to ask the latter to
return to work the next day. Hoffner replied that he would like to wait to see what
would happen at the negotiating session scheduled for May 5, the following day.
Thereupon Danielson told Hoffner that he might as well come back to work with-
out waiting for the bargaining session to be held because all that the Respondent's
negotiators intended to do at that meeting was to walk into that meeting and walk
right out again.
The attitude of the Respondent's representatives throughout the negotiations
seems to have been that the negotiations with the Union constituted an ordeal to
be endured rather than an opportunity for reaching an agreement with the Union;
a threat to the welfare of the Company rather than a means of reconciling the wel-
fare of the Company with the welfare of the employees. This wholly negative atti-
tude was expressed in the Respondent's financial report covering the year 1964,
which was issued to its stockholders on March 23, 1965, after direct negotiations
of bad faith, that is, of a desire not to reach agreement with the union In other words,
while the Board cannot force an employer to make a 'concession' on any specific issue or
to adopt any particular position, the employer is obliged to make some reasonable effort
in some direction to compose his differences with the union, if § 8(a) (5) is to be read as
imposing any substantial obligation at all." To the same effect are such cases as N L R.B.
v. Whittier Mills Company, 111 F.2d 474, 478 (C.A. 5), and N.L R B v. Herman Sausage
Company, Inc., 275 F.2d 229, 231-232 (C.A. 5), explaining the term "surface bargaining."
257-551-67-vol. 160-109
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union had failed, and the Federal mediators had been called in because
the company negotiators had refused to accede to a single one of the union demands
that had any significance. Thus, the president of the Respondent told the Company's
stockholders in mounting hyperbole:
One development which your management regards as very adverse to the
future growth of the company must be brought to your attention. In Novem-
ber 1964, the International Association of Machinists won by a narrow mar-
gin an election conducted by the National Labor Relations Board, thus cer-
tifying the union as the collective bargaining representative of the major group
of the company's employees. Negotiations with the union on the terms of a
labor contract are presently underway, but the outlook fora reasonable settle-
ment appears very pessimistic at the present time, because of the extravagant
demands being made by the union . Not only are the economic cost aspects of
those demands altogether unacceptable to your management, but the numer-
ous other restrictive clauses embodied in the union 's proposals would seriously
hamper the orderly conduct of normal business operations. The management
feels confident that the stockholders, painfully aware of the low level of earn-
ings in recent years and of the complete absence of dividends since the incep-
tion of the company, will be in full agreement with the management's resolve
to oppose a union contract which would threaten the very existence of the
company. [Emphasis supplied.]
When one takes cognizance of the 23 negotiating sessions which were attended
by the Respondent's representatives, it may seem that they were diligent rather
than dilatory in negotiating with the Union. The opposite was, however, actually
the case. Once the negotiations began many sessions were held, to be sure, but it
took a distressingly long time to get the negotiations started?' Between Novem-
ber 18, the date of the election, and January 7, the date of the first negotiating ses-
sion, over 7 weeks had elapsed. This is actually how long it took for Hargesheimer
and his associates to get over the shock of the election. During the course of the
negotiations they actually skipped several of the negotiating sessions altogether,
and usually without prior notification or explanation to the Union. But this can be
accounted a minor fault compared to their long delays in submitting counteroffers
on subjects of major importance. Although the Union had submitted its wage pro-
posal on February 2, for instance, the Respondent's representatives failed to sub-
mit any counteroffer at all on wages until the meeting of April 5, which was more
than 2 months after the Union had submitted its wage proposal.
The Respondent also made inevitable the slow pace of the negotiations by
appointing negotiators who had no real authority. Setzer, Decker, and Hargeshei-
mer could make no real commitments while sitting at the bargaining table. Even
their tentative commitments were subject to the approval of the Respondent's
president and board of directors. Thus, they were no more than messengers to
receive the Union's proposals and to report them to their superiors. But, as the
court observed in N.L.R.B. v. Acme Air Appliance Company, Inc., 117 F.2d 417,
420 (C.A. 2): "The Act requires more than that the chosen bargaining represent-
ative should be recognized as a messenger." The situation definitely worsened in
this respect, moreover, when Torrison became the Respondent's chief, and some-
times only, spokesman in the negotiations. The alteration in Torrison's role-from
legal advisor to chief representative at the bargaining table-foredoomed any
chances of reaching agreement. Lawyers, however eminent and skillful in their
own profession, do not make ideal negotiators in solving the problems of industrial
relations. When a lawyer appears on the scene, and practically takes over the nego-
tiations, it is usually an indication that the employer no longer has any serious
intention of reaching an agreement with the Union, and is interested only in mak-
ing legal points for use in future unfair labor practice proceedings.
It is, apparently, the position of the Respondent that the Union's proposed con-
tract contained something like 142 separate provisions, and that its negotiators had
agreed to all of them with a few exceptions-perhaps 5 or 6 of them. This grossly
exaggerates both the bulk of the proposed union contract and the area of agree-
21 As the Supreme Court of the United States said in N L R.B v Insurance Agents'
Union, 361 U.S 477, 485. "Collective bargaining, then, is not simply an occasion for
purely formal meetings between management and labor, while each maintains an attitude of
`take it or leave it' ; it presupposes a desire to reach ultimate agreement, to enter into a
collective bargaining contract."
GOPHER AVIATION, INC. 1715
ment. The proposed union contract contained 36 articles, which covered 17 pages
in single space . Some of the articles were divided, to be sure, into subsections but
they fell considerably short, nevertheless, of the claimed total of provisions. Many
of the provisions were, moreover merely boiler plate, or dealt with obligations
which would be imposed by law even in the absence of contract 22 In any event,
even if it were true that the Union's proposed contract contained scores of sep-
arate and distinct provisions, and that the Respondent's representatives had agreed
to most of them, these circumstances would not necessarily be significant. Collec-
tive bargaining is not a numbers game. An employer does not necessarily establish
his good faith in collective bargaining by showing that he has agreed to a greater
number of requests than the number he, has rejected. The requests must not only
be counted but weighed. The Respondent in the present case can hardly claim
credit for whatever area of agreement was achieved when it proved adamant on
virtually every issue of importance, and agreement was achieved on unimportant
issues, as a rule, only by the willingness of the Union to modify or withdraw its
demands. The Respondent's negotiators never displayed any willingness, on the
other hand, to compromise on any important issue.
So far as the wage issue was concerned, the Respondent's representatives not
only delayed unreasonably in making any offer at all but, when they finally did
make an offer, it proved to be derisive. By offering to turn over to the Union the
$15,000, which it could distribute as it saw fit, it was not only abdicating one of the
most jealously guarded prerogatives of management but it was also putting the
Union in an embarrassing position. If the Union had been foolish enough to accept
the proposal it would have assumed the duty of directly determining the wage
rates of its members. Charges of favoritism and discrimination would have been
rife, and the union representatives would have received all of the blame. This, pre-
cisely, must have been the objective of the tactic: to create a situation which would
divide the union members and cause them to fall out among themselves with the
probable result of destroying the slim union majority. Essentially the same tactic
was repeated by the Respondent's representatives after the strike when they made
the 10-cent-an-hour wage offer but, again, left it to the Union to iron out any exist-
ing inequities.
The abdication of managerial prerogative involved in the types of wage offers
made by the Respondent's representatives was in strange contrast to the position
that they maintained on all other issues, but, then, consistency was for them, appar-
ently, a secondary consideration. Apart from these offers, managerial prerogative
has never been more jealously protected by an employer's representatives than by
those of the Respondent. Despite the fact that throughout the negotiations the
Respondent's representatives would agree only to those of the Union's proposals
which merely embodied existing privileges, and despite the fact that when the Union
suggested a general provision on the maintenance of privileges they had insisted
that each and every privilege be spelled out, they ended by demanding a general
management prerogative provision-the traditional means by which employers
attempt to throw a monkey wrench into negotiations which they are seeking to
render abortive.
The attempt to saddle the Union with the odium of distributing wage increases
which would certainly have been received by the employees without enthusiasm,
was only one phase of the strategy of the Respondent's representatives in dealing
with the wage problem. They also pleaded inability to meet the wage demands
While the Union's original wage demands may have been more than the Respond-
ent was able to pay, the union representatives progressively modified them without
encountering any disposition to compromise on the part of the Respondent's repre-
sentatives. It is clear that the Respondent's business operations as a whole were
not in the red. There had not only been a net profit of $66,820 in 1963 and a net
profit of $42,803 in 1964 but the balance sheet for the year 1964 showed retained
earnings in the amount of $439,649. Moreover, the Respondent's representatives
turned a deaf ear to the suggestion of the union representatives that the Respond-
ent consider an increase in the prices charged for its goods and services, which
the Union representatives believed to be too low.
In any event, the Respondent's representatives certainly displayed their bad faith
in dealing with the noneconomic issues. Had they shown any greater disposition to
rr For example , in article I, headed "Recognition ," was contained the requirement that
the Respondent recognize the Union as sole and exclusive bargaining agent, and in arti-
cle V, headed "Discrimination " was embodied the substance of Section 8(a) (3) of the Act
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compromise on these issues, it is very probable that the union representatives would
have reduced their economic demands still further. But the Respondent's represent-
atives were not interested in saving money. They were interested only in getting
rid of the Union as an effective bargaining agent as soon as possible.
Of all the noneconomic issues, the most important one, so far as the Union was
concerned, was the issue of union security. Although union security, as well as
checkoff are undoubtedly mandatory subjects of collective bargaining,23 the position
of the Respondent's representatives on this subject remained so adamant through-
out the negotiations that they can justly be said to have failed to bargain on union
security at all. There is reason to think that some of them did not even understand
what a union shop entailed, and there is nothing to show that they, ever attempted
to find out, for their minds were closed to anything that savored of union security.
It is not surprising, therefore, that when the Union proposed lesser forms of union
security, both before and after the strike, the Respondent's representative rebuffed
the proposals. Of course, they were not bound to accept the union shop or even a
lesser form of union security if their views were sincerely held, and their real objec-
tive in rejecting the proposals was not undermining the Union, and the avoidance
of any union contract. But it is precisely in dealing with the issue of union security
that the Respondent's representatives displayed their greatest degree of insincerity.
When first faced with the demand for union security, the Respondent's negotiators
rejected it on the ground that the Union had only won the election by 51 percent.
But when the strike demonstrated that approximately 90 percent of their employees
were actually supporting the Union, the Respondent's negotiators changed their posi-
tion not a bit. They simply attempted to rationalize their position by declaring that
they would not agree to anything that would compel an employee to join the Union
against his will. When some of the employees abandoned the strike and returned to
work, the Respondent's negotiators contended that they could not agree to union
security because a large number of employees had abandoned the strike and
returned to work, which, of course, was not true.24 Then, when the union represent-
atives abandoned the union shop, and indicated a willingness to accept a maintenance-
of-membership provision, Torrison, who was speaking for the Respondent on
this occasion, rejected the offer on the ground that maintenance of membership
would be even worse than the union shop because it would force union and non-
union employees to work side by side, and thus lead to friction and conflict 25 But
friction and conflict would have been avoided entirely if the Respondent's represent-
atives had agreed to the union shop in the first place.
With the advent of the strike, the Respondent's representatives seem to have aban-
doned even the pretense of negotiating with the Union, and embarked on a course of
conduct that was plainly punitive. The strike having occurred, it was more impor-
tant than ever that negotiations continue.26 An employer is, however, not relieved of
the duty to bargain even when the prestrike negotiations have resulted in an
impasse.27 Instead, the Respondent's representatives broke off the negotiations, and
when the negotiations resumed, announced to the union representatives that the
Respondent was withdrawing all of its tentative offers, including its wage offer; that
it would discontinue its customer service operations at F.F. in South St. Paul; and
i See N.L.R B. v. Andrew Jergens Uo., 175 F.2d 130, 134 (C A. 9) ; N L R B v Bradley
Washjountain Co, 192 F.2d 144, 154, (C.A. 7) ; N.L R B v. W. 7' Grant Company, 199
F 2d 711, 712 (C A. 9), cert. denied 344 U.S. 928; Reed & Prince Manufacturing Company,
205 F.2d 131, 136 (C.A. 2) ; Duro Fittings Company, 121 NLRB 377, 383; Berger Polish-
ing, Inc., 147 NLRB 21, 35.
2' General Counsels Exhibit 11 shows that only 42 employees returned to ^voik after
the strike began. Counting the 14 employees who never joined the strike, the Respondent
had a total employee complement during the strike of 56 As there were 148 employees in
the bargaining unit, only 38 percent were working or had returned to work
z; As Torrison himself testified "I said I would not recommend a modified union shop,
I didn't believe in it, that it caused innumerable problems and complications to have a
nonunion man and a union man working elbow-to-elbow, one calling the other a free loader,
or a free rider or a scab and various things. I much preferred to recommend, if anything,
a straight union shop."
20 As the court said in N.L R.B. v Pecheur Lozenge Co., 209 F 2d 393, 403: "The exist-
ence of a strike does not suspend the obligation on the part of the employer to bar-
gain . . On the contrary, the need for carrying out that obligation when a strike is in
progress is all the greater in order that a peaceful settlement of the dispute may be
reached."
27 See N.L R B. v. United States Cold Storage Corporation, 203 F.2d 924, 928 (C A. 5).
GOPHER AVIATION, INC. 1717
that it would not agree to any form of union security whatsoever. These announce-
ments could hardly be interpreted by the union representatives as anything but acts
of retaliation for their recalcitrance. Moreover, the tentative offers that had been
withdrawn were not reinstated by the Respondent's representatives until almost 3
months had elapsed.
There were, of course, economic issues involved in the strike but it would seem
to be none-the-less apparent that the failure of the Respondents' representatives to
bargain with the Union in good faith was an important factor in precipitating it. It
was, therefore, an unfair labor practice strike, even though it also had economic
objectives.28 It was followed, moreover, by the Respondent's commission of other
unfair labor practices, which served to aggravate and prolong it. These unfair labor
practices constituted the final and conclusive items of proof that the Respondent
never intended to bargain with the Union in good faith, for an employer cannot pre-
tend to be negotiating in good faith at the bargaining table when he is committing
independent unfair labor practices away from the bargaining table. To a considera-
tion of these unfair labor practices it is now necessary to turn.
C. The other independent unfair labor practices
1. The Respondent's picket line activities
The photographing and listing of the names of pickets are not unlawful under all
circumstances. They are unlawful when undertaken for purposes of surveillance but
not when they serve some legitimate end. Thus an employer may photograph strik-
ers who are engaged in violence rather than peaceful picketing, in order to obtain or
preserve evidence in connection with an application for an injunction.
The photographing and listing of the strikers in the present case is not denied by
the Respondent. These activities we're undertaken indeed upon the advice of coun-
sel, namely, Torrison. But there is no evidence that the strikers engaged in anything
but peaceful picketing, nor is there any evidence of any act of violence that was
committed during the strike. Whatever may have been the original intention of the
Respondent's executives in conducting their picket line activities, they never in fact
made any application for an injunction to any court, and they did not even offer at
the hearing any substantiating evidence of violence. Indeed, both the Respondent's
witnesses and their counsel, showed themselves to be very loath to produce either
the photographs or the lists of names in their possession. Some of the photographs
but not all of them were produced at the hearing despite hints that all of the photo-
graphs would be welcome. Consequently none of them were offered in evidence. As
for the lists of names, Robinson testified that they were no longer in existence, which
indicates at least that he was not anxious to produce them.
Even if it were to be assumed that there may have been some justification for the
photographing and the name-taking of the pickets at the very beginning of the strike
when a sizable number of pickets were at the plant entrances, this justification
rapidly ceased to exist. Since photographs continued to be taken when the number
of pickets dwindled to two, and the strike was many weeks old, the purpose of the
Respondent's executives in continuing to take pictures could only have been the
facilitation of surveillance, which was unlawful.29 It is hardly necessary to add that
the photographing was not rendered lawful by virtue of the fact that one of the
Respondent's amateur photographers was not efficient, and was engaged in shooting
against the sun. It is hard to believe that the picket who noticed this, and pointed
it out, was being anything but derisive.
There is credible direct evidence, moreover, that the picture-taking and name-
taking by the Respondent's executives was not a free exercise in amateur photogra-
phy and historical record keeping. The evidence of Eugene E. Ludlow and Gordon
21 See N.L.R.B v. Remington Rand , Inc., 94 F.2d 862, 872 ( C.A. 2), cert. denied 304
U S. 576; N L R B v. Stackpole Carbon Company, 105 F 2d 167 (C A. 3), cert denied 308
U.S 605, N L R B v. A. dart onus & Co, Inc., 140 F 2d 203 (C A. 2) ; N.L R B v Stilley
Plywood Company , Inc, 199 F 2d 319, 320-321 (C A 4), cert denied 344 U S. 933; N.L R B.
V Fitzgerald Mills Corporation, 313 F 2d 260 , 269 (C A. 2).
29 See Radio Industries , Inc., 101 NLRB 912, 914; Hudson Hosiery Company , 109 NLRB_
1410, 1411 ; Tennessee Packers, Inc ., 124 NLRB 1117 ; General Engineering, Inc, 131
NLRB 901 , 907-908; Preston Feed Corporation , 134 NLRB 629 , 643; Comfort, Inc., 152
NLRB 1074 . But compare Hilton Mobile Homes, 155 NLRB 873, in which the photographs
taken were actually used in State court injunction proceedings.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Kappedal, two repairmen in the instrument shop who worked under the super-
vision of Jack Meadows, its foreman, indicates quite plainly that the purpose of
these activities was to identify the pickets for possible future reprisal
Ludlow, accompanied by Darwin Knox, the strike picket captain, went to the
plant on May 13 to pick up his tools. They were met by Meadows who barred
Knox from entering the instrument shop but allowed Ludlow to enter. When
Meadows saw that Ludlow was picking up his tools, he suggested that he could sit
down and go to work. Ludlow turned down this suggestion on the ground that if
abandoned the strike he would find it difficult to get work in other aircraft shops
which were unionized. Meadows then remarked to Ludlow that "some people did
not like to hire strikers" but that one point in Ludlow's favor was that he had not
been on the picket line.
Kappedal's experience was very similar. On July 6, he decided to abandon the
strike and return to work. He telephoned Meadows to ask if he could come back to
work, and Meadows told him that he could, that "there was plenty of work."
Meadows' exact words were that Kappedal "hadn't caused any trouble at all, and
that it was OK to come back to work." On September 9, Meadows told Kappedal
that he was getting a raise of 10 cents an hour effective the previous day.
2. The granting of unilateral wage increases
After the strike began the Respondent also granted wage increases to 35 of the
employees in the bargaining unit. Of these wage increases, 27 were in the amount
of 10 cents an hour; 5 were in the amount of 5 cents an hour; and 3 employees
received wage increases of 15 cents, 20 cents, and 25 cents an hour, respectively.
Prior to the election, and before collective bargaining with the Union had com-
menced, it had been the practice of the Respondent to grant a 10-cent-an-hour wage
increases to employees on the anniversaries of their hiring dates, if a review of their
work indicative that they deserved increases. A number of employees who had anni-
versary dates after the Union was certified as bargaining representative inquired
about wage increases but were told that it was not possible to give them wage
increases because of the union certification, or the union situation. In granting wage
increases to employees after the commencement of the strike, many of them were
made retroactive to April 23, the date of the strike. Indeed, many employees
received wage increases after the strike, although they had no anniversary dates at
the time that they received the wage increases, and some employees received wage
increases considerably above those offered to the Union prior to the strike.
It is my view that the granting by the Respondent of these unilateral wage
increases to a majority of the nonstrikers and strikers who returned to work after
the strike began was also violative of Section 8(a)(1) of the Act. There was really
no reason why the Respondent should have withheld any of the wage increases
normally granted to employees on their anniversary dates after the Union had been
certified as the bargaining representative since the giant of such increases would
have been in accordance with its established practice, but having pointedly refused
to grant such increases because of the certification of the Union, I believe that it
was bound to refrain from granting wage increases while the negotiations with the
Union were pending.
The Respondent attempts to justify the unilateral wage increases on a number of
grounds, the first of which is that it had reached an impasse in its negotiations with
the Union. This is, however, not tine. Although the Union had rejected the offer
made by the Respondent at the meeting of April 22, it had not refused to continue to
meet with the Respondent. The mere fact that the Union went on strike in protest
against the Respondent's bad faith in bargaining did not excuse the Respondent from
further bargaining. An impasse which would justify unilateral action cannot be said
to exist, moreover, if the deadlock has been produced by the failure of the employer
to bargain in good faith 30 Furthermore, the Respondent could not go beyond exist-
ing practice , which is clearly transcended, in granting the wage increases . At least a
number of the increases were greater than the customary amount of 10 cents an hour,
and were granted irrespective of the anniversary dates of the recipients. Indeed, many
of the wage increases were retroactive to the date of the strike, and this only further
demonstrated the Respondent's bad faith in dealing with the Union, for, throughout
the negotiations the Respondent's representatives had steadfastly declined to make
retroactive any wage increase which it might grant at the bargaining table.
80 See Bethlehem Steel Company, 147 NLRB 977, 978 and Bethlehem Steel Co. v. A' L R B.,
320 F.2d 615 (C.A. 3).
GOPHER AVIATION, INC. 1719
It is clear, also, despite the Respondent's contention to the contrary, that neither
Pope, nor any other of the union representatives ever said anything to the Respond-
ent's representatives which could be interpreted as a license to grant unilateral wage
increases. In demanding in the course of the negotiations that any wage
increases granted be made retroactive Pope did cite as a justification for taking this
stand the fact that wage increases had been discontinued with the advent of the
Union. This hardly would amount to a waiver of the Union's rights. If there was a
waiver, moreover, it occurred prior to the strike and the Respondent chose not to
take advantage of it until after the strike had occurred
3. The decision not to resume customer service operations at F.F.
The principal question presented by the evidence is whether the decision not to
resume customer service operations at South St. Paul was motivated solely by eco-
nomic considerations, which had no relation to the union situation after the strike.
There is no doubt that the South St. Paul operations had been unprofitable in
every year since the business had been acquired, except during the year 1963. There
were losses of $31,837 in 1960; of $23,093 in 1962; and of $43,323 in 1964. In
1963, there was an overall operating profit of $2,658 but even in this year the line
department had an operating loss of $4,271 and the customer service department
had an operating loss of $12,649; the losses were offset, however, by a profit of
$19,578 in the aircraft and radio parts department. It is shown also that despite the
overall loss of $43,323 in 1964 the line department had an operating profit of
$2,280. Prior to 1963, the auditing method employee did not show the losses at
F.F. by departments but it is apparent from the later departmental breakdowns that
particular departments could be operating at a profit, although the business as a
whole could be losing money. However so far as 1965 is concerned-and this is the
crucial year-the Respondent offered only a rough computation indicating that for
the first quarter of 1965, the operating loss had been about $5,000. If this rate of
loss were continued in subsequent quarters, the total loss sustained in 1965 would
have been less than half of the loss in 1964. Moreover, although, the hearing was
being held toward the close of the month of September, the Respondent did not
offer even a rough computation for the second quarter of 1965. Thus, there is
actually no proof that the losses in the customer service department were mounting
at the time that it was decided not to attempt to reopen this department, which had
been entirely shut down by the strike, nor is there any proof that the departments
at F.F. which were continued in operation were not also sustaining losses in con-
siderable amounts.
There is also no doubt that the losses at South St. Paul had been a subject of dis-
cussion for a long time by the board of directors, and by the Respondent's operat-
ing and finance committees. There had been such discussions ever since 1961 .31 So
far as the most recent discussions were concerned, the minutes of the board of
directors' meeting of July 28, 1964, included the statement: "It was pointed out that
the Fleming Field operation is showing some improvement, but this is due mostly
to the charter and flight departments. Need for continued analysis was stressed and
the necessity for reaching a final decision in the near future was emphasized "
[Emphasis supplied ] A few days later-on July 31, 1964-the members of the
finance committee recorded in their minutes: "Mr. Robinson directed the Account-
ing Department to make a thorough analysis of South St. Paul operations by depart-
ment with a view to submitting recommendations as to closing unprofitable depart-
ments. Mr. Robinson stated that in his opinion if these departments are not in the
black after the close of the year, customer work should be discontinued and activities
should be limited to maintaining the company planes, both sales aircraft and flight
aircraft." [Emphasis supplied.]
Despite the fact that it thus appears that the F.F. operations as a whole were
unprofitable, and that the possibilities of either closing down particular departments
or the business as a whole had been discussed prior to the advent of the Union, the
motives of the Respondent's executives remain suspect, for the action which they
finally took is not readily explainable in the light of this background.
Mere previous discussion of a problem does not in itself establish the motive for
making a decision at a particular time. Indeed, timing is all important. After all,
31 Robinson , the Respondent's president, testified that the shutdown of the F F. opera-
tions had been under consideration ever since 1963 but he must have been mistaken in
his dating , for the business in 1963 was actually being operated at a profit.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there had been discussion of the problem for 5 years without any action being
taken. This could only have been because the solution of the problem was not as
urgent as it is now made to seem. The business of Gopher Aviation as a whole was
being operated at a profit, and, therefore, the losses at South St. Paul were at least
tolerable. There is at least one plain indication that despite all the talk about the-
losses at F.F. the Respondent's executives really had no serious intention of closing-
down either the customer service department there, or the business as a whole.
After acquiring the F.F. business, the Respondent's executives had been making
additional capital investment in the customer service department. For several years
before 1965, there had been a steady buildup of the equipment available in this
department at F.F., and this buildup had reached the point where, as David Dicker-
man, the operations manager at South St. Paul testified, the customer service depart-
ment was "as good a shop as any place in the Twin Cities so far as equipment-wise
went. It had the big equipment necessary to do the job." This equipment was valued
by Setzer, the Respondent's vice president in charge of finance, at a sum between
$70,000 and $80,000. After the decision not to resume operations at F.F. had been
made, most of this equipment had to be crated and transported to the Respondent's
plant at Rochester. However, part of the equipment, which consisted principally of
radio and electronic test equipment, and which had a value of approximately
$25,000 had to be left behind for the purpose, as Setzer put it, "to keep our own
fleet of white elephants running." 32 It is apparent, too, that quite apart from unbal-
ancing the equipment inventory, the discontinuance of the customer service depart-
ment without discontinuing the other operations at F.F. would also entail an unbal-
anced overhead, which could only tend to increase the losses.33 The supervisory and'
clerical staff at F.F. had to be kept to service the more limited operations, and the
rent of the whole plant had to be paid despite the curtailment of operations. This
rent in 1964 amounted to $6,300.
In the light of these considerations, the announcement of the decision not to
reopen the customer service department at F.F. begins to seem rather surprising.
Moreover, the evidence shows that it actually surprised Dickerman, the operations
manager at South St. Paul. He learned of the decision of the Respondent's officers
in a telephone call from Robinson made to him only several hours before the F.F.
employees received their notices of dismissal. These employees, after receiving the
notices, came and knocked on Dickerman's door in an effort to secure some expla-
nation of the notices but, Dickerman testified, "I was just as surprised as they
were .. .
This surprise of Dickerman must have been all the greater because there was
really no good reason for making any announcement at all about not reopening the
customer service department at South St. Paul, or for sending any notices of dis-
missal to the employees. It is important to bear in mind that the customer service
department at South St. Paul was already shut down tight as a drum by the strike
itself. There are references in the pleadings and in the record as a whole to the-
"shut down" of the operations at South St. Paul. But the true picture is distorted by
these semantics, since the implication is that some positive action had to be taken to
discontinue operations that were actually being performed. The action taken was in
reality wholly negative and consisted merely of the announcement of a resolve not
to resume operations in the customer service department at F.F., either by attempt-
ing to secure a new complement of employees, or by inducing strikers to return
prior to settlement of the strike. Actually, the first alternative was not very real, for
the employees in the customer service department were evidently highly skilled,
and they were therefore difficult to replace. The very limited success of the
Respondent in securing proper permanent replacements at Rochester suggests that
no greater success would have attended its efforts at South St. Paul.
This situation is only another indication of the irrelevancy of all the preceding
talk about the losses deriving from the F.F. operations, and the need for curtailing
them. The announcement not to reopen in the future accomplished nothing in the
present, so far as getting rid, of losses was concerned. The strike itself was causing
losses, both at' Rochester and South St. Paul, and these losses could not be stopped'
by announcements. Indeed, the announcement only entailed further losses involved'
32 Setzer was of course referring , humorously, to the sales and charter aircraft which
had to be maintained in a condition fit to keep them flying
w Robinson testified, for Instance, that the elimination of the customer service depart-
ment at F.F. had reduced the amount of linework being done there.
GOPHER AVIATION, INC . 1721
,in limiting the operations at South St. Paul and in moving a great deal of equip-
ment from South St. Paul to Rochester , where the operations were at low level
-due to the strike. It would certainly have been more prudent, before coming to any
final decision about the operations at F.F., to wait to see on what terms the strike
itself could be settled.
These considerations seem indeed to trouble counsel for the Respondent, and he
suggests in his brief two reasons why "notice of intention to close might well have
awaited the termination of the strike ." The first reason is that the announcement
would avoid claims for backpay, "at least during the course of the strike." The
Respondent was acting however, on the assumption that the strike was economic,
and economic strikers are not entitled to backpay while they remain out on strike
unless they have themselves been victims of discrimination 34 The second reason
advanced by Respondent 's counsel is that the announcement of the discontinuance
of operations at F.F. was made for humanitarian reasons, so that the terminated
employees would be put on notice that they had better seek employment elsewhere.
But the termination of the employees that preceded this allegedly humanitarian act
could hardly be considered an act of humanitarianism . In any event, there is little
to show that in their negotiations with the Union and in their relations with the
strikers , the Respondent 's executives were activated by humanitarian considerations.
They were protecting their own interests and leaving it up to their employees to
to protect their interests as best they could . This normally would consist of obtain-
ing other interim employment . The Respondent 's executives would hardly have
risked incurring further charges of unfair labor practices solely from humanitarian
motives.
The irrelevancy of the previous discussion of shutting down all or some of the
operations at South St . 'Paul is also manifest from the failure of 'the Respondent's
board of directors to act in the matter in January 1965. At this time the Respond-
ent's counsel had been consulted concerning the advisability of shutting down the
operations at F.F . but he had advised against taking this step on the ground that
it would "rock the boat" during the union negotiations . Nevertheless , they took this
very step on May 3, 1965, although the union problem -had not yet been resolved.
For this change of mind on their part they were unable to offer any good expla-
nation . When Robinson , the Respondent 's president , was asked : "What, if anything,
happened between the first of January and May 3 that made the situation at Flem-
ing Field worse than it was before ?" he could only supply a very unsatisfactory
answer. "Well ," he replied , "I haven't any figures to substantiate it, but it was a
decision that had to be made, that we had a loss, as I explained before." But
actually this explained nothing whatsoever.
The true explanation must have to do with the only factor that had changed since
'the previous decision not to "rock the boat." This changed factor was , of course,
the occurrence of the strike and the decision not to resume operations when the
strike was over was obviously made because of the strike , and as part of the strategy
to defeat it. By the time the decision was finalized , which was on May 3, the
Respondent 's executives knew where the most solid support for the strike was to be
found and where that support was most likely to continue to be solid . At Rochester
14 of the employees in the bargaining unit had never gone on strike , and 23 had
abandoned the strike and had returned to work before the end of April, or during
the first week of the strike , and 6 more strikers had reported for work the morning
of May 3. This represented a defection of support for the strike at Rochester of
almost 35 pecent . On the other hand, the strike was still receiving virtually solid
support at South St . Paul. By April 28 one of the linemen , Ronald Goodman, had
abandoned the strike and returned to work but not a single one of the mechanics or
-other technicians , who would be the employees on whose services the operation of
the customer service department would depend , had shown any wavering in his sup-
port of the strike. The closing of the customer service department at South St. Paul
thus presented the readiest means of undermining the narrow union majority. It
also offered the possibility of "Chilling unionism " at Rochester , for when news of
what happened at South St. Paul would reach Rochester , it could not but discour-
age the strikers there from continued support of the strike and the Union.
I must conclude that the announcement of the Respondent 's intention not to
.resume operations at South St. Paul was intended to intimidate all the strikers and
a' See Ford Radio & Mica Corporation , 115 NLRB 1046, 1048-49; Liberty Electronics
Corp ., 138 NLRB 1074, 1075; Holcombe Armature, 140 NLRB 618; Sea-Way Distributing,
Inc, 143 NLRB 460, and numerous other authorities there cited.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to retaliate against the South St. Paul strikers because of their participation in the
strike. It is significant that the Respondent's intention was announced at the first
meeting after the strike on May 5 in a context which shows that the Respondent's
representatives were engaged in punishing the strikers for going on strike. Every-
thing announced at the May 5 meeting was of a punitive nature, including the deci-
sion not to resume operations at South St. Paul.
Even if it be assumed, however, that the decision not to resume customer service
operations at South St. Paul was compelled solely by economic considerations, the
Respondent was obliged to bargain with the Union concerning this decision and its
effect upon the employees.35 It is clear that the Respondent never discharged this
obligation. While in some of the prestrike meetings the Respondent's negotiators
complained of the losses being sustained at South St. Paul, they gave absolutely no
indication that they intended to discontinue any of the operations there. The first
official notification that this step had already been taken occurred when Torrison
made his announcements at the May 5 meeting. Even when the Respondent decided
to offer the South St. Paul employees employment at Rochester the union represent-
atives were given no prior notice. The letters of May 14 that were sent to the
employees were also sent without prior discussion with the union representatives.
It was not until after charges had been filed by the Union that the South St. Paul
situation came to be mentioned at any negotiating session. This occurred for the
first time at the session of July 6 when Torrison mentioned that the Respondent
would reopen South St. Paul if the union representatives could show the Respond-
ent's representatives how they could make money on their operations. At several
meetings after July 6 Pope was asked whether he knew how many of the South St.
Paul employees would be interested in accepting employment at Rochester if the
strike were settled, and he replied that he did not know. These passing references to
the South St. Paul problem hardly legitimized the unilateral actions previously
taken, or constituted a serious discussion of the placement of the South St. Paul
employees. If they did, however, they came too late.
4. The Respondent's employment policies and practices during the strike
There remain for consideration the employment policies and practices which were
pursued by the Respondent's executives during the strike.
Counsel for the^General Counsel contends that the letters of May 5 and 11,36 in
which Robinson, the Respondent's president, warned the strikers to whom the let-
ters were sent that they would be permanently replaced unless they reported for
work by the dates specified in the letters, were coercive in intent and effect. There
would seem to be no doubt that the letters did not express the true intention of the
Respondent's executives. Although the letters warned the strikers that they would
be permanently replaced, the striker-replacements hired by the Respondent during
the strike were not hired as permanent replacements. Robinson, the author of the
letters, himself testified that the strikers to whom the letters were sent were not ter-
minated, and that, except for those strikers who voluntarily resigned, the Respondent
has continued to carry their life insurance and hospitalization insurance. It is thus
apparent that the letters were only intended to frighten the striking employees into
returning to work. It is doubtful, to say the least, that such a tactic could be regarded
as coercive, except in the sense that any letter suggesting the possible loss of employ-
ment would put pressure on the recipient. The Board has held that "the more non-
coercive solicitation of strikers to return to work is not an unfair labor practice." 37
While strikers may not be discharged before actual replacement, the Board has also
held that an employer may warn strikers that they may be permanently replaced 38
i See, for Instance, Town & Country Manufacturing Company, Inc, 136 NLRB 1022,
1027, enfd. 316 F.2d 846 (C A 5) ; Fibreboard Paper Products Co , 138 NLRB 550, enfd.
322 F.2d 411 (C.A.D.C.), affd. 379 U.S. 203, 208, Winn-Dixie Stores, Inc, 147 NLRB 788,
789-790; M & A Electric Power Cooperative, Inc, 154 NLRB 540.
38 For some unexplained reason, the sending of the similar letters of July 20 is not
charged in the complaint as an independent violation of the Act.
31 See Editorial "El Impartial," 123 NLRB 1585, 1587, and earlier cases there cited.
38 In view of the inconsistency between the expression of the Respondent's intention in
the letters and its actual conduct in the present case, Kerrigan Iron WorAs. Inc . 108
NLRB 933, is of particular interest. Despite the literal language of the letter in the
Kerrigan case, the Board majority held that it amounted to no more than a warning. See
also American Optical Company, 138 NLRB 681, 688; U S. Sonics Corp., 143 NLRB 172,
173; and Bi-Rite Foods, Inc., 147 NLRB 59, 66.
GOPHER AVIATION, INC. 1723
However, these rules would seem to be applicable only in the case of economic
strikers. In the case of unfair labor practice strikes, an employer may not warn the
strikers that they face replacement for the reason that unfair labor practice strikers
may not be permanently replaced 39 As the present case involves a strike that was
both precipitated and prolonged by unfair labor practices, the Respondent inde-
pendently violated Section 8(a)(1) of the Act by sending the May 5 and 11 letters
to the strikers, even though the language of the letters may have been wholly
uncoercive.
The sending of the letters is also alleged, to be sure, to constitute violations of
Section 8(a)(3) and (5) of the Act. So far as the allegations of violation of Sec-
tion 8(a)(3) of the Act is concerned, it would seem to raise a wholly academic
question. Since with a few exceptions, subsequently to be considered, the strikers
ignored the letters and remained on strike, they would not be entitled to reinstate-
ment and backpay until they had abandoned the strike even if it were to be held
that they had been unlawfully discharged. The rather elusive semantics which seem
to be indulged in the strike cases to determine whether a particular employee or
group of employees has been warned of the employer's right to replacement or been
actually discharged would seem to be a dispensible luxury in the present case.40 So
far as the allegation of violation of Section 8(a)(5) is concerned, it seems to have
been held that the sending of similar letters under similar circumstances was not in
derogation of a union's representative capacity, and did not, therefore, constitute an
independent violation of Section 8(a) (5) of the Act.41 But, again, in a case such as
the present involving so many independent violations of Section 8(a)(5) of the Act
in so many diverse forms of unilateral action, it would hardly seem to make much
difference that the Respondent committed one less than the number with which it
is charged.
The important questions would seem to be rather whether the Respondent termi-
nated any of the strikers because of their participation in the strike and whether the
Respondent refused to reinstate and terminated any strikers who had made uncon-
ditional applications to return to work, of who had otherwise indicated that they
were abandoning the strike. Both forms of unfair labor practices are alleged in the
complaint with respect to two pairs of employees.
It is alleged that the Respondent terminated Gaylord F. Alm and Dennis Twait
because of their participation in the strike. But neither Alm nor Twait were wit-
nesses at the hearing, and the only testimony in the record concerning them is the
testimony of Robinson that they worked in the aircraft parts department, and that
they were sent letters in which they were requested to return to work.42 What their
response was to these letters is not shown, and there seems to be no basis for find-
ing the claimed violation so far as they are concerned.
It is also alleged in the complaint that the Respondent refused to reinstate two
of the strikers, Donald T. Schmalenberg, who had worked in the cylinder department
at Rochester, and Walter C. Hoffner, who had worked in the teardown department
at Rochester, although both of them had abandoned the strike and had made uncon-
ditional applications to return to work on May 6. Both Schmalenberg and Hoffnei
were witnesses at the hearing, unlike Alm and Twait.
Schmalenberg appeared at the plant on May 6, prepared to go to work, but he
was met by his supervisor and instructed not to punch in until he had spoken to
Decker. When Schmalenberg talked to Decker, the latter told him that unfortu-
nately there was not enough work on hand and that he was being temporarily laid
off. On July 20, the Respondent sent Schmalenberg one of the letters warning him
to return to work if he did not wish to be replaced and when he responded to the
letter, he was put back to work on August 9. Schmalenberg had been employed by
the Respondent for over 13 years at the time of the strike and had been second in
seniority in the cylinder department. Just before the strike he had been classified as
19 As the court put it in N L.R B. V. Bradley Waslifountain Co , 192 F 2d 144, 153
"However, if a charge of an unfair labor practice on the part of the employer hangs over
or threatens him he is compelled to refrain from communicating to his employees his
desire to resume operations and to reemploy them, but instead find recourse directly in
the open labor market for replacements." To the same effect is Rice Lake Creamery Coni-
pany, 131 NLRB 1270, 1292, enfd. 302 F 2d 908 (C A 1) C ), cert denied 371 U S 827
40A similar approach is exemplified by Butler Knitting Mills, Inc, 127 NLRB 68, 79.
41 See, for Instance, Rice Lake Creamery Co., supra at page 1292 , Blackstone Mills, Inc ,
109 NLRB 772, 773.
43 It is not clear just what form of letter was sent to Alm and Twait. They are not
listed among the employees who were sent the letters of May 6, May 11, or July 20.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a master mechanic, and had been the assistant leadman. He had performed every
job in the cylinder department, including piston work; helped to train other employ-
ees; and had received several commendations on the performance of his work. Coun-
sel contends that Decker's refusal to reinstate Schmalenberg on May 6 was an act
of retribution for his participation in the strike.
The first difficulty with this contention is that there is no specific and affirmative
evidence that Schmalenberg was a strike picket or otherwise active in the conduct
of strike activities. Consequently, the Respondent's surveillance of the pickets is not
relevant. So far as the availability of work for Schmalenberg is concerned, there is
no evidence that the Respondent was doing any considerable hiring of replacements
at this time 43 The Respondent was at this time threatening, to be sure, a consider-
able number of the strikers with replacement. As these threats appear, however, to
have been tactical only, they cannot be taken as an actual measure of the Respond-
ent's need for employees. On the other hand, there is the extremely damaging fac-
tor of Schmalenberg's versatility. Considering, that the burden was on the Respond-
ent to establish that no work was available for Schmalenberg when he first applied
for reinstatement,44 it would seem to be difficult indeed to credit Decker's testimony
that there was not enough work for Schmalenberg on May 6.
Actually there is no need to determine, however, whether there was a discrimina-
tory motive in the refusal to reinstate Schmalenberg on May 6. It is too well settled
to require the citation of authority that unfair labor practice strikers are entitled to
reinstatement upon making an unconditional application for reinstatement, even
though permanent replacements may have been hired, and that the employer must
dismiss such replacements if necessary to provide work for returning strikers. As
Schinalenberg was an unfair labor practice striker the refusal to reinstate him was
clearly unlawful.
Hoffner also went to the plant on May 6 to apply for reinstatement after his talk,
which has already been related, with Danielson, Robinson's brother-in-law. Hoffner
had precisely the same experience as Schmalenberg. He was directed to Decker who
told him that no work was available for him. Subsequently Hoffner received one of
the July 20 letters, warning him to return to work if he did not wish to be replaced,
but he did not respond to the letter because he felt-not without good reason-that
after his own experience, as well as Schmalenberg's, on May 6, it would be useless.
Hoffner was a recent employee-he had been hired on October 14, 1964-and if he
had been an economic striker who had been replaced, it would be more difficult than
in the case of Schmalenberg to conclude that there was a discriminatory motive
involved in Decker's refusal to reinstate him. As Hoffner was also, however, an
unfair labor practice striker, he was entitled to reinstatement on May 6, and for the
same reasons as those applicable in the case of Schmalenberg.
Although it is not too clear, counsel for the General Counsel seems to contend
also that the Respondent refused to reinstate still another striker, Alvin D. Imm,
because of his strike activity. Imm, who had been employed by the Respondent for
over 6 years, had worked in the teardown department and in the cylinder depart-
ment but he was in the test run department at the time of the strike. Imm picketed
on a number of different days after the strike started, and once while he was picket-
ing he had his picture taken by Decker. Having heard that Schmalenberg and Hoff-
ner had been denied reinstatement when they had applied for work, Imm telephoned
to Decker to ask him if there would be a job open for him if he came back to work.
Decker told Imm that he would have to come in the following morning when he
could determine what the workload would be, Imm then asked Decker whether he
would be considered for any of the jobs which he had had in the past but Decker
replied that he would be considered only for a job in the test run department, the
job he had held immediately prior to the strike. Decker went on to explain that they
had had to lay off Schmalenberg and Hoffner but that they had been laid off because
,of pure economics. Decker also added, in the words of Imm, that "they was going
to have to hire whom they wanted and needed for the jobs." Imm was a recipient
43 General Counsel's Exhibit 8 shows only two new hires before June 14, i e , Ron
Hoffman on April 23, which was before Schmalenberg applied for reinstatement, and
Gerald Schroeder on May 17, which was 11 days after Schmalenberg applied for reinstate-
ment. On May 5, the Respondent was operating with an employee complement of only
44 men.
" See, for Instance , New Orleans Roosevelt Corporation , 132 NLRB 248, 250, and earlier
cases there cited.
GOPHER AVIATION, INC . 1725
of one of the letters of July 20, warning the employees to whom it was addressed
that if they did not return to work they would be permanently replaced. However,
Imm remained on strike.
Unlike Schmalenberg and Hoffner, Imm is shown to have engaged in strike activ-
ity and to have had his picture taken by Decker. His reception by Decker was cer-
tainly in marked contrast to the reception he had accorded to Ludlow and Kap-
pedal. Decker testified that at the time of Imm's visit, he needed someone to do
piston-ring work, and Imm had done piston-ring work. Although it is not specifically
alleged in the complaint that the Respondent refused to reinstate Imm, it would
seem that his case was fully litigated at the hearing. It is not possible, however, to
find that Imin was discriminatorily denied reinstatement because he did not actually
apply for reinstatement. He was probing Decker's intentions but he did not get to
the point of making an unconditional application for reinstatement. He was, asking
Decker hypothetical questions, and he was receiving hypothetical answers. He failed
to come in again the morning after his first visit, and thus failed to put Decker to
the test.
In addition to the allegation in the complaint that the Respondent violated Sec-
tion 8(a)(5) of the Act by not bargaining with the Union about discontinuing its
operations at F.P. in South St. Paul, Minnesota, there is also an allegation in the
complaint that the Respondent terminated 14 of its employees at this location.45 As
the discontinuance of the operations there was the result of antiunion considera-
tions, the Respondent also violated Section 8(a)(3) and (1) of the Act by its ter-
mination of these 14 employees, and by its refusal to reinstate them to their employ-
ment at F.F. As these employees had been discriminatorily discharged, and their
jobs had been abolished, moreover, they could not very well apply for reinstatement.
Furthermore, by soliciting 12 of these employees to accept reemployment at Roches-
ter under a promise that their jobs would be permanent as against the claims of any
of the strikers who had declined invitations to return under threat of replacement
the Respondent offered them preferred positions, and thus further violated Section
8(a)(3) and (1) of the Act.46 This is all the more apparent because the threats
were empty ones, and the Respondent had not permanently replaced any of the
strikers and had no intention of replacing them.
The attitude of the Respondent's executive toward the South St. Paul employees
is clearly illustrated by the cases of the three linemen who had been employed prior
to the strike. The line department was not discontinued at F.F., and on April 28,
which was only a few days after the commencement of the strike, one of the line-
men, Ronald Goodman, returned to work, and was soon rewarded by a raise of 10
cents an hour. Two other linemen at F.F. did not, however, fare so well. One of
them, Stanley E. Sokolowski, who had been employed by the Respondent since
1960, and who offered to return to work shortly after Goodman did so, was denied
reinstatement. Sokolowski was, to be sure, a deaf mute but he had proved a satis-
factory employee for 5 years. Now, however, Dickerman, the service manager at
F.F. had no time to bother with Sokolowski. The following month he hired two
linemen as temporary replacements. The other prestrike lineman at F.F., Charles
E. Wirth, never applied for reinstatement, but it was unnecessary for him to do so,
since he was one of the South St. Paul employees who had been discriminatorily
terminated on May 3. When asked why he never called Wirth back to work, Dicker-
man candidly testified that he never gave him a thought.
The final issue, so far as the Respondent's post-strike employment practices are
concerned, has to do with the allegations of the complaint that the Respondent's
negotiators demanded at the negotiating session of June 2 that the Union agree, as
a condition of reaching a collective-bargaining agreement, to superseniority for
those of its employees who had abandoned the strike, and that after May 14 the
Respondent reduced the seniority of its Rochester employees by granting seniority
to those of its employees who had abandoned the strike, and to striker-replacements.
If the term "superseniority" is employed in its strict sense, none of these allegations
of the complaint are supported by the evidence, since seniority has never been
recognized for any purpose in the Respondent's plant, and the Respondent never
actually conferred greater seniority on one group of employees than on any other
group of employees. It is perfectly clear, however, from the evidence of the
45 These employees are enumerated in paragraph 12(b) of the complaint.
' See N.L.R.B. v. Erie Resistor Corporation, 373 U.S. 221.
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's own witnesses that in the negotiations with the Union its representa-
tives did make it clear to the union representatives that if the strike were to be
settled some arrangement would have to be made, when working out the order of
return of the strikers , to recognize a preferred status for those of its employees who
had abandoned the strike and for striker-replacements . This demand was all the
more violative of Section 8(a)(1), (3 ), and (5 ) of the Act because none of the
employees had been hired as permanent replacements , and the strike was one that
had been precipitated and prolonged by unfair labor practices . There is no evidence,
however , that the Respondent's representatives ever achieved their objective of
obtaining a preferred status for those employees whom they regarded as loyal to
them . It is unnecessary to decide whether the term "superseniority" as employed in
the complaint was sufficiently apt to encompass the concept of preferred status, since
it would seem that the real issue was actually litigated fully at the hearing.
CONCLUSIONS OF LAW
1. The Respondent, Gopher Aviation, Inc., is an employer engaged in commerce,
or in an industry affecting commerce , within the meaning of Section 2(6) and (7)
of the Act.
2. International Association of Machinists , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the Respondent at its South St.
Paul and Rochester , Minnesota, plants, including the employees of the aircraft shops,
engine shops , instrument shops, line services , radio departments , and parts depart-
ments but excluding office clerical employees , salesmen, licensed pilots , professional
employees , guards, and supervisors as defined in the Act constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
4. On November 18, 1964 , a majority of the employees of the Respondent in
the aforesaid bargaining unit designated and selected the Union as their bargaining
representative in a secret -ballot election conducted by the Regional Director of
Region 18 of the National Labor Relations Board on such date, and on Novem-
ber 25, 1964, the Board certified the Union as the representative for the purposes
of collective bargaining of the employees in the aforesaid bargaining unit.
5. At all times since November 25, 1964 , the Union has been the representative
for the purposes of collective bargaining of a majority of the employees in the
aforesaid unit, and , by virtue of Section 9(a) of the Act , has been and is, now,
the exclusive representative of all the employees in the aforesaid bargaining unit
for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment , or other terms or conditions of employment.
6. At all times since November 25, 1964, the Union has requested the Respond-
ent to bargain collectively with it as the exclusive representative of all the employ-
ees in the aforesaid bargaining unit with respect to rates of pay, wages, hours of
employment , or other terms or conditions of employment.
7. By entering into negotiations with the Union on January 7 , 1965, with the
fixed and determined intent not to arrive at a collective -bargaining argeement,
and by engaging in conduct calculated to accomplish that result throughout the
course of subsequent negotiations , the Respondent committed an unfair labor
practice affecting commerce within the meaning of Section 8(a) (5) of the Act.
This conduct of the Respondent was responsible for precipitating a strike of the
Respondent 's employees on April 23, 1965. The said strike, which is still con-
tinuing, was further prolonged by additional unfair labor practices of the Respond-
ent, as hereinafter specified.
8. By announcing on May 3, 1965, the discontinuance of its customer service
department at Fleming Field in South St . Paul, and by discontinuing the same,
without prior notification to or bargaining with the Union , either with respect to
its decision to discontinue this operation , or with respect to the effect of this
decision upon the employees engaged in the operation , the Respondent committed
unfair labor practices affecting commerce within the meaning of Section 8(a)(5)
and (1 ) of the Act.
9. By terminating on May 3, 1965, 14 of the employees engaged in its opera-
tions at Fleming Field in South St . Paul in order to discourage the union activi-
ties of its employees, and by thereafter failing and refusing to reinstate these
employees to their positions of employment , the Respondent committed unfair
GOPHER AVIATION, INC. 1727
labor practices affecting commerce within the meaning of Section 8(a)(3) and
(1) of the Act. The 14 employees so terminated and denied reinstatement were
as follows:
Daniel P. Badalati Hubert L. Walczak Frederick Houseman
Gordon M. Hagen Charles E. Wirth Dennis T. Lavicky
Gale N. Henn Paul W. Griffin James C Ostern
Donald A. Karels Wilber L. Hartley Robert C. Walczak
Stanley E. Sokolowski Paul W. Zemke
10. By warning various of its striking employees on May 5 and 11 that they
would be permanently replaced by specified dates unless they abandoned the strike
and returned to work, the Respondent committed unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
11. By soliciting, on May 14, 1965, 12 of its employees, who had been employed
at Fleming Field in South St. Paul but who had joined the strike on April 23,
1965, to return to work at Rochester, Minnesota, under the promise that their
jobs would be permanent as against the claims of the other employees who had
refused to abandon the strike and return to work, the Respondent committed
unfair labor practices affecting commerce within the meaning of Section 8(a)(3)
and (1) of the Act. The employees so solicited were the same employees as those
enumerated in paragraph 9 of these conclusions with the exception of Stanley E.
Sokolowski and Charles E. Wirth.
12. By withdrawing from consideration on May 5, 1965, all offers made to the
Union in prior negotiations concerning wages, hours, and other terms and con-
ditions of employment; by unilaterally granting wage increases to many of its
employees in the bargaining unit without adhering to its established practices and
without notice or opportunity given to the Union to bargain concerning such
increases and by demanding in a negotiating session on June 2, 1965, that the
Union agree, as a condition of reaching a collective-bargaining agreement, to
recognize a preferred status for those of its employees who had abandoned the
strike and for striker-replacements in working out the order of return of the
striking employees, the Respondent committed unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) of the Act.
13. By refusing on May 6, 1965, to reinstate two of its striking employees,
Donald T. Schmalenberg and Walter C. I-loffner, although on that date they had
made unconditional applications to abandon the strike and return to work, the
Respondent committed unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(3) and (1) of the Act.
14. By photographing strikers and taking down the names of strikers who were
engaging in picketing activities on and after April 23, 1965, the Respondent engaged
in acts of surveillance that interfered with, restrained, and coerced its employees
in the rights guaranteed in Section 7 of the Act, and thereby committed unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act.
THE REMEDIES
In view of the scope of the Respondent's unfair labor practices, I shall recom-
mtiend a broad form of cease-and-desist order designed to prevent the repetition not
,only of the specific unfair labor practices committed by the Respondent but also
to effectuate all the guarantees of Section 7 of the Act.
I shall further recommend that the Respondent take appropriate affirmative
action to effectuate the policies of the Act, as follows:
Upon request of the Union the Respondent shall bargain collectively in good
faith with the Union as the exclusive representative of the employees in the
bargaining unit bereinbefore described as appropriate and embody in a signed
agreement any understanding which may be reached.
As the merit wage increases granted unilaterally by the Respondent are not
shown to have been discriminatorily granted, and the vice of the increases lay
only in the fact that they were granted after being withheld because of the union
situation, and in the fact that they did not conform to established practices, it
should be sufficient to order the Respondent to bargain with the Union concerning
wage increases, and to withhold in the meantime the grant of any further increases
until such time as agreement has been reached with the Union with respect to
wage increases, or an impasse has been reached in the negotiations. However, any
agreement reached with the Union may include an agreement to grant merit
-increases to returning strikers pending general agreement on wages.
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course of bargaining, with, the Union. the Respondent shall also discuss
with the Union the possibility of restoring, the customer service operations at
Fleming Field in South St. Paul, and the reinstatement of the employees employed
there. I shall not recommend, however, that the Respondent be ordered to resume
the abandoned operation. Although the discontinuance of the operation was dis-
criminatorily motivated, and would not have been discontinued at the time the
Respondent took such action but for the union situation , the operations at South
St. Paul were, apparently, unprofitable, and it might impose an undue hardship
on the Respondent to be compelled to restore them 47 Should the Respondent
decide, however, to resume full operations, including the customer service depart-
ment, at South St. Paul, it shall offer reinstatement with backpay to the 14
employees enumerated in paragraph 9 of the conclusions of law, the said backpay
to run from May 3, 1965, the date on which the employees were terminated, to
the date of the Respondent's offer of reinstatement. In the cases of Sokolowski
and Wirth, who were employees in the line department at South St. Paul, which
has not been discontinued by the Respondent , the reinstatement of these two
employees shall not be contingent on the resumption of the customer service
operations, and the Respondent shall dismiss any line department employees
presently employed if necessary to provide jobs for Sokolowski and, Wirth In
the event that the Respondent decides not to resume full operations, including
operation of the customer service department, at South St. Paul, it shall offer
employment to the 14 terminated employees except Sokolowski and Wirth, at its
Rochester plant. Should the employees accept employment at Rochester, the back-
pay liability of the Respondent to these employees shall run from May 3, 1965,
to the date of their acceptance of employment at Rochester. Should these employ-
ees decline, however, to accept employment at Rochester,48 the backpay liability
of the Respondent shall run from May 3, 1965, to the dates on which they have
secured substantially equivalent employment elsewhere with another employer.
It has been recommended that backpay liability be awarded to the South St.
Paul employees from the date of their termination despite the fact that they were
on strike because by announcing the general discontinuance of operations at South
St. Paul on May 3, 1965, the Respondent made it pointless for these employees
to apply for reinstatement.
The record shows, however, that the Respondent has refused reinstatement to
two strikers employed at Rochester who have made unconditional applications for
reinstatement. These two strikers are Donald T. Schmalenberg and Walter C.
Hoffncr. They shall be offered reinstatement with backpay from May 6, 1965, the
date on which they applied for reinstatement to the date of the Respondent's offer
of reinstatement.
In view of the experience of Schmalenberg and Hoffner, I shall also recommend,
however, that the Respondent be required to offer reinstatement to any of the
strikers who may make unconditional applications for reinstatement with backpay
to run from 5 days after each striker applies for reinstatement to the date of the
Respondent 's offer of reinstatement.49
Any employee required to be reinstated under the terms of these recommenda-
tions shall be offered immediate and full reinstatement to his former or substantially
equivalent position , without prejudice to his seniority or other rights and privileges
previously enjoyed by him, discharging, if necessary, any new employees hired
subsequent to the date of his termination or his participation in the strike, in
order to replace him. In the event that there should be an insufficient number of
jobs to take care of all employees entitled to reinstatement, the employees for
whom there are no jobs available shall be placed on a preferential hiring list and
offered employment as it becomes available.
Backpay required under the terms of these recommendations shall require the
payment of a sum of money equal to the amount which the employee entitled to
backpay would normally have earned as wages from the date on which he was
terminated or denied reinstatement to the date of the Respondent's offer of rein-
statement , less his net earnings during the said period . The amount of the backpay
47 See A. C. Rochat Company, 150 NLRB 1402.
41 There are indications in the record that the South St. Paul employees have been un-
willing to accept employment at Rochester , which is about 70 miles from their present
homes . But it is possible of course , that they may have changed their minds.
.° See, for Instance , Cone Brothers Contracting Company, 135 NLRB 108, 109, 111-112;
Brown Transport Corp., 140 NLRB 954, 960.
MONTGOMERY WARD & CO., INC. 1729,
is to be determined in accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and interest is to be computed on the amount
so determined m accordance with Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
[Recommended Order omitted from publication.]
Montgomery Ward & Co., Incorporated (Wards Southtown Retail`
Store ) and Local Union No. 149, Mail Order Retail Department.
Store and Warehouse Employees , International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America. Case 18-CA-153. October 10,1966
DECISION AND ORDER
On June 21, 1966, Trial Examiner Samuel M. Singer issued his.
Decision in the above-entitled proceeding,. finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain unfair labor practices alleged in the com-
plaint and recommended that the complaint be dismissed with respect
to these allegations. Thereafter, the Respondent filed exceptions to-
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and, Members Brown and Zagoria].
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 Trial
Examiner's Decision, the exceptions and supporting brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.,
[The Board adopted the Trial Examiner's Recommended Order.]
i In adopting the Trial Examiner 's finding that the Union's authorization cards were
valid, Member Brown finds the cards valid for the reason that, In his opinion , the best
evidence of employees ' intent, i.e., their signatures to cards clearly designating the Union
as employees' bargaining representative , establishes the majority status of the Union
at the time it requested recognition . See Dan Howard Mfg. Co., 158 NLRB 805 , footnote 5.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE' CASE
This proceeding, with all parties represented , was heard before Trial Examiner
Samuel M . Singer in Minneapolis , Minnesota , on March 16-22, 1966 , pursuant to
160 NLRB No. 137.
257-551-67-vol. 160-110