Kenai Helicopters

National Labor Relations Board - Board Decisions

Apr 13, 1978

235 N.L.R.B. 931 (N.L.R.B. 1978)

KENAI HELICOPTERS
Kenai Air Service, Inc. d/b/a Kenai Helicopters and
Lloyd W. Moore. Case 37-CA-1303
April 13, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On November 30, 1977, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer thereto and cross-exceptions
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. it is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
On February 17, 1978, the General Counsel filed with the Board a motion
for reopening the record and remanding the case to the Administrative Law
Judge for taking additional testimony. Thereafler Respondent filed a
memorandum of points and authorities in opposition to motion for
reopening and remand. In his motion the General Counsel contends that
Gary Eitel, an admitted agent of Respondent during the relevant period,
who testified at the original hearing, has since then expressed a desire to
recant his testimony. While at the hearing Eitel corroborated denials by
Respondent's officials that they made various alleged unlawful statements in
his presence, the General Counsel now contends that, "It is believed" that if
Eitel is recalled as a witness he will recant his testimony at the hearing and
corroborate Bungcayao's (General Counsel's witness) testimony that serious
violations of Sec. 7 rights occurred. The General Counsel further contends
that "It is also believed" that Eitel will testify to certain admissions allegedly
made to him by Respondent's officials concerning other allegations in the
complaint and will give further testimony concerning Respondent's alleged
unlawful reasons for discharging Bungcayao and Moore.
Besides the substantial delay of some 3-4 months from the time the
General Counsel first learned of the witness' purported change of heart until
the filing of this motion, we note that the motion itself does not state with
any particularity the specific testimony that is being offered, nor are any of
the averments in the motion supported by affidavit or other evidence. In
addition, the type of testimony offered would have the effect, if any, of
merely attacking credibility. Coast Delivery Service, Inc.. 172 NLRB 2268
235 NLRB No. 130
(1968). We therefore find the General Counsel's motion is insufficient to
justify this extraordinary request and it is accordingly denied.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on
a charge filed by Lloyd W. Moore, an individual, on
November 2, 1976, the complaint herein was issued on
February 23, 1977. The complaint, as amended during the
course of the hearing, alleges that Kenai Air Service, Inc.
d/b/a Kenai Helecopters, herein called Respondent or the
Company, violated Section 8(aXI) and (3) of the Act.
Respondent, by its answer, denies that it engaged in
conduct violative of the Act as alleged.
Pursuant to notice, a hearing was held on the Island of
Kauai, Hawaii, on April 26-29, and May 2-6, and 9, 1977.
Appearances were entered on behalf of all the parties, and
briefs were timely filed by the General Counsel and
Respondent, which have been carefully considered.
Based on the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, an Alaska
corporation with offices in Kenai, Alaska, and Honolulu,
Hawaii, and a place of business at the Lihue Airport on the
Island of Kauai, Hawaii,' has been engaged in the
wholesale distribution and retail sale of helicopter tours. In
the course and conduct of its business in the past calendar
year, Respondent provided services valued in excess of
$50,000 to firms located within the State of Hawaii, each of
which meets the Board's direct standard for the assertion of
jurisdiction.
As is admitted by Respondent, it is, and at all times
herein has been, an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, Miscellaneous Service
Workers, Drivers & Helpers, Local 427 Teamsters, herein
called the Union, is and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
On May 10, 1976, the Union petitioned for an election.
On June 18, 1976, an Agreement for Consent Election was
approved. The parties agreed that an election would be
held on July 14, 1976, from 3 to 3:15 p.m. for a unit of all of
Respondent's pilots and mechanics working on Kauai. Of
the three persons on the eligibility list, only two persons
t Only Respondent's operations on the Island of Kauai are involved in
this proceeding.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were eligible to vote bcause the third employee, Richard
"Red" Johnson, had left the employ of Respondent. Thus,
when the votes were counted as 2 to 0 in favor of the
Union, Respondent knew that the only two voters, Fred
Bungcayao, a mechanic, and Lloyd "Bill" Moore, a pilot,
had voted for the Union. Certification of the Union as
bargaining agent of the unit of the aforesaid two employees
was subsequently issued on July 23, 1976.
The major portion of Respondent's operations on Kauai
is that of flying tour groups by helicopter over scenic areas
of the Island. Its principal source for such groups are
contracts with two tour companies Tauck Tours, and
Cartan Tours, although it also derives some business from
nontour visitors to the Island.
B. The Issues
The issues raised by the complaint and answer thereto
are whether or not Respondent violated Section 8(a)(1) of
the Act by the conduct alleged in paragraphs VI(a), (b), (c),
(f, as amended), (g, as amended), (h), (i), (j), (k), and (1) of
the complaint, and whether Respondent's discharges of
Moore and Bungcayao on October 29, 1976, were discrimi-
natorily motivated. 2
A further issue (which was litigated at great length) is
whether or not, in the event that it is found that Moore was
unlawfully discharged, he engaged in sufficiently flagrant
misconduct after his discharge to render him unsuitable for
further employment by Respondent.
C. Personnel of Respondent Involved Herein
Moore, a licensed helicopter pilot, employed by Respon-
dent about August 1975 on a part-time basis, became a
full-time employee of Respondent on or about December
15, 1975. He received his helicopter training in the U.S.
Army and was hired after he had logged over 1,600
helicopter flight hours in Alaska.
Bungcayao is a certified mechanic who has worked on
helicopters since January 1972. He was employed by
Respondent on or about October 15, 1975.
Richard "Red" Johnson, as above-mentioned, prior to
the time material herein was a pilot employed by Respon-
dent (from January 1974 to June 1976). During the time
material herein he had an interest in Papillon Helicopters,
Limited, which started operations in July 1976 in Kauai,
apparently competing with Respondent in furnishing scen-
ic helicopter flights over the Island of Kauai.
Paul Oliver is a "commercial rated helicopter pilot" who
started working for Respondent in February 1976, and was
discharged by Respondent on August 31, 1976. It is noted
that he did not vote in the election on July 14 because he
was not on the "eligibility list" for some reason which is not
clearly explained in the record. It is also noted that he filed
an unfair labor practice charge with the Board with respect
to his discharge which was dismissed "by the Region," and
that he filed an appeal but "Appeals" declined "to overturn
the Region's ruling." It appears from the record that during
the time material herein Oliver served as a steward for the
Union on Kauai. For example, Bungcayao referred to
2 Although there was an issue as to whether Gary Eitel, during the time
material herein, was an agent and supervisor of Respondent (as alleged in
Oliver as the "union steward" who kept him advised of the
progress of negotiations between the Union and Respon-
dent.
Vernon "Bud" Lofstedt, Sr., herein referred to as
Lofstedt, is president of Respondent which is owned by
him and his family.
Christy Lofstedt, herein referred to as Christy L., is the
daughter of Lofstedt and manager of Respondent's opera-
tions in Hawaii.
Curtis Lofstedt, Jr., herein referred to as Curtis L., is a
nephew of Lofstedt and manager of Respondent's opera-
tions on Kauai.
Michael Horita, who at the time of the hearing was both
assistant manager and chief of maintenance for Respon-
dent's operations on Kauai, was, during the time material
herein, chief of maintenance.
All of the above-named Lofstedts and Horita are
admittedly supervisors and agents of Respondent.
Gary Eitel, a self-employed marketing consultant operat-
ing under the business name of "Executive Air" and prior
to August 1976 Respondent's operations manager in
Alaska, was, as admitted in its brief, acting as a supervisor
and agent of Respondent during the time material herein.
Louella Millar is the secretary-dispatcher in Respon-
dent's office on Kauai.
Vernon Lofstedt, Jr., is Lofstedt's son. The record does
not disclose what position, if any, he held in the Company
but it does disclose that he participated in the negotiations
with the Union.
1. Paragraphs VI(a) and (b) of the complaint
It is alleged in paragraphs VI(a) and (b) of the complaint
that on or about July 14, 1976, Respondent, by Curtis L.,
unlawfully interrogated employees and "threatened an
employee that Respondent might close its Kauai location if
its employees selected the Union as their collective-bar-
gaining representative." Moore, Bungcayao, and Curtis L.
testified with respect to these allegations.
Moore testified that about 2 p.m., on July 14 (approxi-
mately an hour before the election), he had a conversation
with Curtis L., and his testimony with respect thereto is as
follows:
I had come back from a flight and walked into the
office, and Curtis asked me, Curtis Lofstedt asked me
to step out back. We walked back outside. Curtis said,
"If the union becomes a reality I will lose my job, and
there's a good chance the company will close down.
How are you going to vote?" I said, "I have made up
my mind and you will know shortly."
Bungcayao testified that on the morning of July 14,
Curtis L. walked into the hangar where he (Bungcayao)
was working and asked him "if anyone from the union had
talked to me"; that he replied in the negative; that Curtis
L. "then told me that the company doesn't want the union
to get in," and if it did, "he would lose his job."
Curtis L. testified as follows:
par. V(c) of the complaint), in its brief Respondent withdrew its denial of
said allegation.
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KENAI HELICOPTERS
A. Mr. MacCarthy, who was taking the vote in the
office, was ready for the voting to take place. He said,
"You have Fred and Bill come in?"
THE JUDGE: Said to whom?
THE WITNESS: It wasn't directed to anybody. He
said, "Could you have Fred and Bill come to the office
for the vote?" I just took it upon myself, and I said, "I
will get them."
THE JUDGE: I see.
THE WITNESS: So, I went outside. Bill Moore was by
the helicopter. I went up to Bill and I said, "Have you
made up your mind how you are going to vote?" He
said, "Yes." I said, "They are ready to vote."
Q. (By Mr. Katz) Was there anything else said?
A. No, that was all.
Q. What did you see Mr. Moore do after those
comments were made.
A. He went into the office, or he walked that way,
and I saw him turn towards -
Q. I'm sorry. What did you do after you saw him
walk toward the office?
A. I went over to our aircraft hangar.
Q. And what did you do, if anything, at that time?
A. Fred Bungcayao was in the hangar, and I went
in the back and told Fred, "They are ready for the
vote."
THE JUDGE: That's all you said to Fred?
THE WITNESS: That's all I said to Fred.
Q. (By Mr. Katz) Did Fred make any response to
you?
A. He said, "Okay," and I went out of the hangar
first, and he came out behind me and went into the
office.
Further, Curtis L. categorically denied the above testimony
of Moore and Bungcayao.
I find that Curtis L. was a more convincing witness than
Moore and Bungcayao. Moreover, the record is devoid of
any evidence that Respondent engaged in any campaigning
prior to the day of the election. It appears unlikely that
Respondent's management would refrain from any such
activity until the day of the election and then at the last
moment attempt to influence the employees to vote against
the Union. I am not persuaded by General Counsel's
contention that Curtis L. at the last moment got "nervous."
Consequently, I find that the General Counsel has failed
to prove by a preponderance of the evidence the allegations
in paragraphs VI(a) and (b) of the complaint.
2. Paragraph VI(c) of the complaint
In paragraph VI(c) of the complaint it is alleged that on
or about August 4, 1976, Respondent, by Curtis L.,
"created the impression of surveillance of employees'
activities on behalf of the Union." Moore, Curtis L., and
Christy L. testified to the incident upon which this
allegation is predicated. It is undisputed that the three had
lunch together on August 4, during the course of which
a The General Counsel argues that they were trying to remove him from
the bargaining unit by seducing him into becoming a supervisor by making
him chief pilot. The facts that he had been previously offered the job, and
Moore was offered the job of chief pilot. Moore testified to
the pertinent portion of their conversation as follows:
A. Curtis began the conversation. He said, "We
have brought you here today to discuss you being chief
pilot." I said, "I don't understand why. Because of the
union vote?" Curtis said, "Well, we really don't under-
stand the reasons for joining the union because we feel
the union would ruin the company and would take
control of the company away from us."
I then tried to explain to him what my reasoning was
for supporting the union all along. Curtis said, "Yeah, I
know you are the ringleader. You talked Fred into it
because he wouldn't have done it on his own." I asked
him, "Well, if you feel that way why are you offering
me chief pilot?" He never replied.
I asked it again. Christy finally said, "We're offering
you chief pilot because the company needs one now,
and you have to realize that if you accept the position it
will mean you will have to put in extra hours and that
you will supervise company operations, along with
Curtis, and that in Curtis' absence you will be in
charge."
I told them I couldn't reply, couldn't accept the job
until I talked to Monty Carpenter, my union represen-
tative, and got his okay. Christy said that would be all
right, but they had to have their answer tomorrow, and
in writing.
Both Curtis L. and Christy L. testified that Moore's reply
to their offer was to the effect that he asked them why they
were offering him the job in view of the fact that he voted
for the Union, and that Curtis L. said that the offer had
nothing to do with the Union. Both also testified without
contradiction that he had been offered the job previously
(in April 1976) and it appears that he turned it down
because Johnson (who was employed by Respondent at the
time) was a friend and might resent his being made chief
pilot. Both denied Moore's testimony with reference to his
being a "ringleader" and his influencing Bungcayao. Also
both testified that he said that he would have to check the
offer with Carpenter, the Union's business representative,
and Christy L. testified that Curtis L. said "that was fine."
I credit the testimony of Curtis L. and Christy L., not
only because they were more convincing witnesses, but also
it appears unlikely that either of them would accuse him of
being a ringleader and influencing Bungcayao at a time
they were trying to persuade him to accept a job with
added responsibilities and work and no additional remun-
eration,3 as disclosed by uncontradicted and credited
testimony.
Consequently, I am of the opinion that the General
Counsel has failed to prove by a preponderance of the
evidence the allegation in paragraph VI(c) of the com-
plaint.
that no additional remuneration was offered, despite the additional
responsibilities and work tend to indicate that the job was not being offered
to him for the purpose which the General Counsel contends.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Paragraphs VI(f) and (g)4
It is alleged in paragraphs VI(f) and (g) of the complaint,
as amended, that "on or about mid-September, 1976,"
Respondent, by Lofstedt, threatened an employee that it
"would close its Kauai facility rather than have its
employees represented by a union," and "with the possible
loss of job and other employment benefits unless he
discouraged employees' support for the Union."
General Counsel relies in support of these allegations on
the testimony of Moore with respect to a conversation he
had with Lofstedt in the second week of September. s There
is no dispute that Moore asked for a meeting with Lofstedt
which led to their conversation. Moore's version of their
conversation in the presence of Curtis L. is as follows:
A. I began the conversation because I requested
the meeting. I attempted to explain to Bud my
reasoning for supporting the union. He said that he felt
that I had let him down and that he was disappointed
in my actions. I asked him specifically if he felt I had
stabbed him in the back, and he said, "Yes." I said,
"Well, you should realize I didn't, because I'm sitting
here now trying to explain to you everything that has
gone on and the reasons for it."
* * *
A. After I tried to explain to him why I hadn't
stabbed him in the back, Vernon Lofstedt, Sr., said, "I
don't like the union. I have never seen the union do
anything but bad for people, and if you really are
sincere and want to regain my confidence you will go to
Honolulu and get rid of the union. I'm not making any
threats, but I would rather close the company than have
a union."
I told him that I couldn't do anything for a year, and
he said, "I don't care. I expect you to get rid of the
union."
Q. Were other subject matters discussed during
that conversation besides the union and negotiations,
other than what you have testified to already?
A. To the best of my memory, no.
Lofstedt and Curtis L. testified with respect to the
conversation between Lofstedt and Moore. It appears from
their testimony that Curtis L. was not present at the start of
the conversation. Their version of the substance of the
conversation differed completely from that given by
Moore 6 and both categorically denied that Lofstedt made
the antiunion statements attributed to him by Moore. It is
noted that Respondent paid Moore's expenses for a trip to
Honolulu to attend a bargaining session on October 8 in
order, according to Moore, to help "conclude a bargain."
Not only was the testimony of Lofstedt and Curtis L. more
convincing, but also it appears most unlikely that Respon-
4 Pars. Vl(d) and (e) of the complaint were stricken by the General
Counsel at the commencement of the hearing.
5 It was originally alleged that the conduct occurred "on or about
October 8, 1976." I do not consider the variance in the date originally
alleged and the date testified to as sufficiently critical to constitute a basis
for dismissal of the allegations. General Counsel amended the two
paragraphs in the complaint to conform the date with Moore's testimony.
dent would have paid to have Moore attend the October 8
bargaining session if the statements of strong antiunion
attitude and resentment towards Moore had been uttered
by Lofstedt, as Moore testified.
Consequently, since I credit the aforesaid denials of
Moore's testimony, I conclude that the General Counsel
has failed to prove by a preponderance of the evidence the
allegations in paragraphs VI(f) and (g) of the complaint.
The Discharges of Moore and Bungcayao
There is no dispute that Moore and Bungcayao were
discharged on October 29, 1976. The issue is whether or not
their discharges were discriminatorily motivated, and a
resolution thereof rests chiefly on a resolution of certain
conflicting testimony of Millar and Moore as to a conver-
sation which she (Millar) testified she had with Moore
early in the morning of October 29.
Millar testified that the conversation occurred between 8
and 8:15 a.m. Her testimony with respect thereto is as
follows:
Lloyd came in and sat down, or made a cup of coffee
and sat down in front of my desk. He said, "Well, it's
all settled." I said, "What?" He said, "The union is
going to strike." I said, "When?" He said as soon as
they got authorization from the east coast.
He said, "Lou, you don't need to worry about
anything." He said, "We'll take care of you. We're
going to use Red Johnson's helicopter, which is due on
the Island the following Wednesday and we'll use his
helicopter until I can get one from the mainland." Then
he said, "You can work for us and do the same job as
you're doing now." He said that Fred was a little
reluctant at first, but he had had a conversation with
him, a long conversation the night before, which was
the 28th and that Fred was going to come with them
now, and they would take over the company, strike -
the Kenai strike - the struck business, groups, tour
groups.
She further testified that Moore left to go to the hangar;
that shortly thereafter Eitel came into the office; that she
stated to Eitel what Moore had said to her; that Eitel said
"we had better tell" Curtis L., who had walked in about
that time; that Eitel had her repeat to Curtis L. what
Moore had said; and that Curtis L. said, "I think we had
better tell Bud [Lofstedt]."
On direct examination (prior to Millar's testimony)
General Counsel questioned Moore about his conversation
with Millar on the morning of October 29. He testified that
when he came in the office that morning Millar asked him,
"What is happening with you guys? I have been expecting a
strike ever since the bargaining session." He further
testified as follows:
6 No purpose would be served in setting forth their versions of the
conversation which in the main consisted of a discussion of Moore's
criticism of the operations on Kauai under the supervision of Curtis L.
According to Lofstedt the only reference he made to the Union was "if I had
not wanted the union I would have done something about it a long time
ago."
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KENAI HELICOPTERS
I told her that strike authorization had to come from
Washington, D.C., but that Monty Carpenter was
trying to get a federal mediator because we didn't want
to hurt the company by a strike and possibly have it
close down.
He also testified that that was all the conversation between
them and that shortly thereafter Eitel and a man he
believed to be a representative of Bell Helicopter came in.
His testimony continues as follows:
A. I said, "Hey, I hear Red Johnson just bought
the president of Bell Helicopters' old helicopter." We
began a discussion about what the helicopter had on it,
or would have on it, and how it would be better or not
be better than the normal model.
Q. How long did that part of the conversation
continue?
A. Probably until about a quarter after 8:00,
because that's when I had to go fly.
He then denied the substance of Millar's subsequent
testimony about their conversation. On the other hand,
both Millar and Eitel denied that the conversation between
Moore, Eitel, and the Bell representative, to which Moore
testified took place, and also denied that said representa-
tive (who was identified as Charles Curtis) was in the
office, on October 29. Eitel testified that Curtis was in the
office about 10 a.m. on October 28, and that Moore was
not present at any time Curtis was there. It is noted that on
cross-examination Moore was unable to describe in any
particular the man he believed to be Curtis. It further
appears from Eitel's testimony that Moore was not in the
office on the morning of October 29 when he (Eitel)
entered it.
Millar and Eitel were more convincing witnesses than
Moore and their above-outlined testimony is credited.
Moreover this finding is buttressed by the subsequent
conduct of the parties as evidenced by further credited
testimony.
It is found, based on credited testimony, that Eitel asked
Millar to write down what Moore had told her; that she did
so; that Horita took her handwritten statement to the
district attorney's office ostensibly to have it put in the
form of an affidavit; that Horita returned her original
handwritten statement and the typed affidavit; and that
she took the affidavit to the bank and had it "notarized."
It is further found that in the meantime Curtis L. called
Lofstedt, who was in Honolulu; that Eitel was on the
extension phone when Curtis L. talked to Lofstedt; that
Curtis L. repeated to Lofstedt what Millar had told him of
her conversation with Moore; that during their telephone
conversation there was a discussion about recent engine
failures during which Lofstedt asked whether they could be
tied into what Moore had stated to Millar; that Curtis L.
responded that "it's very possible"; that all three agreed
that Moore and Bungcayao could not be trusted anymore;
and that Lofstedt stated, "If we can't trust them we had
better get rid of them right away," and instructed Curtis L.
and Eitel to take steps to discharge the two employees; and
that Curtis L., assisted by Eitel, prepared their letters of
termination.
Curtis L. instructed Moore and Bungcayao to meet him
in the office at 3:30 that afternoon. When they arrived
Curtis L. asked them to step outside which they did. Curtis
L. testified that he stated to the two men who were
standing in front of him:
I have heard this morning that you plan on going on
strike, that Red Johnson had a helicopter coming from
the Mainland, that you were both going to join forces
with Red Johnson ...
He went on to state to them that he had heard also that
they -
were going to use this strike, that they had planned, to
tie up Kenai Helicopters and take away our contract
tours while they tied it up with a strike.
Curtis L. further stated to them:
In this type of business, when you deal with the lives of
thousands of people every year, that if you can't trust a
pilot and mechanic, you can't have them around [and]
that as of now, I can't trust either one of you and you
are terminated as of this moment.
The testimony of Moore and that of Bungcayao as to the
conversation about their termination not only vary consid-
erably from that of Curtis L., but also from each other's.
Moore testified as follows:
Curt [Curtis L.] said, "I know what you told Lou
[Millar] this morning and that's why you are terminat-
ed." I said, "I don't understand. What do you mean?
What did I tell Lou this morning." Curt gave me a letter
and said, "I know what you told Lou this morning
about Red's new helicopter, and I let Red go too far,
and I'm not going to let you guys get away with it."
I was reading the letter, I just couldn't understand
what was going on. I was just really shocked. I said
again, "I don't understand. What I told Lou this
morning was in front of - about Red's helicopter -
was in front of Gary Itel [Eitel] and Bell tech represen-
tative." And Red said, "I know what you" - excuse me
- "Curtis said I know what you told Lou, and I let Red
go too far and I'm not going to let you guys get away
with it."
I said, "In the letter you say I burned the engines,
and that because of my union activity." I said, "That's
slander."
Well, after that I really can't remember what I said. I
was just totally lost.
THE JUDGE: Where was this conversation? All
outside?
THE wiTNESS: All outside, yes, sir.
THE JUDGE: He handed you the letter outside?
THE WITNESS: Yes, sir.
Q. (By Ms. Hamamura:) Do you recall anything
else being said?
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He began talking with Fred, directly to Fred.
Fred asked him a question, or he asked Fred a
question, and I was just reading the letter,7 trying to
figure out - trying to remember what I possibly told
Lou that would have caused all this, and I couldn't
come up with anything.
Q. Do you recall anything else being said?
A. To the best of my memory, no.
Q. Do you remember whether Mr. Curtis Lofstedt
said anything about the letter?
A. Only that it was the reason I was being termi-
nated. After I told him that it was, you know, how
could he say I burned the engines, he said, "Well, we
don't really mean that you did those things, but we
can't take any chances."
Bungcayao testified as follows:
A. Curtis Lofstedt told us, "As of this day you both
are terminated." Then Lloyd Moore asked him, "On
what grounds?" He said he had some letters for us.
So we walked back toward the office, he went in, got
the letters, gave it to us.
Q. And what if anything was said at that point?
A. Well, Lloyd and I opened up the letters, and I
was reading and I heard Lloyd ask Curt if he wanted to
change one of the phrasings in the letters, and Curt said
he don't want to change it.
Q. Do you remember what phrase it was?
A. I don't remember.
Q. Go on.
A. And then he asked me if I had any questions.
Q. Who is the "he?"
A. Curtis Lofstedt. He asked me if I had any
questions and I told him, I asked him if he could give us
a two weeks' notice. He said, "We just can't trust
anybody," and then I asked him -
THE JUDGE: Wait a minute, wait a minute, wait a
minute. You asked him if he would give you a two
weeks' notice? What was his answer?
THE WITNESS: He said they couldn't trust nobody.
Of the three witnesses, Curtis L. was the most convincing
and therefore his version of what was said is credited. It is
noted that Moore corroborated the reference Curtis L.
made to Moore's conversation with Millar, while Bungcay-
ao omitted any reference to that, or to the conversation
The letter to Bungcayao is as follows:
Effective this date 29th October 1976, your employment with Kenai
Helicopters, inc. is terminated for the following reasons:
I. Your apparent efforts to undermine Kenai Helicopters, Inc.
commercial market.
2. The recent unexplained mechanical failure of our helicopters.
3. Your relationship with our competitor, in so much as you and
he would benefit if Kenai Helicopters, Inc. were to sur-come [sic to
unexplained mechanical failures. refer: (4) recent turbine failures
4. A lack of confidence that is required not only for our continued
relationship, but for the safety of our customers.
The letter to Moore was the same except for paragraph number 2 which,
instead, is as follows:
which Moore testified he had that morning with Eitel and
Curtis in front of Millar.
Based on the above-credited testimony, I am convinced
that the discharges were not motivated by the protected
activity of the two employees, i.e., either their adherence to
the Union or a contemplated strike to aid the Union's
bargaining, but rather by the reasonable belief that they
were going to use a strike to divert Respondent's business
to a competitor whom they were going to join and, thus,
were planning to be disloyal to Respondent. I am not
persuaded by General Counsel's argument to the effect
that Respondent seized upon the conversation Moore
testified he had with Eitel and Curtis on the morning of
October 29, to fabricate the testimony of Millar and use it
as a pretext for the discharges.8 Since I find that the reason
for the discharges was a reasonably based fear that the
employees planned to be disloyal to Respondent, as above
stated, I am led to the conclusion that they were not
discharged for engaging in protected activity as alleged in
the complaint and that said allegations have not been
proved by a preponderance of the evidence. N.LR.B. v.
Local Union No. 1229, International Brotherhood of Electri-
cal Workers, A.F.L [Jefferson Standard Broadcasting Com-
pany], 346 U.S. 464, 472-473 (1953); M Restaurants,
Incorporated d/b/a The Mandarin, 223 NLRB 725, 729
(1976).
4. Paragraphs VI(h), (i), (j), and (k) of the
complaint
The allegations in paragraphs VI(h), (i), (j), and (k) of the
complaint are that "on or about October 30, 1976,"
Respondent engaged in the following conduct: (a) by
Lofstedt in that he "threatened an employee that employ-
ees who supported the Union would not receive promo-
tions"; (b) by Lofstedt in that he "threatened an employee
with loss of future employment if that employee engaged in
union activities"; (c) by Eitel in that he "told an employee
that he had been laid off because of his union activities";
and (k) by Eitel in that he "told an employee that if he
returned to work for Respondent, he could no longer
belong to the Union."
General Counsel relies on the testimony of Bungcayao to
support the aforesaid allegations. Bungcayao's testimony is
with respect to an interview he had with Lofstedt in which
he attempted to regain his job. Curtis L., Eitel, and Horita
were present during the interview.
2. Your conversation this date, of possible up comming [sic ] union
strike.
This paragraph ostensibly was intended to refer to his conversation with
Millar in which according to Millar's credited testimony disclosed that the
strike would attempt to accomplish ends which, as found below, rendered it
outside the protection of Sec. 7 of the Act.
8 It is noted that Millar testified that, on the night of October 29, Moore
called her and asked her "why" she had told Curtis L. about their
conversation that morning and that she told him that she did not want to
discuss it and hung up. On the other hand, Moore denied her testimony and
testified that he called her on October 31 and asked her "what" she had told
Curtis L. She denied that she had a telephone conversation with Moore on
October 31. Not only was Millar the more convincing witness, but also I
find it difficult to believe that Moore would have waited 2 days to find out
what she had told Curtis L., if he had not known. Consequently, I credit
Millar's testimony on this point.
936
KENAI HELICOPTERS
In the evening of October 29, Bungcayao received a call
from Horita, who was his immediate supervisor and who
had been responsible for his employment by Respondent.
It appears that Horita was concerned about Bungcayao.
He asked Bungcayao to come to his home with his wife and
told him he wanted to talk about his dismissal letter. They
came to Horita's home and according to both Horita's and
Bungcayao's testimony Horita told Bungcayao that he
"didn't think he was capable of intentionally damaging
company property or endangering lives." Horita offered to
see if he could do anything about getting him reinstated.
Horita testified that early the following afternoon he
asked Lofstedt if he would "hear out" Bungcayao and
consider rehiring him. Lofstedt agreed; Horita called
Bungcayao and told him Lofstedt would "hear him out"9
and suggested that he come to the office as soon as
possible. Bungcayao arrived in less than an hour. After he
arrived, he and Horita went into the office and met
Lofstedt, Curtis L., and Eitel. There is a considerable
difference between the testimony of Bungcayao and that of
the other four as to what was said at their meeting.
Bungcayao testified as follows with respect to the
meeting:
A. Well, Bud [Lofstedt] asked me, he asked me
about my feelings, and I told him that I wanted to
know the real reason why I was fired. Then he went on
about talking about the union, saying -
THE JUDGE: Just tell us what he said, not what he
talked about. What he said.
THE WITNESS: Well, he said how bad the union was,
and he didn't like the union. Then he said that, "Since
you no longer belong to Kenai, I can say anything to
you and you couldn't use it in Court, and if anything I
say in this office," well, if I would go out of this office
a.,d say anything to Lloyd and Paul, it would get back
to him.
Then he said that - he said the union was a bunch
of gangsters, and they didn't like the union, and he said
THE WITNESS: He said that even if the union would
settle some kind of contract, that we would get nothing.
Q. (By Miss Hamamura) "We," being the employ-
ees?
A. Yes.
. * *
A. And then he said that like before the union
came in, he said that Lloyd Moore had a lot of
potential of being some kind of sales representative or a
chief pilot, and since we joined the union we, you
know, he would just stay a pilot, he wouldn't get
nothing, and anybody else who joined the union would
just stay employees.
He told me that there was nothing wrong with me,
and that I was misled by Paul Oliver and Lloyd Moore
9 Bungcayao testified that Horita said to "get the reasons why I was fired
ironed out." I do not believe this variance in their testimony is crucial and
needs to be resolved.
because I didn't have enough experience in the helicop-
ter industry . . .
* *
A. He said that I wasn't in the helicopter industry
long enough to where Paul Oliver and Lloyd Moore
had been, and that he believed that I didn't bring the
union in -
THE WITNESS: And then Gary Eitel was there, and he
told me, "I don't know if you know it or not, but as of
October 29, you no longer belong to Local 427." And
he said that the letter that was given to us wasn't the
reasons why we was fired, just that when we joined the
union it no longer became - it became a separate thing
between management and employees, and that it no
longer was a unit.
He [ostensibly Lofstedt] said that aviation, the pilot
and mechanic have to be on good terms, and he said
that they didn't want to lay us off but they couldn't
trust nobody.
Then he said there's a good chance of me coming
back to work, but they would have to have an honest
feeling for me that I want to come back to work, and
that if I would go back to work I would tell Lloyd
Moore and Paul Oliver that I "want nothing to do with
you." He said that when I came back to work I would
start from day one and no longer belong to the union.
Then he said what is my decision, whether I wanted
to come back to work or not. Then Mike Horita said
that he wanted to talk to me outside, and so we both
went outside of the office and he told me that it was a
good idea to come back, since I had a wife and a child
on the way.
Q. Your wife was expecting a baby?
A. Yes.
Q. What did you reply, if anything?
A. So I agreed with him. So we went back and I
told Bud that I wanted my job back.
Q. Who was present during this part of the conver-
sation? The same people?
A. Same people.
Q. Go on.
A. I told Bud that I wanted my job back, and I told
him that - I didn't know too much about the union,
and I was confused, and that I was a family man, and
that I wanted to come back to work, and he told me -
then he told me that -
Q. This is Bud?
A. Bud Lofstedt. Again, he repeated, he said that
there was nothing wrong with me and that I was misled,
and that I was a victim of circumstance and that if I
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted to come back to work I would have to, you
know, stand up to Lloyd Moore and Paul Oliver and
tell them that I want nothing to do with them.
I said, "Yes." Then he said that, "You said this now,
and then later on, you know, you jump the fence, you
know, you go back to the union," and this is Bud
talking. He said, "That's when you and I are finished. I
want nothing to do with you." I said, "Okay." Then he
said, "Come back to work and we'll bridge the two days
and forget what happened." This is the best I can
remember.
The four others who were present denied substantially all
of the above-quoted testimony of Bungcayao particularly
with regard to statements about the Union, or relating
thereto; i.e., all of the testimony which would support the
above four allegations.
Set forth herein below is the testimony of Horita as to
what was said and what occurred. His testimony was
substantially the same as that of the other three. Horita
testified as follows:
A. Conversation was primarily between Fred and
Bud. Fred told Bud that he was a victim of circum-
stances, and that he was misled. He emphasized that he
had some responsibilities, and that he would like to
have his job back. And Bud told Fred that he didn't
know - he told Fred that he needed honest and
trustworthy people, and that he didn't know right now
whether he could hire Fred back or not, and he also
told Fred or asked Fred if he was willing to work hard
and show that he could be trusted.
At this point I sensed, or I felt that Fred was getting
a little emotional, so I asked if Fred and I could go
outside for a while.
Q. Did you go outside?
A. Yes, we did.
Q. Was anything said while you were outside with
Fred?
A. I did most of the talking while we were outside.
I reemphasized to Fred his responsibilities, and I said
Q. I'm sorry, excuse me for interrupting you.
A. I suggested he make every effort in trying to get
his job back.
Q. What responsibility, if any, did you refer to?
A. I was talking about his home that were just
newly completed, and a wife with a baby near at hand.
Q. Did Fred make any reply to those statements?
A. I can't recall just exactly what he said, but his
reply was like agreeing with me.
Q. What did you do after you and Fred had this
conversation outside?
A. We went back in.
Q. Was anything else said after you went back
inside with Fred?
A. I took the advantage and spoke out to Bud and
I told Bud that I would like full responsibility for Fred
if he would consider giving Fred his job back.
10 It is quite possible that there was a warning that he disassociate
himself from Moore and Oliver, but, if there was such a warning, I find that
it must have been reasonably understood to have meant that he was not to
Q. What else was said if anything?
A. Well, Bud told Fred that he could have his job
back, but that he would be under strict observation for
a short period of time, thirty days.
Q. Anything else said at that time?
A. I believe Fred thanked Bud for giving him
another chance and he told Bud that he'd be a good
employee and would do a good job.
Bud told him that he admired.Fred for being a man
and standing up for what he believed in.
Q. (By Mr. Katz) Was anything else said at that
time?
A. I believe that was the close of our meeting.
Q. Was there anything said about when Mr.
Bungcayao would resume employment?
A. Yes. Bud told Fred to return to work at 8:00
o'clock the next morning, and he also told Fred that
other than the observation period he would levy no
other penalties.
Horita, Lofstedt, Curtis L., and Eitel were more convinc-
ing witnesses than Bungcayao and therefore their denials of
those portions of his testimony which would support the
aforesaid four allegations are credited and Horita's version
of the meeting, substantially corroborated by Lofstedt,
Curtis L., and Eitel, is credited.' 0 Consequently it is
concluded that the General Counsel has failed to prove by
a preponderance of the evidence the allegations in para-
graphs VI(h), (i), (j), and (k) of the complaint.
It is noted that the next day Bungcayao notified
Respondent that he had decided not to accept the offer of
reinstatement. The only explanation for said refusal in the
record is that Moore became very angry with him when he
told Moore of his intention to go back to work. It is further
noted that after their discharges both Moore and Bungcay-
ao did perform some services for Johnson's Helicopter
Company.
5. Paragraph VI() of the complaint
It is alleged in paragraph VI(l) of the complaint that on
or about November 1, 1976, Lofstedt "promised to re-
employ an employee if that employee would solicit the
Union to withdraw as collective-bargaining representative
of Respondent's employees."
On November 1, Moore and Bungcayao went to Respon-
dent's office to pick up their paychecks, and while they
were there Lofstedt had a conversation with Moore. It
appears that Millar was in the office during the conversa-
tion. Moore's testimony with regard thereto is as follows:
When I asked for my final paycheck and vacation
pay, Mr. Vernon Lofstedt, Sr., said that I wasn't
entitled to vacation pay because I had been fired. He
take part in the plan to use a strike to divert Respondent's business to a
competitor.
938
KENAI HELICOPTERS
said, "Now that you no longer work for me, I can say
anything I want to you, and I would like to know just
what you gained by causing all this." He said, "I have
never seen the union do anything but bad for people,
especially the Teamsters who are really crooked." He
said, "Monty Carpenter is back in Honolulu drawing
his nice fat Teamster's pay, and forgotten about you.
And here you and Fred are out of jobs. What good did
it cause you - what did you gain?" I didn't say
anything. He said, "I am a good Christian man. The
Lord is first and I am second, and because of this I
don't hold any malice in my heart against you. And if
you were to go to Honolulu and get rid of the union,
you could have your old job back and we would start
over again from day one." ' 1
There was no more said after that, but it was all I
could do to hold my temper, so I just didn't say
anything. We walked out of the office, I believe, and he
handed me my paycheck, and I wasn't listening to
anything that was being said. I just walked out the
door.
Bungcayao testified that he was present during the
conversation but did not pay "too much attention" to it;
but that he heard the last part of the conversation just
before he and Moore left. He testified that at that point
Lofstedt said, "You guys brought the Union in, and you get
it out and you guys can come back to work." 12 [Emphasis
supplied.]
It is noted that both Millar and Lofstedt testified that
Bungcayao was present during the very first part of the
conversation.
It is also noted that in his affidavit given the next day
there is no reference to the statement Bungcayao testified
that he heard. Millar testified that she did not hear any part
of the conversation between Lofstedt and Moore.
Lofstedt testified to the conversation as follows:
A. Lloyd, as I remember, came in for his check,
and I believe he asked for vacation pay. I told him that
under the circumstances there would be no vacation
pay coming.
Q. Was anything else said?
A. I asked him why all this bitterness, and we had
just a general conversation back and forth. It led up,
just to summarize - I asked him to do some soul-
searching, because he wasn't acting himself. It was very
unusual. Do you want me to go into detail?
Q. Yes, please tell us what you remember being
said in that conversation.
A. I told him when you have bitterness in your
heart like you have, I told him the way Mom and I take
care of a matter like that, we pray about it. And I asked
him if he wouldn't consider going home and talking to
his wife and praying about it and see what brought all
of this about.
He agreed that there was bitterness, and he said he
would. That was about all that was said that day.
1t This is the statement which, if credited. would support the allegation.
12 The one statement which relates to the allegation, it is noted, is the
only one which Bungcayao claims to have heard.
Further, Lofstedt denied that portion of Moore's and
Bungcayao's testimony in which he made references to the
Union and getting rid of the Union in order to get their
jobs back.
The testimony of Lofstedt and Millar that Bungcayao
was present only during the very first part of the conversa-
tion is credited. It is noted that, while Moore's testimony
indicates that it was only he to whom Lofstedt referred in
his remark about getting rid of the Union (the statement
which relates to the allegation), Bungcayao testified that
the statement referred to both of them ("you guys").
As to the content of their conversation, Lofstedt was a
more convincing witness than Moore and Bungcayao and
therefore his version of the conversation and denial of the
statements they attributed to him are credited. Conse-
quently it is concluded that the General Counsel has failed
to prove by a preponderance of the evidence the allegation
in paragraph VI(l) of the complaint.
Moore's Postdischarge Misconduct
A considerable portion of the record is devoted to
litigation of whether Moore engaged in such misconduct
on the picket line and elsewhere as to render him
unemployable (in the event he is found to have been
discriminatorily discharged). Since I have not found that
his discharge was discriminatorily motivated, no purpose
would be served in considering in this Decision the vast
amount of the record relating to this issue. However, since
I have reviewed that portion of the record, I am in a
position to state that I find that Respondent has establish-
ed by the documentary evidence and by credited testimony
(including the testimony of the aviation expert whom I
called as my witness) that he did engage in sufficiently
flagrant misconduct as to have tolled his backpay and to
have made it inappropriate to order his reinstatement, had
it been found that his discharge was unlawful.
The Offer to Reinstate Bungcayao
During the course of the hearing Respondent's counsel
indicated that its offer to reinstate Bungcayao on October
30, which he declined on the following date,'3 would toll
any backpay due him and relieve Respondent of the
obligation to offer him reinstatement, had he been discri-
minatorily discharged. Although it has not been found that
his discharge was unlawful and, therefore, it is unnecessary
to pass upon this contention, it can be noted that there is
no merit to Respondent's aforesaid contention, inasmuch
as the offer of reinstatement was only for a probationary
period of 30 days.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
13 Fully discussed hereinabove.
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. The General Counsel has failed to prove by a
preponderance of the evidence any of the allegations in the
complaint that Respondent violated Section 8(a)(1) and/or
Section 8(a)(3) of the Act.
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 14
The complaint herein should be, and is hereby, dismissed
in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
940