Serv-Air, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1967

162 N.L.R.B. 1369 (N.L.R.B. 1967)

SERV-AIR, INC. 1369
assuming that the Union did represent a majority of the employees in the unit when
the violations were committed, the Union would not be entitled to an order requir-
ing the Respondent to bargain with it under this record. Recent Board decisions
clearly establish that in this type case, it is not only incumbent on the General
Counsel to prove a majority and violations of Section 8 (,a)( 1 ) of the Act to justify
a bargaining order, but, in addition, has the burden of proving that the employer
has refused recognition in bad faith. John P. Serpa, Inc., 155 NLRB 99; Strydel
Incorporated, 156 NLRB 1185.
Granting that the Respondent violated Section 8(a)(1) as alleged (under the
assumption here made and contrary to my findings and recommendations) the
offensive conduct was not of a kind that establishes on the part of Respondent a
determination to undermine the Union's majority (assuming it had established a
majority) or to reject the collective-bargaining concept. The unfair labor practices
(if they had been established by the evidence adduced) consisted of representations
by two supervisors to 2 out of 75 employees of certain detriments if the Union was
selected as the employees' representative, plus coercive statements in one speech
and one letter from management. These alleged threats are of a kind so close to the
border line of free speech that it is very difficult to ascertain whether statements of
the kind made violate the Act or are protected by it. Such acts of misconduct
(assuming they had been made) sparingly committed, like certain others that the
Board has recognized, do not destroy Respondent's good faith considered with
other ameliorating conduct. See Hammond & Irving, Incorporated, 154 NLRB
1071. Compare also Clermont's Inc., 154 NLRB 1397, where the unfair labor prac-
tices involved seem to have been more aggravated than those, we are assuming for
the sake of the discussion, that were committed here; and Harvard Coated Products
Co., etc., 156 NLRB 162, where the Board denied a bargaining order notwithstand-
ing the commission of unfair labor practices on the part of the Respondent, in part
at least because the Respondent took prompt action in agreeing to an election upon
receiving the Union's request for recognition (a circumstance present in this case).
The unfair labor practices in Harvard-a plant superintendent's threat to an
employee that if the union came in the company would lose an important cus-
tomer, and a similar statement to another employee, along with a promise of a
supervisory position to the employee conditioned upon the union's loss of the elec-
tion-seem at least as onerous as those in this case, assuming the evidence adduced
had established them.
In the light of the foregoing authorities, and on the entire record in this case I
find and conclude that the General Counsel has not sustained his burden of proving
that Respondent was in bad faith in going to the election. This statement is made
on the basis of a continuing assumption that the evidence adduced for the purpose
proved the commission of violation of Section 8(a)(1) according to the purport of
such evidence. Absent such assumption, and dealing with my actual findings and
recommendations that no unfair labor practices were committed by the Respond-
ent, there is, of course, no question but that the General Counsel failed to prove
bad faith.
RECOMMENDED ORDER
For all reasons hereinbefore set forth, and on the basis of the findings and con-
clusions hereinbefore made, I recommend that the complaint herein, in its entirety,
be dismissed. Accordingly I do not reach or resolve the issues raised by the sepa-
rate defense of the Repondent that the alleged violations of Section 8(a)(5) must
fail because there was no demand for recognition within the 10(b) period of the
Act sufficient to impose a'duty upon the Employer to bargain.
Serv-Air, Inc. and Smoke-Eaters Lodge 898, International Asso-
ciation of Machinists, AFL-CIO. Case 16-CA-2606. Janu-
ary 31, 1967
'DECISION AND ORDER
On November 1, 1966, Trial Examiner David S. Davidson issued
his Decision in the above-entitled proceeding, finding that the
162 NLRB No. 127.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case,l and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
' The Respondent has requested oral argument . This request Is hereby denied because
the record , the exceptions , and the brief adequately present the issues and the positions
of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed March 1, 1966 , by Smoke-Eaters Lodge 898 , International
Association of Machinists , AFL-CIO,' referred to herein as the Union, the Gen-
eral Counsel issued a complaint against Respondent Serv-Air, Inc. The complaint
alleges that Respondent violated Section 8 (a)(1) and (3) of the National Labor
Relations Act, as amended, by suspending seven employees for a 2-week period
commencing on February 26, 1966. Respondent 's answer denies the commission
of any unfair labor practices.
This proceeding was heard before Trial Examiner David S. Davidson in Enid,
Oklahoma, on June 15 and 16, 1966 . At the close of the hearing the parties waived
oral argument and were given leave to file briefs , which the General Counsel and
Respondent filed.
Upon the entire record in this case and from my observation of the witnesses
and their demeanor , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a North Carolina corporation , performs services at Vance Air Force
Base and Kegelman Auxiliary Field in Oklahoma under contract with the U.S. Air
Force. During the last calendar year, a representative period , Respondent purchased
and received products and goods valued in excess of $50 ,000 directly from points
outside the State of Oklahoma. Respondent admits, and I find , that it is engaged
in commerce within the meaning of the Act and that assertion of jurisdiction is
warranted.
II. THE LABOR ORGANIZATION INVOLVED
Smoke-Eaters Lodge 898, International Association of Machinists , AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
'As International Association of Machinists, AFL-CIO, is not a separate party to this
proceeding , the name as It appears on the complaint has been amended.
SERV-AIR, INC. 1371
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Introduction and background
Respondent provides, among other things, firefighting and protection services for
the base facilities and flight operations at Vance Air Force Base and Kegelman Aux-
iliary Field. At Vance there are seven complete crews of firemen, each consisting
of five men-a crew chief, a driver, and three hand linemen. There are also two
firemen assigned to helicopter rescue work.2 The crews are assigned to two alternat-
ing shifts with one crew assigned to relief. Three crews work at a time and are on
duty for a period of 24 hours starting at 6 a.m., after which they have 24 hours off
while three other crews are on duty. Each crew gets an additional day off on a
rotating basis when the relief crew substitutes for it.
The firemen work from two fire stations on the base, one referred to as the central
station, and the other as the crash station. There are sleeping, kitchen, and recrea-
tional facilities at the fire stations. The firemen may use mess facilities on the base
or may bring food with them to eat at the stations. About half use the mess hall
and half eat at the station. There is no fixed lunch hour for the firemen but it is
their custom to eat between 11 a.m. and 12 noon.
The principal duty of the firemen is to provide protection in the event of fire. At
all times while on duty, the firemen are on call in the event of an emergency. While
flight operations are in progress, they stand by on alert on the airfield runways. In
addition, they are required to take regular training as specified by the Air Force to
maintain their firefighting skills.Their training exercises include extinguishing simu-
lated aircraft crash fires, referred to as pit drills; responding to simulated emergen-
cies in buildings, referred to as structural drills; simulating the rescue of pilots from
crashed aircraft, referred to as egress drills; and other forms of training . The train-
ing is carried on at various times while the firemen are on duty.
In May 1964, the Union was certified as the bargaining representative of the fire-
men at Vance Air Force Base and Kegelman Field. Included in the unit were crew
chiefs, who are not supervisors within the meaning of the Act. At the time of the
events here involved, February 1966, the Union and Respondent had not yet entered
into a collective-bargaining agreement, and negotiations were still in progress. How-
ever, on September 5, 1965, the Union had entered into a limited agreement with
Respondent providing that there would be no walkouts without 12 hours written
notice to the fire chief or an appropriate official of Respondent .3
Although the firemen had taken training while on duty on Saturday afternoons
in the past,4 during February 1966, a dispute developed between the Union and
Respondent over the scheduling of training for firemen on Saturday afternoons.5
On Saturday, February 19, the crews on duty were scheduled to train during the
afternoon but apparently persuaded Assistant Fire Chief Kirk, who is in charge of
training, to cancel the afternoon drill. The scheduling of afternoon training for the
firemen on the next Saturday was a matter of evident concern to both management
and the firemen as that day approached.
2. The grievance meeting on February 23
On Wednesday, February 23, Respondent and the Union met to discuss grievances.
Present for Respondent were Fire Chief Willis Moxley, Base Operations and Main-
2 Employees rotate between these assignments and working as members of a crew.
3 The purpose of the agreement, which appears on its face, was to make certain that
Respondent would have adequate notice to arrange for fire protection in the event of a
walkout. The agreement also provided that Respondent would be allowed 48 hours to
return the firemen to work after the end of a walkout.
4 Alleged unilateral changes in the working conditions of the firemen relating to Satur-
day work shortly after the Union's certification are the subject of another unfair labor
practice proceeding pending before the National Labor Relations Board on exceptions
(Cases 16-CA-2122, 2131, 2163, 2176, and 2187). Because of my view of the issues herein
as set forth below, I find it unnecessary to consider what impact, If any, that proceeding
has on this case.
5 The entire background of the dispute is not clear from the record in this case and is
not essential to the Decision herein.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance Director Max Cumpston , and Personnel Supervisor James Masemore . Repre-
senting the Union were Grand Lodge Representative Harvey Christian , Shop Stew-
ard Ressie A. Chodrick , Union Recording Secretary Jerry Grammont , and a few
others.8 Of the Union 's representatives , all but Christian were employed by Respond-
ent as firemen . Chodrick was a crew chief.
During the meeting, Cumpston informed the union committee that it would be
necessary to reschedule the training of firemen stationed at Kegelman Field from
Friday nights to Saturdays . In this connection Cumpston raised the matter of the
training that had been scheduled for the previous Saturday afternoon but not com-
pleted. Cumpston told the union representatives that it was necessary that all sched-
uled training be completed and that training be scheduled on Saturday afternoons.
During this discussion , which was carried on principally among Cumpston , Christian,
and fireman Myron Dodd, Dodd suggested a method of scheduling the training
which would alleviate the need for training on Saturday afternoons and would make
it possible to avoid scheduling training for that time.? Cumpston indicated that the
schedule suggested by Dodd appeared to be acceptable He asked the Union to work
up a proposal for Saturday training along the lines Dodd suggested and to submit
it to him within 10 days Cumpston said that he would take the matter up with
Chief Moxley, but that the discussion would not affect training that was to be
scheduled for the afternoon of the following Saturday , February 26, when the fire-
men were to be instructed on the use of some rescue equipment that had recently
arrived.8
At some point during the meeting Chief Moxley stated that he would require fire-
men to train on Saturdays , Sundays , and holidays , if necessary to meet requirements,
and that any fireman who refused to train would be fired.
3. Moxley's conversation with his superiors on February 25
On Wednesday , February 23, Chief Moxley approved for distribution a training
schedule for Saturday , February 26 It provided for pit fires and structural drills
on Saturday morning until shortly after 11 a.m , a lunch break until 1:30 p.m., and
training to resume at that time with egress drills until 3 p.m 9 The schedule bore
the following notation.
Note: time noted will not necessarily mean we are going to follow to the time
noted as interruptions can occur which will either take longer or if operations
run smoothly less time may be needed than shown
On Friday , February 25, Chief Moxley asked to see John Hood, vice president
and assistant general manager of Respondent , and Max Cumpston , Moxley's imme-
diate superior . Moxley told them that he had training scheduled for Saturday after-
noon and that the firemen were going to refuse to drill . Hood and Cumpston ques-
tioned the basis of Moxley 's prediction . Moxley continued to express certainty that
the firemen would not work the next afternoon , attributing his assurance to rumors
he had heard. Moxley told Hood and Cumpston that if the firemen refused to drill,
he was going to have to fire them even if it meant that he also would be fired
6 Except as indicated beloii the essential facts as to this meeting are not in serious
dispute I have based my findings principally on the testimony of Cumpston, whose recol-
lection seemed clear and whose testimony generally impressed me as accurate
7 Although the firemen who worked on Saturday remained on duty until f, a in Sunday
morning, no flight operations were normally conducted on Saturdays As a consequence.
apart from training , the only duty of the firemen on Saturdays was to respond in case of
emergency When not training or answering an emergency call on Saturday afternoons,
the firemen were permitted to remain at the fire stations and sleep , watch teieviiion, read,
or otherwise amuse themselves
8I credit Cumpston in this regard . Christian conceded that Cumpston told him that
the firemen would be expected to train on the following Saturday afternoon , but testified
that after they discussed Dodd ' s proposal, he had the impression that Saturday afternoon
training would not be scheduled until after the parties had an opportunity to negotiate
further Chodrick , who testified that he did not hear Cumpston sav anything about train-
ing the next Saturday , did not hear the entire conversation between Cumpston, Christian,
and Dodd relating to Saturday training Whatever impression Christian may have formed,
I find that Cumpston gave effective notice during the course of the meeting that the fire-
men would be expected to train on the following Saturday afternoon
O The record does not disclose when the schedule was communicated t, o the firemen, but
in the normal course of events Saturday schedules were usually posted on the preceding
Thursday
SERV-AIR, INC. 1373
After checking with Respondent 's attorney , Hood told Moxley to terminate the
firemen if they absolutely refused to work.
Hood told Respondent 's attorney in Moxley's presence that he wanted Moxley
to do everything possible to get the firemen to do the job, but that the time had
come when a decision had to be made as to who was running the fire department.
4. The events of February 26
a. The training on the morning of February 26
On February 26,10 there were three crews on duty , referred to by the names of
their crew chiefs as the Chodrick , Ashcraft , and Sedbrook crews." After breakfast
around 8:30 a.m. the three crews reported at the central station to Assistant Chief
Kirk, who was in charge of training , for briefing and instruction on that day's drill-
ing assignment . Chief Moxley was present at the station but did not participate in
the briefing . 12 During the briefing Chestnut, a helicopter fireman, objected to his
assignment to participate in a pit fire drill with one of the crews because he had
already participated in three fires that week . Kirk sent him to Moxley who was in
another part of the station , and Moxley assigned Chestnut to drive the truck for
one of the crews , which Chestnut agreed to do. During the briefing Chodrick asked
Kirk if they could finish with the drill in the morning , and said that the men would
not drill after lunch Kirk said they would see about that later.13 Somewhat later,
Kirk reported this conversation to Moxley.
After the briefing , the three crews went to the pits for their pit drills Moxley
went to the site of the drill with Kirk but left shortly thereafter , telling Kirk that
he would be on the radio if needed . Chodrick 's crew completed its pit fire, and
while the remaining two crews completed their pit fire drills and serviced their
trucks,14 Chodrick's crew completed its structural drill. Between 11:20 and 11:30
a.m. the Ashcraft and Chodrick crews went back to the central station where they
waited for Sedbrook 's crew to return from its pit drill . Kirk told them that they
would then break for lunch . 15 The men protested and told Kirk they wanted to go
ahead and drill. While discussing whether they should continue to train without a
lunch break, Sedbrook 's crew returned . Kirk asked Sedbrook 's crew if they were
willing to continue with the drills. Some of those on Sedbrook 's crew said they did
not want to dull at noon but would do so for the sake of harmony . Kirk then
agreed to continue the drill, and after giving Sedbrook 's crew a 5-minute break,
Kirk went out in his truck to call the structural drill problem over the radio to
10 The material events on February 26 were testified to by Grammont , Chodrick, and
Chestnut for the General Counsel and Moxley and Kirk for Respondent All the witnesses
had an interest in the outcome of this proceeding , and as might be expected there were
variances in their testimony as to details such as the time and sequence of certain events
I have not attempted to resolve all such variances as, in my view of this case, it is not
essential to the result that I do so . I have based my findings on a synthesis of the testi-
mony, Indicating where there are significant conflicts with the version I have chosen to
believe and my reasons for accepting it
11 There is evidence that the men in Sedbrook 's crew were not members of the Union,
but there is no evidence that Respondent had knowledge of their nonmembership.
12 Moxley normally is at the base during the daytime Monday through Friday. However,
he is responsible for fire department operations at all times , monitors fire department
radio transmissions when away from the base , and occasionally comes to the base Sat-
urdays, Sundays , and evenings.
i3 This finding is based on a composite of the testimony of Grammont , Chodrick, and
Kirk , each of whom I am satisfied sought to put on this conversation a gloss favorable to
his interests . Grammont testified that he could not remember the exact wording but that
Chodrick asked if they could work toward getting through by noon or words to that
effect. Chodrick testified that he said to Kirk that "if it was at all possible we would
like to get done in the morning" and "if we do drill in the afternoon that is a unilateral
change." They both testified that Kirk made a temporizing reply. Kirk testified that
Chodrick said, "We ' re going to walk out. We 're not going to drill after dinner," and
that Kirk made no comment in reply.
14 After each drill , the crews were required to clean their trucks and to restore their
equipment to ready condition so that they were prepared for the next drill or an emergency
15 Testimony varied as to the time of this discussion and of the events which immedi-
ately followed . However , both Chodrick and Kirk agreed that the Chodrick and Ashcraft
crews returned to the station around 11 . 20 a.m. I credit them as to the time.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ashcraft's and Sedbrook's crews.16 In his radio transmission Kirk made clear to
the crews that they would be drilling during the noon hour. The crews radioed
back that it was agreeable to them to continue. Kirk radioed the drill problem to
them, and the crews left in their trucks for the drill. '
At the time of this exchange of radio messages, Chief Moxley was off the base,
but was monitoring the drills on a portable two-way radio.17 Moxley heard Kirk's
transmission telling the men that they would continue to drill through the lunch
hour. He immediately telephoned the alarm room at the base. He told Bowen, the
fireman on duty there, to contact Kirk and tell him to discontinue the drills and to
send the firemen to lunch.18 Moxley also told Bowen to ask Kirk to call him. About
11:45 a.m. Kirk radioed the firemen who were en route to the site of the drill
problem and told them to terminate the drill and to eat lunch.19 Kirk then called
Moxley.
According to Kirk, if the drill had not been terminated, it would have continued
without a break until all drilling for the day was completed.20 He estimated that if
they had continued, all drilling would have been over at 1:30 or 2'p.m.
b. Preparation of and attempts to present a grievance during
lunch hour
During the lunch hour the Ashcraft and Chodrick crews gathered at the crash
station, where two of the firemen started to write out four copies of a grievance.
The grievance was headed with the words "This is a 12 hr. notice." As Chodrick
testified, the firemen put the 12-hour notice in most of their written grievances to
comply with the requirements of the September 5, 1965, agreement; however, its
inclusion did not mean that the firemen would necessarily walk out but they could
walk out if they chose to after the 12-hour period had elapsed. The body of the
grievance protested alleged threats and harassments by Moxley and his action in
stopping the structural drill after it was under way. As a remedy, the grievance asked
that the alleged threats and harassments be stopped and that Saturday afternoon
drilling be ended, provided that the firemen showed an honest effort to complete
their drilling by noon.
While the firemen were writing the grievance, Kirk came to the crash station.21
The firemen told him that they were preparing a grievance which they would like
16 Chodrick's crew, which had completed this drill, volunteered to help the other two
crews service their trucks upon completion of the drill.
17 See footnote 12, supra
18 According to Moxley he terminated the drill because he believed that if the firemen
worked through lunch, the firemen would be grieved and unhappy, and he wanted "no
more trouble than usual." In addition, although he ultimately testified that he did not
learn that the men wanted to continue working through lunch until he telephoned Kirk,
he testified previously that he heard Kirk on the radio ask the men if they wanted to
finish the drills before lunch and that he was informed from the radio that the men had
agreed to continue training through lunch As Kirk's testimony makes clear, at the time
he transmitted the problem to the men he asked them to verify that they agreed to con-
tinue drilling. I find that Moxley knew at the time he ordered Kirk to call the drill off
that the men agreed to continue drilling. But even if he did not, I would not in any event
credit Moxley's asserted reason for calling off the drill. Although there is evidence that
the mess hall closed at 1 p.m. on Saturdays, Moxley testified that he learned that fact
only after he called off the drill, and that he did not know how many of the firemen, if
any, ate there From Moxley's statement at the grievance meeting on Wednesday, his re-
port to Hood and Cumpston on Friday, and Kirk's report to him of Chodrick's remark
earlier Saturday morning, it is clear that he anticipated a refusal if the firemen were
required to drill on Saturday afternoon Moxley could not have considered a possible
grievance over working through the firemen's customary lunch time likely to create more
trouble than that which was clearly in sight as a result of the course of action he chose.
I conclude that Moxley's cancellation of the drill was not designed to avoid trouble but
to make certain that the issue of Saturday 'afternoon training would not be avoided as it
had been the previous week and that, as Hood had put it, a decision would be made as
to who was running the fire department.
191 have credited Kirk and Chodrick, who were in essential agreement, as to the time
of the termination of the drill.
2O There remained to be completed the structural drill for the Ashcraft and Sedbrook
crews and an egress drill for all crews. .
81 Kirk testified that he went to the crash station after being advised by Leckie, an-
other assistant fire chief, who was not called as a witness, that the men wanted to
present a grievance and that they said they were not going to drill that afternoon.
SERV-AIR, INC. 1375
to get settled. Kirk said nothing in response and left. Kirk went back to the central
station where Moxley had arrived, pursuant to an earlier call from Kirk. He then
returned with Moxley to the crash station. Chodrick told Moxley that the men had
a grievance that they wanted to present to him. Moxley replied that he was off duty
and would not take a grievance. He added that he was only there because Kirk had
called him and he wanted to know who was refusing to drill. Chodrick repeated his
request that Moxley accept the grievance, and Moxley continued to refuse, stating
that he would hear the grievance on Monday. Moxley told the men to report to
the central station at 1:30 p.m. to resume drilling and he left.22
Ashcraft and Chodrick left, taking the written grievance with them, and went to
the central station where they saw Moxley. Chodrick again asked Moxley if he
would accept the grievance, and Moxley again refused to accept it. Moxley told
Chodrick and Ashcraft to get their men over to the central station to meet with
him there in the classroom at the back of the station.23
c. Events at central station after lunch
At approximately 1:30 p.m. the crews assembled at the central station in the
classroom 24 Chief Moxley gave a short talk to the men in which he explained that
they had a job to do and that it was essential that they drill. Moxley then told them
to go to the front of the station and drill. Sedbrook's crew rose to leave to resume
training. However, the rest of the men remained in the classroom. Grammont rose
and told Moxley that they were not refusing to drill,25 but that since the problem
was a continuing one and they had tried to present a grievance to him, they wanted
to use "this short time" to try to come up with a solution to prevent similar recur-
rences every Saturday. Moxley charged that the men were refusing to drill. Gram-
mont denied that they were refusing and continued to ask Moxley to discuss the
matter and try to come to some kind of a settlement. Moxley repeated that he would
hear their grievance on Monday or Tuesday but not at that time. A period of con-
fusion followed, during which Moxley and the men moved back and forth between
the front of the station and the classroom.26 Moxley continued to ask the firemen
to resume training, but they did not do so. Finally, Moxley told the men that they
left him no alternative but to terminate them and that they were fired.27
After they were terminated, the firemen demanded that they be paid off that after-
noon, and Moxley telephoned Respondent Vice President Hood to tell him what
re According to Moxley, while at the crash station Grammont said "Chief you called
off our drill. We wanted to continue the drill. We are not going to drill this afternoon."
Kirk did not corroborate this testimony. In view of my general impression of Moxley as
a witness and in the light of my findings with respect to Grammont 's statement a short
while later at the central station that the men were not refusing to drill but first wanted
their grievances heard, I do not credit this uncorroborated testimony of Moxley.
23 Chodrick testified as to this second encounter with Moxley during the lunch hour.
Grammont and Chestnut testified that Chodrick and Ashcraft left the crash station for
a while and returned to report a further unsuccessful effort to present the grievance to
Moxley. Moxley omitted this encounter from his version and while he did not directly
deny that it occurred, I would infer from his testimony as a whole that it is his version
that it did not occur. I credit Chodrick.
24 According to Moxley after the firemen arrived at central station and before Moxley
told them to assemble in the classroom , Chodrick stated that they were not going to drill.
On cross-examination he did not mention this incident although mentioning two other
occasions when Grammont and Chodrick allegedly made similar statements. I have not
credited this uncorroborated testimony. Although I have no doubt that Moxley firmly
believed that the men would not drill , he held this belief on the previous day and before
visiting the crash station during the lunch break.
Grammont so testified and was corroborated by Chodrick and Chestnut . Kirk testified
that he heard Grammont at some point say that the men were not refusing to drill.
Moxley was evasive in his responses when he was asked a number of times whether he
heard such a statement . I credit Grammont.
2O During a portion of this period , rain interrupted the training of the Sedbrook crew
and made it impossible for any of the crews to train.
27 The testimony varies as to the length of time which elapsed before Moxley told the
firemen that they were discharged and as to the sequences of the movements of the men
between front and back of the fire station after 1 : 30 p.m. Such variances are likely to
occur in recounting the events of a period of considerable excitement and tension. As
they do not affect the ultimate conclusion , they need not be resolved.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had happened and to arrange to get someone to come in to make out checks for
the men . While waiting for a return call from Hood, either Moxley or Grammont
suggested that the firemen meet among themselves in the classroom to consider fur-
ther what they wanted to do,28 and the men returned to the classroom and met with-
out Moxley. While they were there, Hood telephoned Moxley and told him that the
comptroller was on the way to base to pay the men off. Moxley went to the class-
room, so informed Grammont, and again left. A few minutes later the firemen
returned to the front of the station and Grammont told Moxley that they would
train under protest and on condition that he would meet with them on the following
Monday to try to negotiate a settlement . Moxley replied that he would not accept
any conditions and told the men to get equipment which was charged to them and
turn it in.
While the firemen were checking in their equipment Hood and Cumpston arrived
at the station . They conferred briefly, and Hood, while leaving the decision to Mox-
ley, asked Moxley to consider rescinding the terminations and substituting a 2-week
suspension for them. Hood then left. After Moxley discussed the matter further with
Cumpston, he decided to follow the course of action suggested by Hood. He told
the firemen that their discharges were rescinded and that they were suspended for
2 weeks starting immediately.29 The firemen finished checking in their equipment
and left the base.
B. Conclusions
Section 7 of the Act provides that-
Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, .. .
Concerted activity for the purpose of mutual aid or protection includes presenta-
tion of a grievance to management and a temporary stoppage of work in order to
present a grievance.30 Indeed, the Act protects employees who stop work not only
to present a grievance but to protest their treatment or to support a grievance 31
However, the protection afforded by the Act is not unqualified. Among other
reasons, a work stoppage may lose protection because it is in violation of a con-
tractual prohibition, or because it takes "the form of an inside seizure and an exer-
cised control by the employees of the employer's business, such as an attempt to
remain on their jobs and perform only such tasks as they choose, or otherwise to
presume to conduct the operations of the business on their own terms." 32 If
employees are discharged or disciplined because they have engaged in protected
concerted activities, the Act is violated. If they are discharged or disciplined
because they have engaged in unprotected concerted activities, the Act is not
violated.
At the outset, in this case it is clear that there was a work stoppage by the fire-
men, whatever they said at the time, and that they were first discharged, but later
merely suspended because they stopped work. Likewise, it is clear that the work
stoppage was a form of concerted activity. It remains to be decided whether the
concerted activities of the firemen were protected or unprotected.
23 Grammont testified that Moxley suggested that the firemen meet among themselves
Moxley testified that Grammont asked for the opportunity to meet. I find it unnecessary
to decide how the meeting came about
2D The men who were suspended were Olin Ashcraft, Jerry B Grammont, Robert Young,
Ressie A. Chodrick, Andrew Sima, Jerry R Wolfe, and John W. Seiler. Chestnut and
Bowen were also In the station at that time, but were not discharged or suspended be-
cause they had both indicated that they would continue with the egress drill However,
after the seven discharges were converted to suspensions, Chestnut and Bowen walked
out with the suspended firemen in protest of the suspensions
30 Kennametal, Inc., 80 NLRB 1481, enfd 182 F 2d 817 (C A 3) ; Modern Motors, In-
corporated, 96 NLRB 964, enfd. as modified 198 F.2d 925 (C A. 8) ; Quaker Alloy Cast-
ing Company, 135 NLRB 805; Kitty Clover, Inc v. N L R B , 208 F.2d 212 (C.A. 8).
31 N.L R B. v. J. I. Case Company, 198 F.2d 919 (C.A. 8) ; N L R.B. v. Time-O-Matic,
Inc., 264 F.2d 96 (C.A. 7) ; Modern Motors, Incorporated, supra. See also Lee Cylinder
Division of Golay & Co , Inc., 156 NLRB 1252.
32 N.L.R B. v. J. I Case Co., supra, 922 Cf. The Dow Chemical Company, 152 NLRB
1150.
SERV-AIR, INC. 1377
First to be considered is the purpose of the work stoppage. There is substantial
evidence which establishes that a purpose of the work stoppage was to present and
discuss the grievance which the firemen had written during the lunch break. Thus,
after Moxley interrupted the structural drill, the firemen returned to the station and
during their lunch break wrote the grievance described above. Twice during the
lunch break Chodrick tried to present the grievance to Moxley, but Moxley refused
to take it. When the firemen assembled at the central station at 1:30 p.m., Gram-
mont stated that the firemen were not refusing to work but that they wished to take
some time to present and try to settle their grievance. Moxley continued to refuse to
accept and discuss the grievance and the firemen continued to refuse to drill. The
course of action taken by the firemen discloses not only that their purpose was to
present and discuss the grievance, but that a reason for pressing to present it was
to put in Moxley's hands the strike notice required by the September 1965 agree-
ment as a prelude to a possible later walkout. Other considerations apart, the
firemen's concerted activities were thus for a purpose within the protection of
Section 733
It is true that there are some indications in the record that the men might have
refused to train on Saturday afternoon in any event. from which it may be argued
that the firemen sought to take into their own hands the establishment of working
conditions, either as a further purpose of the stoppage or as a means to compel a
favorable settlement of their grievance. Apart from the rumors which led Moxley to
talk to Hood ,and Cumpston on the previous day and Leckie's report to Kirk on
Saturday noon, which raise suspicions but are not probative, I have found that
Chodrick on Saturday morning at the briefing said that the firemen would not train
after lunch. But this statement was coupled with a request that Kirk try to complete
the drilling before noon. Later in the morning when the men asked to continue
working without a lunch break, Chodrick not only failed to repeat the threat of a
refusal to train after lunch, but he and all the firemen expressed willingness to work
on through into the afternoon to complete the required drilling.34 Whatever impres-
sion Chodrick or the other firemen may earlier have created, one cannot say with
any certainty whether or not the men would have resumed drilling after lunch if
Moxley had accepted their grievance and discussed it for a reasonable period, even
assuming that he would then have only referred it to the grievance committee for
consideration during the following week. The uncertainty flows directly from Mox-
ley's refusal to accept and discuss the grievance which makes it impossible to know
what would have happened if he had acted otherwise.
I am satisfied that in these circumstances there is insufficient evidence to conclude
that the firemen would not have trained whatever Moxley had done. Particularly
where the action of Moxley which prevented further crystallization of the firemen's
intent was refusal to accept and discuss a grievance, uncertainties must be resolved
against Respondent Even if the chances were that discussion of the grievance would
have been futile, the policies of the Act encourage discussion, partly because dis-
cussion is itself therapeutic, and partly because, however slim the chance, discussion
may lead to resolution. It would not only be speculative but would encourage frus-
tration of the policies of the Act to conclude that the firemen would have taken
matters into their own hands and would have refused to train under any circum-
stances after Moxley's refusal to accept and discuss the grievance deprived the firemen
of the opportunity or occasion to make clear what they would have done.
Other considerations remain, however, before it can be decided whether the work
stoppage was protected. Thus, one may ask whether the time chosen by the firemen
to seek to present and discuss the grievance was so inappropriate as to make the
stoppage unprotected. I conclude that it was not. No collective-bargaining agreement
was in effect covering the firemen, and Respondent and the Union had no limited
agreement relating to grievance procedures. As Hood's testimony established, most
grievances are presented to Chief Moxley who usually asks for time to look into
the matter and to notify the Union of his response. After looking at a grievance, if
Moxley can resolve the matter, he goes back, presumably to the steward, and at-
33 Cases cited in footnote 30, supra.
34 The request to continue drilling was made at around 11 : 30, and Kirk estimated had
the drilling not been interrupted, the scheduled drilling would have been finished by
1 : 30 or 2 p.m.
264-047--67-vol. 162-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempts to do so.35 If no resolution is reached or if Moxley feels that the grievance
is such that he cannot,resolve it, he refers it to the company and union negotiating
committees. Thus, there was no agreed-upon or customary grievance procedure
which was contravened by the attempt to present the grievance to Moxley during the
lunch break or thereafter While Moxley customarily took time to read and con-
sider a grievance before responding to -it, he did not seek to avail himself of that
procedure when he refused even to accept the grievance.36 Moreover, Moxley's
asserted reason for refusing to accept the grievance when tendered can hardly be
accepted as a sufficient basis to render unprotected the firemen's efforts to present
and discuss the grievance. Indeed, in the light of Moxley's activities at and away
from the base that morning, particularly his action in countermanding Kirk's deci-
sion to let the firemen continue to drill without a lunch break, as well as Moxley's
concession that he was responsible for fire department activities at all times and
kept close watch over them, Moxley's asserted reason can be accepted as little more
than a makeweight in support of his rather clearly evidenced determination to force
a showdown over Saturday afternoon work.
Apart from the reason stated by Moxley for refusing the grievance, there were
no overriding business considerations to warrant Moxley's refusal to accept or dis-
cuss the grievance at the time requested by the firemen. While it was necessary that
the firemen train, there is no showing that a short delay to permit presentation of
the grievance would have had any impact on Respondent's operations. The time
schedule for training was flexible, as appears both from Respondent's printed sched-
ule and Kirk's readiness to accelerate the schedule until countermanded by Moxley.
This is not to say that Respondent had no right to require Saturday afternoon train-
ing. But the need for such training, unlike performance of duties by employees on
a continuous production line, was not of such urgency as to deprive the firemen of
the right to interrupt work to present their grievance.37
Likewise, there is no warrant to conclude that the stoppage was in derogation of
the Union's status. Despite the fact that the stoppage was spontaneous and did not
involve all the firemen or even all those on duty, all the evidence points to the fact
that it was in support of the objectives of the Union in negotiations 38 Moreover, the
grievance which the firemen sought to present through Steward Chodrick to Moxley
was not identical to the matter discussed at the previous grievance meeting with
respect to which the Union was to bring in a proposal. The grievance went beyond
the matter of scheduling training on Saturday afternoons and complained of alleged
threats and harassment by Moxley and the cancellation of the drill that morning.
There remains for final consideration whether the stoppage violated the Union's
agreement to give 12 hours' notice before walking out, and thereby stripped the stop-
page of protection. As the agreement itself makes clear, it applied to walkouts, of
which there had been a number, and its purpose was to give Respondent an oppor-
tunity to make arrangements for adequate fire protection on the base before the
firemen left. Here there was no walkout and no refusal to supply fire protection to
the base. Moreover, the stoppage was caused by Moxley's refusal to accept the
written grievance which contained a written notice designed to comply with the
terms of the agreement. I conclude that the stoppage did not violate the Union's
agreement.
35 Initially Hood testified that normal procedure is to present a grievance first to an
assistant chief His later testimony, however, makes it clear that grievances, either oral
or written, are usually presented to Chief Moxley in the first instance
36 In this connection, I note that the facts herein are distinguishable from those in
N.L R B. v. Condenser Corporation of America, 128 F 2d 67, 77 (C A. 3). In that case,
as here, an offer was made to discuss the grievance at a later time But unlike this case,
there the employees initially acquiesced to deferral of discussion of their grievance, and
they were not required to give a written notice such as was included in the written griev-
ance in this case, before they could engage in a full-scale walkout. See N.L.R B v. Ken-
nametal, Inc., 182 F.2d 817, 819 (C.A 3).
37 See NL.R B v. Time-O-Matte, Inc., 264 F.2d 96, 101-102 (C.A. 7). In fact, the fire-
men first sought to present the grievance during their lunch break when work would not
have been interrupted if Moxley accepted and discussed it. Had the firemen refused to
answer an emergency call in order to present a grievance, of course, a different conclusion
might well follow. See N.L.R.B. v. Marshall Car Wheel & Foundry Co, 218 F.2d 409
(C.A. 5). But they did not do so, and there is no showing that they would have done so.
38 Cf. Sunbeam Lighting Company, Inc., 136 NLRB 1248, enforcement denied 318 F.2d
661 (C.A. 7).
SERV-AIR, INC. 1379
In reaching these conclusions, I do not pass upon the merit or lack of merit of
the grievance the firemen sought to present or upon the wisdom or unwisdom of
the actions of the firemen.39 I find only that right or wrong, wise or unwise, reason-
able or unreasonable, the interruption of their training on February 26 in the
attempt to present and discuss their grievance was a protected concerted activity,
and their discharges and their suspensions, to which the discharges were subsequently
converted, interfered with, restrained, and coerced the firemen in violation of Sec-
tion 8(a)(1) of the Act 40
IV. THE EFFECT OF THE. UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(1) of the Act, I shall rec-
ommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In order to remedy the unlawful suspensions of Olin Ashcraft , Jerry B. Gram-
mont, Robert Young, Ressie A. Chodrick , Andrew Sima , Jerry R. Wolfe, and John
W. Seiler, I shall also recommend they be made whole for any loss of pay they may
have suffered by virtue of their unlawful 2-week suspensions which started on Feb-
ruary 26, 1966, by payment to each of them of an amount equal to what they nor-
mally would have earned as wages during the period of the suspensions , less their
net earnings , if any, during that period , to which shall be added interest at the rate
of 6 percent per annum.41
Upon the basis of the above findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent, Serv-Air, Inc., is an employer engaged in commerce within the
meaning of Section 2(2),(6), and (7) of the Act.
2. Smoke-Eaters Lodge 898, International Association of Machinists, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By discharging and suspending Olin Ashcraft, Jerry B. Grammont, Robert
Young, Ressie A. Chodrick, Andrew Sima, Jerry R. Wolfe, and John W. Seiler for
engaging in protected concerted activities, the Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Sec-
tions 8 (a)(1) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I hereby recommend that Respondent, Serv-Air,
Inc., Enid, Oklahoma, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or suspending employees for engaging in conduct which consti-
tutes concerted activity protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Smoke-Eaters Lodge 898, International Association of Machin-
ists, AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other activity for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
39N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344; N.L.R.B. v. Washing-
ton Aluminum Company, Incorporated, 370 U.S. 9, 16.
4° Because of this conclusion, I find it unnecessary to decide the effect, if any, of Moxley's
refusal to rescind the discharges upon the offer of the firemen to train under protest
and on condition that Moxley discuss the grievance on the following Monday. I also find
it unnecessary to decide whether the discharges and suspensions violated Section 8(a) (3)
of the Act as the remedy in any event would be the same.
u lain Plumbing & Heating Co., 138 NLRB 716.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which it is found will effectuate the pol-
icies of the Act:
(a) Rescind the 2-week suspensions which started on February 26, 1966, of Olin
Ashcraft, Jerry B. Grammont, Robert Young, Ressie A. Chodrick, Andrew Sima,
Jerry R. Wolfe, and John W. Seiler.
(b) Make whole the employees named in paragraph (a) above in the manner
set forth in the section of the above Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Recommended Order.
(d) Post at its Enid, Oklahoma, place of business, copies of the attached notice
marked "Appendix." 42 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 16, after being duly signed by the Respondent's representative, shall
be posted by it immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps Respondent has taken to comply herewith.43
42 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
131n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read . "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL rescind the 2-week suspensions which started on February 26, 1966,
of Olin Ashcraft , Jerry B. Grammont , Robert Young, Ressie A. Chodrick,
Andrew Sima, Jerry R. Wolfe, and John W. Seiler, and WE WILL make them
whole for any loss they may have suffered as a result of the suspensions.
WE WILL NOT discharge or suspend employees for engaging in conduct which
constitutes concerted activity protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the rights to self-organization , to form labor
organizations , to join or assist Smoke-Eaters Lodge 898 , International Associa-
tion of Machinists , AFL-CIO, or any other labor organization , to bargain col-
lectively through representatives of their own choosing , and to engage in other
concerted activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any and all such activities , except to the
extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized in Section
8(a)(3) of the Act , as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
SERV-AIR, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Room
8A24, Federal Office Building, 819 Taylor Street , Fort Worth , Texas 76102,
Telephone 334-2921.