Rohr Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1975

220 N.L.R.B. 1029 (N.L.R.B. 1975)

ROHR INDUSTRIES, INC.
Rohr Industries , Inc. and Albert R. Pierceall. Case
21-CA-13180
October 2, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On June 17, 1975, Administrative Law Judge Mau-
rice M. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Rohr Industries, Inc., Chula
Vista, California, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon a
charge filed November 25, 1974, and duly served, the Gen-
eral Counsel of the National Labor Relations Board
caused a Complaint and Notice of Hearing dated January
24, 1975, to be issued and served upon Rohr Industries,
Inc., designated as Respondent within this decision . There-
in, Respondent was charged with the commission of unfair
labor practices within the meaning of Section 8(a)(1) of the
National Labor Relations Act. 61 Stat. 136, 73 Stat. 519.
Respondent's answer, duly filed , conceded certain factual
allegations within General Counsel's complaint, but denied
the commission of any unfair labor practice.
Pursuant to notice , a hearing with respect to this matter
was held on March 18, 1975, in San Diego, California, be-
fore me. The General Counsel and Respondent were repre-
sented by counsel ; Complainant, likewise , noted his ap-
1029
pearance . Each party was afforded a full opportunity to be
heard, to examine and cross-examine witnesses , and to in-
troduce evidence with respect to pertinent matters. Since
the hearing's close , General Counsel's representative and
Respondent's counsel have filed briefs; these briefs have
been duly considered.
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following findings of fact:
FINDINGS OF FACT
1. JURISDICTION
Respondent raises no question herein with respect to
General Counsel's jurisdictional claim. Upon the
Complaint's relevant factual declarations-specifically,
those set forth in detail within the second and third para-
graphs thereof-which have not been denied, and upon
which I rely, I find that Respondent herein was, through-
out the period with which this case is concerned, and re-
mains , an employer within the meaning of Section 2(2) of
the Act, engaged in commerce and business operations
which affect commerce within the meaning of Section 2(6)
and (7) of the statute. Further, with due regard for present-
ly applicable jurisdictional standards, I find assertion of
the Board's jurisdiction in this case warranted and neces-
sary to effectuate statutory objectives.
11. THE LABOR ORGANIZATION CONCERNED
International Association of Machinists and Aerospace
Workers, Aeronautical Mechanics Lodge No. 755, AFL-
CIO, designated as the Union within this decision, is a
labor organization within the meaning of Section 2(5) of
the Act, as amended, which admits certain of Respondent's
employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
Basically, this case presents a single question: Did
Respondent 's management representatives lay off a super-
visor, Albert R. Pierceall , because he had, pursuant to re-
quest, furnished a statement which International Associa-
tion of Machinists and Aerospace Workers , Aeronautical
Mechanics Lodge No . 755, AFL-CIO, proffered shortly
thereafter, during a contractual arbitration proceeding, to
support a rank-and-file worker's grievance? General Coun-
sel contends that Respondent's management representa-
tives did terminate Pierceall for the reason stated ; further,
he contends that Pierceall's termination was, therefore, rea-
sonably calculated to interfere with , restrain , and coerce
Respondent's employees , with respect to their exercise of
statutorily granted rights . Respondent's management rep-
resentatives , however, contend , contrariwise, that , during a
general work force reduction, Pierceall was designated for
layoff, rather than for reassignment to some previously
held rank-and-file position , because of his demonstrated
220 NLRB No. 162
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"lack of loyalty and candor" while a supervisor, together
with his purportedly marginal work record . Further, Re-
spondent contends that should a determination be found
warranted, arguendo, that Pierceall was terminated because
he had furnished a statement for union use during the arbi-
tration proceeding , his layoff, nevertheless , did not inter-
fere with , restrain , or coerce Respondent's rank-and-file
workers, with respect to their exercise of rights statutorily
guaranteed.
B. Facts
1. Background
Respondent corporation manufactures and sells aero-
space and commercial products , together with various
components for buses , trains , and boats. The firm's manu-
facturing facilities are located in Riverside , Chula Vista,
and San Diego , California ; within the latter community,
facilities are maintained at two locations.
Throughout the period which this case is concerned, Re-
spondent and Aeronautical Mechanics Lodge No. 755
have been privy to a collective-bargaining contract; the
Union has been, therein , recognized as the exclusive collec-
tive-bargaining agent for the firm's "production , inspec-
tion , and maintenance" workers in various designated clas-
sifications "who are permanently assigned to [those]
existing plants and facilities" which Respondent maintains
in San Diego County, save for certain excluded categories.
The contract in question further provides , inter alia, that:
The management of the Company and the direction of
the work force is vested exclusively in the Company
subject to the terms of this Agreement . . . Com-
plaints or disputes concerning the exercise of any
Company prerogatives constitute a grievance and
shall be processed through the Grievance Procedure.
The procedure mentioned provides for the disposition of
complaints or grievances through a four-step process, with
referral to arbitration for grievances not previously re-
solved constituting the final step.'
The contract likewise contains detailed provisions with
respect to seniority. Inter alia, the document provides that,
when reductions of the working force within a given occu-
pation are required, those "employees" who would other-
wise be laid off
shall be given the opportunity to regress to classifica-
tions in which they have satisfactorily performed for
the Company, which are being performed by employ-
ees with less seniority... .
However , supervisory personnel whose positions have been
rendered redundant, through a reduction of the working
force, have been given no comparable contractual right.
Within Respondent's discretion, they may be given compa-
rable "bumping back" privileges ; when such privileges are
granted, however, they derive from Respondent's manage-
rial determinations , solely. There have been times , before
i Pursuant to General Counsel 's motion to correct transcript, filed with
his brief , the record is hereby corrected.
the situation developed with which this case is concerned,
when supervisory or salaried employees with prior "bar-
gaining unit" work histories have not been permitted to
resume their previous positions.
2. Pierceall's employment history
On November 1, 1965, Respondent hired Pierceall as a
hydraulic press operator beginner. Some 2 years later, he
was designated a mock-up mechanic B. One year later, he
was promoted to mock-up mechanic A; by late 1969, he
had reached the top step of that classification's pay scale.
(These positions, concededly, were within the "bargaining
unit" covered by the particular collective-bargaining con-
tract between the Respondent and the Union which was
then in force.) On June 4, 1973, Pierceall was again pro-
moted; this time he was designated acting foreman in
Respondent's mock-up department. Within 3 months,
thereafter, he was definitively promoted to foreman. These
reclassifications, concededly, compassed promotions to
nonunit supervisory positions.
Shortly before October 29, 1973, Respondent' s mock-up
department superintendent, Fred Childers, notified Pierce-
eall that because "work was slowing down" he would be
redesignated a mock-up mechanic A, doing bargaining unit
work; on the date designated he was, in fact, reclassified.
The record warrants a determination, which I make, that
Respondent then employed some 20 mock-up department
foremen; while a witness herein, Pierceall testified, without
challenge or contradiction, that one of these, likewise, re-
ceived a departmental rank-and-file reclassification. More
foremen may have been reclassified; Pierceall could not,
however, recall who they were. His testimony warrants a
determination, which I make, that none of Respondent's
departmental foremen were terminated, because of this
1973 work force reduction.
On March 6, 1974, Pierceall was, once more, promoted
to acting foreman, within the mock-up department of
Respondent's Chula Vista plant; he was told that his serv-
ices were needed because there was "trouble" within the
station he had previously supervised. He was redesignated
a foreman on May 6, thereafter. Pierceall retained this po-
sition until his August 2, 1974, layoff, with which we are,
herein, concerned.
3. The Wells arbitration and Pierceall 's role therein
Sometime previously, during May, 1973, specifically, one
Max Wells, who was then working in Respondent's mock-
up department, had filed a written grievance, contending
that his departmental job classification should be upgraded
from mock-up mechanic B to Respondent's higher "A"
classification ; further, he had requested backpay for a peri-
od of time during which other persons, supposedly with
less seniority, standing or right, had been performing "A"
classification work which he could have performed. Wells'
grievance was, so the record shows, bottomed, partially at
least, upon his contention that Respondent was contractu-
ally bound to promote qualified mock-up department
workers from "B" to "A" positions , since the firm was,
then utilizing nonbargaining unit contract labor ("Job
ROHR INDUSTRIES, INC.
Shoppers") for such work . Some 40 similar grievances had
likewise been filed on May 25 and 26, 1973, by various
mock-up department mechanics . Within 2 weeks , thereaf-
ter, 35 further grievances , bottomed upon similar conten-
tions and seeking similar relief, had been "registered" with
Respondent's industrial relations department . These griev-
ances, so the record shows, were a subject of "general dis-
cussion" within the department.
The grievance which Wells had filed, together with a
number of similar grievances , had subsequently been pro-
cessed through various grievance procedure steps . By July
1974, some 28-30 grievances were ready for arbitral dispo-
sition . Many of these were , however, subsequently with-
drawn . ultimately , within a 3 -month period running from
July through October 1974 's first week , 14 grievances were
carried through formal arbitration proceedings . Of these,
Wells' grievance , the first one processed , was scheduled for
presentation before arbitrator William S . Manos , Sr., on
July 25, 1974.
Before Wells ' scheduled hearing , Benito G. ("Pete")
Puente , the Union's business representative, had, so he
claimed , never called a Rohr Industries supervisor for testi-
mony during a grievance arbitration proceeding . Further,
he testified he had never submitted , during such proceed-
ings written statements which a Rohr Industries supervisor
had signed . With regard to Wells , however, Puente had
before his July 25 hearing date , sought statements from
two mock-up department supervisors ; neither of them,
however , had consented to provide whatever information
the business representative sought.
On July 24, Puente sought Pierceall , finally, while the
latter was at work ; he requested a statement of Pierceall's
opinion with respect to whether Wells was qualified for his
requested mock-up mechanic A classification . For several
months before his June 4, 1973, promotion, Pierceall had
worked with Wells, within Respondent's Chula Vista plant.
Further, during his period of supervisory service, between
June 4 and October 29, 1973, he had been Wells' foreman.
When Pierceall replied that he considered Wells sufficient-
ly well-qualified to hold a mock-up mechanic A position,
Puente asked whether he would sign a statement to that
effect, for presentation in Wells' behalf ; the foreman
agreed that he would do so . Later that day, the Union's
business representative had a statement typed. It read:
I, A. R. Pierceall have worked with Max D. Wells as a
fellow worker and as his immediate Supervisor and in
my estimation as a Supervisor I found Wells' back-
ground is so extensive that he has a very thorough
knowledge in all phases of the mock-up operations
which thus makes him an excellent worker as a Mock-
Up Mechanic "A".
Early the following morning , Puente took this statement to
Pierceall for signature . The foreman read the statement,
conceded that it correctly reflected his orally stated "opin-
ion" previously noted , and signed it. This transaction took
place within Respondent's Chula Vista facility, just before
that day's starting time , while Pierceall was standing near
the firm 's timeclock . He signed the statement , so I find,
within the view of several mock-up department workers.
Later that very morning, though how much later the rec-
1031
ord does not show, Business Representative Puente took
Pierceall's signed statement to Wells' scheduled arbitration
hearing; there, he presented it for the record, in support of
the grievant's position.
While a witness, Pierceall testified that though he nor-
mally prepared written recommendations for raises, or
written "detrimental type" statements when required, for
workers he supervised, submitting such documents to his
superiors or some appropriate company department, this
was the first statement which he had ever signed for sub-
mission , while a supervisor, for grievance purposes. He
conceded that he had not retained a copy for himself, or
for transmittal to his superiors. Further, following his July
24-25 conversations with Business Representative Puente,
the mock-up department supervisor, concededly, did not
even discuss Wells' grievance, or his possible involvement
therein, with any management people. Clearly, he did
not-so his testimony shows-report his conversations
with Puente; neither did he report the fact that he had been
requested to sign, or had signed, a statement which might
be presented when Wells' arbitration proceeding convened.
4. Respondent's reaction
Respondent was represented, throughout the arbitration
proceeding with respect to Wells' grievance, by Douglas
Scott, the firm's labor relations manager, and his direct
subordinate, William J. Bistline, supervisor of labor rela-
tions; both men serve in Respondent's industrial relations
department. Their first knowledge, with respect to
Pierceall's statement, developed when it was proffered
therein, for the record, by Wells' union representative. The
present record warrants a determination, which I make,
that both company representatives were "to say the least"
both surprised and disturbed thereby.
According to Bistline, Respondent's industrial relations
department has "never" refused requests, presented by su-
pervisors or union representatives, for supervisory partici-
pation in the processing of grievances, or for supervisory
testimony to be given during arbitration hearings. Bistline
further testified that Respondent's management has "nev-
er" directed supervisors not to participate in such proceed-
ings on behalf of bargaining unit workers; the company
maintains no policy calculated to prevent such participa-
tion by supervisory or salaried personnel. The present rec-
ord, however, provides no data regarding the frequency
with which supervisors have been solicited, by union repre-
sentatives, to provide statements or testimony during arbi-
tral proceedings; nor does it reveal the last time such a
situation arose. The Union's business representative,
"Pete" Puente, testified, credibly, that he had never previ-
ously submitted a statement signed by a company supervi-
sor, or summoned a supervisor for testimony concerning a
grievance, during his 3-year tenure. Consistently, so
Respondent's supervisor of labor relations testified, his
firm maintains no policy calculated to prevent Union rep-
resentatives from communicating with such personnel, for
the purpose of soliciting information which could facilitate
a grievance's or dispute's resolution.
Bistline's testimonial recitals, however, do reflect a be-
lief, which Respondent's management representatives pre-
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumably share , that successful functioning of the contrac-
tual grievance process from Respondent 's point of view has
been, and will continue to be , predicated upon the depend-
able and unimpeded flow of accurate information, with
respect to problems and grievances , from supervisors to
Respondent's labor relations department ; such informa-
tion , comprehensively and correctly transmitted , so that
department 's personnel believe , makes possible their prop-
er representation of management , and likewise makes it
possible for the department to determine "properly and
promptly" when grievances are meritorious and settlement
is warranted . In this connection , Bistline testified that:
... we [Respondent's labor relations department]
must rely upon the supervisor and his . . . intimate
knowledge of the details that surround whatever it is
that the employee is grieving about . . . One of the
things that we must rely upon . . . is the candid .. .
input of supervisors , the people who have the immedi-
ate knowledge of factual situations , and we have had
situations where we have not received the full and
candid information , and that information has been
later developed either by the union or by the aggrieved
employee himself.
Respondent's labor relations supervisor declared that
Pierceall's statement , when produced during Wells' arbitra-
tion proceeding, reflected the second occasion , within 3
months, when labor relations personnel preparing for arbi-
tration proceedings had been provided with misleading in-
formation , or less than sufficient information, by supervi-
sors , only to be confronted with different factual
information produced in behalf of grievants , surprisingly,
during the proceeding itself.
During a prior April 1974 hearing , so Bistline testified,
crucial questions had developed with respect to whether a
discharged mock-up department grievant had communi-
cated with his immediate supervisor , D. L. Moon , regard-
ing his request for a leave of absence from work . Foreman
Moon had been interviewed by Respondent 's labor rela-
tions supervisor and members of his staff , before the April
1974 proceeding . He had , then , reported that he had had
no communication with the discharged worker . When the
arbitration matter was heard, however , there was testimony
given which warranted a determination that Foreman
Moon had discussed a leave of absence request during a
telephone conversation with both the discharged worker
and his sister.
Thus , when Pierceall's statement was produced , during
Wells' arbitration hearing, Scott and Bistline concluded (so
the latter's testimony shows) that their department was get-
ting "less than full and candid cooperation" from
Respondent's lower echelon management representatives.
Later that very day, therefore , Scott and Bistline decided to
seek a conference the following Monday , July 29, with
mock-up department superintendent Childers and General
Foreman Sampite , Pierceall's direct superiors , because they
had developed some "real concern " regarding the informa-
tion which Respondent's supervisors were providing, with
respect to grievance matters.
5. Pierceall's layoff
Shortly before these July 24-25 developments,
Respondent's management, confronted with several con-
tract completions and consequently reduced workloads,
had determined to begin a retrenchment program which
would , inter alia, generate reductions in force and reassign-
ments within the firm's mock -up department personnel.
Three foremen 's positions , pursuant to Respondent's plans,
would be, thereby , rendered superfluous . A decision was
reached that Foreman D. L. Moon , S. Ramirez, and
Pierceall would be reclassified ; they were to be demoted
and redesignated as rank -and-file departmental mechanics.
Pierceall, however, was never reclassified . Previously,
within this decision , the fact that he was ultimately given a
layoff notice has been mentioned . The circumstances
which generated Respondent 's decision with respect to his
termination must , therefore , be considered . In that connec-
tion , Pierceall and supervisor of Labor Relations Bistline
have provided factually distinguishable , but consonant,
testimonial recitals . Their proffered recollections , necessar-
ily, will be reviewed separately.
a. General Counsel 's presentation
Sometime shortly after Sunday, July 21, Pierceall, who
could tell that his department 's workload was being re-
duced, queried his general foreman , Joe Sampite , regarding
his personal prospects . He was told that he would be "re-
duced back to a mock-up mechanic" thereafter , specifical-
ly, on Monday , July 29. Several days later, Pierceall spoke
with Fred Childers , Respondent 's Chula Vista and Rose
Canyon mock-up department superintendent . The latter
conceded, substantially , that he was scheduled for reclassi-
fication.
Respondent's retrenchment program , by then, had de-
veloped as follows : During June , 1974 some 23 mock-up
mechanic B workers had been eliminated ; of these, I had
been laid off, while 22 had been reclassified and transfer-
red to different positions . The record is silent, however,
with respect to whether any mechanics with "A" classifica-
tions had been , concurrently , given "B" positions . Childers
declared , however, that Pierceall's reclassification would be
delayed for 1 week , so that he could become "eligible" for
a bonus payment which various company supervisors
would be receiving at month's end. Childers confirmed his
program with Sampite ; Respondent 's general foreman then
told Pierceall that his reduction in rank would , indeed, be
delayed for one week.
While a witness, Supervisor of Labor Relations Bistline
testified without contradiction that Pierceall could not,
really , have qualified for a bonus merely because his period
of supervisory service had been permitted to run beyond
July 31. However , Bistline 's testimony , which I credit in
this connection , hardly undercuts Pierceall's proffered rec-
ollection, with respect to what he was told. Childers, who
was never summoned to testify herein, may well have be-
lieved, albeit erroneously, that Pierceall would qualify for
Respondent's bonus payment , with a week 's more tenure. I
credit Pierceall's testimony that Childers did reschedule his
reclassification, for the specific reason noted . On Tuesday,
ROHR INDUSTRIES, INC.
July 30, however , when Pierceall had no mechanics to su-
pervise , General Foreman Sampite notified him that he
would be given "three days off" with pay . Respondent's
foreman was , nevertheless , specifically directed to report
for work the following Friday , August 2.
On Friday, right after lunch , Gil Valcomb , representing
Respondent's industrial relations department , notified
Pierceall that he was being laid off. The latter queried Sam-
pite, who was present , with regard to Respondent's reason.
About the conversation which followed , Pierceall testified:
Mr. Sampite said , "well, you are not qualified to go
back on the bench . I asked several general foremen,"
he said, "and they wouldn't take you." And I said,
"Well, Joe," I said, "you yourself have given me a
merit raise ." And he said , "well, that was a long time
ago." And I said , "well, I don't understand ." Mr. Val-
comb said, "look, we are doing you a favor by laying
you off." He said "you get all the benefits of being laid
off, and you can go somewhere and tell the other com-
pany that you were laid off as a foreman."
The following Monday, Pierceall telephoned Childers. The
latter , however, disclaimed any prior knowledge regarding
his foreman 's termination . He declared, merely , that the
matter had been "taken out of [his] hands;" that
Respondent's decision had come "from up above . . . from
industrial relations;" and that he [Childers] could do noth-
ing.
b. Respondent's defense
Presented as Respondent's sole witness , Supervisor of
Labor Relations Bistline testified that pursuant to their de-
cision reached following the July 25 Wells arbitration hear-
ing, he, together with Labor Relations Manager Scott, had
conferred on Monday, July 29, with Childers and Sampite;
Fred Hooper, Respondent's assistant director of manufac-
turing operations , had likewise been present . According to
Bistline's proffered recollection:
[We] had this meeting with Mr. Hooper and Mr.
Childers and Mr. Sampite to in essence say to them,
look, gentlemen, you know, if you expect us to do our
job, we are going to have to get some supervisors out
there to be candid and honest with us and deal with us
in an above board manner . We can no longer, you
know, pursue grievances and arbitrations to resolu-
tions that are satisfactory to both parties if in fact we
do not have the information, the full information, that
is there . . . [We] must rely on the supervisor for his
intimate knowledge and factual knowledge of the cir-
cumstances that precipitated the grievance [or] the
complaint . . . [We recapped] what had happened to
us in the last three months and made some sort of, you
know, let's get with it type of an approach to them
... [Though specific action was probably not re-
quested in so many words] . . . I think our thing went
we wanted some action on your part with regards to
your supervisors advising us of what the real situation
is and what is going on so that we can make some
intelligent decisions based on the factual information
1033
... Our request went in terms of pull your supervi-
sors together, all of them, and advise them of their
responsibilities in case anybody had forgotten them.
During this meeting, Respondent's labor relations manag-
er, while detailing "what [had] been happening" with par-
ticular reference to mock-up department supervisors, first
described the situation created by Foreman Moon 's testi-
mony during the April, 1974 arbitration proceeding previ-
ously noted. Hooper was shown a transcript of the hearing
testimony which revealed, so Hooper was told, Moon's
"convenient" memory lapse. Then, Scott referred to Wells'
recently concluded arbitration proceeding; he produced a
copy of Pierceall's statement , which Business Representa-
tive Puente had proffered for the record. Hooper, Childers,
and Sampite, together, disclaimed any prior knowledge
that Pierceall had been requested to provide such a state-
ment; that he had consented to provide one; or that such a
statement had really been prepared.
During this conference, however, Childers and Sampite
reported, inter alia, that Foreman Pierceall and Moon were
two of three supervisors scheduled for redesignation as
mock-up mechanics, because of Respondent's staff re-
trenchment program. Further, so Bistline testified, Childers
and Sampite declared that "they weren't all that excited"
with regard to Moon's recent performance record, while
discharging his supervisory responsibilities; they reported,
generally, that his performance had "slackened off" within
some period which was never specified. When requested to
relate their further discussion, Bistline declared, generally
and somewhat elliptically within my view, that:
With--specific regards to Mr. Pierceall the comments
were essentially the same with regards to his recent
performance as a foreman. The discussion then went
into some of Mr. Pierceall's activities prior to him
being a foreman and a member of management, activ-
ities that he had as a member of the unit.
More particularly, Bistline recapitulated a discussion with
regard to Pierceall's reported conduct during a prior No-
vember 1971-January 1972 strike at Respondent's plant,
his "attacks on employees who chose to work" during that
labor dispute, his "reported arrest and conviction" bot-
tomed upon battery charges, and his "reported threats
made to fellow workers" both while the strike was current
and thereafter, together with his "reported serving jail time
on a weekend basis" during 1973's early months. General
Foreman Sampite declared, so Respondent's supervisor of
labor relations recalled, that he had discussed Pierceall's
possible return to the bargaining unit with some of
Respondent's other general foremen; Respondent then had
four general foremen for mock-up department mechanics
at Chula Vista, and one each within its Rose Canyon and
Cal General facilities. Sampite, according to Bistline's rec-
ollection, reported that Respondent's various general fore-
man and foreman "generally throughout the mock-up
area" felt that "the less they had to do with him [Pierceall]
the better." None of Respondent' s general foremen, so
Sampite reportedly declared, were "excited" regarding the
possibility that Pierceall might join their particular crews.
With matters in this posture so Bistline recalled, Hooper
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declared that he wished to discuss the situation with partic-
ular reference to Pierceall and Moon's future status with
Mr. White, Respondent's director of manufacturing. Sub-
sequently, Respondent's supervisor of labor relations, so he
testified, learned from his superior, Labor Relations Man-
ager Scott, that:
Mr. Moon [would be] reduced as a surplused . . . su-
pervisor mock-up, and he [would be] returned to the
bargaining unit as a Mock-Up Mechanic A . . . . It is
my understanding . . . with regards to Mr. Moon that
everybody was satisfied with his overall performance
as an employee, although not too excited about his
performance as a supervisor in the recent past, and
predicated on that . . . the department of employee
relations people felt he sould be returned to the bar-
gaining unit . . . with the understanding that with re-
gards to future supervisory assignments , he would be
utilized if at all on [a] temporary basis [,] and that
there would be some serious discussions entered into
with regards to [any] permanent opening for him as [a]
supervisor in the future.
When Scott requested Bistline 's view, with respect to
whether Respondent's labor relations department should
concur, Bistline 's so-called "input" was affirmative. The
record herein warrants a determination, which I make, that
Bistline's departmental superiors communicated his "effec-
tive recommendation" with respect to Moon's reclassifica-
tion to their manufacturing division counterparts. Moon
was, therefore, reclassified; he resumed his former mock-
up mechanic position.
During their July 30 or 31 discussion, detailed herein,
with regard to Moon's future status, Labor Relations Man-
ager Scott likewise sought Bistline's "controlling" recom-
mendation, so the record shows, relative to Pierceall's fu-
ture. The latter recommended, despite his favorable
recommendation with respect to Moon's reclassification,
that Pierceall should not be permitted to resume his former
"bargaining unit" position.
When queried with respect to his reasons for this last
recommendation, Bistline declared that it derived: First,
from some "discussions" with his departmental superior,
which he did not detail, however, for the present record;
Second, from Scott's report regarding certain communica-
tions which he had received from Pierceall's direct mana-
gerial superiors and Respondent's employee relations per-
sonnel . (Respondent's employee relations department,
functions as the Company's staff "counterpart" to its labor
relations department, with regard to nonrepresented per-
sonnel. When, therefore, decisions must be made, with re-
spect to whether nonbargaining unit supervisors who have
become redundant should be terminated or restored to bar-
gaining unit positions previously held, Respondent's em-
ployee relations department, together with the firm's higher
"operating" management spokesmen, will designate the su-
pervisors, with prior "bargaining unit" seniority, who have
been scheduled for reduction; the firm's labor relations de-
partment personnel, however, will then provide determina-
tive "input" with respect to whether the supervisors desig-
nated should be, or should not be, returned to their prior
bargaining unit positions.)
When pressed for specifics, Bistline declared that Scott
had reported a communication from Respondent's manu-
facturing "management people" that they did not desire
Pierceall's regression to his former mock-up mechanic clas-
sification because his "overall performance as an employ-
ee" during his prior periods of service in that position had
been, within their view, less than satisfactory; the labor
relations supervisor, however, conceded, while a witness
herein, that he was never told "specifically" why Pierceall's
managerial superiors considered his prior performance as
Respondent's mock-up mechanic deficient. Then, when
questioned further with regard to his primary reasons for
recommending Pierceall's layoff, rather than his reclassifi-
cation, Bistline, who had previously conceded that "de-
sires" voiced by a supervisor's direct managerial superiors
would be considered but would not be deemed controlling,
testified:
Q. (By Mr. Wagner) Now, you stated . . . what
went [into] your mind as to why you made the recom-
mendation to Scott . . . [Was] it not a fact that part of
that input was the fact that you were very upset by the
fact that he had given the statement in arbitration?
A. No, sir. I am not upset that he gave a statement
Q. What about the manner in which he did it?
A. I am upset by that . . . . That was a part of the
decision making process.
Q. In fact . . . wasn't that the main factor as far as
you [were] concerned?
A. As far as I was concerned? Perhaps as far as I
was personally concerned, yes.
According to Bistline, his departmental superior, James M.
Montgomery, Respondent's director of industrial relations,
made management's "ultimate decision" that Pierceall
should be terminated, in connection with Respondent's re-
trenchment program, rather than reclassified. The record,
herein, however, clearly warrants a determination, which I
make, that Montgomery had never participated, directly,
while Respondent's line management representatives and
his departmental subordinates were pursuing their "deci-
sion making" consultations; his decisional role, I find,
merely reflected his pro forma concurrence with Bistline's
previously articulated determination, which he [Mont-
gomery] presumably communicated, subsequently, to
Pierceall's production line superiors. Pursuant thereto,
Complainant herein was, so I find, given his August 2 lay-
off notice.
6. Subsequent developments
Respondent's mock-up department workers, so the rec-
ord shows, soon learned of Pierceall's termination. The
record warrants a determination, which I make, that dur-
ing conversations shortly thereafter two of them told Rosa-
lio G. Puente, their shop steward and fellow mock-up me-
chanic, that, within their view, Pierceall had been laid off
because he had provided a statement supportive of Wells'
grievance.
Previously, within this decision, I have found that
Pierceall, when he signed Business Representative "Pete"
ROHR INDUSTRIES, INC.
Puente's proffered statement on July 25, had done so with-
in the view of several departmental workers . He had been
asked , then, what he was doing ; Pierceall had replied, so
his credible testimony shows, that he had signed a state-
ment, for submission in connection with Wells' pending
arbitration proceeding , because he felt that Wells was qua-
lified for his requested "Mock-Up Mechanic A" classifica-
tion . The record , herein , specifically Shop Steward Rosalio
Puente 's credible testimony , warrants a determination,
which I make , that most of Respondent 's Chula Vista
mock-up mechanics holding both "A" and "B" positions,
then , were "quite aware" regarding the parallel reclassifica-
tion grievances which many of their fellows had previously
filed ; they knew , likewise , that Wells' reclassification griev-
ance was the very first which had reached the arbitral
stage . Respondent 's supervisor of labor relations , while a
witness , conceded that there was "no little discussion"
throughout the company 's plant, with regard to these mat-
ters . The presumptive interest of Wells' fellow workers re-
garding his grievance 's disposition may therefore be taken
as datum herein.
While a witness, Union Steward Puente further testified
credibly and without contradiction that he had, subse-
quently, discussed Pierceall 's termination with General
Foreman Sampite and Respondent's mock-up department
superintendent . Sampite , so Puente recalled , had declared,
merely, that Pierceall had not been considered "qualified"
for reclassification , but had cited no specific grounds,
whatsoever, for Respondent's determination . Childers, ac-
cording to Puente's recollection , had disclaimed knowledge
with respect to Respondent's rationale for Pierceall 's termi-
nation, declaring that the matter was "above and beyond"
him, and that he had "nothing to do" with respect thereto.
Pierceall, himself , had never been told, so his credible testi-
mony, together with Bistline 's, shows, that Respondent's
motivation for his layoff had derived either from his sub-
mission of a solicited statement supportive of Wells' griev-
ance, or from his failure to notify, or consult with,
Respondent's industrial relations department personnel re-
garding his conduct.
Mindful of Childers ' comprehensive disclaimers , togeth-
er with Sampite 's failure to particularize regarding
Pierceall's purported deficiencies , Shop Steward Puente
himself concluded that Pierceall had, indeed , been termi-
nated , rather than reclassified , not because of his job -relat-
ed shortcomings , but because of his previously signed
statement. The relevance of Shop Steward Puente's deduc-
tion, with respect to which I credit his testimony , will be
considered further within this decision.
Since the July 25 hearing on Wells' grievance , "Pete"
Puente's testimony, which I credit in this connection,
shows the business representative has found most "mem-
bers of supervision " rather reluctant to speak with him re-
garding grievances previously filed.' He has neither re-
quested, nor procured, statements or testimony from
supervisors , with regard to rank -and-file grievance matters.
2 Upon my own motion , to correct the transcript and render it more
comprehensible , the record is hereby corrected.
C. Discussion
1035
The National Labor Relations Act, through Sections
2(3) and (11) and 14(a) specifically, withholds from super-
visors the comprehensive protection which it provides for
employees, statutorily defined. Nevertheless, this Board
has held with judicial concurrence that a respondent
employer's conduct which prejudicially or detrimentally af-
fects supervisors' interests may constitute a proscribed un-
fair labor practice where it directly infringes certain statu-
torily guaranteed rights of employees. For example: This
Board has held that concerned employers may not lawfully
discharge or otherwise discipline supervisors because they
have refused to commit unfair labor practices against rank-
and-file workers, or because such employers may wish to
punish the protected activity of their supervisor's employee
relatives, or because such conduct could provide a pretext
for the termination of rank-and-file participants in concert-
ed activity for mutual aid or protection. With respect to
discharges or discipline bottomed upon a supervisor's re-
fusal to commit unfair labor practices, see Permian Corpo-
ration, 189 NLRB 860, 864 (1971), enfd. 457 F.2d 512 (C.A.
5, 1972); Dewey Brothers, Inc., 187 NLRB 137, 142, enfd.
80 LRRM 2112 (C.A. 4, 1972); Thermo-Rite Mfg. Co., 157
NLRB 310, 318-322, enfd. 406 F.2d 1033, 1035 (C.A. 6),
1969; Gainesville Publishing Co., Inc., 150 NLRB 602,
626-627 (1964); General Engineering Inc., 131 NLRB 648,
649-650 (1961), enfd. 311 F.2d 570, 573-574 (C.A. 9, 1962);
Jackson Tile Mfg. Co., 122 NLRB 764, 767 (1958), enfd.
272 F.2d 181 (C.A. 5, 1959); Talladega Cotton Factory, Inc.,
106 NLRB 295, 295-297 (1953), enfd. 213 F.2d 209, 215-
217 (C.A. 5); Inter-City Advertising Company of Greensboro,
N.C., Inc., 89 NLRB 1103, 1106-08, 1133, enforced as
modified 190 F.2d 420 (C.A. 4); Vail Manufacturing Co., 61
NLRB 181, 182-183, enfd. 158 F.2d 664, 666-667 (C.A. 7);
cf. Local No. 207, International Association of Bridge, Struc-
tural, and Ornamental Iron Workers v. Perko, 373 U.S. 701,
707 (1973). With respect to discriminatory treatment di-
rected against supervisors to punish the protected conduct
of their relatives, see Dewey Brothers, Inc., supra; Consoli-
dated Foods Corp., 165 NLRB 953, 956-959 (1967), en-
forced as modified 403 F.2d 662 (C.A. 6, 1968); Golub
Bros. Concessions, 140 NLRB 120, 127 (1962); Brookside
Industries, Inc., 135 NLRB 16, 25 (1962), enforced as modi-
fied, 308 F.2d 224, 228 (C.A. 4, 1962). With respect to dis-
charges of supervisors calculated to provide their employer
with a pretext for employee terminations, see Pioneer Drill-
ing Co., 162 NLRB 918, 923-924 (1967), enfd. as modified,
391 F.2d 961, 962-963 (C.A. 10, 1968); cf. Krebs and King
Toyota, Inc., 197 NLRB 462, 463, fn. 4. Board and Court
decisions,. in these cases, have been bottomed primarily
upon the proposition, inter alia, that discriminatory treat-
ment directed against supervisors would likely generate
fears , within the concerned employer's rank-and-file work-
er complement , that like conduct by them would lead to
some like retaliation. However, discharges or discipline, di-
rected against supervisors, have likewise been found sub-
ject to statutory proscription because such conduct per-
suasively demonstrates the concerned employer's determi-
nation to forestall or combat unionization, thus calculated-
ly interfering with, restraining, and coercing em-
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, with respect to their exercise of rights statutorily
guaranteed . See Fairview Nursing Home , 202 NLRB 318
(1973), fn. 2; Heck's, Inc., 170 NLRB 178, 184 (1968), fn. 8,
in this connection.
Further , this Board has consistently determined , normal-
ly with judicial concurrence, that supervisors may not be
lawfully discharged or disciplined because they may have
given testimony in prior Board proceedings . Lease & Mc-
Vitty, Inc., 155 NLRB 389, 390, 398-399 (1965), enforce-
ment denied 384 F.2d 165 (C.A. 4, 1967); Oil City Brass
Works, 147 NLRB 627, 629-630, (1964), enfd. 357 F.2d 466
(C.A. 5); Dal-Tex Optical Co., Inc., 131 NLRB 715, 730-
731, enfd. 310 F.2d 58, 62 (C.A. 5, 1962); Modern Linen &
Laundry Service, Inc., 116 NLRB 1974, 1975, 1986-87,
(1956); Better Monkey Grip Co., 115 NLRB 1170, 1170-71
(1956), enfd. 243 F.2d 836 (C.A. 5, 1957). In these cases,
most Board decisions , inter alia, reflect its determination,
detailed , first, within its Better Monkey Grip rationale, that:
Clearly inherent in the employees' statutory rights is
the right to seek their vindication in Board proceed-
ings . Moreover , by the same token, rank-and-file em-
ployees are entitled to vindicate these rights through
the testimony of supervisors who have knowledge of
the facts without the supervisors risking discharge or
other penalty for giving testimony under the Act ad-
verse to their employer.
Consistently with this view, supervisors' discharges bot-
tomed upon their participation as witnesses in statutorily
required proceedings have been found reasonably calculat-
ed to interfere with, restrain , and coerce employees, with
respect to their exercise of Section 7 rights.
Most recently, these principles have been reaffirmed
within a factual context closely comparable with that pre-
sented herein . Ebasco Services, Inc., 181 NLRB 768, 769-
770 (1970).3 In that case , statutorily proscribed interfer-
ence , restraint , and coercion were found where supervisors
were demoted , not for testifying during a Board proceed-
ing, but for absenting themselves from work for the pur-
pose of giving testimony during a contractually sanctioned
grievance hearing . The Administrative Law Judge consid-
ered whether the concerned employer 's determination to
discipline foremen for their determination to attend the
grievance hearing was inherently destructive of their em-
ployees' rights to a full trial and proper decision, therein,
with respect to pertinent facts. He concluded, with Board
concurrence, that:
It is well settled that discharge of a supervisor for
testifying in proceedings under the Act is a coercion of
nonsupervisory employees in violation of Section
8(a)(1), where the employees knew he gave testimony
or the circumstances show they had good reason to
believe they might suffer a similar fate if they gave
testimony, for such conduct has a tendency to ob-
struct and impede the Board in its investigative and
trial procedures, and to deprive employees of their
right to seek vindication by Board process of their
statutory rights [citations]. General Counsel argues
3 References to this case, found in the transcript, should be corrected to
show the Respondent Employers proper name
that the same rule should apply where employees re-
sort to contract grievance procedures to vindicate
their rights under such contract, and supervisors take
it on themselves to appear before tribunals created un-
der those procedures. This argument has merit, for the
Act itself recognizes and favors the employees' right to
use, and actual use of, contract grievance procedures
to settle labor disputes, and so do the courts [cita-
tions] . The Board has specifically protected employees
from employer interference with their right to resort to
such procedures under contracts, as well as procedures
before outside tribunals, to enforce contract rights, on
the theory that the filing of claims by employees in
either instance was a form of implementation of the
collective-bargaining agreement and thus an extension
of the concerted activity which gave rise to that agree-
ment [citation]. In addition, the Board has long fol-
lowed the statutory policy by withholding its processes
in deference to an arbitrator's award under contract
procedures where the arbitral process meets certain
standards of fairness and regularity [citations]. There-
fore, it appears to be no more than a reasonable exten-
sion of the above principle and Board policy to say
that employees have a corollary right to a full and fair
hearing on their grievances under contract procedures
which must likewise be protected from interference or
limitation.
In this connection, compare Theatre Now, Inc., 211 NLRB
525 (1974). Administrative Law Judge Sherman, therein,
found a supervisor's discharge, bottomed upon his partici-
pation in the concerned union's prosecution of some rank-
and-file worker's grievance, violative of law; her decision
derived, substantially, from those considerations, previous-
ly noted herein, which have governed the disposition of
similar cases. The Board members did not reject the
Judge's rationale ; they concluded, however, that the per-
son discharged had not really been a supervisor, but, rath-
er, likewise a rank-and-file employee. His challenged termi-
nation, therefore, was found violative of both Section
8(a)(1) and (3) of the statute.
General Counsel contends, herein, that since Pierceall
was, so he claims, given a layoff notice, rather than a re-
classification because of his participation in Wells' arbitra-
tion proceeding his termination should be found violative
of law. With respect thereto, this Board's recent Ebasco
Services, Incorporated, decision should be considered, so
General Counsel contends, both persuasively relevant and
dispositive.
Respondent's counsel, within his brief, contends that
Pierceall received a layoff notice, not because he had given
a statement for union presentation during Wells' arbitra-
tion proceeding, but for his failure to advise his direct su-
periors and Respondent's labor relations personnel regard-
ing his action, plus his marginal "bargaining unit" work
history in other respects.
The present record, so counsel claims, reflects "no sug-
gestion" that Pierceall's layoff derived from a company
policy or course of conduct calculated to restrain, inhibit,
or prevent supervisors, or anyone else, from giving full and
complete testimony before grievance committees or tribu-
nals; rather, it derived from his breach of supervisorial
ROHR INDUSTRIES, INC. 1037
duty or responsibility . In this connection , Respondent's
counsel defines a supervisor's basic duty, which Pierceall's
conduct supposedly breached, thusly:
For [Respondent 's grievance system] of "self-gover-
nance" to function properly , those charged with pro-
cessing grievances must be able to rely on other mem-
bers of their own "team," whether management of
labor, to cooperate at least to the extent of providing
accurate and timely information concerning a particu-
lar grievance to those charged with resolving the dis-
pute. The duty is akin to that of loyalty, and truthful-
ness, for breach of which discharge is clearly lawful
(citations). Here , because of Pierceall 's lack of candor,
his failure to alert his, i.e. superiors to a situation hav-
ing obvious and substantial impact on the Company's
preparedness in an important arbitration , that system
was undermined . . . . A fair view of the reason for
the exclusion of supervisors from the Act is that they
are in almost all respects adjuncts of the employer,
and owe a high degree of loyalty and candor to the
employer.
Thus, Complainant's termination , Respondent suggests,
could not have interfered with, restrained , or coerced its
rank-and-file workers, with respect to their exercise of
rights statutorily guaranteed ; discipline , when imposed
upon supervisors for their failure to fulfill a special duty of
candor, cannot, so the argument runs , threaten rank-and-
file workers , with respect to their exercise of Section 7
rights, because that duty devolves upon supervisory per-
sonnel , solely.
Further, Respondent contends that should a determina-
tion be considered warranted , arguendo , that Pierceall's ter-
mination for "lack of candor" did somehow threaten work-
ers' Section 7 rights, some balance must be struck,
nevertheless, between a concerned employer 's right to
maintain control over the integrity of his grievance pro-
cessing machinery , and the rights of rank-and-file workers
to be free from fear that their participation in such pro-
cesses may inure to their detriment , or that their right to
call upon supervisors for relevant testimony may be re-
stricted . Respondent 's counsel submits that the required
balance should be found tipped heavily in favor of recog-
nizing the concerned employer's need; he requests a deter-
mination that no properly cognizable "interference, re-
straint or coercion" with workers ' rights has been , herein,
shown.
Respondent's basic contention that statutory rights,
guaranteed for rank -and-file workers, have not been trans-
gressed when supervisors are disciplined for presumptive
derelictions of their duty qua supervisors may conceivably
have merit . Upon this record , however, no such broad-
ranging contention need by considered. The proposition,
thus baldly stated, cannot be deemed dispositive , for sever-
al reasons . First : Because the present record, considered in
totality, will not support Respondent's contention that
"lack of candor" chargeable to supervisors really was, re-
gardless of circumstances , considered a compelling ground
for discipline . Counsel, within his brief , has conceded that,
Pierceall's failure to report his compliance with Business
Representative Puente 's request , standing alone , was not
considered sufficient to warrant his termination:
... [The] decision was made that both Mr. Pierceall
and Mr. Moon had not discharged their supervisorial
duty of candor. Each had failed equally to supply la-
bor relations with accurate information. The difference
in the ultimate decision reached by industrial relations
was attributable to differences in their non -supervisorial
performance, and in no measure to the extent of their
participation in the grievance procedure . . . . Indeed, if
that was the case, it appears Moon's conduct (misre-
presenting discussions with the grievant) was far more
reprehensible than Pierceall's (providing a gratuitous
opinion on Wells' qualifications) for the former went
to the heart of the arbitration, while the latter was
tangentially relevant, at best, to the issues in Wells'
case (emphasis supplied).
Thus, Respondent's prime contention herein, that
Pierceall's claimed "lack of candor" justified his layoff, los-
es persuasive thrust; clearly, his purported dereliction nar-
rowly defined in Respondent's terms constituted no deter-
minative factor with respect thereto, despite Bistline's
witness-chair protestation that it had, indeed, been the
principal factor motivating his "effective recommenda-
tion" for the supervisor's termination. Second: Because no
persuasive showing has been made that Respondent's de-
termination to dispense with Pierceall's service reflects a
limited reaction, reasonably calculated to preserve the
firm's "control over the integrity of [its] grievance pro-
cessing machinery" merely. To the contrary , it reveals,
within my view, managerial overreaction.
Respondent's counsel, within his brief, has suggested,
substantially, that his client's right to command "accurate
and timely information" from supervisors, regarding their
involvement or concern with particular grievance, should
be considered a permissible limitation of whatever rights
Respondent's workers may have to call upon supervisors
for relevant statements or testimony in connection there-
with. Compare N.L.R.B. v. Brown Food Store, 380 U.S. 278,
289; the Supreme Court held, therein that wherever chal-
lenged employer conduct may interfere in some measure
with employee rights, no violation of the statute can be
found where the harm visited upon such rights is compara-
tively slight, where some substantial and legitimate busi-
ness end is served, and where no specific showing of im-
proper subjective motivation has been made. Within my
view, however, Respondent has not, herein, shown that
Pierceall's termination was a measure "reasonably adapted
to the achievement of a legitimate end" merely.
Bistline's testimony reveals that during the July 29 con-
ference previously noted, his firm's mock-up department
superintendent and general foreman were told, merely, to
"remind" supervisors within the department of their re-
sponsibility to provide "full and complete" reports regard-
ing their involvement with grievance matters . No discipli-
nary action, with respect to either Foreman Moon or
Pierceall, was requested. Clearly, Pierceall's dereliction,
seen from Labor Relations Manager Scott's and Bistline's
point of view, was not, initially, conceived as sufficiently
serious to merit either foreman's termination. Thus,
Respondent's final determination with respect to
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pierceall's layoff , so far as it may have been bottomed
upon his participatory role in Wells' grievance arbitration,
reflects a draconian reaction, which rank-and-file workers
would be most likely to consider punitive , rather than cal-
culated merely to correct some lapse in supervisorial loyal-
ty, cooperation or candor . Third: Because Respondent's
management , though charged with knowledge that Shop
Steward Rosalio Puente , plus many mock-up mechanics,
knew of Pierceall 's termination ; that Puente , certainly, was
concerned with respect to Respondent 's motivation; and
that various mock -up department workers might conceiv-
ably consider their "right to full and fair hearings on their
grievances" threatened or prejudiced thereby took no time-
ly, reasonable steps to reassure these rank-and-file workers
that their "right" defined herein would neither be circum-
scribed nor restrained.
In Texas Gulf Sulphur Co., 163 NLRB 88, 93-94 (1967),
this Board found that Section 8 (a)(1) had not been violated
when the concerned employer, first , discharged a supervi-
sor for union activity, and, secondly , sent rank-and-file
workers a letter about the matter ; the Board , therein relied
on the fact that their employer's letter gave concerned
workers assurances against reprisal , declaring that they had
no reasonable ground to fear a similar fate bottomed upon
their prounion conduct . Mindful of this determination,
Judge Sherman , within her Theatre Now, Inc., decision pre-
viously noted, has suggested, persuasively within my view,
that a proper balance between employee rights and their
employer's right to maintain control over the integrity of
his grievance processing machinery should , at the very
least, require some notice to rank -and-file workers that dis-
ciplinary actions taken vis -a-vis their supervisors , purport-
edly for valid business reasons , should not be considered
calculated to prejudice their statutory rights.
The record , herein, does warrant determinations , despite
Respondent's present contrary contention , that various de-
partmental workers were "aware" with respect to
Pierceall's layoff ; that some of them did consider
Complainant's termination chargeable directly to the state-
ment, supportive of Wells' grievance , which he had given
pursuant to Business Representative Puente 's request; that
Shop Steward Rosalio Puente did query General Foreman
Sampite and Superintendent Childers, specifically, with re-
spect to Respondent's motivation ; but that these manage-
ment representatives never proffered a rationale for
Pierceall's layoff consistent with their firm's presently sug-
gested "lack of candor" justification. If Respondent's man-
agement representatives , more particularly, the firm's in-
dustrial relations personnel, had, really, considered their
presently proffered rationale for Pierceall 's termination ex-
culpatory, some steps calculated to forestall any possibility
that it might be prejudicially misconstrued should, mini-
mally, have been taken . Having failed to provide Childers
and Sampite with candid statements justifying their higher
level termination decision , Respondent's industrial rela-
tions personnel , within my view, cannot now contend, le-
gitimately , that their firm's mock-up mechanics had no rea-
son to fear a prejudicial limitation of their contractual
grievance rights.
Finally, some reference should be made to Respondent's
presumptive contention that Pierceall was terminated, real-
ly, because , inter alia , his previous work record , during sev-
eral periods of mock-up mechanic service , was considered
marginal . With respect thereto, Respondent has proffered
merely hearsay testimony . Supervisor of Labor Relations
.Bistline , Respondent's sole witness , did declare that Gener-
al Foreman Sampite had, during their July 29 conference,
reported comments by fellow supervisors that they would
not want Pierceall working under their supervision. How-
ever, his proffered recollection that Sampite had, then, pre-
sented such a report stands completely without corrobora-
tion; Sampite did not testify . And Bistline 's testimonial
recital , though presented presumably to prove that Sampite
had truthfully reported comments by his fellow general
foreman and departmental foremen , clearly constitutes
hearsay with respect thereto. If proffered, further, to sup-
port Respondent 's more basic contention that Pierceall's
"overall performance" during his previous periods of bar-
gaining unit service had in fact reflected certain deficien-
cies, Bistline's testimony clearly merits rejection. So
viewed , his witness-chair declarations constitute double
hearsay; further, they provide no circumstantial detail,
which might conceivably have "lent verisimilitude" to his
otherwise "bald and unconvincing" narrative.
In this connection , certainly , Pierceall's stipulated work
record , with particular reference to his fairly rapid promo-
tions , should be noted. Concededly, his progression from
mock-up mechanic B to Respondent 's next higher classifi-
cation , and thereafter through that classification's wage
range , had been relatively swift . Departmental Superinten-
dent Childers had considered him, twice, qualified for pro-
motion; with respect to his second period of supervisory
service, particularly , Pierceall's testimony , proffered and
received without challenge or contradiction , warrants a de-
termination that Childers had selected him specifically to
handle a seemingly "troubled" work station. Mindful of
these considerations , Respondent can hardly contend per-
suasively now that Pierceall's prior work record rendered
him, somehow, unworthy of retention.
The testimonial record , further , suggests a possible con-
tention that Pierceall 's prior strike-related misconduct and
subsequent battery conviction, mentioned during General
Foreman Sampite's July 29 report, had, partially at least,
motivated Respondent 's layoff decision . However, this sug-
gestion, like the contention which I have just considered,
carries no persuasion . Bistline's testimony that Sampite,
during his July 29 report, had mentioned Pierceall's history
merely reflects hearsay declarations, bottomed upon
Sampite's purported statements that various general fore-
men within Respondent's mock-up department had
professed themselves distressed thereby . However,
Respondent's presentation, within my view, provides no
reliable , probative , or substantial basis for a determination
that Pierceall's prospective supervisors were disturbed, or
would have been disturbed, by his resumption of regular
"bargaining unit" work . Following his strike -related mis-
conduct and consequent battery conviction, Pierceall had
continued to work, so the record shows, while serving
weekend jail time ; his working relationship with fellow
workers and supervisors , during this crucial period when
memories were fresh , clearly had not generated superviso-
rial or managerial concern. Later , when "bumped back"
ROHR INDUSTRIES, INC.
following his first ( 1973) period of supervisory service,
Pierceall had resumed his previous "bargaining unit"
mechanic 's position ; no contention that he should be
deemed persona non grata had been considered, then.
Mindful of his complete work record, which Respondent's
management before August 2 certainly had clearly consid-
ered satisfactory , I would find any present suggestion that
his strike-related misconduct and subsequent jail service
were really considered material, or that they were weighed
in connection with Respondent 's recent layoff decision,
less than credible.
With such a paucity of evidence proffered, then, to show
Respondent 's purported justification for a serious termina-
tion decision , the firm 's defensive presentation falls far
short, when proffered to counter General Counsel's proven
prima facie case herein. This, especially, since Pierceall's
performance record concededly reflects his steady progress
from mock-up mechanic B to Respondent's higher "A" po-
sition , his successive raises within the latter classification,
and his subsequent designation for two-step supervisory
promotions twice within a comparatively recent 12-month
period.
The record, considered in totality, warrants a determina-
tion, which I make, that Supervisor of Labor Relations
Bistline, Rohr's responsible management representative,
really made the challenged determination , which became
Respondent 's final decision , that Pierceall should be termi-
nated, rather than reclassified . His forthright testimonial
declarations that he had been "upset" because of
Pierceall's failure to notify or consult with Respondent's
industrial relations department , before giving his statement
supportive of Wells' grievance ; that his distress had been
"part of the decision making process" which had preceded
his concededly effective recommendation ; and that it had,
indeed , been the principal "factor" therein , so far as he was
concerned have already been noted . Previously, within this
decision , I have found however that Respondent 's manage-
ment did not, really, consider supervisorial "loyalty and
candor" prime values : Vide, management's demonstrated
willingness to condone Foreman Moon 's concededly more
serious lapse 3 months previously, but, rather , desiderata
which might be fostered or promoted selectively . Further, I
have found Bistline's final justification for Respondent's
termination decision ; namely, Pierceall's purportedly poor
work record, and claims that he would face supervisorial
resentment bottomed upon his prior strike misconduct,
lacking in record support . Respondent's presently prof-
fered rationale for Pierceall's termination, therefore, can-
not stand . The foreman was designated for termination, I
conclude , primarily because he had, while a managerial
decision regarding his job tenure was pending , provided a
statement, pursuant to Union Representative Puente's re-
quest , reasonably calculated to support a fellow worker's
grievance , for presentation during the first of a series of
significant arbitration proceedings . Within this context,
Pierceall's layoff clearly carried a threat that workers'
"rights to full and fair hearings on their grievances under
contract procedures" could, or would be, prejudicially re-
stricted. Ebasco Services, Inc., supra. Statutorily guaranteed
rights were, I find, violated thereby.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
1039
Respondent's course of conduct set forth in section III,
above, since it occurred in connection with Respondent's
business operations set forth in section I, above, had, and
continues to have, a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several
States; absent correction, such conduct would tend to lead
to labor disputes burdening and obstructing commerce,
and the free flow of commerce.
In the light of the foregoing findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Rohr Industries, Inc., is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce,
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. International Association of Machinists, Local Lodge
755, designated as the Union within this decision, is a labor
organization within the meaning of Section 2(5) of the Act,
which admits certain employees of Respondent to mem-
bership.
3. When Respondent terminated Albert R. Pierceall's
employment, because of his participation in the Union's
processing of employee Max Wells' grievance, Respondent
interfered with, restrained, and coerced employees, gener-
ally, with respect to their exercise of rights statutorily guar-
anteed. Thereby, Respondent engaged, and continues to
engage, in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act,
as amended.
THE REMEDY
Since I have found that Respondent did engage, and
continues to engage, in an unfair labor practice which af-
fects commerce, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
action, including the posting of appropriate notices, de-
signed to effectuate the policies of the Act, as amended.
Specifically, since I have found that Section 8(a)(1) of
the statute was violated when Respondent terminated
Pierceall's employment, because he had assisted the Union
recognized as the representative of Respondent's rank-and-
file workers, in connection with processing a worker's
grievance through arbitration, I shall recommend that Re-
spondent be required to offer Pierceall immediate and full
reinstatement in the position to which he would have been
reassigned, following a demotion, but for the discrimina-
tion which Respondent practiced against him. Should that
position no longer exist, he should be given immediate and
full reinstatement to a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges . Respondent should, further, be required to make
Pierceall whole for any pay losses which he may have suf-
fered by paying him a sum of money equal to the amount
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he normally would have earned as wages from the
date on which he was terminated , to the date of
Respondent 's offer of reinstatement , less his net earnings
during the period designated . Pierceall 's backpay should be
computed by calendar quarters , pursuant to the formula
which the Board now uses . F. W. Woolworth Company, 90
NLRB 289, 291-294 (1950). Interest thereon should like-
wise be paid, computed at 6 percent per year. See Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), in this
connection.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER4
Respondent , Rohr Industries , Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging , disciplining , or discriminating , other-
wise , against any supervisor, because he or she has prom-
ised to give statements or testimony , or has given such
statements or testimony , before any committee or tribunal
established pursuant to grievance procedures specified
within a collective-bargaining contract.
(b) Interfering with , restraining , or coercing employees,
with respect to their exercise of rights with Section 7 of,the
Act, as amended , guarantees, by discharging , disciplining,
or discriminating otherwise, against supervisory personnel
because they have consented to provide statements or testi-
mony, or because they have provided such statements or
testimony, before any committee or tribunal designated to
consider and resolve grievances pursuant to a collective-
bargaining contract.
(c) Interfering with , restraining, or coercing employees,
in any like or related manner, with respect to their exercise
of rights which Section 7 of the Act, as amended, guaran-
tees.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act, as amended:
(a) Offer Albert R. Pierceall immediate and full rein-
statement in the position to which he would have been
reassigned, but for the discrimination practiced against
him, or , if that position no longer exists , to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges.
(b) Make whole Albert R. Pierceall for any loss of pay
which he may have suffered as a result of his termination,
in the manner set forth within the "Remedy" section of this
decision.
(c) Preserve, until compliance with any order for rein-
statement and backpay made by the Board in this proceed-
ing, and, upon request , make available to the Board and its
agents, for examination and copying, all payroll records,
social security records, timecards, personnel records and
reports, and all other records relevant and necessary to
reach a determination with respect to the amounts of back
pay due Pierceall pursuant to this Order.
(d) Post at its various places of business and production
facilities in San Diego , California, and vicinity, copies of
the attached notice marked "Appendix." 5 Copies of the
notice, on forms provided by the Regional Director for
Region 21, as the Board's agent, shall be posted, immedi-
ately upon their receipt, after being duly signed by
Respondent's representative. When posted, they shall re-
main posted for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that these notices are not altered,
defaced, or covered by any other material.
(e) File with the Regional Director for Region 21, as the
Board's agent, within 20 days from the date of this Order,
a written statement setting forth the steps which Respon-
dent has taken to comply herewith.
4In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
5In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that we violated the law by committing certain
unfair labor practices. In order to remedy such conduct, we
are being required to post this notice. We intend to comply
with this requirement, and to abide by the following com-
mitments.
WE WILL NOT discharge or discipline company super-
visors, or discriminate, otherwise, with respect to their
hire, tenure, or working conditions, because they have
promised to give statements or testimony, or because
they have given such statements or testimony before
any committee or tribunal established pursuant to
greivances procedures specified within our contract
with International Association of Machinists and
Aerospace Workers, Aeronautical Mechanics Lodge
No. 755, AFL-CIO, or company contracts with any
other labor organization.
WE WILL NOT interfere with, restrain, or coerce our
nonsupervisory employees, with respect to their exer-
cise of rights which the National Labor Relations Act
guarantees, by discharging, disciplining, or discrimi-
nating otherwise against supervisory personnel, be-
cause they have consented to provide statements or
testimony, or because they have provided such state-
ments or testimony, before any committee or tribunal
designated to consider and resolve grievances, pur-
suant to our contracts with the above-named, or any
ROHR INDUSTRIES, INC.
other, labor organization.
WE WILL NOT interfere with, restrain, or coerce our
nonsupervisory employees, in any like or related man-
ner, with respect to their rights to organize themselves,
to form, join, or help unions, to bargain collectively
through a representative chosen by them, to file griev-
ances pursuant to contractual grievance procedures,
and to receive full and fair hearings with respect to
such grievances , to engage in concerted activity gener-
ally for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
of these activities.
WE WILL offer Albert R. Pierceall immediate and
1041
full reinstatement in the position to which he would
have been reassigned, following a demotion for busi-
ness reasons, but for the discrimination which we
practiced against him. Should that position no longer
exist, WE WILL offer him immediate and full reinstate-
ment to a substantially equivalent position. Rein-
statement will be made without prejudice to his senior-
ity or other rights and privileges.
WE WILL make whole Albert R. Pierceall for any loss
of pay which he may have suffered because he was
terminated, rather than reclassified and reassigned.
ROHR INDUSTRIES, INC.