Green Bay Aviation, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1967

165 N.L.R.B. 1026 (N.L.R.B. 1967)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Green Bay Aviation , Inc. and Lodge No.
1289 , International Association of Machin-
ists and Aerospace Workers, AFL-CIO. Case
30-CA-347.1
June 26, 1967
DECISION AND ORDER
On November 9, 1966, Trial Examiner Paul
Bisgyer issued his Decision 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
Decision. He further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, the
General Counsel and the Charging Party each filed
exceptions to the Trial Examiner's Decision and
supporting briefs.2
The National Labor Relations 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 briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Green Bay
Aviation, Inc., Green Bay, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
MEMBERS FANNING AND ZAGORIA , dissenting in part:
The majority concludes in this case, in agreement
with the Trial Examiner, that the Respondent did not
I A related representation proceeding, Case 30-RC-388, was
consolidated with the instant case for purposes of hearing. By
direction of the Board on November 28, 1966, the representation
case was severed and remanded to the Regional Director for
disposition.
P The Trial Examiner 's disposition of the 8 (a)(5) issue herein
was proper and we adopt it. We find no merit in the General
Counsel's and Charging Party' s contention that an 8(a)(5)
violation should now be found because the Regional Director
subsequent to the issuance of the Trial Examiner's Decision set
aside the election. The election was set aside on the basis of
conduct found herein to have occurred prior to the critical
election period Thus, although the Regional Director's action,
which is final and binding under the terms of the consent election
agreement , may not be unreasonable , the fact remains that it
violate Section 8(a)(5) of the Act, despite
Respondent's "extensive and flagrant campaign
designed to prevent its employees from exercising
their organizational rights," which consisted of
repeated threats, promises of benefits,
interrogations, wage increases, and discriminatory
discharges of two union adherents.
Apparently the majority relies on the principle of
Irving Air Chute, 149 NLRB 627, that in
circumstances such as are present in this case, the
Board will not direct a bargaining order unless the
election is set aside upon meritorious objections
filed in the representation case. The fact is that the
Regional Director has set aside the election in this
case, and, therefore, the requirements of Irving Air
Chute have been met.
The Union requested recognition for a production
and maintenance unit and, on January 27, 1966, at a
preelection conference on the production and
maintenance unit, requested permission to amend
that petition to include the office clerical employees
of which there were two. The Employer expressed
disbelief that these employees had authorized the
petition. As soon as he was shown the two,
authorization cards, he, as found by the Trial
Examiner, reacted violently and declared that one of
the employees was fired. After the conference, the
Employer summoned one of the clericals and, as
more fully detailed in the Trial Examiner's Decision,
rebuked her for signing the authorization card,
called her a traitor, expressed his disappointment in
her as a trusted employee who had let him down, and
interrogated her as to who had solicited her to sign
the card. Later that day, both clerical employees
were summoned by the Respondent's president and
were told that if the Union came into the plant it
probably would have to close its doors because it
could not meet competition. It was indicated to these
employees that if they sought employment
elsewhere, or a raise or advancement in other jobs,
their union activity might prejudice them. The
following day the Union filed a separate petition for
the office clerical employees.
In the unfair labor practice case the Trial
Examiner found, as indicated above, serious
violations of 8(a)(1) and (3) with respect to employees
departs from the customary manner in which the Board applies
the time limitation upon its own scope of inquiry when
considering conduct alleged to interfere with the conduct of
elections. Goodyear Tire and Rubber Co , 138 NLRB 453 The
Trial Examiner ' s Decision , which is all that we review here,
correctly applied the rules the Board follows We do not find
Bernel Foam violations automatically , and we deem it
inappropriate to find such violation and issue a bargaining order
in the unusual circumstances of this case. Were the Board to give
such effect to a Regional Director's decision in these
circumstances , it might well deter some parties from entering into
consent agreements , which are an important contribution to the
speedy resolution of questions concerning representation under
the statute.
165 NLRB No. 137
GREEN BAY AVIATION, INC.
in the production and maintenance unit . However,
with respect to the clericals in the office clerical
unit, he found that the conduct took place before the
filing of a petition for an election in that unit and
therefore could not serve to set aside the election
which was lost by the Union. Accordingly, he
recommended that the Union's objections be
overruled, the election results be certified showing
the selection of no representative, and that the case
be severed and referred to the Regional Director for
appropriate disposition.
The Regional Director (by virtue of the agreement
for consent election which leaves to the Regional
Director the final determination of postelection
matters), however, did not adopt the conclusions and
the recommendations of the Trial Examiner. He
found the Employer's acts to be grounds for setting
aside the election and he directed a second election.
He concluded that an amended petition would have
been filed at the January 27 meeting, to include the
office clerical employees, if the Employer had not
broken off the conference. He found that the
Employer's acts "occurring as they did a mere 11
days before the election were grounds for setting
aside the election" and that, as the conduct occurred
immediately after the Employer was put on notice
that the Union was amending its petition to include
the office clerical employees, the conduct "must be
considered to have transpired within the critical
period preceding the election."
The General Counsel and the Union have filed
exceptions to the Trial Examiner's failure to find a
violation of Section 8(a)(5). We believe that the
application of the Joy Silk3 and Bernel Foam4
principles is appropriate. They provide ample basis
for concluding that the Respondent violated Section
8(a)(5). We therefore dissent from our colleagues'
dismissal of the complaint in this respect.
a 85 NLRB 1263 , enfd. 185 F 2d 732
4 146 NLRB 1277.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This consolidated
proceeding, with all the parties represented, was heard
before Trial Examiner Paul Bisgyer, on June 7 through 9,
1966, inclusive, in Green Bay, Wisconsin. The issues
formulated by the pleadings' and litigated in Case
30-CA-347 are (1) whether Green Bay Aviation, Inc.,
herein called the Respondent, discriminatorily terminated
employees Michael Nowicki and Roger Bacon in violation
of Section 8(a)(3) of the National Labor Relations Act, as
amended; (2) whether it refused to recognize and bargain
with Lodge No. 1289, International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the Union, as the exclusive representative of the
Company's office clerical employees, in violation of
Section 8(a)(5) of the Act; and (3) whether by these and
other acts, it interfered with, restrained, and coerced
employees in the exercise of their self-organizational rights
1027
thereby violating Section 8(a)(1) of the Act. In Case
30-RC-388, which the Regional Director consolidated
with the complaint case for the purpose of hearing with
respect to certain objections to conduct affecting the
results of the election filed by the Union,2 the alleged
misconduct is the same as that alleged as unfair labor
practices in the complaint case. At the close of the
hearing, the parties waived oral argument and, although
afforded the opportunity to file briefs, failed to do so.
Upon the entire record and from my observation of the
demeanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Wisconsin corporation with its
principal office and place of business in Green Bay,
Wisconsin , is engaged in the sale , distribution , servicing,
and maintenance of aircraft and aircraft component parts
and in providing aircraft charter and flight training
services . In the course and conduct of its business
operations , the Respondent annually sells goods and
materials and performs services valued in excess of
$500,000, of which sales and services valued in excess of
$50,000 are provided to customers located outside
Wisconsin . The Respondent also annually purchases
goods, materials , and supplies exceeding $50,000 in value
which are shipped from sources outside the State for use
in its business operations.
The Respondent admits, and I find, that it is engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act. I further find that the nature and extent of the
Respondent 's operations warrant the Board's assertion of
jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Advent of the Union; request for recognition
For several months prior to the Union's appearance at
the Respondent's facility, employees were dissatisfied
with their terms and conditions of employment which they
discussed among themselves. Prominent in such
discussions was Michael Nowicki, one of the two alleged
discriminatees, whom the Respondent's president, Philip
J. Roshong, characterized at the hearing as "a spokesman
for the element that was very unhappy" in the Company.
Indeed, on one occasion in October 1965, Roshong, after
rebuking Nowicki for allowing an employee to make a
I The complaint in Case 30-CA-347 is based on a charge filed
by the Union on February 11, 1966, a copy of which was duly
served on the Respondent by registered mail on the same day
2 The petition in Case 30-RC-388 was filed on January 28,
1966, for a unit of office clerical employees The parties thereafter
entered into an agreement for consent election which the
Regional Director approved on January 31 Pursuant to this
agreement , an election was held on February 8 which the Union
lost by a vote of 2 to 0 On February 11, the Union filed timely
objections to conduct affecting the results of the election and on
the same day filed the unfair labor practice charge on which the
complaint in Case 30-CA-347 is based.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delivery in a company car assigned to Roshong, led
Nowicki into Roshong's office, asked him whether he was
"unionizing" the shop, warned him that if he was, he
would be "in trouble," and threatened to close the doors if
the Union came in. Nowicki disavowed any knowledge of
union activity which, in fact, did not begin until some time
later.3 Roshong admitted that he asked Nowicki whether
he was trying to unionize him and testified that he was
prompted to do so when he recalled overhearing Nowicki 2
weeks before complain to two employees about such
things as inadequate compensation, insufficient time off,
and broken holiday promises.
In the early part of January 1966,4 the shop employees,
disenchanted with the Respondent's unfulfilled promises
to improve benefits, decided to consult with the Union and
designated Nowicki to arrange for a meeting. On
January 7, Nowicki spoke to International Representative
Robert K. Gustafson who scheduled a meeting for January
12 at the Union's office. At the appointed time and place
six out of seven mechanics and servicemen in the
Respondent's employs met with Gustafson. After he
explained the advantages of union representation and
membership, all six employees signed authorization cards,
designating the Union as their bargaining agent, and
membership applications.
On January 13, Gustafson sent a letter to the
Respondent, which was received the next day, advising
that a majority of its "service, production and
maintenance employees" had authorized the Union to
represent them for the purpose of collective bargaining,
and requesting an early conference to negotiate a contract.
2. The Respondent 's reaction to its employees ' interest in
the Union
On January 13, a day after the employees' meeting with
the Union, Nowicki informed John Gilmet, the
Respondent's general manager and secretary-treasurer,
that the employees had joined the Union. In response to
Gilmet's inquiry whether 100 percent did so, Nowicki
answered yes, including a recently hired employee. Gilmet
then retorted that employees did not know what they were
doing, adding that President Roshong, Vice President
Robert Jubin, and he would have no part of the Union. 6
That morning, Gilmet approached Robert H. Ferguson,
an aircraft mechanic who was working on a plane, and
asked him whether he had joined the Union. When
Ferguson replied in the affirmative, Gilmet inquired what
good the Union would do him because he was the only one
eligible to belong to that organization. Ferguson, who was
actually one of three mechanics in the Respondent's
employ, disagreed with Gilmet's latter statement and
declared that line personnel were also eligible. In the
course of this conversation, Gilmet also told Ferguson that
probably by the spring he would receive a raise.7
Nowicki testified that the same morning he also
voluntarily apprised Service Manager Wayne Outcelt that
the shop, stockroom, and line employees had joined the
3 The foregoing findings are based on Nowicki 's undisputed
testimony , which I credit
4 Unless otherwise specified, all dates refer to 1966.
5 This was the unit in which the Union initially sought
representation On April 6, following a Board election in Case
30-RC-380, the Union was certified as the employees ' exclusive
bargaining representative in a unit described as "[a]ll service,
production and maintenance employees of the Respondent .
excluding office clerical employees " and other classifications
Union the night before. He further testified that Outcelt
responded that the Union would never get in and that
Roshong had previously stated that, if the Union ever tried
to unionize the Company, he would close the doors.
Outcelt admitted that while at work Nowicki told him that
employees had joined the Union but denied making any
remarks on this occasion.
In the evening of that day (January 13), Nowicki and
employee Roger Bacon, whose discharge will be later
considered, and John Faltynski,8 decided to discuss the
Union with Outcelt at his home. At the trailer park where
Outcelt's mobile home was located they met Outcelt who
invited them in. There Nowicki asked Outcelt what he
thought of the Union. According to Nowicki, this elicited
Outcelt's response that he did not think it was a good idea
and that Roshong stated that he would close the doors
before he would let the Union get into the shop. As Bacon
recalled the conversation, Outcelt said that "we were
cutting our own throats, that Mr. Roshong would close the
shop if the union got in." In the course of this
conversation, Outcelt also commented that Bacon was a
poor mechanic and that Nowicki was doing a poor job in
the stockroom.
Outcelt testified that these employees told him that they
were going to have a union in the shop and that when he
inquired who had started the Union, they answered all of
the employees. He further admitted saying that he
"thought they were going to cut their own noses off of their
face to try to get the union in." In addition, when
questioned by the Respondent's attorney whether he also
mentioned Bacon's and Nowicki's job capabilities, Outcelt
testified that he told them that he "thought they was kind
of cutting their own noses off because they weren't in too
good" with the Company, and that their job performance
was unsatisfactory. On cross-examination, Outcelt gave
this revealing explanation of what he meant by this phrase
"cutting off their noses":
A. Well, that they were going to make it hard for us
to even keep them on and get along with them if that
was the attitude they had.
Q. What attitude was that?
A. That we-what they wanted us to-
Q. Bargain with the union?
A. Bargain with the union or even to-
Q. Talk about these wages?
A. Talk about wages.
Again, questioned by the General Counsel concerning
other testimony he had previously given, Outcelt testified,
as follows:
Q. Now, you testified that at no time did Mr.
Roshong tell you to tell the boys that he would close
down if the union got in, right?
A. Yes, sir.
Q. Now, did you tell them that Mr. Roshong told
you to say that?
A. No. I told them that on my own, that we would
probably just close it up and pump gas
alone-ourselves.
The alleged unlawful refusal to bargain involved in the present
proceeding does not relate to this unit but to an office clerical unit
later discussed
6 This finding is based on the uncontradicted testimony of
Nowicki.
7 The foregoing is the essence of Ferguson 's credited
testimony
8 Although still employed, Faltynski was awaiting a date to
report to military service.
GREEN BAY AVIATION, INC.
I credit Nowicki's and Bacon's testimony which I find is
substantially corroborated by Outcelt' s admissions.
It further appears from Outcelt's account of the
foregoing meeting that the employees' demands for
increased benefits and job security were also discussed;
that Outcelt expressed the view that a union was
unnecessary since employees who stay out of the union
possibly receive more benefits than they would if they
were in it , and that a union cannot give them more security
than the Respondent if they performed their work; and
that either Nowicki or Bacon stated that employees would
go on strike and close the shop down if the Respondent
refused their demands or to bargain with the Union. After
the three employees departed, Outcelt promptly
telephoned Roshong and advised him of this conversation.
Kenneth W. Engebretsen, an employee who had since
left the Respondent's employ, gave the following
testimony of remarks Outcelt made to him: On January 13,
while Engebretsen was working in the main hangar,
Outcelt approached him and stated that the place would
close down if the Union came in, adding that the Company
could not afford to have a union . On this or another
occasion in the hangar, Outcelt also asked him which
employees had signed cards. To this inquiry, Engebretsen
replied that all did.
On January 14, after Engebretsen and Outcelt had
pulled an airplane out of the hangar, Outcelt questioned
him as to the identity of the employees who had brought in
the Union. Engebretsen answered that he did not know.
Outcelt then repeated his earlier remark that the
Company could not afford to have a union in the shop.
On January 15, a day after the Respondent received the
Union's request for recognition, Engebretsen received a
message from his wife that Outcelt had telephoned and
wanted to see him at the latter's home. The next day
(Sunday), Engebretsen went to Outcelt's home where
Outcelt raised the subject of the Union. Outcelt told him
that President Roshong, Vice President Jubin, and he had
mortgaged their homes, that the Company was young, that
they could not afford to have a union and that "if the union
came in it wouldn't work." In one of Outcelt's
conversations with Engebretsen on a date which the latter
could not remember, Outcelt warned that, if the Union
came in , the employees would "be out and that the officers
[of the Company] ... could handle the operation
themselves."
Outcelt testified that he did not remember "talking too
much" to Engebretsen except that he did ask him whether
he joined the Union and how many employees it had.
When questioned whether he ever threatened
Engebretsen with reprisal for joining the Union, Outcelt
testified that he did not, although he told Engebretsen that
his action was "going to ... force ... [him (Outcelt)] to go
back pumping gas and take ... this (Engebretsen's)] job."
Finally, Outcelt testified that one Sunday morning
Engebretsen came to his home and expressed regret for
getting involved with the Union.
I find Engebretsen a disinterested and credible witness
whose testimony is consistent with the pattern of antiunion
9 Actually Engebretsen had previously signed a union
authorization card on January 12 Apparently , at the time of the
above conversation , he had not joined the Union yet
10 If this were said, it possibly was prompted by Outcelt's
earlier threats to him to close the shop , as described above
i i It was stipulated that 4 days later, on January 20,
Engebretsen received a 15-cent - per-hour wage increase Roshong
1029
conduct pursued by Outcelt, to which other witnesses
testified.
On January 14, the Respondent furloughed employee
Nowicki and on his return to work discharged him. The
same day employee Bacon was laid off without ever being
recalled. The circumstances of their separation will be
considered more fully below.
On the morning of January 16, Engebretsen was at the
airfield where the Respondent's operations are located to
do some personal flying. He testified that later, while in
the hallway of the Respondent's building, Roshong
engaged him in a conversation about flying and planes.
When Roshong brought up the subject of the Union,
Engebretsen testified, he (Engebretsen) suggested that
they discuss it in Roshong's office, which they did.
According to Engebretsen, the following transpired in the
ensuing conversation: Roshong asked him what he thought
about the Union and "how it would go." Although
Engebretsen did not indicate in his testimony what
answer, if any, he gave, he told Roshong, in reply to his
question whether Engebretsen intended to sign up with
the Union, that he was uncertain.9 Roshong also
mentioned the benefits the employees then enjoyed and
expressed the view that he would not like to see the Union
come in, that he could not afford to have one, and that
there wasn't enough work. At one point, Roshong
interjected that he thought that he "hit the nail on the
head" when "he got rid of the two instigators that started it
and that the place would go good now." Although Roshong
did not identify these individuals, it is undisputed that 2
days earlier Nowicki was furloughed and Bacon was laid
off.
Roshong gave an entirely different version of this
conversation. According to him, this was what happened
that Sunday: Engebretsen came to his office and asked
whether he could discuss the union situation with him.
Although Roshong indicated doubt whether they should,
Engebretsen proceeded to tell him that he was not for the
Union. Engebretsen then described his financial
difficulties and asserted that he could not afford to be out
of work.io Referring to a business opportunity he had
with his brother-in-law and before acting on the
proposition, he stated that he wanted to know "what [his]
... job is going to be" and "just what' s going on ." Roshong
replied that he did not know what was going on but would
like to ask him the same question. They then "discussed it
in the most general terms ." In answer to Engebretsen's
inquiry as to how much money he would expect to earn the
following year, Roshong said that if things progressed as
planned, he would probably be raised from $2 to $2.20 an
hour. I t Roshong also agreed to allow Engebretsen to take
time off for hunting and fishing, as he also requested,
provided he gave the Respondent a few weeks' notice. The
conversation closed with Roshong's remarks that he didn't
believe that the Respondent could "exist economically
under the union because we can 't be pioneers," and that it
could not compete with other small shops in the area and
charge more, as it would have to do if it were unionized.
testified that Engebretsen had been promoted to line chief about 6
months before without a raise in wages and that for this reason
and because of Engebretsen's asserted financial difficulties end
the availability to him of another business opportunity, the
Respondent reviewed his wages and granted him the increase.
His other testimony, which suggests an earlier date, appears to be
incorrect.
299-352 0-70-66
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engebretsen, whom I have therefore found to be a
disinterested and truthful witness, did not impress me as
one who would fabricate testimony against the
Respondent. Indeed, the demonstrated hostility and
antiunion conduct of Roshong and other officials of the
Company confirm the reliability of Engebretsen's
testimony and I credit it.
3. The Union's further bargaining request; the employee
questionnaire; offer and granting of wage increases and
other benefits
Not having heard from the Respondent with respect to
the Union's January 13 letter requesting recognition,
International Representative Gustafson telephoned the
Respondent on January 19 and spoke to its secretary-
treasurer, Gilmet, regarding the Company' s intentions to
meet with the Union. Gilmet advised Gustafson that he
was preparing a letter confirming a meeting date, which
would be put in the mail in the evening after verifying the
date with Roshong. Gustafson then inquired about the
status of Nowicki and Bacon. Gilmet answered that Bacon
was laid off for lack of work and would be recalled as soon
as business picked up and that Nowicki was given a
week's vacation. In reply to Gustafson's question whether
the vacation was with pay, Gilmet stated that it was,
otherwise it would not be a vacation. 12 With Gilmet's
assurance that the above-mentioned letter would be
mailed that evening, the conversation concluded. As it
turned out, the Respondent never sent the letter.
On the same day, the Respondent distributed a
questionnaire among its shop employees assertedly to
ascertain whether the Union represented a majority to
justify conferring with it. This document, which bore the
same date, was drafted by Gilmet with the approval of
Roshong and Vice President Jubin. It recited that the
Respondent had received from the Union a letter stating
that some employees had shown an interest in joining that
organization and that the purpose of the questionnaire was
to "find out who wishes to join the union or not." Asserting
that this survey "in no way will create any hard feelings or
jeopardize your position" with the Company, the letter
requested the employee to indicate over his signature
whether or not "at this time" he desired to join the Union.
Employee Engebretsen testified to the circumstances
under which he received the questionnaire, as follows:
While he was in the stockroom, Gilmet entered, handed
him a questionnaire , and asked him to answer , sign, and
return it because the Company wanted to know whether
"the employees were for or against the union ." Gilmet
then proceeded to talk about the Union, asked him
whether he paid the Union $5 a month and proposed that
he pay the money to Gilmet so that he (Gilmet) could also
ride around in a Cadillac. Gilmet also said that a union
would not work out at the shop because the Company was
too small and it was not engaged in the type of business
which could pay the high union wages. Finally, Gilmet
informed Engebretsen that his next paycheck would
reflect a raise because he was a good man. However,
Engebretsen had not previously requested any wage
increase and he did not return the questionnaire.
12 Actually Nowicki was never paid
11 McGregor also testified that he, too, had received a
questionnaire from the office but could not remember the person
who had given it to him He never returned his questionnaire
14 This appears to be an approximate date since McGregor
testified that the conversation occurred at a time when he had
Gilmet did not specifically dispute Engebretsen's
testimony which I credit. He acknowledged, however, that
he had distributed questionnaires to employees, at which
time he "possibly" informed them that the Company had
received a letter from the Union and was conducting a
survey to see whether to meet with that organization. He
further testified that no employee returned his
questionnaire, nor did he ask for it.
Employee Ferguson gave the following uncontroverted
testimony concerning his experience with the
questionnaire: On January 19, Jubin called a group of
employees into the stockroom office where questionnaires
were made available to them. He asked each to take one,
note his preference, and return it in a few days if he
wanted to. Jubin also "talked about why ... [the
employees] wanted a union" and remarked that the
Company was working "on better benefits for the
employees" and that benefits would improve "in the
future ... as time went on." Engebretsen, who was also
present, brought up the subject of paid vacations, which
employees were not enjoying at that time. Jubin answered
that those with 1-year service would receive a 1-week paid
vacation and those with 3 years or more would get a 2-
week paid vacation. At the same meeting, Jubin advised
Ferguson, who was an hourly paid employee, that he would
probably be put on salary sometime in the future.
However, this never materialized. Ferguson did not return
his questionnaire, nor was he asked for it.13
Employee Earl P. McGregor testified, without
contradiction, that on or about January 1914 Gilmet
summoned him from his work in the shop to the stockroom
office. Gilmet opened the conversation by informing him
that his wages were being raised. However, McGregor had
not previously asked for an increase. After some "small
talk" about his work, Gilmet said, "Earl ... I think you
know what's coming" and proceeded to ask him what he
thought of the Union and what the Union could do for him.
McGregor's reply was that he thought the Union would put
down on paper everything the Company had promised the
employees. Gilmet, in turn , stated that the Union couldn't
do anything more for employees than the Company had
already done as far as holidays, paid vacations, and so on.
It was stipulated that on January 20 McGregor received
a 10-cent hourly wage increase.ig On the same day
Engebretsen was also given a 15-cent raise. President
Roshong denied that these raises were dictated by union
considerations. According to his testimony, it was
company policy to grant raises only for merit or where
there was a change in duties. In particular, he testified,
McGregor's and Engebretsen's increases were for merit.
He further testified that with respect to Engebretsen's
raise, there were additional considerations, namely, that 6
or 8 months before, Engebretsen had been elevated to
chief lineman without a change in his hourly rate, and also
that Engebretsen had previously indicated that he would
leave his job to accept another position unless he were
given an increase. As noted above, Engebretsen denied
that he had previously asked for a wage increase and I
credit his denial. Considering the timing of the increases
and the circumstances under which they were granted,
including the Respondent 's campaign to undermine the
already been given the questionnaire His other testimony, which
suggest , an earlier date , appears to be incorrect
11 In about March McGregor's hourly rate was raised another
20 cents when he replaced Engebretsen who quit his job. This
raise is not alleged in the complaint as an unfair labor practice
GREEN BAY AVIATION, INC. 1031
employees' efforts to organize and select a bargaining
representative, I find it hard to accept Roshong's asserted
reasons for the increases and accordingly reject them.
4. The January 27 preelection conference; the Union's
additional request for recognition in an office clerical unit;
the Board-conducted elections
On January 19, the Union filed a petition for
representation in a unit of service, production, and
maintenance employees (Case 30-RC-380). Under Board
auspices, a conference was held by a Board agent at the
Respondent's facility for the purpose of arranging for a
consent election, thus obviating the necessity of a formal
hearing scheduled for the following day. In attendance for
the Respondent were Roshong, its principal spokesman,
and two other officers, Jubin and Gilmet, and for the
Union, International Representative Gustafson and Grand
Lodge Representatives Parker and Black. Roshong,
visibly irritated by the Union's interest in representing its
employees, made no pretense at concealing his feelings.
Throughout the meeting he protested that the Respondent
could not afford to have a union in its operations, insisting
that it would be at a competitive disadvantage if it were
unionized. He asserted that his trade association had made
a survey which revealed that only one company in an
eight-State area was unionized and that he was not
inclined to be a pioneer in recognizing the Union or to
allow any labor organization to tell him how to run his
business. Roshong also expressed concern that the Union
was causing friction within the Company and voiced doubt
that the employees wanted a union whose presence he
attributed to "a couple of trouble makers" whom he had
good reasons to get rid of. Repeatedly, in his verbal
exchange with the union representatives Roshong made
such intemperate threats as to shut down his business
rather than deal with the Union; to close his doors if the
Union wins the election; and to terminate the service
operations of his business if the Union got in, and, with
Jubin, to do whatever service the Company's planes
needed. At one point, when the company officials
examined the authorization cards signed by the
employees, which the Union exhibited in refutation of
Roshong's asserted disbelief that the employees wanted a
union , Roshong announced, "that settles it for us....
[The employees] are all fired.... As a matter of fact, as of
this moment, Green Bay Aviation ceases to exist."
Roshong's intense opposition to the Union also manifested
itself in his adamant refusal to execute a consent-election
agreement purportedly for fear it would bind him to a
union contract, despite the efforts of the Board agent and
union representatives to disabuse this erroneous
impression.
Roshong's pique reached a new high when, following a
recess during the conference, the Union produced the
authorization cards of the Company's two office clerical
employees, Diane Bunker and Christine Kuske Brenner,
and requested additional recognition as their bargaining
agent . Upon the Respondent's rejection of this request, the
Union sought permission from the Board agent to amend
its representation petition to include the office clerical
employees in the appropriate unit . According to Grand
Lodge Representative Parker, this move was prompted by
Roshong's threats to close the plant. Reacting violently to
this new development, Roshong specifically decried the
action of his bookkeeper, Bunker, whom he characterized
as a confidential and trusted employee who possessed full
knowledge of the Respondent's financial condition, and
declared that as of that night she was fired. This threat,
however, was never effectuated.
It appears that no employees were present in the
conference room when the threats mentioned above were
uttered. However, according to employee Bacon's
testimony, which I credit, while in the area outside the
conference room door, he heard Roshong threaten to close
the shop if the Union got in . Roshong undoubtedly was
aware of the presence of employees in that area and
should have realized that his unmodulated remarks would
reach their ears through the door which was not flush with
the floor or the ceiling.
After a recess, Roshong announced that he had
consulted an attorney who would proceed with the
representation hearing scheduled for the next day and the
meeting broke up.
On January 28, the Union filed a separate
representation petition for a unit of office clerical
employees (Case 30-RC-388). An agreement for consent
election was then executed and subsequently approved by
the Regional Director. Pursuant to this agreement, an
election was held on February 8, which the Union lost by a
vote of 2 to 0. The Union, thereupon, filed timely
objections to conduct affecting the results of the election
and unfair labor practice charges, alleging, among other
things, an unlawful refusal to bargain in that unit. The
issues thus raised are the subjects of this proceeding.is
5. President Roshong's subsequent conduct
Shortly after the preelection conference recessed or
ended about noon on January 27, Roshong summoned
Diane Bunker, the bookkeeper, to the ground schoolroom.
There, in the presence of Gilmet and Jubin, Roshong, in an
emotional and angry voice, sharply rebuked her for signing
the union authorization card. In answer to Roshong's
question why she had signed the card, Bunker replied that
she did not know, that she did not realize what she was
getting into, and that this was her first experience with a
union. Roshong called her a traitor and, in no uncertain
terms, expressed his disappointment in her, a trusted
employee, who had let him down. Roshong also questioned
Bunker whether she was approached by employees
Nowicki and Bacon to sign the cards and she responded in
the negative. After venting his anger, Roshong sent
Bunker back to her office with the admonition to stay out
of his sight. 17
Bunker returned to her desk shaken and pale and
started to cry. Apparently to comfort her, Gilmet invited
her to the coffeeshop in the airport where he, too, asked
her why she had "betrayed" them.
Late in the afternoon, Roshong summoned both Bunker
and the other office employee, Brenner, to the ground
schoolroom. Roshong apologized to Bunker for losing his
temper. Expressing surprise that Bunker and Brenner had
signed union cards, he inquired why everyone was turning
16 An agreement for consent election in the service employee
unit was also executed on January 27 The Union was victorious in
that election and was duly certified by the Regional Director as
the exclusive bargaining representative of these employees. It
was stipulated at the hearing that the Respondent has honored
this certification
it The foregoing findings are based on Bunker's credited
testimony, which was not controverted in any significant respect
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him. The girls answered that it was because of
"benefits and different things." Roshong also declared on
this occasion that if the Union got in, he probably would
have to close his doors because he would not be able to
meet competition. Additionally, he indicated to the girls
that if they sought employment elsewhere, or a raise or
advancement in other jobs, their union activity and
participation might be investigated by those employers to
their prejudice. Finally, Roshong assured them that they
would not lose their jobs with the Respondent and that
they were going to have an opportunity to vote as they
pleased for or against the Union.18
At or about 4:30 in the afternoon of the same day,
Roshong assembled all the employees, including the two
office employees.19 Jubin and Gilmet were also present.
Addressing the employees, Roshong said that the
Company was too young and could not afford a union. He
pointed out that bringing a union into the plant would
mean higher wages and benefits which, in turn, would
raise customer costs, ruin the Company, and probably
result in closing down. To support his position, Roshong
exhibited the Company's current financial statement for
any employee to read. Roshong then questioned each
employee why he wanted a union. The general tenor of the
replies was the inadequate benefits they were receiving.
This elicited Roshong's response that as the Company
grew it would increase benefits. Jubin, who alluded to the
benefits employees then enjoyed, mentioned the
possibility of a profit-sharing plan in the future if the
Company's growth warranted it. When employee
Ferguson raised the subject of the absence of paid
vacations, Roshong indicated that employees with 1-year
service would receive a paid vacation of 1 week and those
with 3 years of service, would be given 2-week vacation.20
It appears that this meeting marked the close of the
Respondent's campaign against the Union. At least, no
evidence was adduced to show otherwise.
6. Nowicki's discharge
Michael Nowicki, who had taken flying lessons with the
Respondent, was hired in February 1964 as a lineboy.
Having performed well in this position, he was placed in
charge of the stockroom, concededly a nonsupervisory job,
when an opening arose in July 1965. His duties included,
among others, processing work orders for repairs to
aircraft, purchasing and stocking parts, maintaining
perpetual inventory, and processing and coding incoming
invoices.
Nowicki testified concerning his discharge, as follows:
On January 14, the day, the Respondent received the
Union's request for recognition, Nowicki was summoned
from the stockroom by Secretary-Treasurer Gilmet to see
is The findings are based on the combined testimony of Bunker
and Brenner , which was not specifically contradicted
is Prior to the advent of the Union, the Respondent held two
meetings with the service employees to discuss their complaints
about inadequate benefits
20 The foregoing account of management 's meetings with the
employees is based on a synthesis of the testimony of employees
Ferguson, McGregor , Bunker, Brenner, and Roshong
'21 Nowicki readily admitted having had a conversation with
Johnson in the Satellite Room, a cocktail lounge at the airport,
within a 2- or 3-day period after January 12 According to
Nowicki's uncontradicted testimony, which I credit, while he was
there having a dunk after work and was engaged in conversation
with employees Bacon and Kobes concerning the Union , Johnson
President Roshong in his office. There, in Gilmet's
presence, Roshong observed that Nowicki and employee
Bacon were active in the Union and influential with the
men. Roshong told Nowicki that he had deeply hurt him
and that Nowicki's part in the Union put him and his job in
Jeopardy. Continuing, Roshong announced that he was
firing him because of his part in bringing the Union to
Green Bay Aviation and added that he was also going to
take care of Bacon. This led to a discussion of the reasons
why Nowicki favored the Union and why employees signed
up with that organization. In response, Nowicki alluded to
the "benefits" to be derived and to the Respondent's
unfulfilled promises and "different things" that were going
on in the shop with which employees were unhappy.
Thereupon, Roshong asserted that Nowicki was not
running the stockroom properly and neither Roshong nor
Gilmet would listen to Nowicki's attempted explanation
for the conditions there. At one point, Roshong accused
Nowicki of threatening to close him down. Nowicki denied
the charge and asked for the source of this information.
Roshong answered that three people had told him that but
identified only one, Richard Johnson, a representative of a
distributor of Cessna aircraft. It appears that Johnson had
previously engaged Nowicki in a conversation in the
Satellite Room at the airport .21 Before Nowicki departed,
Roshong relented and retracted his prior decision to fire
him. Instead, Roshong directed him to take a week's
vacation within which to consider whether to continue
with his union activity. Roshong further stated that, if he
should decide to cease such activity, to stay away from the
employees, and to think about the parts department, he
could return to work for him. While Nowicki and Gilmet
were leaving the office together, Gilmet expressed the
hope that Nowicki would decide not to go along with the
Union but to remain with the Company because he was a
good man. Thereafter, at noon, Nowicki went on his
involuntary, unpaid vacation.
Roshong gave a different account of the circumstances
surrounding Nowicki's vacation or furlough. He testified
that, after discussing with Gilmet the problems of
unprocessed work orders, discrepancies in inventory, and
the operation of the stockroom, he decided to furlough
Nowicki in order to make a thorough investigation of these
matters. Accordingly, Roshong testified, on January 14 he
called Nowicki into his office; referred to the chaotic
condition of the stockroom; charged Nowicki with not
doing his job; stated that he could no longer cover up for
him; ordered him to take a week off to think things over
and to see if he could return to do a better job; and
informed him that in the meantime , the Company would
run a check of the stockroom to determine the state of
affairs there. Roshong specifically denied that the Union's
and Gee, another representative of a Cessna distributor,
interrupted them. Stating that they overheard them talking about
a union, Johnson asked whether they were bringing a union into
the Respondent 's shop Nowicki, Bacon, and Kobes replied
affirmatively Johnson and Gee then tried to dissuade them from
doing it, asserting that they had nothing to gain but would only
hurt themselves Johnson and Gee also alluded to their own
unhappy union experiences Under cross-examination by the
Respondent 's counsel, Nowicki denied telling Johnson and Gee
that, if the Respondent didn't come around to his terms, the
Respondent would be prevented from building a new hangar, he
would make trouble for the Company , he would close its
operations down, or there would be a slowdown.
GREEN BAY AVIATION, INC.
letter requesting recognition which was received that day
prompted this action.
With respect to his remarks to Nowicki concerning his
conduct in the Satellite Room, Roshong testified that they
were made in an earlier conversation with Nowicki.
However, in view of Roshong's demonstrated confusion
about the date of such occurrence, I am persuaded from
the sequence of events, that Roshong's comments were
made on the occasion Nowicki was furloughed, as the
latter testified.22
The following is the sum and substance of Roshong's
account of his talk with Nowicki. A few days after
speaking to Johnson, he called Nowicki to his office.
Noting that their friendship was slipping, Roshong wanted
to know why Nowicki was disenchanted with
management . Roshong also pointed out that , not only was
Nowicki's job performance deteriorating, but there was
also talk that he was "trying to incite members of our work
force to discontent and join the union." Nowicki replied
that there were things going on in the shop which Roshong
did not realize and criticized Outcelt's actions. Roshong
then called in Gilmet23 to answer the charges leveled
against management. Whether at this or another juncture,
Roshong admonished Nowicki that he did not like loose
talk going around; that if Nowicki got mad at him, he
should come to him to complain and not to threaten to start
his own flying services or join forces with a competitor;
that he (Roshong) wanted "loyalty and performance out
of" him. Roshong also stated that, if Nowicki wanted to
discontinue his relationship with the Company, to do so,
although he wished Nowicki would not. Nowicki then
indicated that he would try to improve in several areas and
suggested that somebody should speak for the men in the
shop who were entitled to certain things. Roshong
responded that Nowicki ought to tell them to bring those
matters up at the regular Friday or Thursday night
management-employee meeting, and not to go behind the
Company's back. In addition, Roshong stated that
Nowicki was always regarded by the Company as part of
the management team and that it looked bad for him to
side with people he was supposed to control.
Judging the testimony of Nowicki and Roshong in light
of the Respondent's demonstrated opposition to the Union
and the events preceding and following the furlough
episode, I find that Nowicki's version of the circumstances
of his furlough more accurate and reliable. Accordingly, I
credit it where in conflict with Roshong's testimony.
As directed by Roshong, Nowicki returned to the
Respondent's facility on Friday, January 21, to give him
his decision. When he entered the office, he was greeted
by Gilmet with the remark, "just like a mailman , [y]ou get
a day off and you take a walk." However, Gilmet had
22 Initially , Roshong testified that he spoke to Nowicki about
his conduct in the Satellite Room between "Christmas and New
Year's " Later he changed it to January 7 Since, according to the
testimony of Roshung and Service Manager Outcelt, Roshong
first learned about the Union 's appearance on the night of
January 13 , following the visit of Nowicki, Bacon, and another
employee at Outcelt 's home, it is clear that Roshong could not
possibly have had this conversation with Nowicki before that date
since it involved knowledge of union activity
Roshong further testified that On a Friday about 7 30 p m
Johnson, Gee, and another person came to the Respondent's
facility and reported that Nowicki, Bacon, and employee Kobes
were having "quite a few drinks" in the Satellite Room and were
engaged in union discussion , Nowicki was "running the company
down", he was threatening to call the Union in and close the
Company down, he stated that he was going into business for
1033
nothing else to say to him, nor did Jubin when he saw
Nowicki later. Nowicki remained at the airport until 3 p.m.
waiting for Roshong who was away on a trip. Since
Roshong did not return he departed.
On Monday, January 24, Nowicki punched in and went
about his duties. At 8:30 a.m., Gilmet entered the
stockroom and asked Nowicki whether he had seen
Roshong during the weekend. Nowicki answered that he
had not. At or about 11 in the morning Roshong arrived
and, although he walked by Nowicki several times, he
ignored Nowicki. Between 4 and 4:15 in the afternoon,
Vice President Jubin spoke to Nowicki and informed him
that they were letting him go because of his union activity
and influence on the men and because he was
"antagonizing the men ," and, besides , he ran a poor
stockroom. Jubin also mentioned that the Company was
going to take care of Bacon, too, whom he described as a
poor mechanic, and of the Union as well.24
It is the Respondent's position that it discharged
Nowicki because of his poor job performance and
disloyalty to the Company. In support, the Respondent
presented the testimony of its officials to the effect that
Nowicki performed excellently as a lineboy and for a
period of 3 or 4 months after he was placed in charge of the
stockroom in July 1965. According to these witnesses, his
attitude then suddenly changed and his work deteriorated
rapidly until they were compelled to terminate him. They
further testified that several times during this period of
deteriorating they discussed his performance with
Nowicki in the hope that he would improve. However, they
testified that his efforts at improvement were temporary
and he would soon revert to his old habits. Much of this
testimony concerning his shortcomings was rebutted by
Nowicki's explanatory and contradictory testimony and by
other evidence. Indeed, it was stipulated by the parties
that on November 25, 1965, during this period of the
alleged deterioration, Nowicki was given a 25-cent hourly
raise.
In view of my ultimate determination herein
discussed that whatever were Nowicki's deficiencies,
they did not prompt his discharge, it would serve no useful
purpose to detail the testimony regarding his job
performance or to determine the nature or extent of his
alleged shortcomings.
7. Bacon 's layoff
Bacon was employed by the Respondent as an aircraft
mechanic from July 2, 1965, until January 14, 1966, when
he was laid off. He was junior in point of service to the
other two rank-and-file mechanics. He signed a union
himself if the Company did not straighten matters out , and these
employees were making other disparaging remarks affecting the
Company's image Roshong further testified that Johnson told
him that he proposed to the employees that they form a grievance
committee to talk over their problems with the Company Finally,
Roshong testified that Johnson suggested that he consider doing
something about it because he could be ruined . Roshong, as he
also testified , then went to the Satellite Room where he saw the
three-named employees in uniform bearing the Company's name
and left without saying anything to them It is noted that the
Respondent did not produce Johnson or any other witness to the
employees ' conduct in the Satellite Room.
23 Gilmet did not testify with respect to this conversation
24 The foregoing findings are based on Nowicki 's credited
testimony According to Jubin, he simply told Nowicki that his
services were no longer required and furnished no reasons
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorization card, joined the Union, and openly espoused
its cause.
According to Bacon, on January 14 at 10:45 a.m., Vice
President Jubin summoned him from his work and
informed him that "there was a temporary layoff due to
reduction in force and there would be a few other faces
around there that would go." Bacon further testified that
he was then paid off by check until noon and, in reply to
his question, was told to leave immediately. Apparently,
the layoff was effected without any advance notice and, as
Bacon also testified without contradiction, he was working
a full schedule at that time and during the period
preceding the layoff. Under cross-examination, Bacon
denied that Jubin used the words that the layoff was due to
lack of work, and denied, as well, that there was a slack in
the Company's mechanical work in the winter months.25
He further testified that, although the Respondent had
previously experienced a slow period in August 1965 he
was nevertheless retained. This testimony was not
controverted and, indeed, is consistent with Service
Manager Outcelt's testimony that it has been the
Company's practice to give mechanics in the shop other
work during slack periods.
Jubin testified that he laid off Bacon when it appeared
that the normal seasonal slack had no immediate
prospects of improvement. According to him, he advised
Bacon of the Company's "dilemma in regards to the shop's
overstaff," and told him that a layoff was necessary
because the work was not coming in and that he was being
laid off on "a temporary basis." Jubin further testified that
he explained to Bacon that he would be notified as soon as
work came in so that in such case his layoff would be only
temporary but, if work did not come in, his layoff would be
permanent.
Bacon impressed me as a trustworthy witness.
Considering all the circumstances of his layoff, I credit his
version of the layoff interview.
Bacon was never recalled to work. However, on or about
March 10, George Landolt, who had filed a job application
with the Respondent prior to Bacon's layoff, was hired to
perform both mechanic and pilot duties. Admittedly,
Bacon did not possess pilot qualifications. The
Respondent's witnesses testified that after Bacon's layoff
the Respondent's need for pilot services had increased
and that, as Landolt possessed both these and mechanic
25 President Roshong, however , testified that at the time of
Bacon's layoff , the Respondent was current in its mechanical
work and had no prospects of new lobs in the foreseeable future.
According to Service Manager Outcelt 's testimony , the seasonal
slack usually occurs "New Year's or the holidays . January it
starts and it is really slow , and it usually starts around
November " He also testified that in the latter part of 1965 and
early 1966 business slowed down and that around November 1965,
"the place was a morgue for about two weeks " No company
records, however, were produced to show the condition of
business during the relevant period.
26 It appears that these services are performed on an irregular
basis Landolt could be engaged as a pilot on charter flights away
from the Respondent 's facility for several days at a time or be
continuously engaged in mechanical work at the airport Although
the Respondent had records showing the time spent in each
function , they were not produced
21 The fact that in some instances the Respondent indicated
that it would take such action because it could not afford a union
or it would be unable to meet competition does not nullify the
coercive import of such statements These remarks were not
simply predictions of future action that the Respondent might be
skills, he was hired. The witnesses for the Respondent also
estimated that from the date of Landolt's employment
until the date of the hearing, Landolt divided his time
equally in performing these services.26 Employee
Ferguson, however, estimated the time allocation as 75
percent in mechanical work and 25 percent as a pilot.
B. Concluding Findings
1. With respect to interference, restraint , and coercion
From the factual findings made above, it is abundantly
clear that the Respondent, acting through its officers,
Roshong, Jubin, and Gilmet, and Service Manager
Outcelt, engaged in an extensive and flagrant campaign
designed to prevent its employees from exercising their
self-organizational rights which the Act guaranteed to
them. To summarize, the Respondent, even before the
advent of the Union: forewarned Nowicki not to unionize
its employees, otherwise it would shut down its operations;
after the Union's appearance, it repeatedly threatened
employees that it would terminate its operations and close
the door to its shop if the Union got in;27 warned
employees that they would cut their own throats and lose
their jobs if they continued to support the Union and that
the Company's officers would perform their jobs;
interrogated employees concerning their views and
sympathies and the identity of members and employees
responsible for bringing the Union into the shop; on one
occasion, sharply rebuked an employee for signing a union
authorization card and questioned her as to whether
employees Nowicki and Bacon, the alleged
discriminatees, had given her the card; offered and
granted a wage increase to employees McGregor and
Engebretsen, advised employee Ferguson of a probable
raise in the spring and at another time that he was going to
be changed from an hourly rate to salary, and announced
to all the employees that they were going to get paid
vacations and that there were prospects of other
benefits;28 remarked to an employee that it had gotten rid
of the two instigators who started the Union;29distributed
to employees questionnaires seeking information from
them over their signatures as to whether at "this time"
they desired to join the Union;30 and finally, warned two
employees that their union support could prejudice future
forced to take if the Union made exorbitant demands that it could
not meet Cf Wausau Steel Corporation, 160 NLRB 635
21 I find that the evidence establishes that the wage increases,
vacations, announced prospects of future benefits, and [ promise]
of an increase and salary status for Ferguson were plainly
intended to induce the employees to reject the Union and were not
motivated by business considerations.
29 Undoubtedly, such a remark could only serve as an effective
deterrent to union activity by other employees
so Although these questionnaires stated that this survey would
not jeopardize the employees' position with the Company, I find
that such inquiries made in a coercive atmosphere such as that
created by the Respondent 's other conduct necessarily impeded
employees in the free exercise of their statutory rights -Indeed, at
the time when Gilmet handed employee Engebretsen a
questionnaire , he also informed him of his forthcoming wage
increase On another occasion, when Jubin distributed
questionnaires to a group of employees, he told the employees
that the Company was working on a program of improved
benefits, announced a paid vacation policy not theretofore in
effect and advised employee Ferguson that he would probably be
placed on salary in the future
GREEN BAY AVIATION, INC.
job opportunities with other employers. Such conduct, I
find, under well-established precedent, constitutes
interference, restraint, and coercion of employees, which
Section 8(a)(1) of the Act prohibits.
2. With respect to Nowicki's discharge
The issue here presented is whether Nowicki was
furloughed and subsequently discharged because of his
union activity, as the General Counsel contends, or
because of his poor job performance and disloyalty to the
Company, as the Respondent vigorously urges. On the
basis of the evidence before me, I am convinced that the
Respondent' s action was motivated by antiunion
considerations in an effort to stem the tide of unionization
in its shop.
It is perfectly clear that Nowicki, to the Respondent's
knowledge, played a prominent role in the union
movement and for a period of time before then in
discussions among employees venting their dissatisfaction
with conditions of employment. Indeed, at the hearing
President Roshong very candidly characterized Nowicki
as the "spokesman for the element that was very
unhappy" in the Company. Furthermore, about 3 months
before the Union's appearance in the shop, Roshong, who
had overheard one of these conversations, forewarned
Nowicki that he would be "in trouble" if he were
unionizing the employees. This apparently was not an idle
remark for as soon as the Respondent was apprised of the
employees' interest in the Union, the Respondent
embarked on a course of unlawful action, described above,
to suppress this organizational activity. Significantly, the
night preceding Nowicki's furlough, Service Manager
Outcelt ominously warned Nowicki and employee Bacon,
the other alleged discriminatee, that they were "going to
cut their own noses off of their face to try to get the union
in," because "they weren't in too good" with the
Company, and criticized their job performance. Explaining
what he meant by "cutting off their noses," Outcelt stated
that these employees "were going to make it hard for us to
even keep them on and get along with them if that was the
attitude they had" in wanting the Company to bargain with
the Union.
While it is a rare case in which there is direct evidence
of an intent to discriminate, this is one of them. On
January 14, the day following Outcelt's warning and the
very day the Respondent received the Union's request for
recognition , President Roshong, whom Outcelt had
previously alerted to the Union's existence, first
discharged Nowicki for bringing the Union into the plant
and then relented and placed him on a week's furlough
with the admonition to consider whether he wanted to
cease his union activity, stay away from the employees,
and think about the parts department. On the same
occasion, Gilmet expressed the hope that Nowicki would
decide not to go along with the Union but remain with the
Company because he was a good man. Two days later,
Roshong told employee Engebretsen that he thought that
he had "hit the nail on the head" when "he got rid of the
two instigators that started" the Union. On January 24,
when Nowicki returned to work, Vice President Jubin
informed Nowicki that he was terminated because of his
union activity, his influence on the employees, and,
31 N L R.B v Solo Cup Company, 237 F 2d 521, 525 (C A 8).
32 In view of my finding that Nowicki's alleged shortcomings
did not prompt his furlough or discharge , I find it unnecessary to
1035
besides, he ran a poor stockroom. Thereafter, at the
January 27 preelection conference, Roshong expressed his
resentment of the Union whose presence he attributed to
"a couple of trouble makers" whom he had gotten rid of.
Obviously, the reference to "instigators" and "trouble
makers" could only mean Nowicki and Bacon whose
employment had recently been terminated.
It is well established that an employer may discharge an
employee for any reason, good or bad, provided it is not
motivated by union considerations. It is equally well
settled that a "justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause."31
In the present case, the Respondent's self-revealing
reasons for the furlough and discharge, viewed in light of
the timing of its action which coincided with the
appearance of the Union and the Respondent' s intense
hostility to the Union, lead to the inescapable conclusion
that it was Nowicki's active union role and not his poor job
performance or disloyalty, that lay at the root of his
discharge. Indeed, I find it extremely difficult to
understand why, if Nowicki were the inadequate employee
the Respondent pictured him to be, it would tolerate him
as long as it did or would grant him, as it had done, a 25-
cent hourly wage increase on November 25, 1965, during
the alleged period of his work deterioration. Moreover, at
the time Roshong reprimanded Nowicki, which I have
found occurred during the furlough episode, Roshong
admittedly expressed the hope that Nowicki would decide
to continue his relationship with the Company. This hope
was also repeated by Gilmet for the asserted reason that
Nowicki was a good man.32
Finally, I suspect that Nowicki's asserted disloyalty
which really troubled the Respondent stemmed principally
from his union leadership. Thus, in the same furlough
conversation described above Roshong admittedly told
Nowicki that he had information that he was "trying to
incite members of our workforce to discontent and join the
union" and that, as part of the management team, he
should not side with the employees. In so defining
Nowicki's obligation, Roshong, in effect, imposed a loyalty
pledge not to persist in his union activity, as a condition of
continued employment. This, the Act forbids where, as
here, the employee is actually not a supervisor or a part of
management.
In sum, I find that the Respondent furloughed Nowicki
and thereafter terminated his employment in order to
eliminate a leader in the Union' s organizational drive and
efforts to represent the employees and thereby
discouraged membership in that organization in violation
of Section 8(a)(3) and (1) of the Act.
3. With respect to Bacon's separation
It is the General Counsel's position that Bacon was
discharged on January 14 because of his union activity as
was Nowicki. The Respondent, on the other hand, insists
that Bacon was temporarily laid off because of a work
shortage and was not thereafter recalled because it
preferred another individual who not only possessed
aircraft mechanic skills, but also was a qualified pilot
which Bacon concededly was not. From a careful
evaluation of the evidence, I find that Bacon was actually
terminated for discriminatory reasons and that his
determine whether , and to what extent, he was deficient as an
employee
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purported temporary layoff for insufficient work was but a
pretext to conceal its true motive.
There can be little question that Bacon was an open
supporter of the Union, of which the Respondent was fully
aware. President Roshong learned this at least from
Service Manager Outcelt and Richard Johnson, a
representative of a Cessna aircraft distributor, who
reported to Roshong the union advocacy of Bacon,
Nowicki, and another employee at the Satellite Room in
the airport. In fact, Roshong later personally verified the
report and, when he furloughed Nowicki the next day,
pointed out to Nowicki that he knew that both Nowicki and
Bacon were active in the Union and were influential with
the men.
As shown above in the discussion of Nowicki's
discharge, Bacon was the other employee to whom Outcelt
directed his warning that he was cutting off his nose and
jeopardizing his job because of his union activity and
attitude. Although adding that Bacon was a poor
mechanic, it is undisputed that Bacon had never been
criticized for his work and, in fact, the Respondent does
not even claim this as a reason for his layoff. Further
reflecting upon the motivation underlying Bacon's layoff is
Roshong's foreboding statement to Nowicki before
furloughing him that he was fired for bringing the Union
into the shop and that he (Roshong) was also going to take
care of Bacon. True to his word, Vice President Jubin the
very next morning advised Bacon, without any prior
notice, that he was temporarily laid off "due to reduction
in force." Two days later, Roshong acknowledged to
employee Engebretsen that he thought he had "hit the nail
on the head" when "he got rid of the two instigators that
started ... [the Union] and that the place would go good
now." Similarly, during the January 27 preelection
conference, Roshong attributed the presence of the Union
to "a couple trouble makers" whom the Respondent had
good reasons to get rid of. As indicated above, I find this
reference to "instigators" and "trouble makers" meant
Bacon and Nowicki.
In light of this evidence, serious doubt is cast upon the
Respondent's asserted reason that Bacon was temporarily
laid off because of a slack in work. This is especially so
since Bacon not only was not given advance notice of a
contemplated layoff, but also he had been working a full
schedule at the time of the layoff and during the preceding
period. Moreover, it has been the Respondent's practice to
use mechanics to perform other duties during slow
periods. In fact, in the previous August, when the
Respondent experienced a shortage of mechanical work,
the Respondent nevertheless retained Bacon to do other
work. Finally, the evidence is not persuasive that there
was a shortage of work at the time of Bacon's layoff and
the Respondent failed to produce its business records to
prove otherwise.
In view of the foregoing, I find, contrary to the
Respondent's contention, that Bacon was discriminatorily
discharged on January 14, in violation of Section 8(a)(3)
and (1) of the Act.
4. With respect to the refusal to bargain
The complaint alleges that the Respondent violated
Section 8(a)(5) of the Act by refusing to recognize and
's Bernel Foam Products Co., Inc , 146 NLRB 1277
34 Irving Atr Chute Company, Inc., 149 NLRB 627, enfd 350
bargain with the Union as the exclusive representative of
the Respondent's office clerical employees, although
requested to do so. Essentially, it appears to be the
General Counsel's position that the Respondent's refusal
to accord recognition was not based on a good-faith doubt
of the Union's majority status as evidenced by its unlawful
preelection conduct designed, as it was, to frustrate
employees in their efforts to organize and select a
bargaining representative. Relying on the Board's Bernet
Foam doctrine'33 the General Counsel sees no bar to such
an 8(a)(5) finding in the fact that the Union lost the election
conducted pursuant to the agreement for consent election
in Case 30-RC-388.
In Bernet Foam, the Board held that an employer may
be found in violation of his bargaining obligation even
though the labor organization lost a representation election
conducted after its request for recognition. However, in
Irving Air Chute'34 the Board made it clear that to warrant
such a finding, the election must be set aside on the basis
of meritorious objections filed in the representation case.
Viewed in light of this requirement, the General Counsel's
case must fall for the reason that the objections filed in the
representation case lack merit in the sense that they are
based on acts which occurred prior to the filing of the
petition and therefore, under Board policy,35 are
insufficient to invalidate the election. As previously noted,
the petition was filed on January 28, and no act of
misconduct was committed subsequent to that date.
Accordingly, I find that the Respondent did not violate
Section 8(a)(5) of the Act and therefore recommend
dismissal of the relevant allegations of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that
the Respondent cease and desist from engaging in the
unfair labor practices found and take certain affirmative
action designed to effectuate the policies of the Act.
I have found that the Respondent discriminatorily
discharged employees Michael Nowicki and Roger Bacon
because of their union activities. To redress these unfair
labor practices, I recommend that the Respondent offer
them 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 loss of earnings they may have
suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to that
which he normally would have earned from January 14,
1966, the date of the discrimination, to the date of the offer
of reinstatement, less his net earnings during the said
period. Backpay shall be computed with interest on a
F.2d 176 (C.A 2)
35 Goodyear Tire and Rubber Company , 138 NLRB 453
GREEN BAY AVIATION, INC.
quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294, and
Isis Plumbing & Heating Co., 138 NLRB 716.
To facilitate the computation, as well as to clarify the
named employees' rights to reinstatement, the
Respondent shall make available to the Board, upon
request, payroll and other records necessary and
appropriate for such purposes. I further recommend that
the Respondent notify these employees of their right to
reinstatement, upon application, if they are serving in the
Armed Forces of the United States. The posting of an
appropriate notice is also recommended.
In view of the nature of the unfair labor practices here
found, including discrimination which "goes to the very
heart of the Act,"36 there exists the danger of the
commission by the Respondent of other unfair labor
practices proscribed by the Act. Accordingly, I
recommend that the Respondent cease and desist from in
any other manner infringing upon the rights guaranteed
employees in Section 7 of the Act.37
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Michael Nowicki and Roger Bacon to
discourage membership in, or activities on behalf of, the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. By reason of the foregoing conduct and by engaging
in the following acts-threatening to close down its
operations or shop if the Union got in; warning employees
that they would lose their jobs in reprisal for their support
of the Union; coercively interrogating employees
concerning their views and sympathies, the identity of
members and employees responsible for bringing the
Union into the Company, and the identity of employees
who had given them union authorization cards; offering
and granting employees wage increases, paid vacations,
and other benefits to induce them to reject the Union;
informing employees that the Respondent had gotten rid of
two union adherents; distributing to employees, under
coercive circumstances, questionnaires designed to elicit
information concerning their desires to join the Union; and
warning employees that their union support could
prejudice their future job opportunities with other
employers-the Respondent has interfered with,
restrained, and coerced employees in the exercise of their
statutory rights within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not refused to bargain
collectively with the Union as the exclusive representative
of the Respondent's office clerical employees, in violation
of Section 8(a)(5) and (1) of the Act.
1037
RECOMMENDATION RESPECTING CASE 30-RC-388
In view of my finding that the Union's objections are
insufficient to warrant setting aside the election in the
above-designated case, I recommend that the objections
be overruled and that a certification issue that no
collective-bargaining representative has been selected by
the Respondent's office clerical employees in the Board-
conducted election.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that Respondent, Green Bay
Aviation, Inc., Green Bay, Wisconsin, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Lodge No. 1289,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or in any other labor organization, by
discharging, laying off, or discriminating against them in
any other manner in regard to their hire or tenure of
employment or any term or condition of employment,
except to the extent that their rights in that regard may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
by Section 8(a)(3) of the Act.
(b) Threatening employees to close down its operations
or shop if a union got in ; warning them that they would lose
their jobs in reprisal for their union support; coercively
interrogating them concerning their views and sympathies,
the identity of members and employees responsible for
bringing a union into its shop, and the identity of
employees who had given them union authorization cards;
offering and granting employees wage increases, paid
vacations, and other benefits to induce them to reject a
union ; informing employees that it had terminated union
adherents; distributing to employees, under coercive
circumstances, questionnaires designed to elicit
information concerning their desires to join a union; and
warning employees that their union support could
prejudice their job opportunities with other employers.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
the above-named Union or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and 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 by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Michael Nowicki and Roger Bacon immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each of them whole
36 N L R B v Entwistle Mfg Co , 120 F 2d 532, 536 (C A 4) 3' N L R B v Express Publishing Co., 312 U .S. 426, 433
1038 DECISIONS OF NATIONAL
for any loss of earnings he may have suffered by reason of
the discrimination against him , in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Notify Michael Nowicki and Roger Bacon 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
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its place of business in Green Bay,
Wisconsin , copies of the attached notice marked
"Appendix." 38 Copies of said notice , to be furnished by
the Regional Director for Region 30, after being duly
signed by Respondent 's authorized representative, shall
be posted by the Respondent immediately upon receipt
thereof, and be maintained 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 Respondent to insure
that said notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.39
IT IS FURTHER ORDERED that the allegations of the
complaint that the Respondent violated Section 8(a)(5) of
the Act be, and they hereby are, dismissed.
IT IS ALSO RECOMMENDED in Case 30-RC-388 that the
Union' s objections be overruled and the results of the
election be certified showing that no bargaining
representative has been selected by the office clerical
employees. It is further recommended that said case be
severed and referred to the Regional Director for
appropriate disposition.
38 In the event that this Recommended Order is adopted by the
Board , the words " a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice . In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
38 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the
Regional Director for Region 30, in writing , within 10 days from
the date of this Order , what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in Lodge
No. 1289, International Association of Machinists and
Aerospace Workers, AFL-CIO , or any other labor
LABOR RELATIONS BOARD
organization , by discharging or laying off any of our
employees , or otherwise discriminating against them
in regard to their hire or tenure of employment or any
term or condition of employment , except to the extent
that their rights in that regard may be affected by an
agreement requiring membership in a labor
organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
WE WILL NOT threaten our employees to close
down our operations or shop if a union got in; warn
them that they will lose their jobs for supporting a
union ; coercively interrogate them concerning their
views and sympathies or the identity of union
members or employees responsible for bringing a
union into the shop or the identity of employees who
had given them union authorization cards; offer or
grant employees wage increases , paid vacations, or
other benefits in order to induce them to reject a
union to represent them for collective bargaining;
inform them that it had terminated union adherents;
distribute to employees , under coercive circum-
stances, questionnaires designed to elicit information
concerning their desires to join a union; and warn
employees that their union support could prejudice
their job opportunities with other employers.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the above -named Union or any other
labor organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and 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 by Section 8(a)(3) of the Act.
WE WILL offer Michael Nowicki and Roger Bacon
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 loss of earnings suffered by
reason of the discrimination against them , as provided
in the section of this Decision entitled "The
Remedy."
WE WILL notify the above -named 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 Universal Military Training and Service
Act, as amended , after discharge from the Armed
Forces.
All our employees are free to become, remain, or to
refrain from becoming or remaining, members of Lodge
No. 1289 , International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor
organization , except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized
by Section 8(a)(3) of the Act.
GREEN BAY AVIATION, INC.
(Employer)
Dated By
(Representative ) (Title)
GREEN BAY AVIATION, INC. 1039
This notice must remain posted for 60 consecutive days directly with the Board 's Regional Office, Suite 230,
from the date of posting and must not be altered, defaced, Commerce Building, 744 North Fourth Street, Milwaukee,
or covered by any other material. Wisconsin 53203, Telephone 272-8600, Extension 3866.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate -