Howard Aero, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1958

119 N.L.R.B. 1531 (N.L.R.B. 1958)

HOWARD AERO, INC. 1531
a. All production and maintenance employees including inspectors,
board machine operators, glatex machine operators, shingle wet ma-
chine operators, and head takeoff men, but excluding office clerical em-
ployees, testers, guards, professional employees, the board lead me-
chanic, and supervisors as defined in the Act.
b. All testers excluding all other employees, inspectors, office clerical
employees, guards, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Howard Aero, Inc. and International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America
(UAW-AFL-CIO). Case No. 39-CA-604. February 11, 1958
DECISION AND ORDER
On April 24, 1957, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case. It hereby adopts the Trial Examiner's findings and conclusions
only to the extent that they are consistent with the findings and
conclusions set forth below.
1. We do not agree with the Trial Examiner's conclusion that the
Respondent violated Section 8 (a) (1) of the Act by its discharge of
employee Lumpkins and Crew Chief Barclay.
Barclay was employed by the Respondent on March 3, 1955, as a
helper. On August 10, 1956, he was promoted to the position of crew
chief, a supervisory position.' On August 20, Barclay signed a
1 The Trial Examiner found that individuals employed as crew chiefs were supervisors
within the meaning of Section 2 (11) of the Act As the record adequately supports this
finding, we adopt it
119 NLRB No. 190.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-authorization card. Barclay testified that on August 23, his
foreman, Bill Terry, called him into the office and stated : "Well, I
guess you know that the Union is trying to get into the shop, .. .
We can't have that, . . . We will go broke within 30 days. We will
all be without a job." Barclay further testified that Terry told him
about an expected expense to the Respondent if the Union came in;
told him of strikes that had been called in other places where he
[Terry] had worked; and told him that he [Terry] knew that there
were some union men in the shop and that he was going to find out
who they were. Barclay also testified that Terry did not state what
he would do when and if he ascertained the identity of these
employees.'
Barclay was discharged on August 29, 1956, for the assigned reason
that lie was smoking in the restroom, an unauthorized area, during
working hours, on August 29. The record indicates, and the Trial
Examiner found, that smoking in unauthorized areas constituted a
violation of one of "the most rigid of management rules." Discharge
was specified as a possible penalty for the breach of this rule. Barclay
admitted smoking in the restroom during working hours on
August 29.
Lumpkins was first employed by the Respondent on April 14, 1956.
He signed a union-authorization card on August 23, 1956. Lumpkins
testified that on or about August 26, Crew Chief John Morrow, a
supervisor , asked him how he felt about the Union, and that he
[Lumpkins] replied that he "thought it was a pretty good deal, give
us more wages and better working conditions and job security."
Lumpkins was discharged on the same day as Barclay, and for the
same reason-smoking in the restroom on August 29, during working
hours, in violation of the no-smoking rule. Lumpkins admitted that
he was smoking in the restroom during working hours on August 29.
The Trial Examiner found that the discharges of Crew Chief
Barclay and employee Lumpkins "in the full context of this case,"
were discriminatory and violative of Section 8 (a) (1). As indicated
above, we do not agree with this finding.
In the first place, Barclay and Lumpkins admittedly violated a
company rule. The Company's general rules, promulgated under date
of December 20, 1955, forbade "Smoking in Hangar, or any areas
marked `No Smoking' around airplanes or near inflammable materials,
or in any designated restricted areas." A welcome letter to all new
employees also forbade smoking at a time or place not authorized.
Both the letter and general rules provided for disciplinary action, in-
2 Terry testified that he may have discussed with Barclay his past experiences with
unions in other shops, but denied interrogating or threatening Barclay or any other em-
ployee for union activities. The Trial Examiner did not find it necessary to resolve the
conflict in the testimony between Barclay and Terry. The Trial Examiner indicated,
however, that if it were necessary, he would have credited Barclay.
HOWARD AERO, INC. 1533
cluding discharge, for breach thereof. The record also shows, and the
Trial Examiner found, that no-smoking signs were posted in re-
stricted areas, including the restrooms, and that the Company on
many occasions had been warned against violations of the fire regula-
tions by the city fire marshal, who periodically inspected the Re-
spondent's premises. Moreover, although there is evidence to support
the Trial Examiner's finding that the no-smoking rule was not fully
enforced, the record also discloses that all employees, including Lump-
kins and Barclay, had been cautioned many times before the discharge
that the Respondent would enforce its rules against smoking.
Secondly, knowledge by the employer of a dischargee's union mem-
bership, or support, is a prerequisite to a finding of discriminatory
discharge. The only evidence in this record bearing on the question
of the Respondent's knowledge of Barclay's union membership is
Barclay's testimony, as decribed above, concerning his conversation
with Foreman Terry. This conversation, we find, falls far short of
establishing that the Respondent had such knowledge. Similarly,
the only evidence in the record bearing on the question of the Re-
spondent's knowledge of Lumpkins' union membership and activities
is the testimony of Lumpkins, as described above, that he told Crew
Chief Morrow that he [Lumpkins] thought the Union was a "pretty
good deal." Although, on the basis of this conversation it can be
said that the Respondent knew that Lumpkins approved the Union, we
cannot say on the basis of it, as the Trial Examiner did, that it is
"abundantly clear" that the Respondent knew that Lumpkins was a
"union adherent."
Under these circumstances, we conclude and find that the General
Counsel has failed to sustain the burden of proving that the Respond-
ent discharged Barclay and Lumpkins for discriminatory reasons and
in violation of Section 8 (a) (1).
2. We disagree with the Trial Examiner's finding that the Re-
spondent violated the Act by interrogating its employees concerning
union activities. The incidents relied upon by the Trial Examiner
to constitute such unlawful interrogation were the conversations, as
reported above, between Barclay and Lumpkins and their respective
supervisors; 2 conversations between Subforeman Cockrell, a super-
visor, and employee Thorpe, set forth in detail in the Intermediate
Report; and a conversation between the latter 2 individuals and Fore-
man Miller, which is also set forth in detail in the Intermediate
Report.
As for the conversations between Barclay, Lumpkins and their
supervisors, the only interrogation was the question to Lumpkins by
Crew Chief Miller as to what Lumpkins thought of the Union. In
substance, the conversations between Cockrell and Thorpe were merely
discussions over the pros and cons of unionism, and cannot be con-
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strued as interrogation. The conversation between Thorpe, Cockrell,
and Miller took place in Miller's office and concerned Thorpe's 30-day
probationary report, on which Thorpe's "attitude" had been rated un-
satisfactory. Thorpe testified that Miller told him that "He, [Mil-
ler] wanted me to keep my nose clean and do a good job." Thorpe
further testified that as he and Cockrell were leaving the office Cock-
rell asked, "Well, Thorpe, do you know what he means by keeping
your nose clean?" Thorpe replied, "Yes, I understand."
It thus appears that questions were directed only to Lumpkins and
Thorpe; that the question directed to Lumpkins merely called for
an opinion about the Union; and that the question directed to Thorpe
was ambiguous. In these circumstances, we find that these questions
did not reasonably tend to restrain or interfere with employees in
the exercise of their rights under the Act, and that the Respondent
did not violate the Act thereby?
3. We disagree with the Trial Examiner's finding that the Respond-
ent engaged in unlawful surveillance of its employees in violation of
Section 8 (a) (1). In this connection the Trial Examiner cited the
fact that two of the Respondent's supervisors, Crew Chiefs Nuegues
and Ciomperlick, attended a union meeting on September 24, 1956,
and concluded therefrom that "knowledge obtained by them [the su-
pervisors] of concerted union activities of employees may be imputed
to the Respondent."
The record indicates that all "employees" were invited to attend the
September meeting. Grady, the union representative, testified that the
Union did not exclude crew chiefs from its meetings. Moreover, al-
though the record does not establish whether or not Nuegues and
Ciomperlick were members of the Union, as indicated above, the Union
in fact admitted Crew Chief Barclay to membership. It is therefore
reasonable to assume that crew chiefs, though supervisors, were eligible
for union membership.
Under these circumstances, as crew chiefs were welcomed at the
September meeting by the Union, and as they were apparently eligible
for union membership, we do not find that the presence of Nuegues
and Ciomperlick at the union meeting constituted unlawful surveil-
lance of employees.
4. We disagree with the Trial Examiner's finding and conclusion
that employee Thorpe was discriminatorily discharged in violation of
Section 8 (a) (3) of the Act.
Thorpe was hired by the Respondent on August 10, 1956. On Au-
gust 20, 1956, Thorpe signed a union-authorization card. Thorpe
attended the first union meeting on September 24, 1956, and at other
times passed out authorization cards to Respondent's employees.
s Blue Flash Express, Inc., 109 NLRB 591, 593.
HOWARD AERO, INC. 1535
Thorpe did not solicit union membership during hours of work, and,
so far as the record discloses, he did not discuss the Union with mem-
bers of his crew. As stated above, Thorpe had several conversations
with Subforeman Cockrell. One of the conversations with Cockrell
was in reference to Cockrell's accidentally spraying some paint in
Thorpe's face. Whereupon, Thorpe remarked that had there been a
labor organization in the plant, the safety committee would not allow
such occurrences and foremen would not be working as mechanics.
Thorpe was hired on the basis of material statements in his applica-
tion concerning his previous employment, which statements were un-
true. Moreover, on the basis of these untrue statements Thorpe was
hired at the rate of 20 cents above the average starting rate. From
the outset Thorpe was unpopular with the other crew members with
whom he worked.
Towards the end of his 30-day probationary period, Thorpe was pre-
liminarily rated unsatisfactory in attitude by Subforeman Cockrell.
At the end of the 30-day period, the preliminary rating was reviewed
by Foreman Miller. After discussing the matter with Cockrell and
Thorpe, Miller changed Thorpe's "attitude" rating to low satisfactory,
and recommended Thorpe for permanent employment. Thorpe, how-
ever, was given an overall rating of "somewhat weak, " and the report
indicated that Thorpe was not recommended for a pay raise. When
Miller reviewed Thorpe's rating, he knew that Thorpe had made false
statements on his job application.
Thereafter Thorpe's 30-day probationary report was received and
reviewed by Production Manager Winslow, who shortly before had
learned of Thorpe's falsification of his employment application. Win-
slow decided not to keep Thorpe as a permanent employee. Thorpe
was therefore discharged, on the directive of Winslow, on September
26, 1956. The reason stated for the discharge on Thorpe's termination
slip was "Marginal performance during probationary period. Incon-
sistent pre-employment records."
The Trial Examiner noted that Thorpe "was hired on the basis of
misstatements made by him, and as a consequence, by his signature
on his application, immediately subjected himself to discharge...."
Nevertheless, on the basis of "the whole context of the case," the Trial
Examiner concluded that Thorpe was discriminatorily discharged.
In this connection, the Trial Examiner relied on the following fac-
tors :4 (1) Subforeman Cockrell's "interrogation" of, and "threats"
4In concluding that Thorpe 's discharge was for discriminatory reasons, the Trial Ex-
aminer also relied on a speech by the Respondent 's president, in which employees were
dissuaded from union organization . This speech contained no threats or promises of bene-
fit, and was , as the Trial Examiner found , privileged under Section 8 (c) of the Act.
Member Rodgers would find that as this speech was privileged under 8 (c) it may not
be used in assessing the Respondent 's motives for Thorpe ' s alleged unlawful discharge.
Members Bean and Jenkins do not find it necessary to decide whether the speech may law-
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to, Thorpe; (2) the fact that Thorpe was not discharged at the end
of his 30-day probationary period, although the Respondent had
learned by that time of the misrepresentations on Thorpe's employ-
ment application; and (3) Respondent's knowledge of Thorpe' s union
activities.
As for Cockrell's actions , we have found above that Cockrell did
not unlawfully interrogate Thorpe. Moreover, we do not find on this
record that Cockrell unlawfully threatened Thorpe.'
With respect to the delay in discharging Thorpe, the record shows
the following : Although Foreman Miller knew that Thorpe had falsi-
fied his job application when he rated Thorpe, neither Miller nor any
of the Respondent's officials learned this fact until after the end of
Thorpe's 30-day probationary period. Further, there was an interval
between Foreman Miller's action on Thorpe's 30-day probationary
report and its receipt by Production Manager Winslow, the last person
in the chain of command. Winslow, moreover, received the informa-
tion concerning Thorpe's falsification of his employment records some-
time after the date when it was first received by the Respondent's
personnel manager. Lastly, Winslow's action was taken on the basis
of both Thorpe's 30-day report and his knowledge that Thorpe had
falsified his employment application; and there is nothing in the
record to show that Winslow did not act expeditiously in discharging
Thorpe. In these circumstances, we believe that the probative effect
of the fact that Thorpe was not discharged immediately at the end
of his first 30 days of employment is slight.
As for the Respondent's knowledge that Thorpe was a union sup-
porter, whether or not the record shows that the Employer had such
knowledge is a close question.' In any case, conceding that the
fully be considered in conjunction with Thorpe 's discharge , for, in their opinion , the pro-
bative weight of the speech is not such as to alter their conclusion , based on the other
evidence, that the General Counsel has not shown that . Thorpe 's discharge was dis-
criminatory.
5 The complaint alleged that the Respondent unlawfully threatened its employees. The
Trial Examiner did not find such a violation . However , in discussing Thorpe's discharge,
the Trial Examiner alluded generally to threats made to Thorpe by Subforeman Cockrell.
Presumably , the Trial Examiner was thereby alluding to a conversation in which Cockrell
expressed to Thorpe his fear that if the Union organized the plant some of the employees
might be out of work ; and to Miller's "keep-your-nose clean" remark and Cockrell's sub-
sequent question about it. The General Counsel also interpreted the latter utterances as
a "caution" to Thorpe "regarding his union activities."
We regard Cockrell 's statement about the employees being out of work as the expression
of a personal opinion only, and not as a coercive threat within the. meaning of Section
8 (a) (1). Miller 's "keep -your-nose clean" remark and Cockrell ' s related questions were,
we find , ambiguous . They were made during a discussion concerning Thorpe's probationary
report and his retention as a permanent employee. Thorpe had been rated unsatisfactory
in "attitude" and "somewhat weak" overall and, from the beginning of his employment
with the Respondent, Thorpe had been unpopular with his fellow employees. In these
circumstances , the injunctions to Thorpe may reasonably be viewed as references to his
performance as an employee. Accordingly, we do not find that the Respondent coercively
threatened its employees in violation of the Act.
9 The issue in this case is whether Thorpe was discharged for membership in, and sup-
port of, the Union , the UAW-AFL-CIO. Respondent 's knowledge that Thorpe was such
a member and supported the UAW-AFL-CIO must be based , so far as the record is con-
HOWARD AERO, INC. 1537
Respondent had such knowledge, the fact, although material, is not
conclusive.'
On the basis of the foregoing, particularly the fact that there existed
good cause for Thorpe's discharge-he was an unsatisfactory
employee and had materially falsified his employment application-
together with the fact that the reasons urged to show discrimination
are not persuasive, we conclude and find, that the General Counsel
has not sustained the burden of proving that Thorpe was discrim-
inatorily discharged.
[The Board dismissed the complaint.]
cerned, solely on the evidence that Thorpe, as set forth in the text, indicated to Cockrell
that he viewed unions favorably, and on the further evidence that Thorpe had written on
his employment application that he was a member of "Lodges in Labor Org. I. A. DT.," and
"Skilled Trades Council, CIO."
- Chance Fought Aircraft Division, etc, 85 NLRB 183, 188, 189; Lloyd A. Fry Roofing
Company, 85 NLRB 1222, 1223, 1224.
INTERMEDIATE REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations Act,
as amended .' Upon the basis of a charge filed on September 26, 1956, and a
first amended charge filed December 4, 1956, both by International Union, United
Automobile , Aircraft and Agricultural Implement Workers of America (UAW-
AFL-CIO), the General Counsel of the National Labor Relations Board, by the
Regional Director for the Sixteenth Region, on December 21, 1956, issued a com-
plaint against Howard Aero, Inc., the Respondent herein, alleging that the acts of
the Respondent as set forth in the complaint constitute unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and ( 3) of the Act.2
Concerning the alleged violations of the Act, the complaint sets forth in sub-
stance that the Respondent , on or about September 26, 1956, discharged and refused
to reinstate one James S. Thorpe, an employee, because he joined and assisted a
union and engaged in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection ; that the Respondent , through certain
named officers , agents, and employees , from on or about August 20, 1956, to the
date of the issuance of the complaint interrogated its employees concerning their
union affiliations ; threatened and warned its employees to refrain from assisting,
becoming members of , or remaining members of the Union ; and more particularly
(a) through its production manager started enforcing no-smoking rules and invok-
ing stricter discipline in order to have a pretext for discharging employees engaging
in, or engaged in, concerted activities or union activities ; ( b) by its production
manager , and 2 foremen warned and threatened that union activities would mean
the loss of jobs; (c ) 2 foremen warned and threatened that if the Union organized
the plant it would close down in 30 days; ( d) engaged in surveillance of union
meetings; ( e) that a foreman urged that the employees form a company union
of their own ; and (f ) prohibited all union activity on company property. The
Respondent filed a timely answer to the complaint , effectively denying having
engaged in or being engaged in unfair labor practices as alleged in the complaint,3
' 61 Stat. 136 ; 29 U. S. C ., Sec. 151 et seq., herein called the Act.
2 The National Labor Relations Board hereinafter may be referred to as the Board, the
General Counsel of the National Labor Relations Board or his counsel as the General
Counsel ; International Union, United Automobile , Aircraft and Agricultural Implement
Workers of America (UAW-AFL-CIO) as the Union; and Howard Aero , Inc., as the Re-
spondent or the Company.
2 The relevant provisions of the Act alleged to have been violated by the Respondent
are as follows :
SEC. 7. Employees shall have the right to self-organization , to form , join, or assist
labor organizations , to bargain collectively through representatives of their own
476321-58-vol. 119-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the issues framed by the complaint and the answer, and pursuant to notice,
this case came on for hearing before the duly designated Trial Examiner at San
Antonio, Texas, on February 12, 1957, and continued from day to day until Feb-
ruary 14, 1957, and was closed on the latter day. The hearing was reopened by
appropriate orders, and testimony was taken on April 3, 1957, at San Antonio,
after which the hearing was finally closed. At the hearing all parties were repre-
sented by counsel, were afforded opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence pertinent to the issues, to argue orally
upon the record, and to file briefs and proposed findings of fact and conclusions
of law. The General Counsel and the Respondent were represented by counsel
and the Union was represented by two international representatives appearing on
behalf of the Charging Party (the Union). At the conclusion of the taking of
testimony on February 14, counsel for the General Counsel and counsel for the
Respondent argued orally upon the record and reserved leave to file briefs and
findings and conclusions. Subsequent to hearing, a brief was filed on behalf of
the Company. Arguments and brief have been carefully considered.
After counsel for the General Counsel had rested his case-in-chief, counsel for
the Company moved to dismiss the complaint on several stated grounds; the Trial
Examiner denied the motion without prejudice to the right of the Respondent to
rest on its motion or to present evidence in support of its side of the case. The
Respondent elected to move forward, and at the end of the hearing, renewed the
motion previously made to dismiss the complaint on the grounds previously stated.
The motion to dismiss was taken under advisement and is decided now, as will appear
below.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Howard Aero, Inc., is and has been before and since Decem-
ber 31, 1953, a corporation duly organized under and existing by virtue of the
laws of the State of Texas, having its principal office and place of business at or
near International Airport, San Antonio, Texas, and is now and has been at all
times herein mentioned continuously engaged at its said place of business in the
servicing and modification of aircraft. The Respondent, in the course and conduct
of its business operations at its place of business aforesaid, during the 12-month
period ending December 1, 1956, purchased material, equipment, engines, and air-
craft parts and supplies used in the modification and servicing of aircraft valued
in excess of $1,000,000, which were shipped in interstate commerce to its afore-
said place of business from points outside the State of Texas. During the same
period, representative of the times material hereto, the Respondent serviced and
modified aircraft destined for points outside the State of Texas which modifications
and services were valued in excess of $1,000,000.
The Respondent at all times material hereto has been and is now engaged in
commerce and its activities affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW-AFL-CIO) is a labor organization within the meaning
of Section 2 (5) of the Act.
choosing, and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8 (a) (3).
SEC. S. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 ;
x a e a o a s
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor organi-
zation ; . . .
HOWARD AERO, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1539
The Union's Organizing Activities
On about July 24, 1956, Lloyd W. Grady, International Representative of the
competitive shop department of the Union, became active in attempting to organize
the employees employed in the service and production departments of the Company;
he continued his activities until about December 9, and returned about 21/2 weeks
later for a period of 3 or 4 days. During this time, he was assisted by Walter
Gray, Regional Servicing Representative, who was in charge of the Union's organiz-
ing activities during the times when Grady was absent. On August 20,4 Grady
called at the office of the Company, introduced himself to Landis Carr, company
vice president in charge of production. At that time, Grady informed Carr con-
cerning his work, said that he had been around for quite some time checking on
the plant and its operation and that it was his policy, if possible, to have good
relations with employers; that he had come in and introduced himself to let the
Company "know that I was on the scene, and that we were going to pass out leaflets
from time to time, and that if he wanted me to, I would be glad to furnish him with
three copies of all leaflets that were handed out previous to handing them out"
and at the same time said he would like to have the same consideration from the
Company in receiving copies of any material that the Company might distribute
to its employees. After some further discussion, Grady left three copies of a leaflet
with Carr. Grady estimated that this conference lasted about 2 hours.
On that day and again on August 21, Grady passed out copies of the leaflet he
had left with Carr. This leaflet, dated August 16 was in the form of a memorandum
directed to all employees at Howard Aero, Inc., on the subject of job security
through a UAW contract. As a postscript Grady added the following "I would
especially like to talk with former UAW members now working at Howard Aero.
Call me at Taylor 6-6311." 5 Grady testified that after passing out the first leaflet
on August 20, he returned to his headquarters and received approximately 11 tele-
phone calls inquiring about the Union and that the first person to call was James
Thorpe.
Grady passed out other union literature in the form of leaflets to employees or,
August 23, copies of which were furnished to Carr. Grady was assisted in the
distribution of these leaflets by Gene Seales 6 and Carl Lumpkins.
Other Union literature was distributed to employees on September 5, 12, and
20, the leaflets distributed on September 20 announcing a meeting to be held by
the Union "for all Howard Aero employees." 7 After the meeting of September
24, numerous other handbills were distributed by the Union among the employees
of the Company-on October 4, 12, 19, and 26, 1956, November 1, 18, 23, and
28, and January 9, 24, and February 7, 1957. At least one other leaflet was dis-
tributed. From the content of these handbills it is apparent that the Union was
engaged during these times in an aggressive organizing campaign.
On August 29, 1956, Carl Lumpkins and Hal Barclay were discharged by the
Company and on that day reported the fact to Grady, who saw Carr on the following
day at his office in connection with the discharges of Lumpkins and Barclay. Pres-
ent at this time were Frank S. Manuppelli, director of personnel for the Company
and, according to Grady's best recollection , Richard H. Winslow, production man-
ager . The discharges of the men were discussed at that meeting .8 The discharges
of Barclay, Lumpkins, and Thorpe are discussed below.
`Dates below shown without year designation are for the year 1956.
5 This leaflet refers to UAW authorization cards ; a card together with a self-addressed
envelope was distributed with the leaflet.
6 A personal memorandum to Scales dated September 26 forbade him to distribute union
buttons on company time.
7 Two crew chiefs allegedly attended the meeting held by the Union on September 24.
8 Apparently the name of E. J. Clark, an employee previously discharged by the Com-
pany, came up in the conversation and according to Grady, in response to a question by
Carr, Grady told Carr that he was not interested in Clark because the latter had been
helping the AFL Machinists Union in trying to sign up people in the plant. Carr prom-
ised Grady that lie would investigate charges of Barclay and Lumpkins and would talk
further about it and would discuss the matter at a later time with Grady. Later in the
day Grady and Gray discussed the situation with Manuppelli, Carr having left the city,
and Manuppelli promised Grady and Gray that he would get in touch with them as soon
as Carr returned. Carr after his return in a telephone conversation with Grady informed
the latter that he had decided not to put Barclay and Lumpkins back to work. At this
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vice President Carr agreed that Grady had called upon him in August 1956, and
a few times thereafter and had informed him (Carr ) concerning his activities
in connection with the attempted organization of employees into the Union. He
confirmed the fact that Grady had given him copies of literature shortly before each
piece was passed out at the gates of the plant and also that eventually he discontinued
meeting with Grady. He explained his decision to cease meeting with Grady on
the ground that he heard through a number of persons purported statements that
he supposedly had made to Grady; that rumors unfounded in fact were being spread
because he had met with Grady; that apparently quite a lot of credence was given
by people to the rumors and that finally, he had a telephone discussion with Grady
and told him at that time that he felt there would be nothing further to be gained
by Grady continuing to visit him. One of the rumors returned to Carr was to the
effect that the Company had offered to deal with Grady and they were having
arguments over various details concerning an agreement.
On August 31, 1956, D. U. Howard, president of the Company, addressed the
assembled employees after his attention had been drawn to at least one of the leaf-
lets which was distributed by the Union. Carr previously had answered a number
of questions of employees concerning union activities and organizational efforts
and, because Howard was away most of the time, Carr undertook to inform him
from time to time concerning union activities and to report to him the questions
put to him and rumors circulated around the plant. Carr believed, from the nature
of the questions put to him by employees, that a number of them were worried
and thought , because they had heard stories of strikes and so on in connection
with union organization at other places , that perhaps some such difficulty might
arise at the Company's operation.
Carr testified concerning Howard's speech . In response to a question on cross-
examination he testified:
Mr. Howard called the people together, he called them together over the public
address system shortly after the work shift started . And they assembled in front
of the building, and we finally found him something to get up high enough so
he could see the people and talk to them, and he told that he was aware that
we had union representatives soliciting their interest , etc., in joining a union,
and that he had seen several of the pamphlets they had passed out, and he
had one in his hand that had been passed out the night before , somebody-in
fact that was what brought the talk on . There was one of them, I have
forgotten the issue now, that somebody handed him and said , "here , you ought
to take a look at this." So he walked off reading it, and decided to talk to
them then. He told them that he wanted them to know exactly where the
company stood, that there would be-he had heard rumors , I assume, to the
effect that the company would be in trouble or something if they did have a
union . He wanted them to know there was absolutely no reason for that, and
that we could operate with or without a union and most certainly do so. He
wanted them to also know, the older people especially, that had been with
him a good long time, that regardless whether or not they joined the Union
made no difference to their job, it meant no difference in their pay , and the
company would still be there so long as we all could make a living , we would
all be there, there would be no problems connected with it. And he told them
that he personally wasn 't in favor of joining the Union , himself, and he told
them the reasons why. He told them that he would personally rather rely
on his own initiative etc. to better himself, and the Union purported to do that
better for them, and if the employees felt that the Union could represent them
better than they could represent themselves individually , that they were most
certainly welcome to join one, and bargain in that fashion. And he told them
he would like for them to consider it, he didn't want them to do anything rash,
and one fellow jumped up about that time and said , made some remarks that
he certainly wasn't for a union , and started to make a little speech , extempo-
raneous speech, which he stopped, Mr. Howard stopped. He said, "well,
I am sorry but we don't want to go into anybody else's personal feelings right
here, and that isn't what I am up here for ." He said, "we don't want you
to do anything rash, we want you to think about it and do what you think is
best. Think it over. The decision is yours. You won't be affected in any
way either way you go." And one other thing I recalled distinctly him saying,
that if we did have a union in the place and some of them elected not to vote
time, Carr told Grady that he could see no purpose in further discussions after Grady
had pointed out that during Carr's absence he bad been refused further opportunity to
discuss union affairs with Carr and was barred from access to the latter 's office.
HOWARD AERO, INC. 1541
for a union, that they would certainly not be discriminated against either. He
wanted them to know that.
Thorpe gave a somewhat different report as to what Howard said in his ex-
temporaneous speech to the employees on or about August 31. According to Thorpe,
after the employees were assembled, Howard said first that he was rather dejected
that the employees were going to try to tie his hands with an organization at the
plant; that he had driven over to talk to the men and he felt a little better when he
saw the new automobiles parked in the lot and that he (Howard) thought it probably
was a fact that with people buying new automobiles and driving late model cars
that he "would find enough loyal ones among them that would go along with him."
Thorpe went on to testify:
He thought there would be enough of them to understand his position in
having a labor organization in the plant, and the limitations it would impose
upon the plant. And he explained that this was an operation that was not the
same as a manufacturing job, that it was a modification job, and it would be very
difficult for them-work with an organization would tie their hands and limit
their scope and so forth. He told us that he had been a member of the asso-
ciation of machinists when he was employed at Braniff Airways, and his asso-
ciation with the organization was that the ones who wanted to go along and
just get by, it was fun for them, but those who wanted to make progress, that
they were limited by a seniority list, that regardless of how a man would work
he couldn't beat, he would just have to wait until the other ones were promoted
ahead of him, regardless of their particular classification or aptitude on the job.
He brought out the fact that management, with this type of management that
they have, and with their hands tied, and with their small margin they were
operating on, they weren't able to cope with it at this time. It was something
that could put them out of business, and that they weren't intending to go out
of business. They weren't just going to finish those airplanes they had pur-
chased, modifying them, and then quit they were there to stay and trying
to get a foot hold. And he said that the ones that were for-the people that
were trying to get the organization in there, would they go along with him
and postpone it for just 6 months until they were in a better position to deal
with it, that would also incur added expenses and so forth and limitations on
the management as a whole. He asked us for the ones that were for him and
for the company to try to make it grow larger and bigger and that wanted this
would be to try to find out who had come to the employer of the company
to have a job and to support their family or who came there to organize it.
He also asked to try to find out who these people were, whether they were
there to organize it or whether they were there to work. He said he wasn't
going to fire anyone for joining the union or for not joining it. The laws of
Texas didn't make it compulsory to join, even if it was organized .9
Four witnesses called by the Company, Rex Christopher, Clarence Crawford,
John Morrow, and Milton McKeown, employees who were present at the time
Howard spoke to the assembled employees, could not recall any threats or implica-
tion of threat made by Howard against employees who might join the Union,
or threats against the Union.
Lumpkins and Barclay were discharged on August 29, the reason for their respec-
tive discharges as stated by the Company being that they had violated the no-
smoking rule of the Company on that day. The first charge filed in this case on
September 26, 1956, asserts that these two employees, together with one E. J. Clark,
were discharged because of their membership in and activities on behalf of the
Union. The first amended charge dated December 4, 1956, does not mention or
claim the unlawful discharges of Lumpkins, Barclay or Clark, but does set forth
that Thorpe was discharged because of his membership in and activities on behalf
of the Union. As noted above, the Union continued its organizing activities and
the distribution of literature to employees of the Company until at least during
February 1957. The Union, so far as the Trial Examiner can find, has not invoked
the services of the Board in a representation proceeding.
The Operations of the Company
The Company, in the presentation of its defense to the charges contained in the
complaint herein, placed emphasis on the nature of its operations at its places of
9 Carr estimated 10 minutes as the length of time taken by Howard to deliver his talk ;
Thorpe said the talk lasted for from 40 to 50 minutes.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business at the San Antonio International Airport. The functional structure of the
Company was described at the hearing by Vice President Carr, Production Manager
Richard H. Winslow, Personnel Director Manuppelli, Over Foreman James Miller,
and Crew Chief Charles Wooldridge.
The Company as a corporation is divided into two operating divisions; the
service division located on the west side of the San Antonio International Airport
and the manufacturing division, located some three-quarters of a mile away at an
opposite side of the airport.'°
The service division, during the month of August and September 1956, used the
services of approximately 130 employees, and this division of the Company then and
at the time of the hearing here was and is primarily engaged in the selling, servicing,
repairing, and the installing of instruments and other accessories in light aircraft.
The operations of this division are directed by a vice president. The manufacturing
division is engaged in the modification and the remanufacture of executive type air-
craft and sale of such aircraft. Generally the work done in the manufacturing
division involves the taking of a certain type of military aircraft and remanufac-
turing it into fast executive type aircraft, custom built to the demands of the par-
ticular company which has placed its order for a particular airplane.
Manufacturing work is performed on aircraft on a production line with 7
stations, where work is performed on each one of the 7 planes on the line according
to the type or nature of the work to be done. Each aircraft on the production line
moves from station to station about once a month. The remanufacuring or modi-
fication of planes began sometime in the summer of 1955, at which time the service
division and the manufacturing division shared common quarters; during the first
part of December 1955, the manufacturing division moved into quarters on the
northeast side of the airport and at that time that division employed about 35 or
40 persons. In the summer of 1956 the number of employees in the manufactur-
ing division approximated 300 and at the present time approximates about 350
employees.
Subordinate to Vice President Carr in the manufacturing division are the heads
of several major departments who in turn exercise appropriate supervision over
division personnel. Personnel Director Manuppelli and Production Manager Rich-
ard H. Winslow report directly to Carr. Under the production manager there are,
and were in August and September of 1956, several foremen in charge of sections
or departments of the manufacturing division. Under each of the foremen, in the
typical case were several crew chiefs and under each crew chief from 6 to 15
employees. For example, Foreman Bill S. Terry was head of a department includ-
ing several crew chiefs, each crew chief being directly responsible for the supervision
of several employees. A department headed by Over Foreman James Miller
differed from the usual structure just described in that Miller was in charge of a
department having to do with work on the interiors of airplanes being modified or
remanufactured, and under him were two assistant foremen. One of these assistant
foremen was Luther Cockrell, in charge of a subassembly department, and another
foreman in charge of fabrication. Unlike other assistant foremen, Cockrell, during
August and September of 1956 had under him only one crew, its crew chief being
Charles Wooldridge. The crew at that time consisted of from 6 to 8 men, including
James S. Thorpe, Rex Christopher, Clarence Crawford, and Milton McKeown, and
for a part of the time Charles K. Needels. During these months Foreman Raymond
Gonzales performed the duties of a foreman and also those of a special staff assistant
to the production manager in the handling of various special projects.
From June through the end of 1956, the manufacturing division, in the process
of being organized and stabilized, experienced varying percentages of labor turnover
partly because of the efforts of the management of that department to get experienced
and competent help. The employment and percent of separations to the total
number employed for the period from May through December 1956, is as follows:
1956 May June July Aug. Sept. Oct. Nov. Dec.
Number hired_______________________ 76 64 42 28 24 18 27 32
Number terminated_________________ 28 43 34 43 41 26 19 14
Percent turnover____________________ 10 14 10 13 13 9 6 4
10 Except for the fact that the Union aimed its organizing activities towards the service
division employees as well as those of the manufacturing division, the service division em-
ployees are not involved in the unfair labor practices charged in the complaint herein.
HOWARD AERO, INC. 1543
The Company by counsel contends , and it seems with complete justification, that
the very nature of the industry in which it is engaged requires that it must decide
the kind of personnel they will employ based on an employee's past record of
employment and experience and subsequent performance. The Company says it
is engaged in the remanufacture and modification of aircraft, and that people daily
risk their lives in aircraft and that the Respondent very rightly is entitled to con-
sider not only an employee's caliber of work but is entitled to inquire into a
particular employee's statement of past qualifications and experience for the job
the Company has hired him to perform.
Carr, Winslow, and Manuppelli, during the times when the manufacturing division
working force was being enlarged , engaged in a concerted effort to stabilize employ-
ment, retain qualified and experienced employees capable of performing their assign-
ments, and at the same time be careful that foremen and others of supervisory
personnel were not underrating employees in an effort to keep employees on the
job in the fear that if they lost a man a qualified replacement would not be
immediately available. Their system of review of qualifications of employees
previously hired becomes important in the consideration of the hiring and discharge
of James S. Thorpe, discussed below.
Shortly after Vice President Carr assumed his duties as general manager of the
manufacturing division on about September 16, 1955, or about the month of May
1956, he caused to be distributed among the employees a 4-page memorandum
setting forth a welcome from him to employees and also laying down working rules
for employees to follow. Subsequently on about December 20, 1955, the Company
issued a manual for the use of each of its employees called Personnel Policy and
Procedure Manual, which was supplemented from time to time by special instruc-
tions and information added to the Manual on special subjects under particular
dates." Pertinent to this inquiry are, principally, rules governing probationary
employment and the restricted privilege of smoking during working hours.
The Employment of Thorpe
After being advised of openings for sheet metal workers at Howard Aero, Inc.,
by a State employment agency, Thorpe by telephone arranged an appointment with
Manuppelli. According to Thorpe, the appointment was kept on August 10.
Manuppelli believes that he met with Thorpe first on August 8, at which time
Thorpe had not completed his written application, and that Thorpe returned on
August 10, when his completed application form was accepted, and it was agreed
that Thorpe should start work on Monday, August 13, and arrangements were made
for Thorpe to take a physical examination on August 11. The application is dated
August 8, and is shown as being signed by Thorpe on August 10. A medical report
was completed August 11. This variance in testimony does not appear to be very
important, except that the General Counsel claims, if the Trial Examiner under-
stands him correctly, that it is important to show that Thorpe was almost immediately
accepted as a qualified worker. The weight of the testimony and written evidence
shows that Manuppelli's recollection is more reliable than that of Thorpe.
Thorpe's written application set forth a record of prior employment:
McDonnell Aircraft, 1950-51, final assembly and modification F 2112
Banshee-rate $1.66.
General Metal Mar. 1952-Sept. 1953, machinist-rate $1.87 and
10%.
Hussmann Refrigerator, June-Oct. 1953, builder-jigs-final assembly F 84 F
rate $2.29.
Ford Motor Co., Mercury Div., transitional employment 1951-Nov. 1955,
maintenance machinist, tool and die-rate $2.55/.
Thorpe presented his discharge papers from the United States Navy showing enlist-
ment on January 23, 1946, reenlistment on September 13, 1947, as motor machinist's
mate third class, and honorable discharge on September 21, 1951. This record
shows that Thorpe, during his service with the Navy, had considerable experience
in working on aircraft.
n The Personnel Policy and Procedure Manual (hereinafter sometimes referred to as the
Manual) and the 4-page welcome and rules document distributed under the signature of
Carr (hereinafter sometimes referred to as the "welcome letter") according to the Com-
pany, were distributed at appropriate times to each and every employee in the service and
manufacturing divisions of the Company.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Manuppelli had reviewed the application and Navy record and discussed
them with Thorpe, he called in Over Foreman Miller, who at the time was looking
for tool and die workers to do work then being done by other firms under contract
with the Company. Manuppelli and Miller discussed Thorpe's qualifications and
experience and on the basis of the facts reflected by interview and application, asked
Thorpe if he would accept employment making templates. Thorpe informed them
that during his employment as a tool- and die-maker, he had worked to such close
tolerances that he had become nervous, and that he was not yet ready to resume
tool and die work. Manuppelli had offered Thorpe a job as a sheet metal worker
at the starting rate of $1.70 per hour. After talking to Miller, he agreed to hire
Thorpe as a sheet metal structures assembler at $1.90, on the basis of the represen-
tations made as to experience and training. Thorpe was assigned to work in Miller's
department under Subforeman Cockrell and under the direct supervision of Crew
Chief Wooldridge.
Thorpe seems to have been an average worker. Among the 8 or 10 workers on
his crew Charles Needles, who worked with Thorpe from August 13 until about
September 7, said that on the basis of about 4%z years of experience in sheet metal
work he considered Thorpe an average worker and that he observed nothing wrong
in Thorpe'.s attitude toward his work. Wooldridge testified that in response to a
question he had informed Cockrell that Thorpe was doing a good job; on the day
after Thorpe's discharge, Wooldridge wrote a "to whom it may concern" letter in the
form of a recommendation, stating that "his [Thorpe's] work was very satisfactory,
his conduct was above average."
Under the Manual, its provisions at the time of Thorpe's hiring required a 30-day
probationary period before an employee could be classified as a permanent employee,
with responsibility placed upon the employee's supervisor to evaluate his work during
this period, and at the conclusion thereof to fill out a job performance appraisal form
on the employee and to state whether or not the employee "is to be retained." The
appraisal of the supervisor was (and is) subject to review by higher management.
According to Miller, some 3 weeks after Thorpe began work, Cockrell com-
plained to him that Thorpe was wasting time on the job, did not perform the quan-
tity of work expected, and could not get along with other employees; that Miller
suggested that Cockrell put Thorpe on other work to which he might be better adapted
in a place where it would not be convenient to talk to other people. Clarence Craw-
ford, who worked on the same crew, testified that Thorpe did not get along well with
the crew; Milton McKeown, who worked on the same crew, testified that he had
complained to Cockrell and Wooldridge and had told them that he would not work
with Thorpe, that "he just had a big mouth, and he knew it all, and he didn't know
nothing." Rex Christopher, also on the crew, said he would prefer not to work with
Thorpe. By his own testimony, Thorpe stopped his first practice of eating his lunch
with members of his crew, and sat elsewhere than with them during the lunch period.
Cockrell prepared and presented to Miller a job performance. appraisal form on
Thorpe at the end of Thorpe's probationary period; they discussed an unsatisfactory
mark given by Cockrell on attitude. Miller thought that Thorpe could not be given
an extension on the low rating shown; they had Thorpe in to see him, explained
to him where he was considered weak on appraisal, and gave him an extension to
afford him an opportunity to improve his work performance before he was given a
final probationary rating. In the words of Miller he "sat on this more or less for a
couple of weeks to see if his performance would improve."
During this time Manuppelli caused a routine check to be made concerning
Thorpe's past employment and experience. McDonnell Aircraft reported him as hav-
ing been employed as an airplane mechanic, that his services had been poor, and that
Company would not reemploy him. Mercury division of Ford reported that Thorpe
had been employed as a tinsmith-helper, that "workmanship, application and safety
were fair"; that "conduct and attendance were unsatisfactory." i2
Manuppelli, having these reports before him, informed Miller and Winslow of their
disclosures, admitted by Thorpe to be true. Manuppelli felt Thorpe should be dis-
charged, and so expressed himself to Miller and Winslow, his feeling being that
Thorpe had been given a higher rate than the regular starting rate on the basis of his
false representations, and that his preemployment record, if known to him at the
time, would have caused him to refuse to hire Thorpe.
The job appraisal sheet as finally submitted and signed by Cockrell under date of
September 8 and approved by Miller was a comparatively low rating on the factors
12 At the hearing Thorpe admitted making false statements concerning wage rates, ex-
perience , and ability to engage in tool and die making.
HOWARD AERO, INC. 1545
considered, and carried the remarks "Employee needs more experience on type work
performed at present time. Also he displayed moods which affected the work of
his fellow employees the first two weeks of his employment." His overall rating was
checked as "somewhat weak"; he was not recommended for a wage increase. It was
recommended that Thorpe be retained as an employee.
After discussion with Manuppelli, Winslow, with the approval of Carr, decided
not to accept Thorpe as a permanent employee. Thorpe's employment was ter-
minated on September 26, 1956, the reason, endorsed by Winslow on the employ-
ment records being given "Marginal performance during probationary period. In-
consistent pre-employment records."
The General Counsel asserts that the real reason behind the discharge of Thorpe
was his adherence to the Union. As noted above, he was the first to telephone Grady
after distribution of the first union leaflet on August 20. He attended the first meet-
ing of the Union and subsequent meetings after signing a union-authorization card,
and passed out authorization cards to other employees. He did not solicit union
membership during hours of work nor, so far as the record discloses, did he discuss
the Union with members of his crew except to mention to Christopher that he was a
member of the Union.
Three conversations with Subforeman Cockrell were testified, to by Thorpe,
no other persons being present at any of these times. He said that while he was at
work sometime during the day and after Howard had spoken to the assembled em-
ployees, Cockrell approached the bench where he was working, and in effect told
him that
... this organization coming in here, it might put us out of work, that the
margin that every time that these airplanes went out the door, all they were
doing was making a payroll, and that all they were trying to get ahead was
enough tooling to where they could make some money on them later on down the
line, and if this organization came in, he didn't state which one, there was two,
if they did come in, we would no doubt be out of work . or that they might
let our contracts go to somebody else that had had it previously.
A few days later, Thorpe said that while they were at work Cockrell inadvertently
sprayed some paint in his face, and he remarked that he had "just squandered some
money on a doctor to get a shot to cure an infection in my throat, and that if we
had a labor organization in here with a safety committee they certainly wouldn't
abide that at all, they wouldn't have it, and neither would they have foremen
working as mechanics on the job." He said that after a few more words, Cockrell
suggested "the ones that were so hot for the union . .. why didn't we organize our
own union . . . something that the company could cope with. Said that the com-
pany, he was sure, would go along with that." He construed further remarks of
Cockrell to mean that a "company union organized here, the dues would stay right
here in our own organization , and no one else would get any cut or split on it or
anything else." The third conversation with Cockrell took place at the time when
he and Thorpe were walking back to work after seeing Miller and discussing Thorpe's
probationary report. At the meeting, according to Thorpe, Miller told him that
"I was permanent and that he didn't worry about what I had done in the past as
long as I was doing a good job here, and that he wasn't going to look under bridges
or anything. He just wanted me to keep my nose clean and do a good job." On
the way back Thorpe said that Cockrell asked, "Well, Thorpe, do you know what
he means by keeping your nose clean?" and that he replied, "yes, I understand."
The General Counsel believes that the injunction to Thorpe was intended as a
caution regarding his union activities. The Respondent argues that Miller had no
knowledge of Thorpe's union activities, and that Miller's statement was equivocal
and as easily referable to personality problems with fellow employees, as anything.
Interrogation; Threats and Warnings
Hal Barclay, first employed by the Company as a helper on about March 3, 1955,
became a crew chief on about August 10, 1956, and held that job until August 29,
when he was discharged because he violated the no-smoking rule. He testified that
he signed a union authorization card on or about August 20; that on about August
23, Bill Terry, his foreman, called him into Terry's office and after saying "Well,
I guess you know the Union is trying to get in the shop" and "We can't have that,"
Terry went on to argue with Barclay against the advantages of supporting the Union;
that he (Terry) told him that there were some union men in the shop and he was
going to find out who they were. Terry denied positively that he had made any
threats or had interrogated Barclay concerning his union activities-he said that
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he probably had discussed his past experience with unions in other plants , as he had
with other crew chiefs , or lead men.
Carl E. Lumpkins was employed on about April 14, 1956, and was discharged
on August 29 for violation of the no-smoking rule.13 He testified that on about
August 26 , his crew chief , Morrow asked him how he felt about the Union and that
he told Morrow he "thought it was a pretty good deal, give us more wages and better
working conditions and job security ." He said Terry was present at the time, but
said nothing , and that Morrow then "walked off." Morrow was not questioned on
this point , although he testified that he knew nothing concerning Lumpkin's union
activities , nor had he heard any threats against union members or reprisals for
union membership , or anything concerning the closing of the plant because of union
activities.
Thorpe's account of alleged threats made by Miller and Cockrell are reported
above.
The No-Smoking Rule
Barclay and Lumpkins were each discharged on August 29, 1956, for violating
the no-smoking rule.
The welcome letter issued by Carr cautioned against smoking at a time or place
not authorized . General rules contained in the Manual and promulgated under date
of December 20, 1955, forbid "Smoking in Hangar, or in any areas marked `No
Smoking,' and around airplanes or near inflammable materials , or in any designated
restricted areas." In letter and Manual, employees are cautioned that violations of
the rule will subject them to disciplinary action, including discharge .. Under date of
September 21, 1956, Winslow caused a memorandum to be circulated , directed to
all production personnel calling attention to rules governing smoking, and warning
that violation of no-smoking rules would lead to severe disciplinary action, as such
violations had in the past.
The testimony herein preponderantly shows that no-smoking signs were posted
in restricted areas, including washrooms ; that a city fire marshall periodically inspects
the Company 's premises; that the Company has been warned against violations of
fire regulations , and that the business in which the Company is engaged is subject
to high insurance rates because of great fire hazards, including the use of paints,
gasoline, and other flammable materials and supplies . The Trial Examiner expressly,
refuses to accept the testimony of those witnesses who said they had not observed
no-smoking signs posted in washrooms or other restricted areas. The acceptable
testimony shows that there were times in particular areas when men were permitted
to smoke during breaks for rest or for lunch.
Lumpkins and Barclay were each found smoking in violation of the no-smoking
rule at separate times on the same day and each was discharged on that day. Each
was discovered smoking by Terry, and each was discharged upon Winslow's
authority.
It is contended by the General Counsel that the no-smoking rule was began to
be enforced by Winslow in order to have a pretext for discharging employees engag-
ing in or engaged in concerted activities or union activities and in effect, in the
circumstances their respective discharges had the necessary effect of discouraging
the concerted activities of other employees , in violations of Section 8 (a) (1) of
the Act. Testimony was offered to show that the no-smoking rule was not generally
observed , and that some crew chiefs , as well as members of crews, were accustomed
to smoke during working time.
Surveillance
The complaint alleges surveillance of union meetings by the Respondent.
According to the testimony of Union Representative Grady, two crew chiefs, Paul
Nuegues and Tony Ciomperlick , attended the first union meeting held on September
24 "for all Howard Aero employees ." This testimony is not denied.
At the time , Vice President Carr was fully informed of union activities and on
September 20 knew that the Union had called a meeting for September 20. Per-
sonnel Director Manuppelli, it may be inferred , knew in advance that the meeting
was to be held , and it reasonably may be assumed that others of management knew
of the meeting , in view of the open announcement by the Union.
The General Counsel contends , but the Respondent refuses to concede, that crew
chiefs at that time were or are now supervisory employees (supervisors ) within the
13 Lumpkins was a member of the Union. He signed an authorization card on about
August 23 . The charge filed herein on September 26, 1956, asserted that he was dis-
charged because of union activities and membership . After his discharge , he assisted
Grady from time to time in the distribution of union literature.
HOWARD AERO, INC. 1547
meaning of Section 2 (11) of the Act.14 On the basis of testimony given herein by
Production Manager Winslow, Crew Chief Wooldridge and former Crew Chief Bar-
clay, and from the Company's job descripton of crew chief, an employee in this job has
2 number of employees under his supervision and direction, makes job assignments
and recommendations to his foremen regarding promotions, transfers, and termina-
tions of employment, and is directly responsible for the quality and quantity of
work performed by his crew. The Trial Examiner finds, in the absence of testi-
mony to the contrary, that Nuegues and Ciomperlick were supervisors at the time
they attended the union meeting and that the knowledge obtained by them of
concerted union activities by employees may be imputed to the Respondent. To
this extent, the Company engaged in surveillance.
Alleged Prohibition by Company of Union Activity
The complaint alleges that the Company prohibited all union activity on com-
pany property. The record is barren in support of this allegation, and the Trial
Examiner finds it unsupported in fact. If it is grounded on the refusal of Carr to
continue to meet with Grady during the union campaign, it presupposes that a finding
include animus by Carr and the Respondent against the Union in the particular time
and circumstance. There is nothing in the record to support such a finding.
Concluding Findings
It is asserted by the General Counsel, and denied by the Respondent, that the
discharge of Thorpe was in violation of Section 8 (a) (3) and (1) of the Act.
The General Counsel says, and the Respondent denies, that the discharges of Lump-
kins and Barclay resulted in contravention of Section 8 (a) (1) of the Act. Each
of these three discharges, unless found to be connected with employee activities in
support of the Union or concerted activities for the purpose of collective bargaining
or other mutual aid or protection, within the meaning of Section 7 of the Act,
must be found to be lawful discharges grounded on offenses against management
under rules which must be presumed to have been well known to each of these
employees.
Thorpe was hired on the basis of misstatements made by him, and as a conse-
quence, by his signature on his application, immediately subjected himself to dis-
charge should the statements which gained him a job and rate of pay prove to have
been false. Lumpkins and Barclay violated one of the most rigid of management
rules. Each of these three men in ordinary course would have had no recourse
against discharge for cause. The times of their respective discharges, and their
known membership in, and interest on behalf of, the Union, however, requires an
examination of all the circumstances in an effort to determine if in fact each was
discharged only for just cause, or whether their employer seized upon their lapses
as a pretext for discharging them because of their union support.
Thorpe and Lumpkins were active supporters of the Union before being dis-
charged. Knowledge of their interest in the Union must be attributed to company
management. It is not so clear that Barclay was active in support of the Union,
although he signed an authorization card. At the time of his discharge, he was a
supervisor, and therefore not entitled to the protection afforded an employee under
Section 7 and 8 (a) (3) of the Act. However, if it be found that his discharge was
intended to or had the necessary effect of discouraging the concerted activities of
employees in self-organization, then his discharge was unlawful.15 Admittedly, his
work was satisfactory and according to management, he would probably have been
retained except Lumpkins had been discharged earlier in the day for smoking on the
job.
These three discharges and reasons therefore must be examined in the whole
context of the case.16
14 Section 2 (11) defines the term "supervisor" to mean any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
10 2'aliedega Cotton Factory, Inc., 106 NLRB 295, 297.
10 At the times of these discharges the Company was experiencing a relative high per-
centage of turnover of employees, caused in part by the effort of management to secure
capable and reliable personnel.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Howard did not testify at the hearing, so that we have the considerably
different versions of Thorpe and Carr as to what Howard actually said when he
called the employees together to state his views and policy concerning the advisability
of a union organization in the scheme of company -employee relationship at Howard
Aero, Inc. The fact remains that Howard made his talk, and on either version,
the Trial Examiner believes, was intended to dissuade employees from the principle
of union organization . 17 Howard 's talk was extemporaneous . On reports of it
as given , it is certain that at the time Howard was aware of the efforts of the Union
to organize the employees of the Company, and that Howard , speaking for the
Company, was of the opinion , and so stated , that a union could not improve
working conditions.
By itself, Howard 's speech could be considered privileged under Section 8 (c) of
the Act.18 In the general context of the case, it cannot be ignored . It came at a
time when it could be most damaging to the cause of the Union and those of the
Company's employees who were engaged in a concerted activity toward self-
organization . It was demonstrated at the hearing by acceptable testimony that a
substantial number of employees were interested in the Union , and that at this time
some, if not quite a few, employees had belonged to the UAW or the International
Brotherhood of Machinists before starting to work for the Company.
Grady began actively to attempt to organize the employees of the Company on
August 20 ; Lumpkins and Barclay were discharged August 29 , for violation of a
rule which appears to have been violated by many others prior to that day 19 Howard
made his speech on August 31; at least two crew chiefs attended the first union
meeting on September 24; Thorpe was discharged on September 26. The Union by
Grady and Gray and their adherents was actively pressing for membership after
August 20 , and on and after September 26.
A great deal can be said pro and con in the case of Thorpe . He was unpopular
among some of the members of the crew with whom he worked ; he undoubtedly
falsified his application for employment . So far as the record reflects, he did the
work assigned to him satisfactorily , and at the end of his probationary period he
was rated low principally because of his "attitude "; however, after due and careful
consideration , his immediate supervisors decided to recommend him for permanent
employment . The Trial Examiner is moved to wonder why Thorpe was not imme-
diately discharged because of his preemployment record when Manuppelli received
information showing misrepresentation on about September 13, the expiration date
of Thorpe 's probationary employment.
Standing uncontradicted is Thorpe 's testimony regarding the interrogation, and
threats made to him, by Cockrell . No explanation was given at the hearing for
the failure of the Respondent to call Cockrell as a witness . After observing Thorpe
testify as a witness , and bearing in mind that he was an interested witness, the
Trial Examiner can find no reason to discredit Thorpe and refuse to accept his
testimony.
If it were necessary to decide the question , the Trial Examiner would credit Lump-
kin's report that Morrow , his crew chief , had asked him his feelings about the
Union in the presence of Foreman Terry. Nor, on the whole record, does it seem
necessary to decide whether Barclay's conversation with Terry was accurately
reported . It is abundantly clear that Morrow and Terry were well aware that
Lumpkins and Barclay were in favor of the Union.
The Respondent by able counsel forcefully argues, in support of its motion to
dismiss the complaint , that the General Counsel has failed to carry the burden of
proof necessary to show by preponderance of the testimony that the Respondent
engaged in or has engaged in unfair labor practices as alleged in the complaint. The
Respondent relies heavily upon N. L. R. B. v. Miami Coca-Cola Bottling Co., 222
P. 2d 341 (C. A. 5); N. L. R. B. v. National Paper Company , etc., 216 F. 2d 859
'-,Witnesses called by the Respondent who could not remember that Howard had made
any statement during the course of his talk in the way of threat or promise as to what
would happen if the Union were successful in its organizing efforts were, in the opinion
of the Trial Examiner, honest witnesses, and yet added nothing to the factual report, other
than personal impression, as to what Howard said at the time.
>e "The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evidence
of an unfair labor practice under any of the provisions of this Act, if such expression con-
tains no threat of reprisal or force or promise of benefit."
19 Uncontradicted testimony shows that the no-smoking rule was not fully enforced.
Morrow, a crew chief, denied smoking on the job in violation of the rule ; his testimony is
contradicted.
HOWARD AERO, INC. 1549
(C. A. 5); and N. L. R. B. v. Columbian Enamel & Stamping Co., Inc., 306 U. S.
292 and cases cited therein. But the Trial Examiner is not convinced that such well-
established precedent can apply in support of the Respondent's case here.
To establish a violation of Section 8 (a) (1) and (3) of the Act it is necessary
to show that the employer discriminated and that the purpose of the discrimination
was to encourage or discourage union membership or activity. The purpose may be
inferred, in the absence of direct evidence of motivation, and the Trial Examiner
believes the General Counsel has laid a proper basis for proper inference in this
case. In Radio Officers' Union v. N. L. R. B., 347 U. S. 17, the Supreme Court laid
down this principle:
.. . recognition that specific proof of intent is unnecessary where employer
conduct inherently encourages or discourages union membership is but an
application of the common-law rule that a man is held to intend the foreseeable
consequences of his conduct [citations omitted]. Thus an employer's protesta-
tion that he did not intend to encourage or discourage must be unavailing where
a natural consequence of his action was such encouragement or discouragement.
Concluding that encouragement or discouragement will result, it is presumed
that he intended such consequence. In such circumstances intent to encourage
[or discourage] is sufficiently established.
See Southern Desk Co., 116 NLRB. Cf. General Motors Corporation, 109 NLRB
1429, 1433.
The discharges of Lumpkins, Barclay, and Thorpe, in the full context of this
case, must necessarily have had the result of discouraging employees of the Company
in their right to self-organization and their engagement in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, and the
Trial Examiner so finds. The Company therefore must be found to have violated
Section 8 (a) (1) of the Act.
The discharge of Thorpe at the time it occurred and in the circumstances of the
case set forth above was a violation of Section 8 (a) (3) of the Act, and the Trial
Examiner so finds.
The interrogation and surveillance of employees by representatives of the Com-
pany as described above were in contravention of Section 8 (a) (1) of the Act.
The motion of the Respondent to dismiss the complaint is hereby denied.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action which it is found are necessary to effectuate the purposes
of the Act.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of James S. Thorpe on September 26, 1956, because he was
a member of a labor organization and was engaging in activities in support of
employees self-organization. The Trial Examiner therefore will recommend that
the Respondent offer to the said James S. Thorpe immediate and full reinstatement
to his former or substantially equivalent position, and make him whole for any loss
of pay he may have suffered by reason of such discrimination by payment to him
of a sum of money equal to what he would have earned as wages or salary from
the date of his discriminatory discharge on September 26, 1956, to the date of the
offer of reinstatement less his net earnings during such period in accordance with
the formula set out in F. W. Woolworth Co., 90 NLRB 289.
It has also been found that the Respondent by the discriminatory discharge of
James S. Thorpe on September 26, 1956, and the discriminatory discharges of Carl E.
Lumpkins and Hal Barclay on August 29, 1956, and by interrogation of its employees
and surveillance of their activities has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the Act. It will
therefore be recommended that the Respondent cease and desist from engaging in
these or similar acts in violation of Section 8 (a) of the Act.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. It
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will therefore be recommended that the Respondent be ordered to cease and desist
from in any manner infringing upon rights guaranteed to its employees by Sec-
tion 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Howard Aero, Inc., is an employer within the meaning of Section 2 (2) of
the Act, and is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. International Union, United Automobile , Aircraft and Agricultural Implement
Workers of America (UAW-AFL-CIO) is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of James
S. Thorpe, thereby discouraging the free exercise of rights guaranteed by Section 7
of the Act and discouraging membership in and activities for the above-mentioned
labor organization , 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 interfering with , restraining , and coercing its employees in the exercise
of rights guaranteed by Section 7 of the Act , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Inter-
national Union , United Automobile , Aircraft, and Agricultural Implement
Workers of America (UAW-AFL-CIO) or in or on behalf of any other labor
organization of our employees , by discriminating in any manner in regard to
hire, tenure , or any term or condition of employment.
WE WILL offer to James S. Thorpe immediate and full reinstatemnt to his
former or substantially equivalent position without prejudice to any seniority
or other rights previously enjoyed, and make him whole for any loss of earn-
ings as a result of the discrimination against him as set forth in the Inter-
mediate Report and Recommended Order issued by the Trail Examiner of
the National Labor Relations Board.
WE WILL NOT in any manner interfere with , restrain , or coerce our employ-
ees in the exercise of the right to self-organization , to form labor organizations,
or to join or assist the above -named or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from engaging in any or
all such activities, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of
employment in conformity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of any labor organization except to the extent above
stated.
HOWARD AERO, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.