McDonnell Douglas Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1984

270 N.L.R.B. 1204 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDonnell Douglas Corporation and Robert H.
Mourning. Case 31-CA-1435
15 June 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 October 1983 Administrative Law Judge
Russell L. Stevens issued the attached supplemental
decision. All parties have filed exceptions and sup-
porting briefs. The Charging Party and the Re-
spondent each filed answering briefs to their oppo-
nents' cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions and to adopt the recommended
Order. 3
t The judge ruled inadmissible G.C. Exh. II which is a position state-
ment submitted by the Respondent in connection with the 1978 Board
proceedings in this case. We reverse the judge's rulings in this regard and
admit G.C. Exh. 11. In doing so, we find no prejudicial error was com-
mitted by the judge in excluding this exhibit since the judge fully ana-
lyzed the exhibit on the grounds for which it had been offered and be-
cause this exhibit was already a part of the official record in this case
permitting administrative notice if so desired.
a The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We do correct the following inadvertent errors of the judge which do
not affect our agreement with his decision. In his decision at fn. 1, the
judge mistakenly refers to the company merger as having occurred
"after" instead of correctly "before" Mourning's discharge. In his deci-
sion at fn. 58, the judge mischaracterized the health condition of Mourn-
ing's son. We have ignored that mischaracterization.
s We reject all arguments raised by the Respondent in its attempt to
eliminate any backpay due Mourning. In particular, for the backpay
period found by the judge, the Respondent urged complete disqualifica-
tion of Mourning on the basis that this case's litigation history created a
"special circumstances" exception to toll Mourning's backpay. The Re-
spondent claimed that the Board's 1978 decision in this case represented
an abrogation of existing Board precedent which adversely affected the
Respondent. We reject the Respondent's claim, noting that the 1978 deci-
sion was not a change in Board precedent but merely a factual reevalua-
tion of the record as a result of the intervening court appeal, necessitating
a result different from the Board's 1975 decision in this case. We further
find nothing so unusual in the protracted litigation of this case so as to
deprive Mourning of his entitlement to backpay. Another defense raised
by the Respondent is that Mourning purportedly gave false and evasive
testimony and tried to limit his interim earnings after the third quarter of
1971 which behavior amounted to an attack on the Board's processes. We
find this argument to be groundless in light of the record. The few in-
stances where the judge has not fully credited Mourning and Mourning's
efforts in seeking interim employment after the third quarter of 1971 is
not the sort of employee behavior where backpay has been denied in the
past by the Board. Cf. M. J. McCarthy Motor Sales Co., 147 NLRB 605
(1964); Robinson Freight Lines, 129 NLRB 1040 (1960); Great Plains Beef
Co., 255 NLRB 1410 (1981).
270 NLRB No. 182
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, McDonnell
Douglas Corporation, Long Beach, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge.
Robert H. Mourning was hired by Douglas Aircraft
Company (Douglas)' on September 14, 1965, as a flight
test service engineer. On January 10, 1966, Mourning
was transferred to Douglas' pilot department, initially as
a reserve pilot but later reclassified as a transport pilot.
In late 1968 Mourning became involved in the efforts of
the Air Line Pilots Association (ALPA) to organize
Douglas' pilots. On November 15, 1968, Mourning was
discharged by Douglas. In May 1969 Mourning filed an
unfair labor practice charge with the National Labor Re-
lations Board (Board), alleging that he had been discri-
minatorily discharged by Douglas because of his union
activity. On August 7, 1969, the Regional Director for
the Board's Region 20 notified the parties that he refused
to issue a complaint in the matter, primarily because of
doubt that Douglas had knowledge of Mourning's union
activity.2 On September 2, 1969, Mourning's attorney
filed an appeal with the General Counsel's Office of Ap-
peals, challenging the Regional Director's refusal to issue
a complaint. On September 22, 1969, the Director of the
Office of Appeals notified the parties that the appeal was
denied, because of lack of evidence that Douglas had
knowledge of Mourning's union activity prior to his dis-
charge. On January 14, 1970, Mourning wrote a personal
letter to the chief of the Office of Appeals, accused
board officials of incompetence and lawlessness, and
stated that he would ask for criminal indictments of
Board officials. By reply letter dated January 22, 1970,
the director, Office of Appeals, advised Mourning that
his letter of January 14 was considered as a request for
reconsideration, which was denied on being untimely.
On March 11, 1970, Mourning's attorney wrote to the
Board and asked that the case be reopened on the basis
of newly discovered evidence showing Douglas' knowl-
edge of Mourning's union activity prior to the latter's
discharge. That evidence was sent to the Board. By
letter dated June 5, 1970, the director, Office of Appeals,
denied what it described as Mourning's second request
for reconsideration, on the authority of Forrest Indus-
tries3 relating to exhaustion of legal remedies. The direc-
t Douglas Aircraft Company merged with McDonnell Aircraft Com-
pany after Mourning was discharged by Douglas. Respondent is the
merged organization; Douglas retained its personnel and corporate struc-
ture after the merger, and operates as a division of Respondent.
I This doubt subsequently was removed, based on discovery that
Douglas did, in fact, know of Mourning's union activity prior to the dis-
charge, whereupon a complaint issued, as discussed infra.
s Forrest Industries, 168 NLRB 732 (1967).
1204
MCDONNELL DOUGLAS CORP.
tor stated, "In the circumstances we must consider this
case closed." Mourning and his attorney continued to
urge the Board to act in the case and, after more than 2
years, on October 4, 1972, the General Counsel vacated
the denial of Mourning's appeal and ordered issuance of
a complaint, which was issued November 16, 1972.
Douglas timely filed an answer to the complaint and on
November 22, 1972, filed a motion to dismiss, citing For-
rest Industries as authority. Douglas' motion was denied
by the Associate Chief Administrative Law Judge on
November 30, 1972, but later was granted by the Board,
on March 8, 1983. 4 On June 27, 1973, Mourning's attor-
ney filed an appeal with the U.S. Court of Appeals for
the District of Columbia. On October 16, 1973, the
Court of Appeals ruled in favor of Mourning, and re-
manded the case to the Board for further proceedings. 5
Pursuant to the remand, a complaint was issued and a
trial was conducted before Administrative Law Judge
Richard J. Boyce on March 18-20, 1975. On December
16, 1975, the Board adopted Judge Boyce's recommend-
ed decision that the complaint be dismissed on the basis
that Mourning was a supervisor as that term is defined in
the National Labor Relations Act (Act).6 On December
22, 1975, Mourning's attorney petitioned the Court of
Appeals for the District of Columbia to set aside the
Board's Order, and on May 13, 1977, that court remand-
ed the case to the Board for clarification of two supervi-
sory issues raised by Mourning.7 In a Supplemental De-
cision and Order dated September 29, 1978, acting on the
remand, the Board held that Mourning was not a super-
visor as that term is defined in the Act, and without fur-
ther proceedings before an administrative law judge,
held on the merits of the case that Mourning had been
discharged in violation of the Act.8 On October 20,
1978, Douglas petitioned the Court of Appeals for the
Ninth Circuit to set aside the Supplemental Decision and
Order of the Board. The matter was transferred to the
Court of Appeals for the District of Columbia on motion
of the General Counsel, which court on August 30, 1979,
dismissed the case as moot, and on September 18, 1979,
transferred back to the Ninth Circuit.
On March 12, 1981, the Court of Appeals for the Ninth
Circuit issued its opinion upholding the Board's Decision
and Order dated September 29, 1978, and ordered en-
forcement of the Order.9 Douglas' petition for rehearing
was denied on December 12, 1981, and its petition to the
United States Supreme Court for writ of certiorari was
denied on March 22, 1982. °0
On November 4, 1982, the Board issued a backpay
specification and notice of hearing, on which the parties
were heard in Los Angeles, California, on April 19-22
and May 2-4 and in Denver, Colorado, on May 17-18,
1983.
· Douglas Aircraft Co.. 202 NLRB 305 (1973).
s Mourning v. NLRB, 505 F.2d 421 (D.C. Cir. 1974).
* Douglas Aircraft Co., 221 NLRB 1180 (1975). Mourning's request for
oral argument to the Board was denied in this case.
Mourning v. NLRB, 559 F.2d 768 (1977).
' Douglas Aircraft Co., 238 NLRB 668 (1978).
9 McDonnell Douglas Corp. v. NLRB, 655 F.2d 932 (9th Cir. 1981).
'o 455 U.S. 1017 (1982).
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, to argue orally,
and to submit written briefs. Briefs, which have been
carefully considered, were filed on behalf of General
Counsel, Respondent, and Charging Party Mourning.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. PHASEOUT OF THE BUSINESS FLEET"1
Douglas Aircraft Company builds passenger jet air-
craft for commercial and military customers.'2 Produc-
tion of DC-8 and DC-9 aircraft commenced in 1965, and
production of DC-10 aircraft commenced in 1961.13
Prior to production the Company was engaged several
years in design, development, and testing of those air-
planes. Douglas' production facilities were located in
Long Beach, California, and the Company maintained
support, testing, and other facilities at several outlying
locations in the southern California area.
In 1968 Douglas employed approximately 50 pilots
who were assigned primarily to three types of flying
duty. Those types were engineering testing; checking air
fitness of, and training of, customer airline pilots to fly
Douglas aircraft sold to customers;' 4 and flying planes
of the business fleet. All pilots were under the supervi-
sion of John Londelius, vice president of flight and labo-
ratory development. Londelius supervised a broad range
of activities which generally were assigned to sections or
departments, the principal of which were engineering
laboratories, experimental flight testing, customer airline
training, aircraft delivery, and accident investigation.
The immediate supervisor of all pilots was A. G. Hei-
merdinger,' 5 who reported directly to Londelius. Engi-
neering flight test pilots were supervised by George
Jansen. Production aircraft test pilots were supervised by
Warrant Ewert. Customer airline training pilots were su-
pervised by David Wiebracht. Business fleet pilots were
supervised by O. T. Quinn. 6
Engineering test pilots flew experimental aircraft de-
signed for later production, testing the aerodynamics,
stability, and performance of the new aircraft. Those
pilots had extensive flight experience, background, and
education, and often were graduates of military test pilot
schools. There is no dispute about the fact that Mourn-
' This group of aircraft variously is referred to as the business fleet,
the little fleet, and the executive fleet. All three terms commonly were
used at Douglas at times relevant herein.
1" Douglas' plant at Palmdale, California, frequently is referred to in
the transcript and record. However, production is limited at that plant to
military aircraft, and the references are irrelevant to these proceedings.
"s DC-8s, 9s, and lOs are "heavy" aircraft which fly at altitudes of
30,000 feet and above. Their pilots-in-command require greater experi-
ence and qualifications than do pilots of "light" aircraft. The distinction
between heavy and light aircraft is not precisely defined, but it is clear
that all aircraft used in Douglas' business fleet, and aircraft of similar or
lesser size and versatility, are light aircraft.
" This second group of pilots usually is referred to as production and
delivery pilots. Some of them are designated as training pilots, if their
function primarily is to train customer airline pilots.
bHeimerdinger is deceased.
'6Ewert and Quinn are deceased.
1205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing was not, at any time relevant herein or within the
ambit of this controversy, qualified or possibly destined
to be, an engineering test pilot. Mourning testified that
he aspired to be, ultimately, a test pilot, but that position
is at the top of the pilot profession. Because of the gap
between Mourning's background, experience, and age,
and those of test pilots, the possibility of Mourning's at-
tainment of what he said was his ultimate goal is not
considered to be relevant to my issue herein.
Production aircraft first were checked on the ground
after manufacture, then were tested in the air by produc-
tion and delivery pilots. On the first test flights, the only
persons aboard were the pilot, copilot, and someone to
take notes. On later test flights the pilot commanded a
crew of technicians and engineers to evaluate the aircraft
and initiate corrective measures that may be required.
Production and delivery pilots were responsible for se-
lecting, briefing, supervising, and debriefing after flight
all crewmembers. After aircraft were approved for deliv-
ery, training pilots instructed and trained customer pilots
in the operation of the aircraft. Respondent did not have
facilities or programs to teach anyone to fly aircraft-
their instruction was limited to introducing experienced
airline pilots to the aircraft being delivered. Douglas op-
erated a ground school to train airline customer pilots in
operation of DC-8s and DC-9s (and later, DC-lOs), but
some of Douglas' employees attended the school, or
some parts of it, as required or as they wanted, on ob-
taining permission of their supervisors. Such attendance
was on an "audit" basis, i.e., the pilots sat in on the in-
struction without actually taking part in it. Customer air-
lines have their own training and ground schools, which
they operate for their own purposes. Douglas' ground
school was designed to acquaint customer airline pilots
with the flight characteristics of particular types of air-
craft. Those pilots then would return to their airline,
where they would instruct other pilots and appropriate
personnel in the aircraft characteristics they learned at
Douglas' school.
The business fleet and its pilots were not directly in-
volved in the testing, production, or delivery of aircraft,
or in training customer pilots to operate those planes.
The business fleet was a service organization, structured
but little, and used primarily as a messenger device to
transport personnel, parts, and materials among various
production and testing facilities in the southern Califor-
nia area. Aircraft used by the business fleet reflects that
function-they were light planes and helicopters, used as
required by their service duties. The nature of the fleet's
function is indicated by the fact, discussed infra, that the
fleet ultimately was eliminated, and replaced by leased
aircraft and hired contractors. The nature of the fleet
was emphasized in cases discussed more in detail infra,
wherein the Board and circuit courts analyzed and ex-
plained the differences between Douglas' business fleet
pilots and its other pilots. The loose departmental struc-
ture is indicated by the manner in which pilots were
used for the business fleet. When the production sched-
ule required, pilots permanently assigned to the fleet
sometimes flew as copilots (no rating required) in DC-9s,
or performed other piloting chores not requiring rated
pilots. When production was not high or the fleet's serv-
ice was in high demand, or when occasions otherwise re-
quired (such as the necessity for company orientation),
engineering test and production and delivery pilots some-
times flew business fleet aircraft on temporary assign-
ment. Helicopter pilots dual-rated in fixed wing aircraft
sometimes flew business fleet aircraft, when required.
However, business fleet pilots could not fly as pilot-in-
command of Douglas' production jet aircraft, unless they
were rated to do so.l 7 When they were so rated, they
were transferred into the appropriate department outside
the business fleet.
Douglas' business was the development and produc-
tion of heavy aircraft, and that business required the use
of trained and experienced pilots. As noted above, engi-
neering test pilots and production and delivery pilots
were on the front line, so to speak. The safety of persons
riding that aircraft for whatever purpose and the safety
of the aircraft were of first importance. Test and produc-
tion and delivery pilots carefully were selected for their
jobs, and selection depended to a large degree on the
past training and experience of those pilots. As noted,
Douglas did not teach people to fly-because of eco-
nomic and other practical reasons, the Company sought
out seasoned pilots to whom they could entrust the lives
of others, and the machines they flew. The duties of
those pilots were demanding, and were not lightly given
or assumed. Those facts repeatedly and convincingly
were attested at trial by Respondent's witnesses, and that
testimony was supported by Mourning on several occa-
sions.
At the time Mourning was transferred into the busi-
ness fleet as a pilot, his experience was limited to light
aircraft. He had no experience flying DC-8s or DC-9s or
any other heavy aircraft. As of February 25, 1965, ac-
cording to Mourning's pilot logbook, he had flight time
as pilot-in-command, totaling 1,237.39 hours.18 That ex-
perience principally was obtained while flying single-
engine airplanes, although he had some two-engine flight
time transporting passengers for small airlines. His first
flight was in 1957, and thereafter he flew for his own
pleasure and experience, in evenings and on weekends.
He was licensed as a commercial pilot in 1960, and re-
ceived an instructor's rating and a multiengine rating that
same year. He received an Air Transport Rating (ATR)
in February 1965. At various times Mourning was a
flight instructor, a search pilot for the Civil Air Patrol, a
charter flight pilot, and an ambulance flight pilot.
Mourning had a high school education, naval enlisted
training as a radioman and electronics technician, and a
senior engineering certificate (attended school, partially
by extension, 3 years) obtained at the University of Min-
nesota. He also had obtained course credits, mostly in en-
gineering and electronics, at other schools. Mourning
17 Pilot-in-command operation of heavy aircraft can be undertaken
only after type rating required by FAA regulations.
'1 In his application at Douglas for a pilot's position, submitted to Re-
spondent October 18, 1965, Mourning stated that he had 4675 hours' ex-
perience as pilot-in-command. Mourning's explanation at trial of the dis-
crepancy between his logbook and his application was not convincing,
and is not credited. It is further noted that Mourning represented on May
29, 1968, that he had 4600 hours of flight time, yet as of that date he had
flown approximately 3713 hours for Douglas.
1206
MCDONNELL DOUGLAS CORP.
had held several jobs over the years, generally of an en-
gineering or electronics nature. He worked for Respond-
ent from December 1963 to February 1965, during the
latter portion as a senior engineer, instrumentation, at a
salary of $203 per week. From February 1965 until he
again went to work for Respondent in September 1964,
Mourning flew light aircraft as a pilot for small airlines.
After he was transferred by Douglas to a pilot position,
Mourning transported personnel, parts, and materials
among Respondent's Long Beach and various outlying
facilities, initially flying them in small Aerocommanders,
of which Respondent had three, and a DC-3, all of
which were twin-engined. Mourning was rated by Re-
spondent as a reserve pilot until January 1967, when he
was rated by Respondent as a transport pilot. Douglas
obtained a twin-engine Jet Commander in 1966, and pur-
chased two twin-engine Cessna aircraft in 1967 and 1968
to replace the three Aerocommanders. By late 1968
Mourning was piloting the two Cessnas and, on some oc-
casions totaling 38.2 hours, had piloted the Jet Com-
mander, which required a copilot. Mourning had been
rated to fly the Jet Commander on August 6, 1968, ap-
proximately 3 months before he was discharged, and by
the time he was discharged, had flown as copilot of the
Jet Commander 256 hours. Neither the Cessnas nor the
Aerocommanders required copilots. During his employ-
ment by Respondent Mourning did satisfactory work,
and Heimerdinger recommended a merit increase in pay
for him, effective October 28, 1968, which was 18 days
before Mourning's discharge. Mouring never was rated
to pilot a DC-9, but he did make a few flights on that
aircraft, as a copilot and as an observer. 9
Peak delivery years for DC-8 aircraft were 1968 and
1969, when 102 and 85 aircraft, respectively, were deliv-
ered. Delivery of DC-9s attained a later peak, as shown
by delivery schedules in evidence. Deliveries were: 5 in
1965, 69 in 1966, 155 in 1967, 200 in 1968, 122 in 1969,
and 51 in 1970. Later deliveries were approximately 22
to 50 per year. During peak production periods, business
fleet pilots sometimes were used as observers or copilots
for production and delivery purposes, but they were on
temporary assignments in those capacities; they were not
transferred or assigned permanently to production and
delivery. By 1969, the necessity of such temporary as-
signments had lessened. Reduced deliveries of DC-8s and
DC-9s are reflected in the reduction of Douglas' person-
nel. Douglas had 57,688 employees at the end of 1967,
which number dropped gradually to 19,231 by the end of
1975. The greatest reduction years were 1969 and 1970,
with approximately 8000 employees being laid off or re-
tired in each of those years. Reductions occurred "across
the board," including blue collar employees, salaried em-
ployees, executives, and pilots. In 1970 Londelius and
Heimerdinger discussed the necessity of phasing out the
business fleet, as a part of Respondent's overall attrition
and its attendant fiscal problems. 20 In June 1970 the Jet
19 No FAA rating is required for the positions of copilot or observer.
2o The fact that Respondent's decision to reduce the size of, and later
eliminate, the business fleet was dictated solely by economic consider-
ations, unrelated to any labor question, is not in dispute.
Commander, one Cessna, and one helicopter were dis-
posed of, leaving for the business fleet one Cessna and
one helicopter. The last Cessna was sold in April 1973,
and the last helicopter was sold in January 1974. There-
after, the work formerly done by the business fleet prin-
cipally was done by contract with outside firms and, on
occasion, with the use of aircraft leased from outside
companies. Counsel for the General Counsel and Mourn-
ing argue that the function of the business fleet, i.e., its
passenger and cargo transport duties, remained, but that
is beside the point. The business fleet's personnel and
equipment were gone, for legitimate reasons. That fact
clearly is shown by Douglas Aircraft Co, 207 NLRB 682
(1973), wherein it is stated:
The Employer is engaged in the production of
commercial and military aircraft in Long Beach,
California. It has about 35 pilots and 16 flight engi-
neers employed in the flight operations department,
the department which is responsible for the engi-
neering testing and test flight programs. These pro-
grams entail: (1) basic engineering testing and flight
testing prior to sale; (2) crew training for the cus-
tomer's pilots; (3) final testing and delivery after
sale to customers; and (4) the revisit program after
sale to assist customers, to observe customer's crew
performance, to further train customer-crews, and
to trouble-shoot. The pilots are classified as trans-
port pilot, engineering test pilot, and production
and delivery pilot. They are licensed and certified
by the Federal Aviation Agency (FAA) and they
are rotated among the various flight programs de-
scribed above, as needed. All pilots serve some of
their time as captains, at which time they are re-
sponsible for, and in complete control of, the plane
and all persons on board, and this is the basis for
their alleged supervisory status.
Mourning contends that he would have become qualified
for at least one of the positions described above, after the
date of his discharge had he not been discharged. Re-
spondent contends that Mourning would have been laid
off June 9, 1970, when all but one of the business fleet's
fixed-wing aircraft were disposed of.
II. EFFECT OF PHASEOUT OF THE BUSINESS FLEET
A. Initial Legal Question
Counsel for Mourning argues that Respondent cannot
rely on evidence relating to the effect of the phaseout,
because of the principles of res judicata and collateral es-
toppel. That argument is based on the fact that Respond-
ent did not show, during the 1978 trial conducted by an
administrative law judge, that the business fleet had been
discontinued, and on the additional fact that, in 1981, the
Court of Appeals for the Ninth Circuit ordered enforce-
ment of the Board's 1978 Order.
Res judicata dictates that a final judgment on the
merits will bar future claims by parties or their privies
based on the same cause of action.2 ' Some commenta-
21 Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955).
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors denote this doctrine as "claim preclusion." The
effect is to foreclose litigation of matters "that never
have been litigated, because of the determination that
they should have been advanced in an earlier suit."22
Collateral estoppel precludes litigation of an issue
based on a different cause of action in a second action, if
that issue was litigated in, and necessary to, the decision
in the first action.2 3 This also is known as the rule of
issue preclusion. There are exceptions to the rule, includ-
ing cases where "a new determination may be needed be-
cause of considerations of the public interest." 24
Section 10(c) of the Act empowers the Board to
remedy unfair labor practices by taking "such affirmative
action including reinstatement of employees with or
without backpay, as will effectuate the policies of the
Act." The normal remedy for unlawful termination is re-
instatement with backpay, subject to the proviso that
such remedies "effectuate the policies of the Act." 2 5
However, "remedies that award employees more than
they would have obtained but for the violations are puni-
tive, not compensatory, and thus improper." 2 6 The
remedy acts to protect public interest.2 7 Specifically, the
Board's "primary function under Sec. 10 in connection
with which it makes specific monetary awards for specif-
ic employees, is to prevent the conduct defined as unfair
labor practices in Sec. 8."28
National Labor Relations Board Rules and Regula-
tions, Section 102.52, provide for a procedure to deter-
mine the amount of backpay when the parties fail to re-
solve the issue. Such a hearing is held after the Board's
order directing payment, or the entry of a court decree
enforcing the Board's order. The instant backpay specifi-
cation hearing followed the Ninth Circuit's enforcement
decree.
Ordinary practice is first to determine whether or not
the discharge was wrongful, and only after this order be-
comes final is consideration given to the appropriate
amount of backpay. The two-stage procedure avoids un-
necessary efforts if enforcement is denied. The proce-
dure's propriety is well settled.29 As the court stated in
Nickey Chevrolet Sales, supra, 493 F.2d at 106:
Courts have approved this procedure on the
theory that the order of the Board requiring rein-
statement and back pay clearly contemplates further
administrative determination on its part; that the ini-
tial order is analogous to an interlocutory judgment
fixing liability but not determining damages; and
that the enforcement decree is analogous to an af-
firmance of such interlocutory judgment on appeal.
After enforcement, the prior administrative pro-
22 C. A. Wright, Law of Federal Courts, 679 (4th ed. 1983).
as Parklane Hosiery v. Shore, 439 U.S. 322, 326 (1979).
'4 C. A. Wright, Law of Federal Courts, 684 (4th ed. 1983), citing Re-
statement 2d, Judgments, § 28(5) (1982).
25 Golden Day Schools v. NLRB, 644 F.2d 834, 840 (9th Cir. 1981).
26 NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596, 602 (9th Cir.
1979).
27 Golden Days Schools v. NLRB, supra. See Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 192-193 (1941).
zs NLRB v. Deena Artware, 361 U.S. 398 (1960).
29 NLRB v. Nickey Chevrolet Sales, 493 F.2d 103, 106 (7th Cir. 1974);
NLRB v. Deena Artware, supra at 411.
ceedings resume and the exact amount of back pay
due is determined.
In NLRB v. New York Merchandise Co., 134 F.2d 949
(2d Cir. 1943),3 0 an employer discriminatorily dis-
charged an employee on July 11, 1941, and was ordered
by the Board to reinstate the employee with backpay.
The order was issued June 14, 1942. At the subsequent
court enforcement proceeding the employer urged that
the proceeding be remanded and the Board be compelled
to hear the employer's evidence that the employee's posi-
tion ceased to exist on November 22, 1941. The court re-
fused to remand the case to the Board for further consid-
eration. In discussing the remedy, Judge Learned Hand
stated, "It leaves for future decision whether if the em-
ployee had not been discharged, he would have kept his
job to the date of the order; or if not till then, how long
he would have kept it." Id. at 952.
Job availability evidence generally is not heard until
the compliance stage of the proceedings. Determination
of whether "a substantially equivalent" position is avail-
able is ordinarily left to the compliance stage of Board
proceedings. 3 l Similarly, in Kuno Steel Products, 252
NLRB 904, 905 fn. 4 (1980), the Board stated:
Our Order, of course, does not require Achilles
to create new jobs for the discriminatees or pay
them backpay for periods when employment was
not available at Achilles' plant. Achilles will be per-
mitted to introduce evidence in the compliance
stage of this proceeding concerning the existence of
jobs for unreinstated strikers at all material times
herein. 3 2
The Board and Ninth Circuit decisions determined
only that Mourning was discriminatorily discharged in
1968. As the foregoing case law reveals, the amount of
backpay owed and the subsequent availability of work
are matters to be determined at the backpay hearing.
Thus, the doctrine of res judicata does not bar evidence
of job availability at the compliance stage.
Nor do principles of collateral estoppel apply. The
Board determined that Mourning was not a supervisor in
1968, and thus was entitled to the protection of the Act.
That decision was affirmed by the Ninth Circuit. Re-
spondent argued that Mourning was a supervisory train-
ee, and as such would progress in Douglas' flight oper-
ations. Based on that contention, Mourning asserts that
the issue of job availability actually was litigated, and
necessary to the outcome of the decision.
The Board did address the supervisory trainee issue,
when it discussed whether or not Mourning's attendance
at ground school constituted a supervisory training pro-
so This case subsequently was overruled to the extent that it holds that
the Board's order of backpay and reinstatement was insufficient to sustain
a finding of contempt. NLRB v. Deena Artware, 361 U.S. 398, 410 fn. 2
(1960).
3 NLRB v. Retail Clerks Local 876, 570 F.2d 486, 593 fn. 9 (6th Cir.
1978), citing with approval North Valley Lumber Sales, 229 NLRB 1209
(1977).
32 See also Goldblatt Bros., 135 NLRB 153 (1962). Indeed, such evi-
dence normally would not be admitted at the unfair labor practice hear-
ing. Bacchus Wine Cooperative, 251 NLRB 1552 (1980).
1208
MCDONNELL DOUGLAS CORP.
gram. The Board held it did not, since "there is no evi-
dence that the program was designed to train pilots to
become supervisors. Furthermore, before Mourning
could expect assignment as a pilot-in-command on larger
aircraft, such assignment was contingent upon his dem-
onstrating his qualifications therefor." s3 The Board char-
acterized any decision on the latter point as speculative.
Clearly, that stage of the proceeding decided only the
threshold question of whether or not Mourning was pro-
tected by the Act. Evidence regarding Mourning's quali-
fications, in light of the 1970 layoff, now is necessary to
reach a decision as to the appropriate amount of back-
pay, and reinstatement rights, giving consideration to
events subsequent to the 1968 discharge. Such evidence
was not necessary to determine Mourning's employment
status under the Act in 1968.
Finally, even if principles of collateral estoppel were
operative here, public policy would dictate that Re-
spondent's evidence be heard. Requiring an employer to
reinstate an employee to a nonexistent position is a puni-
tive remedy and would not "effectuate the purposes of
the Act." Public policy exceptions to the doctrine of
issue preclusion are recognized by Restatement 2d, Judg-
ments 28(5), 1982. Whether or not Mourning would have
been promoted to production and delivery pilot, a super-
visory position, is discussed infra.
B. Practical Effect of the Phaseout
Generally, an employee who has been discriminatorily
discharged by his employer is entitled to reinstatement to
his former job or, if that job is not available, to an equiv-
alent job. That right was accorded Mourning by the Na-
tional Labor Relations Board in its 1978 Order, as en-
forced in 1981 by the Court of Appeals for the Ninth
Circuit.
However, in some situations, legitimate and substantial
business reasons may justify an employer in his failure or
refusal to reinstate an employee. One such reason may be
elimination of the employee's job for substantial and
bona fide cause not related to any labor dispute.3 '
As noted supra, the fact that Douglas' executive fleet
was reduced, and thereafter discontinued for reasons un-
related to any labor dispute, clearly is shown by the
record. Nor does Respondent dispute the fact that it has
the burden of proving that Mourning would have been
laid off in 1970 solely for economic reasons. The General
Counsel and Mourning argue that Mourning's status
under reduction and later elimination of Douglas' busi-
ness fleet is speculative, and that Respondent did not
meet its burden of proof. Determining that issue requires
review of the facts, including comparison of qualifica-
tions of Respondent's pilots.
The General Counsel and Mourning contend that Re-
spondent used the business fleet somewhat as a training
ground for pilots, and that pilots normally and habitually
moved from the business fleet to production and delivery
and even, on occasion, to engineering testing. That con-
"3 Douglas Aircraft Co., 238 NLRB 668, 672 fn. 25 (1978).
3' Pat Izzi Trucking Co., 162 NLRB 242 (1966); National Freight, 154
NLRB 621 (1965); Underwood Machinery Co., 95 NLRB 1386 (1951). See
also NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (dicta at 379) (1967).
tention does not have the support of the record. Al-
though, as earlier noted, there was temporary inter-
change of pilots among the three groups, and although
some pilots destined from the outset to go into testing or
production and delivery initially were hired into the
business fleet, the fact remains, as the Board and courts
made clear in Douglas Aircraft, 221 NLRB 1180 (1975),
Mourning v. NLRB, 559 F.2d 768 (1977), and Douglas
Aircraft Co., 238 NLRB 668 (1978), cited supra, that the
business fleet was an administrative and operational unit,
with its own pilots, separate and apart from engineering
testing and production and delivery pilot units. General-
ly, pilots were hired, and placed in appropriate positions,
according to their training, education, and work experi-
ence. It is also true that some pilots were "promoted"
into testing or production and delivery positions, but
that, too, was not the general rule. These matters are dis-
cussed infra, in review of pilots employed by Douglas at
times relevant herein.
Respondent does not now contest the fact that Mourn-
ing illegally was discharged, and that he is entitled to re-
instatement and backpay. Respondent argues that the
backpay should be discontinued as of the date when
Mourning would have been laid off, i.e., on June 9, 1970,
solely because his job was eliminated and there was no
equivalent job. Much of the argument of the General
Counsel and Mourning is addressed to the original
wrongdoing by Respondent in discharging Mourning,
but that argument is not relevant to this case. Here, the
principal question is whether or not Mourning would
have survived the 1970 attrition, and the later discontinu-
ance of the business fleet. In order for Respondent to
meet its burden of proof, Mourning's failure to survive
must be shown with certainty. The showing cannot be
based on speculation. At the heart of Mourning's rebuttal
to Respondent's basic argument is the contention that,
but for his discharge, he would have followed the same
route of job progression that others followed, both
before and after his discharge, which would have culmi-
nated in DC-9 rating and assignment to a job as pilot in
production and delivery. s3
When the decision was made to commence elimination
of the business fleet, the fleet's pilots were Quinn, Riley,
Campbell, McKenzie, Speakes, West, Mann, and Phillips.
The latter four were helicopter pilots.3a Speakes and
West were laid off June 9, 1970, when one of Respond-
ent's two helicopters was disposed of,3s and Mann and
Phillips were laid off in 1974, when the remaining heli-
1s This, of course, would mean a "promotion" from rank-and-file
status to that of supervisor. Douglas Aircraft Co., 207 NLRB 682 (1973).
se Mourning was not a helicopter pilot, nor does he contend that he
was, or wanted to be, such. Therefore, the status of helicopter pilots is
not conclusive of any issue herein.
3' It is quite clear that the experience and the qualifications of Mann
and Phillips were superior to those of Speakes and West, and that the
helicopter pilots were laid off in conformance with Douglas' criteria
which emphasized experience and qualifications, as credibly testified to
by Londelius and other witnesses. It is further noted that Speakes also
was qualified as a fixed-wing pilot, had far more flight hours than Mourn-
ing, had 25 years' military experience, and was better qualified than
Mourning.
1209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copter was sold. The training and the experience of
Quinn, Riley, Campbell, and McKenzie are as follows:3 s
Quinn was hired in March 1966 as a reserve pilot. He
had been trained in the military and had 19 years' experi-
ence in the Navy, being discharged as a captain in the
Naval Reserves in 1956.39 Since 1952 he had been work-
ing as a transport and test pilot for North American
Aviation. He was employed as a flight captain for 6
years by Aero Jet General Corporation, flying Convair
240 and other twin-engine craft. He was employed as a
chief pilot and design engineer for C & W Aviation Cor-
poration and as a reserve flight captain for Capitol Air-
ways. At the time of his hire, Quinn had 11,801 hours of
flying experience, 10,607 hours of which were in-com-
mand hours. His background included both jet and four-
engine experience.
Riley was hired in March 1968, initially as a transport
pilot. He had extensive military training and experience,
having been a pilot in the Air Force for 20 years before
retiring with the rank of major. He had 5409 flying
hours, 4568 hours of which were in-command hours; his
flight time included substantial heavy jet experience as
well as four-engine experience. His military experience
included several years as a jet fighter pilot and a pilot
instructor. He had served overseas as an advisor in Iran.
Riley was classified as a production and delivery pilot in
1974.
Campbell was hired in June 1967 as an engineering
planner and transferred to the business fleet as a fixed-
wing pilot in August 1968. Prior to then he had 2740
flying hours, 1720 of which were helicopter hours ob-
tained during 6 years in the Air Force and 3 years in the
Army. His Air Force experience included 17 months' at-
tendance at a fixed-wing flight training course, which
Campbell did not complete. At the time of his termina-
tion by layoff in June 1970, Campbell had approximately
5000 hours of flying experience. He had a multiengine
airline transport pilot rating with an instrument instruc-
tor attachment, which permitted him to instruct others as
ATR pilots. He attended a full course of DC-9 ground
school in October 1969. He had completed 30 credits to-
wards a business administration degree at Troy State
University in Alabama.
McKenzie was hired in June 1969 as a business fleet
pilot. He joined Douglas on graduating from Purdue
University with a BS in aviation. During his time at
Purdue he flew 850 hours as a DC-3 copilot for Purdue
Airlines. McKenzie attended DC-9 ground school in
1969 while employed by Douglas.
Mourning's qualifications and experience are summa-
rized supra.
s3 This information is taken from evidence in the record, and is sum-
marized in Respondent's brief. The entire record has been carefully re-
viewed; the information is not challenged and is accepted as accurate.
39 Throughout trial in the instant case runs a continuous thread clearly
showing that Douglas preferred, and consistently sought for its pilot
corps, experienced military pilots. Respondent's witnesses credibly testi-
fied to that fact, and explained that a principal reason for the preference
was that military organizations gave their pilots extensive training of high
quality. Further, that training is followed by intensive flight experience.
A satisfactory military flight career virtually guaranteed for Douglas a
highly qualified pilot for commercial purposes.
Londelius credibly testified, relative to Douglas' deter-
mination of layoffs:
Q. Okay now, did you discuss the criteria for
layoff with Mr. Heimerdinger?
A. Yes.
Q. Okay, and did you establish-was it your re-
sponsibility to establish the policy with regard to
layoff?
A. Yes it was.
Q. Could you explain what criteria were estab-
lished with regard to layoff?
A. Well we looked-across the board, that
people had had the broadest experience. We wanted
to keep those people that could be universally used,
those people that had dual ratings, those people that
had the most experience with airlines or the military
and in the case of military production, were kept.
The personnel-we just did not cut from the
very bottom. We looked across the board and as to
what the future growth potential of the people
were. The fundamental policy was to be as efficient
as we could and therefore had people that were as
versatile as possible, as far as ratings and experience
and education is concerned. We certainly looked at
the educational background of the individual, in
many cases.
It is apparent that had Mourning been employed in the
business fleet on June 9, 1970, he would have been se-
lected for layoff. Londelius and other witnesses for Re-
spondent credibly testified that seniority was not a con-
sideration in making the layoffs; that the principal deter-
minants were training and experience. Only two fixed-
wing pilots, Quinn and Riley, were retained for the busi-
ness fleet, and the training and experience of both were
superior to those of Mourning. Both had much more
command flight time and heavy aircraft flight time than
Mourning, and both had extensive military flight experi-
ence, which Mourning did not have. Whether Mourning
would have been a business fleet pilot in addition to
Quinn, Riley, Campbell, and McKenzie, or in the place
of McKenzie, who was hired after Mourning was dis-
charged, the result would have been the same.4 0
40 McKenzie testified:
Q. Were you laid off from the Night department at some point for
lack of work?
A. Yes. And-
Q. When did that happen?
A. I'm guessing, but I think it was like early summer in '70. Like
maybe July or something, I believe. I could be wrong on that, but it
was around then. I joined East African Airways in November of
that year, so I believe it was around June or July.
Q. Now, did Mr. Heimerdinger speak to you with regard to the
layoff? Did he tell you you were being laid off?
A. Yes.
Q. Did he tell you why you were being laid off?
A. Because of a general cutback in the whole company.
Q. And were the other pilots laid off at the same time in the flight
department?
A. Yes.
1210
MCDONNELL DOUGLAS CORP.
McKenzie was hired as a business fleet pilot in June
1969, after graduation from Purdue University with a BS
in aviation. While at Purdue he flew 850 hours as a DC-
3 copilot for Purdue Airlines. While working for Doug-
las, he attended DC-9 ground school in 1969. McKenzie
had an education that was equal to, or better than,
Mourning's so far as Douglas' requirements were con-
cerned, but Mourning's flight time was greater than that
of McKenzie, and his work experience was broader.
Clearly, under the criteria credibly explained by Londe-
lius and other witnesses for Respondent, Mourning's
overall qualifications for Respondent's purposes were
better than those of McKenzie, but the fact remains that
Quinn and Riley were more highly qualified than
Mourning.
More to the point is the case of Campbell, who was
hired as an engineering planner in June 1967 and trans-
ferred to the little fleet as a fixed-wing pilot in August
1968. Prior to entering the business fleet, Campbell had
2740 flying hours, of which total 1720 hours were in hel-
icopters. Campbell had military flight training and expe-
rience and, when he was laid off in June 1970, had 5000
hours of flight experience, which was more than Mourn-
ing would have had if he had not been discharged.
Mourning and Campbell both testified relative to their
comparative experience and qualifications. Mourning
stated:
Q. Mr. Campbell was one of the pilots of the
business fleet during the latter part of your employ-
ment with the company, was he not?
A. Yes sir.
Q. And did he fly the same kind of assignments
that you flew?
A. Yes, with exceptions. He flew the twin-engine
Cessnas, he flew as my co-pilot in the Jet Com-
mander when I became rated as a captain and he
did not fly any DC-9 production flights.
Q. While your were there?
A. Yes sir.
Q. When you were in the military, you did no
flying is that correct?
A. I was not a pilot in the military. I can say that
I did fly in the military on a passenger basis. I had
intended to become a pilot at one time in the mili-
tary when I was underage, but it did not work out.
In comparison of the qualifications of himself and
Mourning, Campbell stated:
Q. Wasn't his experience roughly comparable to
yours?
A. Let's say we're talking different types of-yes,
but mine was military helicopter time and some
military jet time and some fixed wing time, and
Bob's was almost completely fixed wing time.
And I had been more into the instructing phase
than Mr. Mourning had been. He had been more in
a commercial phase.
It is comparable, yes, but it's like apples and or-
anges. I don't mean to obfuscate it, but-
Campbell was laid off at the time Quinn and Riley were
retained, and Campbell's experience and qualifications
were at least as good as, and appear to be better for Re-
spondent's requirements than, those of Mourning. Cer-
tainly Campbell had more diversified experience and
qualifications than Mourning, including military experi-
ence, and more flight time.4 ' In any event, it is quite
clear that, regardless of which of the two was better
qualified, neither of them was the equal of Quinn or
Riley in experience and qualifications. Respondent
needed only two fixed-wing pilots, and it kept the best
two it had.
C. Rebuttal by the General Counsel and Mourning's
Counsel
Mourning's initial contention is that the business fleet
was only partially discontinued in June 1970, and that
Respondent's argument relative to Mourning's layoff
cannot apply "if anti-union considerations are at play in
the post-discharge events." Counsel argues that Respond-
ent harbored "continuing hostility" toward Mourning
and unions, and that it would be naive to suppose that
Respondent would not have laid off Mourning in June
1970 because of Mourning's union activity. That argu-
ment is not persuasive. The facts that a reduction in the
business fleet was necessary solely for legitimate eco-
nomic reasons and that the reduction was made clearly
are established by the record and are not seriously con-
tested. The fact that Quinn and Riley were more quali-
fied for retention than Mourning was, or would have
been by June 9, 1970, is apparent, or discussed above.
The fact that Mourning was not rated as a DC-9 pilot is
not in dispute. Although Quinn and Riley were more ex-
perienced and qualified than Mourning, both at the time
they were hired and as of June 9, 1970, they still had not
been moved to production and delivery to fly DC-9s as
pilots in command, as of that date. 42 Had Mourning re-
mained in his job from the date of his discharge until
June 9, 1970, his experience and qualifications would
have remained in the same relative position with Quinn
and Riley. He would have been more experienced, but so
would they. Quinn and Riley still had not moved out of
the business fleet in June 1970, and there is no reliable
evidence in the record to show that Mourning would
have moved out ahead of either of them, although there
is some testimony on this point. Campbell testified
herein:
Q. Subsequent to that conversation where Mr.
Mourning was present, did you have any other con-
versations where Mr. Quinn indicated what the
prospects were for Mr. Mourning to progress?
4L Counsel for Mourning argues, impliedly, that Campbell was laid off
because of his union activity, and not because of the phaseout of the busi-
ness fleet, but that argument is not supported by the record and is not
persuasive. Campbell exhibited on the witness stand a clear and strong
bias against Respondent, but he never filed an unfair labor practice
charge alleging that he was discriminatorily discharged.
42 Mourning acknowledged that he was not progressing as fast as he
wanted to, and testified that he resented the fact that other pilots were
promoted to DC-9 pilot positions before he was.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes. And, again, it was general conversation,
that Riley was being groomed after Mourning.
Mourning would probably move up ahead of Riley,
the way it had gone. He got his Jet Commander
rating, he did a good job on that, and that general
conversation, that was the first step to moving on
up into the other aircraft as openings occurred.
However, that testimony is contrary to the testimony of
Quinn (who is deceased), given in March 1975 (221
NLRB 1180):
Q. Do you have a personal evaluation or person-
al opinion of him rating as a pilot?
A. Well yes, I have my opinion. I felt that he
was a reliable pilot as far as the basis of his experi-
ence went, but sometimes I felt that if he operated
out of his experience or background he had, he
wasn't ready for further advancement.
Q. Did you ever use him as a photography pilot?
A. No.
Q. Did you ever consider it?
A. Yes.
Q. Why didn't you use him?
A. Well, it was beyond his experience.
I might elaborate on that. Usually in photogra-
phy work you fly very close to the plane that you
are photographing, sometimes almost wing-tip to
wing-tip, and other times out a little further.
And usually this requires experience in formation
flying with a military background, and Bob had not
had that military background.
So that's why I say it was beyond his experi-
ence.'4
Based on credibility observations of Campbell, noted
above, this testimony by Campbell is given no credence.
Mourning's counsel followed the first argument by
proposing that "nondiscriminatory treatment of Mourn-
ing would have resulted in the early 1970's, in his trans-
fer to DC-9 production flying .... " The General
Counsel's brief primarily is addressed to the question of
the layoff of June 9, 1970, and the General Counsel
states: "There can be no doubt that Mourning would
have continued on in the employ of the Respondent in
the capacity of a production and delivery pilot" had he
remained in Respondent's employ and been treated non-
discriminatorily.4 4 Those arguments are speculative, and
depend on three basic assumptions: 1. The business fleet
was a sort of training ground, or stepping stone, to
higher positions in the Company. 2. Respondent regular-
ly and as a matter of practice brought pilots into the
business fleet, trained them as necessary, and promoted
them to production and delivery pilots. 3. One pilot is
much the same as the next pilot, and promotion to a su-
pervisory pilot's position comes along at Douglas as a
matter of course. The record does not support those as-
sumptions.
43 Flying photographic missions is one of the jobs of the business fleet.
44 The backpay specification is based on the assumption that Mourning
would have been promoted to DC-9 pilot in 1971. That assumption is
based on speculation discussed below, and cannot be adopted.
1. As noted supra, Respondent's pilots are placed in
three discrete units- testing, production and delivery,
and utility (the business fleet). The first two units have
pilots of considerable experience and qualifications. Test
pilots are at the top of their profession, are specifically
trained, and possess the finest piloting and engineering
skills. Production and delivery pilots are rated to fly
heavy jet aircraft, and obtain their positions through
training, experience, and demonstrated skills. The lives of
testing and training crews are in their hands, and they
are supervisors, not rank-and-file employees.45 Their se-
lection is a managerial function, not a ministerial one.
They do not move into their positions in an automatic or
scheduled manner. More is required than merely being
rated as a transport pilot, without regard to other fac-
tors. As earlier noted, Douglas has no program whereby
it trains pilots. It hires pilots, most of whom it places di-
rectly in as test or production and delivery pilots. Some
may be placed temporarily in the business fleet, but with
the intention from the outset of moving them into other
jobs as soon as possible. 46 But, the business fleet had a
specific function for which it was used, and that function
was not the training and education of pilots for future
use of them in testing or production and delivery.
2. As earlier discussed, Respondent often transferred
pilots in and out of the business fleet on a temporary
basis, for business convenience or necessity. However,
that fact did not alter the nature of the three pilot de-
partments or their functions. Mourning's counsel named
several pilots who had been "promoted" to production
and delivery from the business fleet, "immediately pre-
ceding 1968." Those named pilots were Battaglia, Brush,
Colburn, Freiburger, Gurs, McKee, Quinn, Riley, Toro-
sian, Wiebracht, and Williams. A brief look at those
pilots' backgrounds illustrates the difference between
their readiness for heavy aircraft command piloting and
the readiness of Mourning for that position.
Battaglia had an extensive educational background
(MIT) in aeronautical engineering and aerodynamics, and
is an engineering test pilot with more than 1500 hours of
heavy jet missions in B-47s. Brush had an extensive edu-
cational background in aeronautical engineering and
naval science (University of Illinois) and now is an engi-
neering test pilot. Colburn is a thoroughly (Navy)
trained and experienced pilot with 19,400 hours of flight
,4 Each case of allegedly supervisory status must be considered on its
merits, of course. As pointed out by Mourning's counsel, production and
delivery pilots may not be supervisors at all times. However, it is clear
that all production and delivery pilots may at any time, because of the
nature of their assignments, be placed in the position of supervisor. In
any event, as discussed supra, Douglas' production and delivery pilots
were established as supervisors by the Board and the Circuit Court for
the District of Columbia.
4' Daniel Colburn, whose extensive qualifications and experience are
discussed infra, testified at some length concerning the manner in which
he was hired into the business fleet, and his subsequent move into pro-
duction and delivery, gradually at first and later full time. It is apparent
that his background made him an ideal candidate for a pilot's position in
production and delivery. His first flight as captain of a DC-9 was on June
21, 1966, and his last flight in the business fleet was in September 1968.
He was particularly suited for training pilots, in which capacity he was
used by Douglas. When he was hired, he was specifically told that he
would be transferred into a DC-9 pilot position. His situation as a pilot
was quite different from that of Mourning.
1212
MCDONNELL DOUGLAS CORP.
time logged in the military with commercial airlines, and
with private business organizations. He was a pilot in-
spector for FAA for 4 years. Freiburger served 23 years
in the U.S. Air Force, and when he was hired by Doug-
las in June 1965, had 9145 hours of flight time, of which
7079 was as pilot in command, and 2000 was in com-
mand of C-54 (heavy) aircraft (four engine). Gurs has a
BS degree in aeronautical engineering (Sussex College,
England), has a BA degree in Russian language,47 and at
date of hire had 3060 hours of flying time, with 2658 of
them in command of (heavy) DC-8s. McKee came to
Douglas in March 1965 as a reserve pilot, 48 and at that
time had 16,000 hours of flying time, of which 15,200
were as pilot-in-command, and 3000 were in four-engine
(heavy) aircraft. McKee has a BS degree in aeronautical
engineering (University of Illinois) and a masters degree
in aerospace operations management (University of
Southern California). He has extensive experience in mili-
tary and civilian command flight. Quinn had extensive
heavy military and civilian flight experience, as discussed
earlier. At the time he was hired in 1966 as a reserve
pilot, he had 11,801 hours of flight time, which included
10,607 hours as pilot-in-command of both light and
heavy jet aircraft. Riley also had extensive experience, as
discussed above, with 4568 hours of in-command flight,
including light (jet fighter and instructor) and heavy air-
craft.49 Torosian had an impressive background. He has
a BS degree in aeronautical engineering (University of Il-
linois), and a masters degree from the California Institute
of Technology. He had extensive flight experience, in-
cluding that of bomber commander, and extensive mili-
tary education in test piloting and aerospace research.
Wiebracht presently is chief pilot for Douglas, and has
extensive military experience and training. While in the
Navy, he piloted multiengine PBM-5 aircraft for 2 years.
He worked 10 years as a DC-3 and DC-4 pilot in the
Middle East. Williams was qualified both as a flight engi-
neer and pilot, and was rated to fly DC-8s and DC-9s.
He worked for Douglas as a flight engineer from 1956
until 1966, when he quit to pilot DC-8s. He returned to
Douglas within a year, was assigned to the business fleet,
and later was transferred to production and delivery. In
addition to the foregoing, Mourning listed Conant,
Hamlin, and Sanders as his "colleagues," and said that if
they were transferred to production and delivery, he
would have been transferred also. Conant had extensive
military and civilian flight experience, and had been an
engineering test pilot for Douglas since 1955. Hamlin
was a production and delivery pilot since 1962, and al-
though he flew extensively in the business fleet, he had
been rated since 1966 to fly DC-9s. Sanders was a
Marine Corps pilot for 22 years, until 1964, and had 7903
flight hours, of which 6730 were in command. He was
a4 Londelius credibly testified that Russian language ability is of value
to Respondent.
48 Pilots now referred to as transport pilots, formerly were called re-
serve pilots.
49 Although Riley was hired in March 1968 as a transport pilot, and
had far greater experience than Mourning, he was not made a production
and delivery pilot until 1974. Similarly, Quinn, who had much more ex-
perience than Riley, was not even moved into production and delivery-
he was left in the business fleet, as its director.
rated for, and often flew, DC-6s, DC-8s, and 1049 Con-
vair four-engine propeller and jet aircraft.
As a review of those pilots shows, it is apparent their
experience and qualifications largely would be wasted if
they were assigned permanently to the business fleet to
ferry personnel, parts, and materials in the southern Cali-
fornia area on short hops of less than an hour. 50 Obvi-
ously, they were assigned to the business fleet on an ad
hoc basis, or en route to some other assignment where
their talents would be used to Douglas' advantage.
Review of those pilots' backgrounds also brings into
sharp focus the difference between their experience and
qualifications and the ones of Mourning.5 1 They were
heavyweights in the profession, so to speak, and Mourn-
ing did not have equivalent qualifications. Therefore, it is
not realistic to compare those pilots with Mourning, and
assume therefrom that Mourning was an in-house trainee,
inevitably destined to move up the ladder to production
and testing and do the same job to which those pilots
were assigned. It may well be that such a result ultimate-
ly would have obtained, but the record does not show
that any such plan, generally or as it applied personally
to Mourning, was a part of Douglas' operations. Mourn-
ing's promotion was not preordained, and there is no re-
liable evidence that his promotion was promised or as-
sumed by Douglas.
3. As shown above, all pilots are not the same. Some
have extensive educational backgrounds in aeronautics
and the science of flight, and some have many thousands
of flight hours in command of heavy aircraft. Some have
both qualifications, and some have neither. Patently, and
as Londelius and McInnis made graphically clear, Doug-
las' fortune in the field of heavy aircraft production dic-
tated the desirability and necessity of having the best
pilots they could find. As those two witnesses demon-
strated, Douglas liked to promote pilots from within if
possible, for obvious reasons, but the system of hiring
and retaining on the basis of excellence always remained
the same. There was no fixed system for bringing in
pilots at the bottom, training them, and moving them on
to higher positions. When the business fleet was reduced
on June 9, 1970, the two least qualified pilots were
McKenzie and Campbell, and they were laid off. Mourn-
ing's qualifications were approximately the same as those
of McKenzie, who was less qualified than Campbell.
None of the three approached the qualification plateau of
the pilots named by Mourning and his counsel as having
moved from the business fleet to testing, or to produc-
tion and delivery. It is possible, of course, that absent
any layoff, Mourning ultimately would have been rated
to fly DC-9s and would have been moved to production
and delivery,52 but that is speculative, and further, the
so The record shows that this is the time involved in most of the busi-
ness fleet's flights.
"I George Jansen, Respondent's chief engineering pilot during times
relevant herein, testified concerning the qualifications and experience of
many of Respondent's pilots in whose hire he participated. His testimony
adds emphasis to the record concerning the type of pilot Respondent
sought for its testing, and production and delivery, units. The qualifica-
tions and experience of all pilots discussed by Jansen were extensive.
5~ It seems quite unlikely that Mourning would have became an engi-
neering test pilot, and he does not advance that argument.
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff precluded any such action. The layoff was a legiti-
mate, economically dictated move having nothing to do
with Mourning's fortunes. Counsel's speculative argu-
ment that Douglas so disliked Mourning it would have
laid him off discriminatorily in 1970 cannot be the basis
for any finding or conclusion. Finally, the matter of time
for DC-9 rating must be considered. Even as of June 9,
1970, had Mourning remained in the business fleet he
would not have accumulated as much flight experience
as other pilots had when they were so rated. Many pilots
waited longer than 4 years, and had far greater experi-
ence than Mourning would have had after 4 years before
they were given a DC-8 or 9 rating. 53
Mourning argues, however, that regardless of Douglas'
usual system of hiring and promoting pilots, he was per-
sonally assured, expressly and implicitly, that he would
be moved into production and delivery. As evidence of
that assurance, Mourning cited several incidents.
a. Mourning testified that, when he was transferred
into the business fleet in December 1965, Heimerdinger
told him "that they needed pilots and that I would start
on the business fleet and that I would be able to fly the
DC-9s if the possibility was held out to me .... "
Mourning said other pilots, including Brush, were told
the same thing. At another point in his testimony,
Mourning stated that he once talked alone with Heimer-
dinger in a bar and said "I sure would like to get a
chance at the DC-9's myself" to which Heimerdinger re-
plied, "Well, you will get it."
Campbell testified:
Q. Did you have any discussions with Mr. Quinn
or Mr. Heimerdinger at that time or thereafter re-
garding what you could expect as progression
within the flight department?
A. Yes, in a general sense. Obviously, I was on a
trial basis. Not exactly on probation, but on a trial
basis, and if I worked out in six months I would be
definitely considered for moving up into the pro-
duction flight if they felt I was capable of handling.
They had done this in the past and I guess, in
fact, at the time Quinn was being considered for
that and so was Chuck Riley, who was another
pilot.
McKenzie testified:
Q. When Mr. Heimerdinger interviewed you,
could you tell us what he said at the time of the
interview with regard to what you could expect
with the company or what the possibilities might be
with the company?
A. Well, at the time it was a career job and at the
time I hired on there I expected to retire there and
to go on and fly the DC12 whenever they built it,
or whatever, you know.
Q. What did he say to you with regard to that
possibility?
aa John Rogers, a very highly qualified and experienced pilot, was
hired in 1968 and was told at the time that he would go from the business
fleet to production and delivery, yet he did not do so until 18 months
later.
A. Well, it was a definite possibility.
The testimony on this point is of no probative value,
for several reasons. First, Heimerdinger is deceased. His
testimony was not available. Second, the alleged conver-
sation took place prior to the layoff, which, so far as the
record shows, was not anticipated at the time of the con-
versation. Third, assuming the conversation took place,
both Campbell and McKenzie were laid off, regardless of
what was said. Finally, all three witnesses spoke only in
terms of the possibility that the pilots would move into
production and delivery.54
b. Mourning testified that he had attended DC-9
ground training school, but only for I day, on November
14, 1968, the day prior to his discharge. Mourning also
testified that Heimerdinger earlier had authorized his at-
tendance on the I day because he was grounded, and he
had nothing else to do that day. This testimony is of no
probative value, particularly since both Campbell and
McKenzie had attended the DC-9 ground school course
prior to their layoffs, Campbell for the entire course and
McKenzie for part of it.
c. Mourning testified that he spent some time in a DC-
9 as an observer:
A. Well, they issued me all the regalia that goes
with a production and delivery pilot, an orange suit,
flight boots and in effect, there was I suppose a
tacit admission that I was entering the production
function.
Q. Well, did you just go one day and decide you
were going to observe the function or did-were
you assigned to the observation?
A. I was issued all the equipment and I thought I
was assigned for observer, but I can't recall now
whether it was a general assignment and then the
dispatchers handled you or whether it came down
from Heimi or how it was handled.
Londelius testified:
Q. Now, Mr. Mourning testified that when he
had flown as an observer on the DC-9, he had re-
ceived an orange uniform of some type. Could you
tell us to whom such clothing was issued?
A. It was issued to all flight personnel on any of
the production or test flights and let me tell you the
reason for that. We lost an airplane, an A-4D with a
pilot by the name of Jimmy Verdon over the
Mojave Desert. He bailed out of the airplane and as
we found out later he was killed in the bailout. He
was still in his seat. It took us over three days to
find the body and therefore, at that time, we issued
instructions that all personnel whether a full flight
suit or a flight jacket should be in international
orange so that we could identify them and locate
"' It is noted that, during the 1975 hearing, Walter Kent, director of
Douglas' business operations in the flight department for 7 years prior to
his retirement in 1974, stated that Mourning was not "being qualified, in
the process of training [or] attempting to qualify" for production and de-
livery flying. Kent was not questioned on this subject during the trial
herein.
1214
MCDONNELL DOUGLAS CORP.
them if there was an accident. We were doing, of
course, experimental flight testing and we had lost
aircraft.
So, and this included everyone on board, me-
chanics, technicians and observers.
Londelius' explanation of this matter is credited, and it is
found that issuance of the colored clothing to Mourning
did not, expressly or impliedly, infer that he was a pro-
duction and delivery pilot, or would be promoted to that
position.
d. Mourning testified that, in 1966, he was given busi-
ness cards by Douglas, just as were "a lot" of other
pilots that identified him as "Production and Delivery
Pilot Aircraft Division." At the time he received the
cards, Mourning had been employed by Douglas ap-
proximately a year, and obviously was not then, nor
could he be for a long time, a production and delivery
pilot. Certainly, the cards did not reflect a DC-9 pilot
rating, nor did they imply that such a rating, or assign-
ment to production and delivery, would be forthcoming.
The reason for the cards being worded the way they
were is not shown, nor is it clear whether or not Camp-
bell, McKenzie, West, and Speakes were given similar
cards, but in any event, it is clear that the cards did not
constitute, or indicate, a contract or a system of pilot
promotion. Further, the layoff of June 9, 1970, supersed-
ed the situation that prevailed in 1966.
e. Mourning was given merit increases during his em-
ployment, including one given shortly prior to his dis-
charge. However, that fact is irrelevant to any issue
herein. He was not given any unusual salary or wage in-
crease, and in any event, the nature of his work perform-
ance, satisfactory or unsatisfactory, is not in issue. All
questions concerning the quality of Mourning's work
were disposed of by the Board in 1978, when it was
found that his work was satisfactory, and that he had
been discriminatorily discharged.
f. Mourning testified that he talked with Quinn on the
telephone shortly before Quinn died, and that Quinn was
very bitter, and said he was "suing the company." Quinn
was not employed by Respondent at that time. Mourning
was questioned at length during redirect examination by
the General Counsel and on later cross-examination, and
his testimony was confusing, inconsistent, and ambigu-
ous. He jumped from subject to subject, and related
pieces of several conversations he said he had with
Quinn, face to face and on the telephone. He was
prompted repeatedly by the General Counsel, and
seemed to be recalling several things simultaneously,
without remembering details. However, the thread he
wove throughout the recitation was Quinn's alleged
statements that Mourning was a good pilot who would
have advanced with Respondent and who would be pi-
loting DC-lOs but for his discharge. That portion of
Mourning's testimony was not convincing. It had the ap-
pearance of being self-serving and uncertain, particularly
since it was contrary to Quinn's testimony in 1975, as
noted supra, and to Mourning's own testimony the pre-
ceding day, when he stated that he never talked with
Quinn about wanting to fly the DC-9, because "That was
not his Quinn's domain .... " On being pressed by the
General Counsel, Mourning stated, "We talked about a
lot of things, but I cannot recall a conversation like that,
no. Heimi Heimerdinger was the only one ... director I
approached."
The General Counsel and Mourning argue that Re-
spondent has changed its position, and that evidence of
Mourning's qualifications as of June 9, 1970, should not
be compared with those of other pilots, because of spec-
ulation involved in the question of whether or not
Mourning would have been retained after the layoff on
that date. Counsel continues that argument, and states
that, because prior to this backpay proceeding the ques-
tion of a nondiscriminatory layoff never was raised, it
should not now be raised. At trial in this case, the Gen-
eral Counsel offered in evidence what is stated to be Re-
spondent's prior inconsistent position, 65 and the offer
was rejected. The General Counsel urged in brief that
the ruling be reconsidered and revised. The trial ruling
that the evidence be rejected as irrelevant is reaffirmed,
but the statement has been reconsidered in light of the
argument of counsel. The statement reads as follows:
Prior to Mourning's discharge from the company,
he was actively training for future assignments in
respondent's production, delivery and testing func-
tions of flight operations. He was attending DC-9
ground school (the DC-10 was not yet in produc-
tion), and he was flying as copilot in that aircraft
(Tr. 29:4; Tr. 104:12-14; Tr. 377: 16-18; G.C. Exh.
3). Mourning had been trained in jet aircraft and
had, in fact, obtained his jet training (ATR) in the
Jet Commander (Tr. 63: 4-65:18). He obviously
wanted to qualify in the company's jet aircraft and
to progress within the flight department (Tr. 377: 2-
8; Tr. 63: 16-19); Tr. 102: 16-104:22. He was, at the
time of his discharge, preparing for a future in the
company's commercial field (Tr. 376:17-24).
Mourning's progress toward that ultimate goal, if
measured by the normal progress of other pilots in
the business fleet-Mourning's contemporaries, and if
not disrupted by his own inabilities, was definite
and certain, not speculative. Other pilots in that
1967-1968 business fleet went on to become, in the
normal course of progress, production and delivery
pilots for the company. [Footnote omitted.]
. . .pilot and instructor pilot for the company (Tr.
339:3010); Quinn is an engineering field representa-
tive (as McKinnon) (Tr.337:19-20). There is no
business fleet today (Tr. 339:1-2), it having under-
gone reductions since June, 1970 (Tr. 206:4-8; Tr.
235: 19-21) and completely phased-out afterwards
(Tr. 206:9-25; Tr. 235:17-18).
The statement is not inconsistent with Respondent's
present position, since Respondent acknowledges that
Mourning wanted to become a production and delivery
pilot, and there was a possibility that he would progress
toward that goal. However, that statement specifically is
"' That position was stated in proceedings of Douglas Aircraft Co., 238
NLRB 668 (1978).
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addressed to the time "prior to Mourning's discharge
from the company .... " That time frame, and the time
frame from date of discharge to June 9, 1970, is settled.
Mourning was found to have been illegally discharged,
and entitled to backpay. Respondent does not contend
that Mourning is not entitled to backpay prior to June 9,
1970. The layoff of that date was for economic reasons
unrelated to Mourning. The question is how that layoff
would have affected Mourning, if at all.
It is true that Respondent pressed in earlier proceed-
ings its argument that Mourning was a supervisor, but
Administrative Law Judge Boyce and the Board agreed
that he was not a supervisor. That argument ultimately
was negated by the D.C. Circuit Court, but there is no
inconsistency in Respondent now arguing from the legal
base built by the court. It is equally true that Mourning
once urged that the pilots were organized in three sepa-
rate units - business fleet, production and delivery, and
engineering testing. However, the present emphasis of
his argument is that all the pilots were, in reality, a single
unit in which they moved up, from the business fleet to
production and delivery and, ultimately, to engineering
testing.
D. The Question of an Equivalent Position
The Board's remedial order requires that Mourning be
offered reinstatement to his former position or, if that po-
sition no longer exists, to a substantially equivalent posi-
tion.
Mourning's former job in the business fleet was avail-
able, and he should have been reinstated in that job, as of
the date of his discharge on November 15, 1968. Howev-
er, as discussed above, Mourning's former position has
not existed since June 9, 1970. The General Counsel and
Mourning argue that an equivalent position has existed
since that date and the backpay specification incorpo-
rates a 10-percent raise for Mourning effective January 1,
1971, on the assumption that Mourning would have been
promoted on that date to production and delivery pilot.
James Middleton, a field examiner for the Board, who
prepared the specification, testified:
By taking a look, Mr. Quinn was given the title
of Production/Delivery Pilot approximately three
years after he came into the business fleet; Mr.
Riley, approximately six-and-a-half years after; and
Mr. Brush, I believe, was only a year-and-a-half.
So, I really took between Quinn and Riley and
put Mr. Mourning in approximately five years, five-
and-a-quarter years after he came into the fleet. Not
quite an average, but in between the two of them.
Q. In your discussions with Mr. Adler and other
people from the Company, as well as your own ex-
perience, did you learn what the difference was be-
tween the business fleet and the Production/-
Delivery Pilot?
A. Well, as I understand it, the Production and
Delivery Pilots were flying DC-9's, were just that -
either - I assume that production is production task,
although I was never actually told that and also for
delivery to the various customers. Whereas, the
business pilot was flying a smaller aircraft, either a
Cesna Twin Engine or Twin Jet Aero Commander.
By that action Mourning was promoted, for purposes of
the specification, from a rank-and-file employee to a su-
pervisor.65 Further, their action assumes that Mourning's
former job was in existence at all times until January 1,
1971. Aside from any argument about whether or not the
Board has authority to create a supervisor for Respond-
ent, 57 Middleton acknowledged that he did not really
understand the difference between a business fleet pilot
and a production and delivery pilot, and also, he used
only two pilots' promotions as a gauge to determine the
date January 1, 1971, for his promotion of Mourning.
The differences between pilots for the business fleet and
those for production and delivery are considerable, as
described above. The aircraft they fly, the duties they
perform, the hours and working conditions they have, s8
and their legal status under the Act (i.e., rank-and-file
employee versus supervisor), all are at considerable vari-
ance from each other.
So far as the date gauge is concerned, it was noted
earlier that pilots have not been promoted to production
and delivery on any schedule, or pursuant to any system
of advancement. Each case has been different, since
pilots have different qualifications and experience, and
many considerations enter into selection for promotion.
As noted, Respondent has no seniority system for pur-
poses of promotion. Finally, and perhaps most important,
a Board promotion of Mourning to DC-9 pilot, even if
only for purposes of the backpay specification, would
result in a determination that the Board can state when a
pilot is qualified to move in command from light aircraft
to heavy aircraft. Such a judgment is for Respondent,
since Respondent bears the burden of the consequences
of its pilot selections. The Board specifically refused to
undertake such a determination, when it issued its deci-
sion in 238 NLRB 668, 672 fn. 25:
As we have found that Mourning was not a su-
pervisor at the time of his discharge, we also find
no merit in Respondent's argument that he was a
supervisor trainee and he ultimately would have
become a supervisor. There is evidence in this
record that Mourning was attending ground school
to prepare himself to fly larger aircraft, but there is
no evidence that the program was designed to train
pilots to become supervisors. Furthermore, before
Mourning could expect assignment as a pilot-in-
command on larger aircraft such assignment was
contingent on his demonstrating his qualifications
therefor. Under the circumstances of this case it
be Douglas Aircraft Co., 238 NLRB 668 (1978).
' Respondent argues that the Board has no such authority, relying
primarily on Ford Motor Co., 251 NLRB 413 (1980), enf. denied NLRB v.
Ford Motor Co., 683 F.2d 156 (6th Cir. 1982).
68 Production and delivery pilots at times are required to be on travel
status, sometimes as much as several months. Mourning testified that, at
least since approximately 1972, "I can't be away from my son [note: the
son is mentally retarded] to a lengthy extent. I've got to be home every
night."
1216
MCDONNELL DOUGLAS CORP.
would be pure speculation whether he would have
ultimately attained supervisor status.
Counsel for Mourning argues that the true issue here is
not whether Mourning would have been laid off in 1970
because of changed business conditions. Rather, it is
argued, the issue is whether or not Respondent would
have had work available for Mourning. Counsel then
contends that such work was available because one plane
remained in the business fleet, and there still was business
fleet work to be done. However, that argument does not
take into account two basic facts. First, only one airplane
was kept in the business fleet (other than a helicopter),
and Respondent kept its two best qualified pilots for that
airplane, both of which pilots were better qualified than
Mourning. Second, on the occasions when nonbusiness
fleet pilots temporarily flew the business fleet Jet Com-
mander, those pilots permanently were assigned to pro-
duction and delivery or engineering testing, in neither of
which capacities was Mourning qualified or rated.
Akin to this argument is the contention of the General
Counsel and Mourning that Respondent should have of-
fered Mourning a job at McDonnell Aircraft Company
in St. Louis. That argument is without merit. At no time
during the long history of this case has there been a con-
tention that any unit group of employees, or job, was in-
volved other than at Douglas' plant in Long Beach. The
two facilities were merged primarily because of financial
difficulties related to production problems, and both
have retained their corporate autonomy since the
merger. Management and personnel have kept their sepa-
rate identities, and there has been no interchange of em-
ployees at any level, managerial, supervisorial, or rank-
and-file. In any event, Douglas' business fleet counterpart
in St. Louis had only transport pilots with crews consist-
ing of a copilot, a navigator, and a flight engineer, and
those pilots are statutory supervisors. 59 As found herein,
Mourning would not have been, as of June 9, 1970, rated
or qualified for those positions, even assuming such a po-
sition was available, which is not shown. It is recognized
that McDonnell was decided December 1, 1973, but there
is nothing in the record to show that the pilot structure
then was any different from what it was in 1970.
Motion for Attorney's Fees
At trial, and by undated document filed herein,
Mourning's attorney moved for award of attorney's fees,
on the basis that "The Company in this case has no just
cause to complain about being held responsible for these
fees since it deliberately chose to force Mourning
through these legal proceedings, and then burdened
those proceedings with the exhaustion of every defense
the ingenuity of its counsel could devise."
Much of the argument in support of counsel's motion
is addressed to the period of time prior to adjudication of
the merits of the case, which occurred on September 29,
1978. Counsel complains about delay prior to that date,
and argues that, since the original wrong of illegally dis-
charging Mourning was Respondent's and since Re-
sg McDonnell Aircraft Co., 207 NLRB 684, 685 (1973).
spondent caused the delay by its "recalcitrance and per-
sistence," Respondent should pay the attorney's fee.
As counsel points out, the Board customarily does not
award attorneys' fees to successful litigants, but does
make such awards in appropriate cases. Such cases in-
clude those wherein the Board sought to discourage
"frivolous litigations and wherein a respondent has been
dedicated to outright rejection of the Act, shown by re-
peated and flagrant denial of employee rights, intransi-
gence, and the flouting of Board and court rules. e"
However, awards have been denied in cases wherein a
respondent's unfair labor practices simply are "aggravat-
ed."6 2
Temporarily setting aside for purpose of discussion,
the period from November 15, 1968 (date of Mourning's
discharge), to January 14, 1975 (date of remand by the
Board to the Regional Director of 202 NLRB 304,
supra), this case has followed a routing path that is well
known to litigants, the Board, and the courts. The matter
was heard by Administrative Law Judge Boyce on
March 18-20, 1975, and his decision was issued May 6,
1975. On December 16, 1975, the Board adopted Admin-
istrative Law Judge Boyce's decision to dismiss the com-
plaint in its entirety. The Board's decision was appealed,
as noted above, and was remanded by the court to the
Board for further proceedings. On September 29, 1978,
the Board reversed its position and ordered Mourning re-
instated with backpay. That order was enforced by the
Ninth Circuit on March 12, 1981. The backpay specifica-
tion was issued November 4, 1982, and a backpay hear-
ing was held in April and May 1983. That history, in and
of itself, is not remarkable in any sense. There was some
procedural maneuvering, as outlined in the "Statement of
the Case," above, but there is no indication that Re-
spondent acted frivolously, improperly, or in rejection of
the Act. To the contrary, much of the time involved in
this period was consumed as a result of the Board's
agreement with Administrative Law Judge Boyce that
Mourning was a supervisor, with which conclusion the
Court of Appeals for the District of Columbia disagreed.
Nor is there any evidence that, during this period, Re-
spondent acted in an "aggravated" manner so far as any
unfair labor practice is concerned.
Clearly, an award of attorney's fees for the period dis-
cussed above is not appropriate.6 3
As noted, counsel seems particularly concerned with
events between November 15, 1968, and January 14,
1975. Mourning filed an unfair labor practice charge
with the Board on May 9, 1969. Thereafter, as summa-
rized in Statement of the Case, supra, the Regional Di-
rector refused to issue a complaint (August 7, 1969);
there was a series of letter exchanges between Mourning
and the Office of Appeals; the latter office closed the
case (June 5, 1970); the case later was reopened; and on
November 16, 1972, the Regional Director issued a com-
60 Electrical Workers IUE (Tiidee Products) v. NLRB, 426 F.2d 1234
(1970), cert. denied 400 U.S. 950 (1970).
' J. P. Stevens & Co., 244 NLRB 407 (1979), 668 F.2d 767 (4th Cir.
1982).
' Heck's. Inc., 191 NLRB 886 (1971).
as Heck's, Inc., supra.
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint. So far as the record shows, during the period No-
vember 15, 1968, to November 16, 1972, Douglas was
not a party to any proceeding involving Mourning. The
argument was among Mourning, the Regional Director,
and the Director of the Office of Appeals. Douglas was
not directly involved in any legal proceeding until it re-
ceived a copy of the complaint, which it timely an-
swered on November 21, 1972. Thereafter, Douglas
moved to dismiss the complaint (November 22, 1972);
the motion ws denied by the Associate Chief Administra-
tive Law Judge (November 30, 1972), but was granted
on appeal to the Board (March 8, 1973); the Board was
reversed by the Court of Appeals for the District of Co-
lumbia (October 17, 1974); and the matter was referred
to Administrative Law Judge Boyce, who tried it March
18-20, 1975. Of this entire period of time, approximately
6-1/2 years, Douglas was involved for only approximate-
ly 2-1/2 years (other than the discharge itself). During
that 2-1/2 years Douglas did not, so far as the record
shows, do anything other than defend itself, as it was en-
titled to do under the Act. There is no showing that
Douglas acted frivolously, arbitrarily, or in defiance of
the Act or the Board. Mourning prevailed in his claim
on September 29, 1978, but in the meantime, and particu-
larly during the period under discussion, it could not be
assumed that Douglas violated the Act. To the contrary,
the Board agreed with Douglas' contentions on two sep-
arate occasions. This period shows no unconscionable
delay, or misconduct, on the part of Respondent. Wheth-
er or not counsel feels aggrieved by any action, or fail-
ure to act, on the part of the Board or the Office of Ap-
peals, is irrelevant so far as counsel's motion for attor-
ney's fees to be paid by Douglas is concerned. There is
no basis for finding that Douglas' actions within this
period were appropriate for award of a fee, as requested.
Counsel's motion for attorney's fees is denied.
The Backpay Period and Earnings
Based on the record, including the pleadings, stipula-
tions of counsel, and testimony, it is found:
(a) Mourning's backpay period commenced November
15, 1968, and ended June 9, 1970.
(b) During his backpay period Mourning had net earn-
ings as set forth in the General Counsel's specification.
(c) Mourning is entitled to backpay in the sum of
$13,310.19, less applicable withholdings required by law,
plus payment of Mourning's benefits under Respondent's
savings and retirement plans, in the sums to be deter-
mined by the Regional Director as being due and owing
pursuant to the terms of the two plans.
ORDER
On the basis of the foregoing findings and conclusions,
it is ordered that McDonnell Douglas Corporation pay
to Robert H. Mourning the sum of $13,310.19, plus the
amount to be computed by the Regional Director as due
and owing to Mourning under Respondent's savings and
retirement plans for the period November 15, 1968, to
June 9, 1970, with interest on all amounts to be comput-
ed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corp.,
231 NLRB 651 (1977), less tax withholdings required by
Federal and state laws.
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