Mooney Aircraft, Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1962

138 N.L.R.B. 1331 (N.L.R.B. 1962)

MOONEY AIRCRAFT, INC. 1331
plover herein has rendered services in excess of $50,000 to the afore-
said steel companies over whom the Board has asserted jurisdiction,
and therefore its operations come within the purview of the Chain
Service decision.
4. However, the State commission raises the issue as to whether
status as a nonprofit enterprise would affect the Board's assertion of
jurisdiction over the Employer. Although the Employer is a non-
profit organization, it is engaged in activities of a commercial nature
since it renders its health, medical, and hospital insurance services as
an important part of the insurance business and as an important
adjunct to the steel industry. See Middle Department Association of
Fire Underwriters, 122 NLRB 1115, 1117; Kentucky Rural Electric
Cooperative Corporation, 127 NLRB 887. Further, "it is immaterial
that a nonprofit corporation is motivated by considerations not strictly
commercial where the activities themselves are commercial in nature."
Middle Department Association of Fire Underwriters, supra; Dis-
abled American Veterans, Inc., 112 NLRB 864. Under these circum-
stances, the Board would not decline to assert jurisdiction over the
Employer because of the nonprofit character of its operations.
Accordingly, the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations, Series 8, as amended, that, on
the facts here present, the commerce operations of the Employer are
such that the Board would assert jurisdiction with respect to labor
disputes cognizable under Sections 8, 9, and 10 of the Act.
Mooney Aircraft , Inc. and Lodge 725 , International Association
of Machinists, AFL-CIO. Cases Nos. 23-CA-1188 and 23-CA-
1386. October 1, 1962
DECISION AND ORDER
On June 14, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached In-
termediate Report. Thereafter the Respondent and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs. No exceptions were filed by the General Counsel.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three-member panel
[Mlenibers Rodgers, Fanning, and Brown].
138 NLRB No. 136.
662353-33-vol 133-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed? The Board has considered the In-
terlnediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
The Trial Examiner found, inter alia, that the Respondent made
unilateral changes in working terms and conditions in violation of
Section 8(a) (5) of the Act.2 To remedy these violations, the Trial
Examiner recommended an order directing that Respondent cease
and desist from making such changes without first affording the
Union an opportunity to bargain with respect thereto. The Union
excepts to the failure of the Trial Examiner to recommend an order
with an affirmative direction, and the Union urges that Respondent
be ordered to rescind the unilateral changes. We do not believe that
an order requiring rescission and a return to the status quo would be
appropriate. However, as these changes were made in violation of
the Act, we shall direct that Respondent, upon request, bargain with
the Union with respect to the subject matter of these changes.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Mooney Aircraft,
Inc., its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discriminating against any of its employees with respect to
terms and conditions of employment, or tenure of employment because
they engaged in concerted activities for mutual aid or protection, or
1 At the time this proceeding came on for hearing, there was pending in the United
States Court of Appeals for the Fifth Circuit the Board's motion for summary enforce-
ment of its order against this Respondent in Board Cases Nos. 23-CA-1015, 23-CA-1055,
and 23-CA-1050. ( 132 NLRB 1194.) That order contained , inter alas , provisions re-
quiring tl .e Respondent to bargain in good faith with the Charging Party, and to cease
and desist from unlawful interference , restraint , and coercion of employees . Because of
the pendency of that case , the Trial Examiner took no evidence in this case to establish
alleged violations regarding whether the Respondent used improper conduct in bargain-
ing negotiations and whether the Respondent through supervisors ' statements interfered
with, restrained , or coerced its employees The Trial Examiner issued his Intermediate
Report on the issues that were litigated , with leave to the General Counsel, if he so de-
sires, to renotice the remaining matters for hearing after the Fifth Circuit disposes of
the case before it In the absence of exceptions to this procedural ruling by the Trial
Examiner, we affirm it pro forma.
2 The unilateral changes found violative of the Act are: (1 ) changing wage rates and
classifications ; ( 2) establishing and instituting a wage incentive program ; ( 3) effecting
a readjustment in work schedules ; ( 4) abolishing an employee rest period and modifying
employee eligibility standards for holiday pay; and ( 5) ceasing a practice of permitting
employees to make up periods of lost time due to absences.
3 Member Rodgers would adopt the remedy recommended by the Trial Examiner with-
out modification
MOONEY AIRCRAFT, INC. 1333
because of their membership in, or activity on behalf of, Lodge 725,
International Association of Machinists, AFL-CIO.
(b) Changing any term or condition of employment without first
affording the above-named Lodge 725 a reasonable opportunity to
bargain with respect thereto.
2. Take the following affirmative action necessary to effectuate the
policies of the Act :
(a) Make whole James Spicer, Joel English, Pennington Gaines,
and John Carnes for any losses sustained by the failure to assign over-
time to Carnes, English, and Gaines between May 22, and August 5,
1961, and by the failure to permit Spicer to work on May 20, 1961,
because of their participation in a strike on May 16, 1961.
(b) Offer to James Spicer immediate and full reinstatement to his
former, or to a substantially equivalent position, and make him whole
for any loss of earnings attributable to his discriminatory discharge
on April 21, 1962, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," as modified herein .4
(c) Upon request make available to the Board and its agents for
examination and copying all payroll records and other data helpful in
analyzing backpay due under the terms of provisions 2(a) and 2(b)
above.
(d) Upon request, bargain collectively with the above-named
Union as the exclusive bargaining representative of its production and
maintenance employees with respect to changes heretofore made re-
garding wage rates and classifications, a wage incentive program, re-
adjustment in work schedules, rest periods, eligibility standards for
holiday pay, and make up periods for lost time due to absences.
(e) Post at its plant at Kerrville, Texas, copies of the notice attached
hereto marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Twenty-third Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
* The amount of backpay due shall include an allowance for interest to be computed in,
the manner set forth in Isis Plunibing cE Heating Co, 138 NLRB 716. Member Rodgers,
for the reasons set forth in his dissenting opinion in Isis, would not award interest.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing any Order."
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT change any terms or conditions of employment
without first giving Lodge 725, International Association of
Machinists, AFL-CIO, a reasonable opportunity to bargain with
us concerning any proposed changes.
WE WILL, upon request, bargain collectively with Lodge 725, In-
ternational Association of Machinists, AFL-CIO, as the exclusive
bargaining representative for our production and maintenance
employees with respect to changes heretofore made regarding
wage rates and classifications, a wage incentive program, read-
justment in work schedules, rest periods, eligibility standards for
holiday pay, and make up periods for lost time due to absences.
WE WILL NOT discharge or otherwise discriminate against any
employee because of his union membership or activities, because
he engaged in a lawful strike.
WE WILL give backpay to John Carnes, Joel English, and Pen-
nington Gaines to compensate for overtime withheld from them
in the 4 months following the strike of May 16, 1961, and we will
pay James Spicer for the 4 hours we did not permit him to work
on May 20, 1961, following that strike.
WE WILL offer James Spicer reinstatement to his former job;
and give him backpay for any wages he lost because of his dis-
charge on April 12,1962.
All our employees are free to become members of Lodge 725, or any
other union, and they are also free not to be members of any union.
MOONEY AIRCRAFT, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office 6617 Federal Office Building, 515 Rusk Avenue, Houston 2,
Texas, Telephone Number, Capitol 8-0611, Extension 271, if they
have any questions concerning this notice or compliance with its
provisions.
MOONEY AIRCRAFT, INC. 1335
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Case No. 23-CA--1188 originated with a charge filed March 21, 1961, an amended
charge filed September 7, 1961, and a complaint issued March 9, 1962. Case No.
23-CA-1386 originated with a charge filed March 1, 1962, an amended charge
filed March 27, 1962, and a complaint issued March 28, 1962. Answers denying
the commission of unfair labor practices were duly filed. The cases were con-
solidated by an order of the Regional Director accompanying the second complaint,
and were heard before Trial Examiner Frederick U. Reel at Kerrville, Texas, April
23 to 25, 1962. At the outset of the hearing both complaints were amended in
various respects, the most significant charge being the addition of an allegation
that Respondent had discriminatorily discharged one James Spicer on April 12, 1962.
As eventually amended, the complaints raised the following issues:
1. Whether Respondent discharged J. M. Carnes and James Spicer for union
activities.
2. Whether Respondent prevented Spicer from performing makeup work because
of his union or concerted activities, and withheld overtime from Spicer, Carnes,
and two other employees (P. Y. Gaines and J. D. English) because of their union
or concerted activities.
3. Whether Respondent, while under an obligation to bargain with the Charging
Party, instituted changes in terms and conditions of employment without affording
the Charging Party an opportunity to bargain thereon.
4. Whether Respondent in violation of its bargaining obligation withheld wage
data from the Charging Party, and engaged in dilatory and evasive acts and conduct
in the course of bargaining negotiations.
5. Whether Respondent through its supervisors made statements which interfered
with, restrained, or coerced its employees in the exercise of their Section 7 rights.
At the time this proceeding came on for hearing, there was pending in the
United States Court of Appeals for the Fifth Circuit the Board's motion for sum-
mary enforcement of its order against this Respondent in Board Cases Nos. 23-
CA-1015, 23-CA-1055, 23-CA-1056. That order contained, inter alia, provisions
requiring Respondent to bargain in good faith with Charging Party, and to cease and
desist from unlawful interference, restraint, and coercion of employees. Because of
the pendency of that case, it was (and is) my view that no useful purpose would have
been served in taking evidence designed to establish the fourth and fifth items listed
above, for in the event of enforcement of the earlier order no meaningful additional
order could be entered with respect to those matters in this case.' This same argu-
ment could not, of course, apply to the allegations of discrimination, nor could it
be applied to the alleged unilateral action as a remedial order might be warranted
directing the rescission of the action unilaterally taken. Accordingly, evidence at
the hearing was taken from all parties with respect to only the first three items
listed above, and the hearing was then adjourned to await the fifth circuit's dis-
position of the related case before it. On May 22, 1962, the fifth circuit issued
an order in that case, the effect of which is to defer disposition of that matter until
next fall at the earliest. Under these circumstances I deem it to be in the public
interest to issue this Intermediate Report now on the issues thus far litigated, with
leave to the General Counsel, if he so desires, to renotice the remaining matters
for hearing 2 after the fifth circuit disposes of the case before it.
If the fifth circuit enforces the case before it, it is my view that the issues on
which I am now declining to pass, and on which no evidence was taken, will become
moot, or if not technically moot, that it will not effectuate the statutory policies
to take testimony and issue an order with respect to them. If following such enforce-
ment, those allegations of the complaint on which I am now not passing were sus-
tained, all that would establish is that Respondent continued to violate the Act in
the same manner while litigating its position. The enforcement decree will be
ample protection for the future as well as a full remedy for the past. Moreover,
the parties are still meeting regularly at the bargaining table, so a new bargaining
order issued by a Trial Examiner while the other case is pending in court would not
have any effect on the conduct of the parties, such as might perhaps be accom-
plished if the relationship had broken off.
If the fifth circuit enforces the Board order, any renewed or continued violations
thereafter can be handled in contempt proceedings or possibly in a new enforce-
1 The bargaining order in the prior case rested on findings of bad faith in negotiations,
unilateral action, and failure to furnish data.
2Primarily , paragraphs 6, 10(b ), and 10 ( c) of the complaint in Case No. 23 -CA-1188.
:71336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment proceeding.3 If the fifth circuit denies enforcement, the General Counsel will
be free, if he is so advised, to reset for hearing the matters which remain outstanding
in the instant case .4
The parties were afforded an opportunity to file briefs with respect to the allega-
tions of discrimination and unilateral action. General Counsel filed such a brief
which has been duly considered. On the entire record, and on my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
As alleged in the complaints and admitted in the answers in this proceeding, and
as found by the Board in the prior proceeding, I find that Respondent, a manu-
facturer of small aircraft, is engaged in commerce within the meaning of the Act,
and that the Charging Party, hereinafter called the Union, is a labor organization
within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The unilateral changes in working conditions
Respondent has been under a statutory obligation to recognize and bargain with
the Union since the latter's certification in September 1959. Under settled law
observance of this statutory obligation requires, inter alia, that Respondent make no
changes in terms or conditions of employment without affording the Union an op-
portunity to bargain thereon. The complaint, as amended, alleged that Respondent
had violated that duty in the following six respects:
(1) On or about December 5, 1960, establishing and instituting a new and/or
modified structure of plant job classifications and basic hourly rates of pay.
(2) On or about February 13, 1961, establishing and instituting a wage incentive
program for employees known as the "Mooney Performance Incentive Plan."
,(3) On or about December 4, 1961, by effecting a general reduction in its em-
ployee work force and a readjustment in work schedules.
(4) On or about January 16, 1961, abolishing an employee rest period and modi-
fying employee eligibility standards for holiday pay.
(5) On or about August 1, 1961, ceasing a practice of permitting employees to
make up periods of lost work time due to absences.
(6) On or about January 30, 1962, effectuating changes in its policies governing
discharge for absenteeism and employee vacations. The evidence with respect to
each of these matters may be summarized as follows:
1. At a bargaining session on Saturday, December 3, 1960, the Company presented
the Union with a proposed contract containing certain proposed increases in wage
rates and classifications, eliminating the job title of "assistant foreman," and in some
departments creating in its stead the title "leadman." The Company announced that
the new plan would go into effect the following Monday, December 5. The Union
asked for time to study the new proposal, but the Company declined to take a recess
8 I am aware of the dictum of the seventh circuit in N L R.B. v. John S. Swift Com-
pany, Inc , 302 F 2d 342, stating that the Board is free to proceed with a second bargain-
ing case rather than by contempt, even though the first has culminated in a court decree.
I note that the brief filed by General Counsel on behalf of the Board in that case stated,
pp 12-13, footnote 8:
The only [bargaining] Issue . . . In the prior case was whether the Company had
unlawfully withheld bargaining data, and . . . the Court limited its decree accord-
ingly . .. the Board could properly consider it inappropriate to institute contempt
proceedings here. Since new and independent violations were presented by this
case-conduct beyond the scope of the prior decree-the Board could properly enter-
tain the new unfair labor practice charge and seek to remedy the Company's un-
lawful action in a new proceeding.
I quote this language not because I regard it as binding but to show that even after a
decree (as in Swift) General Counsel would normally proceed by way of contempt, pre-
ssumably on the theory that a second bargaining order would be a futility.
C The record in this proceeding is hereby closed insofar as it relates to the matters as to
which evidence was taken ; it remains open for possible action on the remaining issues,
which action may be initiated by the General Counsel in the form of noticing the case
for hearing or moving to dismiss, depending on the ultimate disposition of the earlier case.
MOONEY AIRCRAFT, INC. 1337
in the negotiations , and the wage and classification changes were made effective on
the next working day without further discussion.
The Company's position on this matter is that the Union voiced no objection to
the proposal on December 3, 1960, and that in later contract proposals the Union
did not urge the undoing of the changes made December 5,, 1960. I find that the
Company did not bargain in good faith with respect to the December 1960 changes
in wage rates and classifications, but that it would not effectuate the policies of the
Act to direct that the changes be rescinded.
2. What has been said above with respect to the December 1960 changes is equally
applicable to the Mooney incentive plan, which was presented to the Umon on Satur-
day, February 11, 1961, and made effective the following Monday despite the
Union's request on February 11 for time to study the matter and its later protests
that the plan was instituted without bargaining. The Company makes the same con-
tentions with respect to the incentive plan that it makes on the earlier changes: the
Union was apprised before the plan became effective and later incorporated the plan
in the Union's own proposals. As with the December 1960 changes, I find that the
Company did not give the Union a sufficient opportunity to negotiate over the
matter prior to instituting the plan, but an affirmative order to drop the plan pending
further negotiations would not, in my judgment, effectuate the statutory policies.
3. Shortly before quitting time on Monday, December 4, 1961, each employee re-
ceived a notice announcing that economic conditions necessitated a temporary re-
adjustment of work schedules, that each employee (other than approximately 94
who were receiving layoff notices at that time) should consult his foreman as to
when his department would operate, and that the plant would operate full force on
only 7 more days in December and 18 days in January. This change had never
been discussed with the Union although a bargaining session had been held only 2
days before. The Union protested the matter by telegram, and raised it at the next
two bargaining sessions at which the Company simply took the position that the
changes in schedule were necessitated by economic conditions.
Respondent introduced evidence attesting to its serious economic predicament
early in December 1961, indicating that but for the cutback effected at that time, it
would have been unable to meet its payroll. Respondent also introduced evidence
that the situation worsened rapidly, that a final determination as to the cutback was
not made until Sunday, December 3, and that to preserve employee morale, the
matter was kept strictly confidential among the supervisory employees.
Upon consideration of the entire record with respect to this matter, I find that
Respondent violated its bargaining obligation by making no attempt to discuss the
changed work schedule with the Union before instituting it. Under all the circum-
stances, however, I find that an order directing the Company to reimburse all em-
ployees affected by the cutback would be too drastic a remedy, particularly as the
evidence convinces me that at least some cutback would have been made. I find
no basis in the record for prescribing any lesser affirmative relief for this matter,
and hence must perforce conclude that no affirmative order based on this violation
should issue.
4. Prior to January 16, 1961, Respondent, in addition to providing other rest
periods during the day, permitted a 10-minute break between the end of the regular
workday and the beginning of overtime. Also prior to that time Respondent
awarded holiday pay to any employee who worked on the day before and on the
day following a holiday. In mid-January 1961 Respondent promulgated a new
Employees Guide which eliminated the rest break between regular time and over-
time, and specified that an employee must work a full day both before and after the
holiday to enable him to qualify for holiday pay. Those changes were not discussed
with the Union prior to their being instituted, but were the subject of discussion at
several later bargaining sessions.
Here again I find that the institution of these changes constituted unilateral action
violative of the Company's bargaining obligation, but that it would not effectuate
the policies of the Act to order their rescission. In reaching the latter conclusion, I
am influenced by the fact that .the changes are relatively insubstantial, that they have
been in effect for well over a year and have been discussed at bargaining conferences,
that overtime is voluntary on the part of the employees, and that the requirement
of a full day's work before and after a holiday may be viewed as merely an interpre-
tation or codification, rather than a substantial change, of the preexisting rule.
5. In the June-July 1961 issue of a company publication known as the Mooney
Marker, the Company announced that henceforward it would no longer follow its
former policy of permitting employees who were absent during the week to make up
the missed time by working on Saturday The change in policy had not previously
been discussed with or communicated to the Union, but was discussed at a bargaining
session the following September. The reasons for the change were briefly stated
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Mooney Marker previously referred to, and were expanded at the hearing in
the testimony of the Company's vice president in charge of manufacturing and engi-
neering. In esence, the Company's position is that the privilege of Saturday makeup
became abused, and that, particularly after the Company changed from wood to
metal aircraft, the men worked in teams of two which would be disrupted by mid-
week absenteeism and Saturday work on the part of one member of the duo.
Although the abandonment of the previous practice without negotiations with the
Union constituted a plain violation of the duty to bargain, I will not recommend that
the practice be reinstated. My reasons for not so recommending are that,the prac-
tice has not existed for approximately a year, the Union in subsequent contract
proposals did not seek reinstatement of the practice, and the Company's reasons for
abandoning the practice appear so compelling that good faith bargaining over the
matter would almost certainly lead either to Union acquiescence or to an impasse
after which the Company would be free to abandon the practice in question.
6. At a bargaining session on the last Saturday in January, 1962, Respondent pre-
sented the Union with certain changes Respondent intended to make in its Employees
Guide relating to absenteeism and to vacations. The changes were discussed briefly,
and the Union president indicated that at first glance he saw no objection to the
changes which appeared merely to bring the guide up to date and conform it to
existing policy. The changes were incorporated in the revision of the guide issued
the following Monday. One of the changes in question was to recite that frequent
or unexplained absences will probably result in termination; the prior language had
read: "Unreported absences may result in termination." The other change had to
do with the noncumulative character of vacations, but this was a matter to which
the union president "didn't pay a great deal of attention" and testified that the new
policy "in some cases . would be [more restrictive] and in some it might
actually help the employees."
In my view General Counsel failed to sustain his burden of proving that the alleged
changes of January 1962 were in fact changes in terms of employment or, if changes,
that they were instituted unilaterally. But assuming, arguendo, that the January
1962 events constituted unlawful unilateral action, they do not affect the order to
be entered in this case, for they would be purely cumulative insofar as the cease and
desist provisions of the order are concerned, and they are too inconsequential to
justify an affirmative order restoring the previous situation.
B. Discrimination in permitting makeup work and overtime
Prior to the summer of 1961 the Company had the practice of permitting an
employee who had been absent for a half day or more during the week to make
up at least part of the time lost by working 4 hours on Saturday. On Tuesday,
May 16, 1961, employee James Spicer and certain other employees engaged in a
1-day strike to protest the discharge of a fellow employee, one Jones. The follow-
ing Friday, Spicer asked his foreman for permission to work on Saturday morning
to make up part of the time lost. Although work was available, the foreman refused.
Other employees in that department who had not participated in the strike were
working on Saturday. Respondent offered no explanation at the hearing for its
departure on that occasion from its then existing practice. Under all the circum-
stances I find that Respondent declined to permit Spicer to work that Saturday be-
cause he engaged in an economic strike on the preceding Tuesday, and that if his
Tuesday absence had been occasioned by some other reason (e g., if he had simply
taken the day off to go fishing) he would have been permitted to work on Saturday.
It follows, of course, that the refusal to permit Spicer to work that Saturday violated
Section 8(a)(1) and (3) of the Act. See N.L.R.B. v. John S. Swift Company, Inc.,
277 F. 2d 641, 646 (C.A. 7), and the Globe, West Coast Casket, and Case cases
there cited.
Three other machine shop employees, Carnes, Gaines, and English, had joined
Spicer in the 1-day strike on May 16, 1961. General Counsel alleged that those
four employees were discriminatorily refused overtime between that date and the
following September. Records introduced into evidence establish that substantial
amounts of overtime, ranging from 4 to nearly 16 hours, were regularly worked by
nonstriking employees, Garza, Houy, Kozielski, Cowden, and Leal during the period
beginning May 22, 1961, and ending August 5, 1961, and that none was worked in
that period by any of the four strikers, except for one nearly 8-hour overtime stint
by Spicer.5 Several other machine shop employees worked no overtime in that
5 The records as introduced also cover the pay periods ending August 19 and Septem-
ber 2 and 16, 1961. In the first of those no overtime was worked by anyone, and the
last two found English and Gaines doing considerable overtime.
MOONEY AIRCRAFT, INC. 1339
period, but they were employees who had been hired on or after April 28, 1961.
Prior to the May 16 strike the four alleged discriminatees had frequently worked
overtime. In view of the testimony that the foreman normally assigned overtime
on an equitable basis, these records make out a prima facie case in support of the
complaint. Moreover, Spicer, Carnes, and English each testified that he sought
and was refused overtime work in that period, and Gaines testified that he had
previously indicated a general eagerness to work overtime. A charge alleging dis-
crimination in awarding overtime was filed September 7, 1961, and the record shows
that English and Gaines worked their first poststrike overtime in the pay period
ending September 2, 1961.
On the other hand, Respondent established that English in two of the work-
weeks in question was absent for part of the time, and that on two occasions
between May 16, 1961, and his voluntary termination of employment on Decem-
ber 5, 1961, he refused overtime assignments. Respondent further showed that
English in July and October 1961, after the 1-day strike, received pay increases
and a promotion. With respect to Gaines, Respondent showed that he received
a pay increase on June 26, 1961, only 40 days after the strike, and other increases
in October 1961, and in January and April 1962. Respondent also introduced
evidence that Gaines on more than one occasion between January 1, 1961, and
the date of the hearing refused overtime. As to Carnes, Respondent established
that he received a wage increase only 70 days after the 1-day strike and also urged
that his work was inferior on the particular items on which overtime was required.
As to Spicer, who worked some overtime during the first full pay period after the
strike, Respondent introduced evidence that his primary job was as a tool grinder
on which little or no overtime was required. The records introduced by General
Counsel show that in the pay period ending September 2 and 16, 1961, when English
and Gaines worked substantial amounts of overtime, Spicer worked none. Finally,
with respect to all four employees, Respondent introduced evidence that the plant
worked less overtime in the summer of 1961 than during the weeks preceding and
following that period.
In sum, the record shows a prima facie case of discriminaiton against all four
employees in consistently awarding overtime to nonstrikers and denying it to strikers,
and the issue before me is whether Respondent successfully rebutted this prima
facie case. I find that as to Spicer the case is sufficiently rebutted by the showing
that overtime on the grinder was infrequenlty required and that he worked overtime
on another machine in the pay period following the strike. I also find the case
rebutted in part as to English, who was absent during at least two of the pay
periods. English refused overtime on two other occasions between May 16 and
December 5, 1961, but the record does not show on which two occasions he refused.
As to Gaines and Carnes, on the other hand, I find that the prima facie case stands
unrefuted. As to Gaines, while he received wage increases on June 26, 1961, and
periodically ,thereafter, this appears to have been in accordance with company
practice, albeit not by contractual right. He, like English, refused overtime on two
occasions, but over a period of 16 months. As to Carnes, assuming his work to
have been inferior to that of the other milling machine operator, Carnes was a
machinist of 40 years' experience , who had also been used by the Company to
operate a lathe, and indeed did so just after the May 16 strike. I cannot believe
that Carnes' work in the summer of 1961 was so inferior that it caused him to be
regularly passed over in the assignment of overtime, and in this context his receiving
a wage increase that July would seem to attest to his satisfactory performance.
I find, in brief, that as to Carnes, English, and Gaines the preponderance of the
evidence supports the allegation that in violation of Section 8 (a) (3) and (1) they
were discriminatorily refused overtime during the period in question because of
their participation in the May 16, 1961, strike. See Swift case and related au-
thorities cited above with respect to the refusal to permit Spicer to make up work.
C. The "layoff" of Carnes and the discharge of Spicer
Turning to the more serious allegations of discrimination,6 General Counsel alleges
that Carnes was discharged on December 4, 1961, and Spicer on April 12, 1962, for
union activities. Respondent contends that Carnes was merely laid off on Decem-
ber 4 as part of a nondiscriminatory reduction in force, and that Spicer's discharge
was for good cause.
6 More serious, at least , in point of financial loss Remedy of the violations thus far
found would require the payment to Carnes of approximately $70, somewhat less to
Gaines, and $ 8 to Spicer.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. John Carnes
Carnes, a machinist of 40 years' experience , entered Respondent' s employ on
May 11, 1959, and by December 4, 1961, his last day at work, was second only
to Spicer in seniority in the machine shop. Originally hired at $1.50 per hour, he
received two wage increases in 1959, three in 1960, and two in 1961, the last being
to the rate of $1.90 per hour, 10 cents less than the most highly paid man in the
shop. He has been a member of the Union from the time of its inception in
October 1959. While in the machine shop he was primarily a milling machine
operator but had also operated a lathe. When the shop had only one milling ma-
chine, known as the Cincinnati Carnes operated it; when a second machine (the
Milwaukee) was added, Carnes switched to it, and another employee, Walter Cow-
den, took over the Cincinnati.
Carnes participated in the 15-week strike in 1960 (the subject, in part, of the
prior proceeding referred to above) and also in the 1-day strike in May 1961.
On November 24, 1961, Carnes accompanied by Spicer presented a grievance to
Respondent on -a union form, alleging that Carnes was being denied overtime to
which he alleged he was entitled under a union contract. On that occasion he and
his foreman were summoned to the vice president's office, where the vice president
informed him that the Company controlled overtime assignments and that it had
no contract with the Union. Foreman Curtin then produced a written record he had
prepared of Carnes' work, stating that Carnes had started well but his recent work
had been poor. The vice president thereupon stated that Carnes had "been a
problem" throughout his employment, that the next time Carnes "goof[ed] up"
he would be discharged, and that Carnes had been misled and had the wrong at-
titude. The grievance form was then returned to Carnes with the comment by the
vice president that he did not know "who was union" but that from the written
grievance he would suppose Carnes to be a unionman.7
On December 4, 1961, only 10 days after the episode just described, Carnes was
laid off along with over 90 other employees in the emergency reduction in force and
in work schedules described above. Two other men in the machine shop were also
laid off, but they were both recalled to work within the next 2 months, and another
employee was added to the machine shop crew. The milling machine on which
Carnes had been employed continued in operation, first under Ernie Boulette, who
left the job about 1 month later and was replaced by Jimmy Loitz, who had been
laid off on December 4, 1961, and was recalled when Boulette left. Loitz had had
no previous experience on the milling machine; Boulette had had some brief experi-
ence with it. Both Boulette and Loitz were union members, but there is no showing
that the Company was aware of this fact as Boulette joined the Union after the
May 16 strike and Loitz was hired after that strike.
Although Respondent takes the position that Carnes is in layoff status and was
not discharged, the reasons advanced by the Company for selecting him for layoff
and for not reinstating him tend to support General Counsel's contention that Carnes
was permanently separated from the payroll on December 4, 1961. These reasons
are discussed in further detail infra, but at present it suffices to note that Respond-
ent's vice president in a written statement to the Board agent investigating the charge
characterized Carnes as "an undesirable employee for Mooney Aircraft."
The foregoing summary establishes a strong prima facie case that Carnes is the
victim of unlawful discrimination because of union activity. Respondent, hostile to
the Union as evidenced by Respondent's violations of the Act in the prior proceeding
as well as in this, accused Carnes of having been "misled" and of having the "wrong
attitude" when he pressed a grievance through the Union. Respondent laid him
off or discharged him 10 days later although he was senior to retained employees
and had long experience on a needed machine. This machine continued to be
operated, first by a retained employee and later by a recalled employee, the first of
whom had little experience on the machine and the second none whatsoever.
As against this prima facie case of discrimination based on union activities, Re-
spondent alleged that Carnes was laid off and not recalled for good cause. In the
vice president's written statement referred to above, which he adopted as a witness,
he alleged with respect to Carnes:
His attitude was certainly uncooperative and his production was consider-
ably below par and his spoilage of parts was considered excessive . He was most
'r A conflict in the testimony between Carnes and Foreman Curtin, the former main-
taining and the latter denying that Carnes "talked union" in their joint car pool, need
not be resolved as company knowledge of Carnes' union activity is established by the
above episode. Furthermore, Foreman Curtin, a supervisor whose knowledge is attributable
to Respondent, testified that Carnes had asked him to join the Union
MOONEY AIRCRAFT , INC. 1341
disagreeable to work with and appeared to take every opportunity to be ineffi-
cient . He personally blew milling machine chips, with an air hose , at traffic
going by his milling machine , which is dangerous and unnecessary. He had-
been warned of this, but continued to do so. He was operating his machine and
was observed to be reading blueprints upside down . His eyesight was checked
and found to be inferior , although he had indicated he was reading blueprints,
which he obviously could not do accurately , and therefore , could not do his
work properly . Since Mr. Carnes has been removed from this particular
milling machine , production has approximately doubled by the new operator.
The evidence as to Carnes ' alleged inefficiency came largely from Respondent's
vice president and from Carnes' foreman , Curtin. The former testified that at the
time of the December 1961 layoff the Company decided to keep only one milling
machine operator as there was no need for the constant operation of two machines,
and that Cowden , the other machine operator , was far more able and efficient than
Carnes. While the machine vacated by Carnes continued to operate , it did not
operate full time, and ( according to Foreman Curtin ) it is now producing as much
in half-time operation as Carnes produced on it in full time. Curtin also testified
that Carnes had an annoying and dangerous practice of blowing metal milling chips
off his worktable with an air hose, and continued this practice after being cautioned!
to stop. The eyesight difficulty referred to in the vice president 's statement , supra,
apparently was corrected in late October or early November 1961 by the wearing
of new glasses , and the "blueprint" episode there mentioned predated the new eye-
glasses and amounts at most to a source of management 's earlier irritation at Carnes
rather than to an immediate cause for his layoff or discharge on December 4, 1961.
Foreman Curtin testified to an additional ground for complaint against Carnes,
namely, his refusal or failure to fill out the "move tickets" which reflected the
amount of time and the parts used in completing a particular job. According to
Curtin , whose testimony in this respect was undenied , Carnes despite repeated
adjurations neglected to fill out these forms which were required to enable Respond-
ent properly to determine production costs.
'In view of the importance of Foreman Curtin 's testimony with respect to Carnes,
it becomes necessary to discuss a conflict between the testimony of one Schmidtzensky
on the one hand and Foreman Curtin and Dietrich on the other . According to
Schmidtzensky , who is employed as a welder under Foreman Dietrich, he and
Dietrich were discussing the Carnes matter shortly after the layoff. On this occasion,
according to Schmidtzensky, Dietrich stated that Foreman Curtin , in a conversation
with Dietrich , had announced his intention to "walk out of that place before he would
testify in Mr. Carnes ' case," that he (Curtin ) "didn't have anything to do with it
and that it came from higherups than him ." Curtin denied making any such state-
ment to Dietrich . The latter on direct examination by Respondent's counsel denied
the statement attributed to him by Schmidtzensky , although on cross-examination he
admitted talking to Curtin about the Carnes matter and stated that the conversation
was so long before the hearing ( approximately 4 months) that he ( Dietrich) could
not recall what was said. Schmidtzensky also testified to a statement of Dietrich
concerning Spicer's discharge , and on this matter Dietrich corroborated him. When
the Trial Examiner asked Dietrich whether he had discussed Spicer's discharge with
Foreman Curtin, Dietrich answered that "we may have talked about it, and if so it's
been a long time ago and I don't recall it right now." Spicer was discharged less
than 2 weeks before Dietrich testified.
Although Dietrich impressed the Trial Examiner in the prior proceeding as a
"straightforward" witness ( and his demeanor in the instant case gives me no basis
for a contrary statement ), I find the content of his testimony , summarized above
distinctly unconvincing . Schmidtzensky 's demeanor likewise gives no basis for dis-
crediting him, and there would seem to be less reason for him to invent the conver-
sation with Dietrich than for Dietrich to deny it If Schmidtzensky 's testimony be
taken as establishing the fact as to what Curtin said to Dietrich , Respondent 's defense
as to Carnes largely collapses , for Curtin will then have lied as Ito a highly material
matter, and his testimony that Carnes' shortcomings led to Curtin 's recommending
layoff or termination will be discredited . But Schmidtzensky 's testimony consti-
tutes hearsay insofar as it purports to set forth a conversation between Dietrich and
Curtin. Although the hearsay was not objected to (see American Rubber Products
Co. v. N .L R.B., 214 F. 2d 47, 51-52 (C.A. 7); Ohio Associated Telephone Company
v. N.L.R .B., 192 F. 2d 664 , 666-667 ( C.A. 6) ), I am unwilling to rely on uncor-
roborated hearsay to supply the basis for a finding of an unlawful discharge. In
short, and to make my position clear for the benefit of reviewing authorities , I credit
Schmidtzensky as to what Dietrich said, but I am not finding that Carnes made the
statement which Dietrich attributed to him.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the entire record, I find that the issue is a very close one but that in
my judgment General Counsel did not sustain the burden of proof with respect to
Carnes. Notwithstanding the fact that Carnes received a wage increase the preced-
ing July and the other items in the General Counsel's prima facie case developed
supra, I am not persuaded that Carnes' union activity rather than his shortcomings
on the job caused his discharge. In this connection I note that Carnes' abortive
grievance was not a particular thorn in Respondent's side, and that none of Carnes'
fellow participants in the May 16, 1961, walkout was laid off at the time of his
separation on the following December 4.
I do not regard my finding as to Carnes' termination as in conflict with my finding
as to the withholding of overtime. The overtime matter appears to me to be a
direct reprisal for the May 16 strike. Moreover, it is one thing to contravene a
policy of comparatively equal distribution of overtime by withholding it from an
employee who, whatever his shortcomings, is still on the payroll, has recently re-
ceived a wage increase , and is capable of operating various types of machinery; it is
quite another to select such an employee for termination when a reduction in force
is an economic necessity.
I therefore recommend dismissal of the complaint insofar as it alleges unlawful
discrimination in the termination of Carnes.
2. James Spicer
Spicer, a union officer since its inception, a member of its bargaining committee,
and president of the Union since January 1962, was abruptly discharged in mid-
afternoon on Thursday, April 12, 1962, allegedly for "improper attitude, inefficiency,
wasting time, and deliberate slowup in production." Spicer at the time was the high-
est paid and the most senior employee in point of service in the machine shop, where
he was primarily employed on the tool grinder but also operated other machinery.
The Company concedes that he had unusual capabilities which would have rendered
him a valuable employee if he had performed to the full extent of his capacity.
General Counsel's case with respect to Spicer rests on his prominence in the
Union, the Company's hostility to the Union as evidenced in this case and in the
preceding case, and the manner in which the Company built its "case" against Spicer
amounting in effect to entrapment. In answer to the Company's observation that
it had never disciplined or discharged McLean, Spicer's predecessor as union presi-
dent, General Counsel introduced evidence showing that under Spicer the Union
had "stepped up" its organizing campaign. Under Spicer, the Union intensified
the use of leaflets attacking the Company, whereas under McLean leaflets had been
confined largely to notices of meetings and propaganda had been largely limited
to a general labor paper published in San Antonio, which contained only occasional
items concerning Respondent. One of the Union's leaflets distributed the day before
Spicer's discharge, attacked favoritism on the part of foremen toward their relatives.
This may have been a cause of special irritation to the company vice president,
whose son had been in the Company's employ. No other single episode is sug-
gested for the discharge on April 12 (the day before the end of a workweek, but
Respondent had no practice of discharging at the end of a workweek). Approxi-
mately 1 month before then Spicer had made an error in producing a small part,
turning out 800 of a single item, rather than 104 of that item and 728 of another.
This blunder in production did not of itself amount to a substantial financial item,
although if repeated on a wide scale it would manifestly have a disastrous effect on
the Company's financial stability. On the other hand, errors of this nature were
not unique; Foreman Curtin testified that every month or two employee English,
who was not even selected for layoff in December 1961, "would have a big goof up"
which at time "would be two or three hundred parts." After considerable prodding
by the Trial Examiner as to what happened on or before April 12, 1961, that caused
Curtin to recommend Spicer's discharge, Curtin at first said that nothing particular
happened but he got his "bellyfull," then referred to Spicer's frequent trips to the
lavatory (discussed below), and finally mentioned that he regarded Spicer's pro-
duction of bushings on April 10 as extremely low. This last ground for discharge
was thus asserted so belatedly as to suggest that it was an afterthought rather than
a moving factor in the discharge, and contributed little, if at all, to Curtin's "bellyfull."
According to Curtin he noticed late in October 1961 that Spicer was taking an un-
duly long time to grind certain tools. In the following weeks and months Curtin
had occasion to speak to Spicer about what Curtin regarded as unnecessary grind-
ing and about insufficient or improper grinding. On several of these occasions
Spicer, who was more experienced than Curtin, would have satisfactory explana-
tions. Beginning late in October, Curtin, after discussing the matter with his superior,
Production Superintendent Tonnessen, and with Vice President Harmon, agreed to
"keep a tab," or written record, on Spicer's production deficiencies. Respondent's
MOONEY AIRCRAFT, INC. 1343
vice president generally corroborated Curtin in this respect, stating that Spicer had
been the subject of discussion for several months before his discharge and that be-
cause of Spicer's prominence in the Union, the vice president directed Curtin "to
keep notes on Mr. Spicer so that we would have bona fide evidence" that he was
discharged for cause. Curtin's record on Spicer's production deficiences was not
introduced in evidence, but it seems reasonably clear that the record did not establish
ground for discharge, because in February, Curtin stopped keeping a complete paper
record on that subject and instead, again after a discussion with top supervisory
officials, began to keep a record of the frequency of Spicer's trips to the lavatory.
About 3 weeks before Spicer's discharge Vice President Harmon asked Curtin if
he was continuing to keep up a record on Spicer and Curtin replied he was. The
"lavatory" record, too was not introduced into evidence. On April 11, Curtin went
to Tonnessen to advise that he felt the record would now justify the discharge, and
Spicer was discharged the next day.
As most of the testimony concerning Spicer's discharge dealt with the frequency
of his trips to the lavatory, it is necessary to consider that matter in some detail.
According Ito Spicer he made four or five such trips each day, and-although pro-
testing that he never timed his stays-thought that the longer visits, one or two a day,
would last 5 to 15 minutes, and the shorter "probably take a minute or two." In
this connection Spicer pointed out that he had to wash grease from his hands on
entering the washroom, and also that it was not unusual to find all the facilities in
use, in which event he either had to wait or return shortly for another attempt.8
Curtin testified that his record, not introduced in evidence, showed that Spicer
averaged five or six trips a day to the restroom, that his shortest was 3 or 4 minutes
and his longest 20 minutes, and that about half the trips were of the 3- or 4-minute
variety and half lasted for 10 to 20 minutes. Although the failure to produce
Curtin's records could give rise to an inference that they would not support his
testimony (cf. N.L.R.B. v. Sam Wallick, etc., 198 F. 2d 477, 483 (C.A. 3), citing
2 Wigmore, Evidence, sec 285), his version in this respect is not so different from
Spicer's as to warrant discrediting it. In this connection it should be noted that
Curtin testified to time absent from work and Spicer to time spent in the restroom,
so that Curtin's record would include time spent walking to and from the restroom
(including time spent in conversation, at least some of which related to the Com-
pany's business) and Spicer's estimate did not. Spicer's estimate of four to five
trips is close to Curtin's record of six, and the latter's included occasions when Spicer
encountered a full house.
Respondent also claimed that Spicer engaged in an undue amount of conversation
between his workplace and the restroom, and also at his workplace, that he made
too many trips to a second drinking fountain (the first such fountain was next to
the restroom, and the second was in the opposite direction from the machine shop),
and that his gait through the plant was inordinately slow. The record is devoid
of any evidence which would warrant a finding that his trips to the fountain in ques-
tion were excessive, and Spicer has always been a notoriously slow walker. Spicer's
explanation of his conversations on the way to and from the restroom, namely that
he would stop on request to examine tools but that if accosted about union business
such as a grievance he would tell the employee to "see [him] at noon or break,"
stands uncontradicted and I credit it. As for the conversations at Spicer's work-
bench, the record establishes that about half of them consisted of a brief exchange
of greetings and that some, but less than half, of the longer conversations were
on company business. The testimony is rather indefinite as to the number or length
of such conversations, for apparently Foreman Curtin saw no need to keep a record
of them. On one occasion, about -a year before the discharge, Curtin cautioned
Spicer not to talk to an employee because they could be seen from Superintendent
Tonnessen's office window, and, Curtin pointed out, "they don't know what you
are saying."
In view of Spicer's long period of service with Respondent, his status as the highest
paid machinist, and his admitted competence and great potential value to the Com-
pany, it is pertinent to inquire whether his performance changed for the worse
during the several months preceding his discharge and also as to the Company's
efforts, if any, to warn him to improve. The evidence is in conflict as to whether
Spicer's habits changed in any of the respects discussed above. He himself gave the
self-serving answer that they had not. Corroboration in this respect came from at
least two witnesses called by Respondent. Foreman Dietrich, who has known Spicer
for 6 years, testified that Spicer has always walked slowly, and that he (Dietrich) has
not observed whether Spicer recently walked more slowly now than at an earlier pe-
8 The main restroom, used by Spicer and most of the other 250 male employees, con-
tains 4 commodes , 1 urinal , and 2 washbasins.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
riod. Walther Cowden, a fellow machinist, who left the Union and had not been on
good terms with Spicer for the 6 months preceding the hearing, testified that Spicer al-
ways made more trips to the restroom than the average employee but that he (Cow-
den) had observed no increase in the frequency of such trips by Spicer .9 Other testi-
mony is to the contrary. In addition to the self-serving testimony of supervisors that
Spicer's absences from the work area increased, the record contains similar state-
ments by fellow employees. In the main, however, I regard their testimony as un-
trustworthy, as compared to Cowden's, for the reasons indicated below.
Employee Anderson, who testified contrary to Cowden as to whether Spicer's
habits changed, was able to observe Spicer only half the time at most, as, unlike
Cowden, Anderson was not in Spicer's department. Employee Garza thought Spicer
made more than five restroom trips a day and that his trips had increased in the
last few months. But Garza got hopelessly tangled in the number of such trips that
he and another employee, Leal, took. Moreover, Garzo testified that since Spicer's
discharge production had increased, whereas Cowden stated what seems to be ob-
vious, namely, that as only 1 full workweek plus 3 days had elapsed since the dis-
charge not "enough time has elapsed to get an accurate picture." 10 Aside from his
undue eagerness to testify in favor of Respondent with little regard for accuracy
Garza's demeanor on the stand did not inspire confidence in his credibility; in sharp
contrast to the thoughtful Cowden, Garza seemed to be more interested in demon-
strating his own ability to match wits with counsel than in considering the substance
of his answers.
Alvin Jones, who testified that Spicer "has a tendency to drift around" was in a
position to observe him for only the 5 months preceding the discharge. His
testimony affords no basis for contradicting Cowden's to the effect that Spicer
in the last few months did not make more restroom trips than was usual for him.
Employee Houy testified that Spicer stayed in the restroom for longer periods
in the last few months of his employment. Houy also testified that production
had increased in the short period between Spicer's discharge and the date of Houy's
testimony. Similar testimony as to production was given by Employee Black, who
also testified that Spicer's trips to the restroom increased in frequency between
January and April 1962. Black impressed me as a witness who would testify favor-
ably to Respondent without any real regard for the truth. For example, he testified
that the morale and efficiency in the shop had improved since Spicer left. When the
Trial Examiner asked why he thought morale had improved and what had happened
to show this, he replied, "Well, on that I don't know." He testified, contrary to
fact, that Spicer spent most of his time on the lathe. And both Black and Houy
in testifying to an increase in production, apparently overlooked the fact that
insofar as Spicer was employed on the tool grinder, he was not making a direct
contribution to machine shop production, for, as Curtin testified, "it is not a
production item . . it is not something I prefer to have in that department . .
it's a maintenance affair." In sum, .I regard Black as a totally unreliable witness, and
while Houy did not make so unfavorable an impression, I credit Cowden where his
testimony is in conflict with that of Houy.
The record is clear that Spicer was never advised prior to his discharge that his
work habits, including the frequency and duration of his trips to the restroom
were under scrutiny. The first time the subject was mentioned to Spicer was after
his discharge. When he and Curtin returned to the machine shop after the discharge
interview, Curtin expressed regret ,that "this had to all come about." Spicer replied,
"That's all right . . . I understand the score, pretty sure I do," to which Curtin
zejoined, "Well, I think you do, too" and then added, "Of course, you have gone to
the bathroom a little too frequently." In sharp contrast to the failure to warn
Spicer are the incidents concerning employees Peiser and Beakley. In Peiser's
case, Superintendent Tonnessen noticed that Peiser had been in the restroom for a
substantial period of time, and told Peiser's foreman, Dietrich, to talk to Peiser
about the matter. Beakley had been caught sleeping on the job and had been re-
-primanded therefor. The company vice president, upon hearing of the matter
and of the reprimand, made it clear to Beakley's foreman that repetition of the offense
-would result in Beakley's termination.
Respondent, in explanation of its failure to warn Spicer, pointed to statements al-
legedly made by Spicer that the Union accepted a strike settlement in the summer
9 Cowden also testified that it appeared to him that Spicer while at work wasted some
time, but he gave no competent testimony elaborating on that.
10 Cowden testified that morale had improved since Spicer 's discharge. He did not
elaborate on this. It seems likely that the morale of those who , like Cowden, were
hostile to the Union bad improved.
MOONEY AIRCRAFT, INC. 1345
of 1960 because the members could do more harm back on the job than they could
on strike. Respondent urges that to have cautioned Spicer about his habits would
simply have encouraged him to modify, but not to discontinue, the slowdown cam-
paign. I do not believe that this ingenious explanation for what has been called
unnatural conduct by an employer (E. Anthony & Sons, Inc. v. N.L.R.B., 163 F. 2d
22, 26-27 (C.A.D.C.), cert. denied 332 U.S. 773), withstands scrutiny. Curtin, who
made the records for the purpose of being able to justify Spicer's anticipated dis-
charge, but who never warned Spicer as a foreman ordinarily would (compare
the Beakley episode and see the testimony of Harmon and Tonnessen at Tr. 436-
437 and 538-539, respectively) was not motivated by Spicer's post-strike comments.
Furthermore, Curtin at first kept a record of Spicer's alleged production deficiencies,
and did discuss those matters with Spicer. If Curtin or other members of the super-
visory hierarchy who were engineering the collection of evidence to justify Spicer's
discharge were afraid that warning Spicer would lead him to modify but not
to discontinue his alleged attempt to harm the Company, Curtin would not have
discussed the alleged production deficiencies with him.
In short, I find that Respondent was looking for a reason to discharge Spicer, that
the attempt to find grounds for discharge in the quality of his work proved unsuccess-
ful, that attention was then shifted to his personal habits and to his well-known slow-
ness of movement, and that the record thus kept finally furnished a basis on which
Respondent believed it could safely act, although Spicer was never warned with
respect to these matters and although (as not only Spicer but also two witnesses for
the Company testified) his habits had not changed.
The case as to Spicer is thus reduced to this: an employer hostile to the Union
decides to discharge Spicer, the Union's president, a highly competent machinist,
and to that end first maintains a record of his alleged production deficiencies and-
that failing-maintains a record of the frequency and duration of his trips to the
restroom. The latter record combined with the fact that the employees is a notori-
ously slow walker is ultimately relied on as justifying the discharge, although the
evidence is undisputed that, contrary to company practice, the employee was never
warned that his personal habits were such as to constitute grounds for discharge
and although testimony from witnesses, whom I credit in these respects, supports
the employee's testimony that his habits in these respects have not changed during
the entire tenure of his employment.
On the basis of the above summary of the facts I find that Respondent discriminated
against Spicer in the sense that it decided to discharge him and thereafter subjected
him to treatment different from that accorded other employees. I also find that
the grounds officially relied on by the Company were not the true reason or real
cause of the discharge. The question remains whether the real cause, or part thereof,
is to be found in Spicer's union activity. The issue is not altogether free from
doubt, in view of the fact that Spicer's predecessor as union president was not dis-
charged and in view of the further fact that the Company's decision to build a case
against Spicer predated his becoming president of the Union. Nor must it be
overlooked that the burden of proof rests on the General Counsel. On the other
hand, as has been frequently stated, "direct evidence of a purpose to violate the
statute is rarely obtainable." N.L.R.B. v. Southern Desk Company, 246 F. 2d 46,
53 (C.A. 4); see also N.L.R.B. V. Spartanburg Sportswear Company, 246 F. 2d 366,
367-368 (C.A. 4), and cases there cited. And as the fifth circuit stated in a portion of
its opinion in N.L.R.B. v. Tex-O-Kan, .122 F. 2d 433, 438-439, which was not criticized
in N.L.R.B. v. Walton Manufacturing Company, 369, U.S. 404, union activity "may
have been the cause, for the Union was not welcomed by the persons having authority
to discharge and employ. If no other reason is apparent, union membership may
logically be inferred." I draw that inference here, and accordingly find that Spicer
was discharged because of his union activity.
III. THE REMEDY
In view of the Board's order in the earlier proceeding, Cases Nos. 23-CA-1015,
23-CA-1055, 23-CA-1056, which contains broad cease-and-desist provisions and an
affirmative direction to bargain, I see no need to repeat those provisions in this case.
Moreover, as indicated in the foregoing portion of this report, I do not believe it would
effectuate the policies of the Act to direct Respondent to undo the unilateral acts which
I have found were violative of Section 8(a) (5). I am fortified in that view by the fact
that in the prior proceeding Trial Examiner Ordman found that the Company uni-
laterally, and hence unlawfully, discontinued its health and insurance plan, but he did
not order the plan reinstated, and notwithstanding the exceptions filed on this
point by General Counsel (represented by the same able attorney who tried the
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instant case), the Board affirmed the Trial Examiner without comment, 132 NLRB
1194.
As to the discriminatees, I recommend that Spicer be reinstated with backpay
in accordance with the formula approved in Chase National Bank, 65 NLRB 827 and
F. W. Woolworth, 90 NLRB 289, 291-294, and also that he be compensated for
loss suffered by him by reason of the failure to permit him to work 4 hours on May
20.11 I further recommend that Carnes, English, and Gaines be made whole for
the discriminatory denial to each of them of overtime assignments between May
22, and August 5, 1961.12
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in activities affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By withholding assignments of overtime from John Carnes, Joel English, and
Pennington Gaines between May 22 and August 5, 1961, and by refusing to permit
James Spicer to work on May 20, 1961, because Carnes, English, Gaines, and
Spicer participated in a strike on May 16, 1961, Respondent violated Section 8(a)(3)
and (1) of the Act.
4. By discharging James Spicer on April 12, 1962, because of his union activities,
Respondent further violated Section 8(a)(3) and (1) of the Act.
5. By instituting various changes in terms and conditions of employment in 1960
and 1961 without affording the Union a reasonable opportunity to bargain thereon,
Respondent violated Section 8(a)(5) and (1) of the Act.
[Recommendations omitted from publication.]
"I reject the General Counsel's request that interest be added to the backpay awards
in this case . A change in the Board's policy on this subject should originate with the
Board and not with a Trial Examiner, cf. Woolworth CO, supra.
'2 In working out the amount due English, allowance must be made for the 2 weeks he
was unavailable to work overtime because of absence.
Miami Newspaper Printing Pressmen Local No. 46 , a Subordinate
Local Union of International Printing Pressmen and Assist-
ants' Union , AFL-CIO and Knight Newspapers, Inc. Case No.
7-CC-173. October 1, 19620
DECISION AND ORDER
On February 8, 1962, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent lard engaged in certain unfair labor practices, and rec-
ommending that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief and the Charging Party filed a brief in reply.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent herewith.
138 NLRB No. 137.