Serv-Air, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 31, 1967162 N.L.R.B. 1369 (N.L.R.B. 1967) Copy Citation 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. Copy with citationCopy as parenthetical citation