Serv-Air; Inc:

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 801 (N.L.R.B. 1969)

SERV-AIR, INC.
Serv-Air; Inc: and International Association of
Machinists, AFL-CIO and Smoke-Eaters Lodge
No. 898, International Association of Machinists,
AFL-CIO. Cases 16-CA-2122, 16-CA-2131,
16-CA-2163, 16-CA-2176, and 16-CA-2187
April 30, 1969
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 25, 1966, the National Labor
Relations Board issued its Decision and Order' in
the above-entitled proceeding. Thereafter, on
January 19, 1968, the United States Court of
Appeals for the Tenth Circuit entered an opinion
and decree,' remanding the matter to the Board for
further appropriate proceedings on the issues of the
allegedly discriminatory promulgation and
enforcement of the no-solicitation rule and the
discharges of employees McCarty and Haley
pursuant to that rule. On April 17, 1968, the Board
issued its Order Reopening Record and Remanding
Proceeding to Regional Director for Further
Hearing.
On December 23, 1968, Trial Examiner Thomas
F. Maher issued his Supplemental Decision, finding
that Respondent's no-solicitation rule was
discriminatorily enforced, and that it violated
Section 8(a)(3)- and (1) of the National Labor
Relations Act, as amended, by discharging
employees McCarty and Haley thereunder.
Thereafter, the General Counsel and Respondent
each filed exceptions to the Supplemental 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.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision, the
exceptions and briefs, and the entire record in the
case, and hereby adopts the supplemental findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith:
1. We found, in our initial decision in this case,
that in the fall , of 1964 an election petition was
circulated among the employees for their signatures
and that such circulation was tainted by supervisory
participation. The Trial Examiner, on the basis of
evidence introduced at the remanded hearing, found
'161 NLRB 382.
'395 F.2d 382 (C.A. 10).
801
that on at least two occasions such solicitation took
place on worktime and, since the no-solicitation rule
was not enforced in these instances, he concluded
that the rule was discriminatorily enforced. We find,
contrary to the Trial Examiner, that the evidence
does not show that the petition was circulated on
worktime and, therefore, Respondent's condonation
of any such solicitation is not established and does
not support the conclusion that its no-solicitation
rule was discriminatorily enforced.
The Trial Examiner found that in October 1964,
the petition was circulated on worktime in the
"break-room" adjacent to the Jet Engine Field
Maintenance Shop. Employee Panthea Caldwell
entered the room where a number of employees
were on their breaks, drinking and eating. Several
other employees were seated at tables in the room,
finishing paper work in connection with a completed
machine operation. Employee Caldwell solicited
those engaged in eating and conversation, as well as
those doing paper work (interrupting the latter for 1
or 2 minutes each). As the record evidence
establishes with abundant clarity that the
"break-room" was a rest area for breaks from
work, any employees in the room could reasonably
be assumed not to be on worktime, and the fact that
a few employees chose to use the room for
completion of paperwork cannot be said to convert
breaktime solicitation into worktime solicitation.
But even if we were persuaded that the solicitation
occurred on work time, there is no evidence that this
incident came to the attention of management, and
hence it is no basis for a finding that Respondent
permitted it without retaliatory action. Accordingly,
we find that this event does not support the Trial
Examiner's conclusion.
The only other "work-time solicitation" found by
the Trial Examiner was based on the testimony of
employee Turner. Turner testified that supervisor
Huston spoke to employees Davis and Davidson for
5 minutes each at their work stations and Huston,
at the time of these conversations, was carrying a
rolled-up document in his hand. Turner could not
hear what was said, nor was he sure that the
document he saw was, in fact, the election petition.
Davis and Davidson were not called to testify. Thus,
the evidence falls far short of proving worktime
solicitation on the part of Huston.
2. Further evidence introduced at the remanded
hearing shows that Respondent permitted worktime
collections for the family of a deceased employee,
condoned a collection for the hospitalized wife of an
employee, and on one occasion permitted the
Community Chest to solicit payroll deductions from
several employees. The court, in considering two or
three similar solicitations shown by the initial record
in this case, stated that "these beneficent acts fall
far short of establishing forbidden discrimination."
In view of this holding of the Court of Appeals, we
agree with the Trial Examiner's conclusion that
disparate application cannot be found, and we find
175, NLRB No. 128
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the few additional such solicitations shown on
the further record do not justify a conclusion that
the rule was discriminatorily applied.'
In light of the above, and in the absence of
evidence that the election petition was circulated on
worktime, we shall dismiss those portions of the
complaint alleging discriminatory promulgation' and
enforcement of the no-solicitation rule. Accordingly,
the portion of the complaint alleging that the
discharges of employees McCarty and Haley for
violation of the rule were unlawful, must also be
dismissed.
subject matter of the remand, examine and cross-examine
witnesses, present oral argument and file briefs. Briefs
were filed by both Respondent and the General Counsel.
Upon the entire record in this case, including the court
of appeals' opinion and decree, the Board's Decision and
Order and subsequent order reopening the record, the
evidence adduced at the original and further hearing
before me,' and all the briefs submitted by the parties, I
make the following:
Findings of Fact and Conclusions of Law
A. The Nature of the Remand
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that those portions of the
complaint alleging discriminatory promulgation and
enforcement of the no-solicitation rule, and
discriminatory discharges of employees McCarty
and Haley be, and they hereby are, dismissed.
'The Trial Examiner , in reaching his conclusion , stated that he was "not
disposed to consider a further accumulation of such beneficent acts as a
flouting of the rule ..." because he was of the view that under the court of
appeals' decision such evidence was not properly before him at that time.
However , we do not understand the court of appeals ' decision as meaning
that a finding of discriminatory application would not be justified even if
numerous solicitations for various and sundry social and charitable
purposes were allowed , but only as concluding that disparate treatment was
not established by the quantum of such incidents shown by the record
before it. This is particularly so, as the court agreed with the Board that in
the first hearing the Trial Examiner erroneously excluded other evidence of
such solicitations (161 NLRB at 384, In. 6).
'General Counsel , at the remanded hearing , introduced no additional
evidence on this issue.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: On October 25,
1966, the National Labor Relations Board, hereafter
referred to as the Board, issued its Decision and Order in
this matter.' Thereafter, on January 19, 1968, the United
States Court of Appeals for the Tenth Circuit entered an
opinion and decree' remanding the proceeding to the
Board for such further proceedings as would be
appropriate on the issues of the discriminatory
promulgation and enforcement of the no-solicitation rule
considered in the Board's Decision and the discharges of
employees Alfred R. McCarty and Joe D. Haley made
under the rule.
On April 17, 1968 the Board issued its order reopening
record and remanding proceeding to Regional Director for
further hearing. It was ordered therein that upon the
conclusion of the hearing I prepare and serve upon the
parties a Supplemental Trial Examiner's Decision
containing findings and conclusions upon evidence
received pursuant to the order, and make appropriate
recommendations.
Pursuant to notice issued by the Regional Director a
further hearing was held before me in Enid, Oklahoma, on
November 14, 1968, where all parties appeared and were
afforded full opportunity to present evidence on the
In its opinion the court of appeals stated in relevant
part, as follows:
A no-solicitation rule which only regulates employee
activity during working hours is valid unless adopted or
used for a discriminatory purpose. The Examiner found,
we believe correctly, that there was no evidence of
discriminatory promulgation. The Board said that "no
one disputes that the notice was initially promulgated in
response to union activity." Standing alone, the fact
that an organizational campaign may have begun before
the rule was posted does not prove a discriminatory
purpose. The rule was in effect for at least three and
one-half years before any complaint was made. In
effect, the Board infers from occurrences in 1964 that
the Company had a bad motive in 1960. We do not
deem this to be a reasonable inference.
The examiner found no discriminatory application of
the rule. He did so after denying a proffer of proof by
the General Counsel that the rule had been applied
discriminatorily. The Board held that the offer should
have been received and we agree. The Board went on to
hold that discriminatory enforcement was shown by the
facts that the Company had condoned solicitations to
pay for flowers sent to widows of deceased employees
and had on one occasion discussed with a group of
employees the handling of Community Chest and Red
Cross Contributions through payroll deductions. In our
opinion these beneficent acts fall far short of
establishing forbidden discrimination.
The holding of the Board that the no-solicitation rule
was discriminatorily promulgated and enforced in
violation of Section 8(a)(l) is reversed and the case
remanded for such further proceedings as are
appropriate on the issue of the allegedly discriminatory
promulgation and enforcement of the rule. This requires
that the Board decision that McCarty and Haley were
discharged in violation of Section 8(a)(1) and (3) be also
set aside. If the rule was enforceable, the discharges
were proper. Determination of the question of
discriminatory discharge must await the reconsideration
of the validity of the rule.
B. The New Evidence
At the further hearing before me counsel for the
General Counsel sought to adduce additional evidence of
instances of solicitation of employees during working
'161 NLRB 382.
'395 F.2d 557, cert. denied 69 LRRM 2435, October 14, 1968.
'In the evaluation of evidence upon which my findings are based I
adhere to the criterion set forth in my original decision . 161 NLRB at 387,
fn. 1.
SERV-AIR, INC.
hours for such items as- flowers for sick or deceased
employees and for other similar charitable purposes, the
like of which the-. Court of Appeals referred to as
"beneficent acts ." Over Respondent 's objection that such
evidence was precluded by the court 's holding to the effect
that permitting such solicitations was not a significant
deviation from the rule I nevertheless permitted the
testimony, reserving final, judgment as to its relevance.
This testimony, - none of which was denied by
Respondent , and some either admitted or stipulated,
discloses that at various times since the promulgation of
the no-solicitation rule in 1960 collections were taken up
during working hours. ,Illustrative of these were the
following:
Employee Thomas Scaja's credited testimony that
Superintendent Spraybury, granted him permission to go
through the shop and solicit funds for the family of a
deceased employee, Watson Morris. Supervisor Lloyd
Hicks also called employees together and solicited funds
in behalf of the same family.;' and it was stipulated that a
collection was taken up throughout the shops for the
hospitalized wife of Employee Olsen Smith . All of the
foregoing activity ^ as set forth is in addition to that
previously referred to by the Board in its decision' and
considered by the Court of Appeals.
I previously found that a petition addressed to the
Board 's Regional Director and circulated among the
employees under supervisory sponsorship constituted
interference with the employees' statutory rights in
violation of Section 8(a)(1) of the Act. With this the
Court of Appeals is in accord.` General Counsel now
seeks to establish that this petition was circulated among
the employees during their working time with the
Respondent 's knowledge and approval . This, it is
contended , would establish the discriminatory application
of the no-solicitation role under which Employees Haley
and McCarty were dtiicharged.
One incident of the , petition ' s circulation was
established in my original findings wherein it was stated in
part (161 NLRB at 405):
In addition to affixing his signature to the petition as
did [Senior Mechanic] -(Iepfer and the other two,
[Senior Mechanic],Huston , in the presence of Leadman
Smith , walked through the . aisles of the sheet metal and
machine shop carrying: the petition. Employee [Marvin]
Turner noted this and called to Huston, asking him to
bring the petition forms to him . Huston complied,
stating "We want to get an election ; get this over with
one way or another . We do not want no union" (Tr.
648).
At the further hearing before me Turner credibly
elaborated upon his earlier testimony , describing in detail
the time of day this walk through . the aisles occurred and
the occupation of - the employees present . Thus he
described Huston 's- visits to employees as occurring before
the regular ` lunch 'period had - begun . Specifically he
testified that on one occasion, sometime after the morning
coffeebreak , Htistdn spoke tb two different employees,
Henry Davis and Howard Davidson , for at least 5 minutes
each , and in the course of the conversation he held a
rolled up document in his hand: Turner could not hear
what was said to each of the men but identified the rolled
up document as the ' petition which Huston had displayed
to him earlier . Huston, when called as a witness , conceded
`The credited testimony of Roy D. Woodbury.
'161 NLRB at 384.
'395 F.2d at 565.
803
that he was soliciting petition signatures in the sheet metal
and machine shop and that he carried the petition rolled
up in ,his hand as Turner had described. I do not,
however, upon my observation of him as a witness, credit
Huston 's insistence that this solicitation occurred only on
everyones' free time. On the contrary, I conclude and find
that Huston, whom I have already found to be a
supervisor, solicited employee signatures on the election
petition during the working time of the employees whom
he solicited.
In addition to the solicitations by Huston, others
engaged in the activity as well. Among these was Mrs.
Panthea M. Caldwell, the author of the petition and a
clerk in the office of Kenneth Price, flight line
superintendent. In October 1964, in the course of her
many excursions into the various hangers and shops about
the base in her quest for signatures, Mrs. Caldwell, in the
company of her husband, came into the break room
adjacent to the Jet Engine Field Maintenance (JEFM)
Shop. As she entered the break room a number of
employees were on their breaks, drinking and eating.
Others, including Thomas Scaia and a number of the
engine mechanics were also there, using the tables for the
completion of paper work and reports connected with the
engine maintenance and repair with which they were
involved. None of these men were on their breaks but
were using the table facilities as best suited to their duties.
In the course of her solicitation of signatures Mrs.
Caldwell interrupted each of the working mechanics in
turn and devoted approximately 5 minutes to each.'
Mrs. Caldwell not only denies soliciting employees who
were at work but insists that this was her continuing
practice based upon the fact that she believed her whole
solicitation program to be unknown to management and
possibly opposed by it. I credit neither of these statements
of Mrs. Caldwell nor her testimony generally. The fact of
the matter is that the employee petition was common
knowledge, the document having been signed by upwards
of 500 employees and Vice President John Hood himself
testified that he knew of the petition within a couple of
days of its initiation and called his supervisors together to
caution them that the petitions not be circulated on
company time. In the light of this official knowledge of
the petition and the very nature and extent of the
solicitation program I believe that Mrs. Caldwell's
testimony in apparent contradiction discloses a general
aura of incredulity and I do not rely upon it nor upon her
denials of conduct attributed to her by credited witnesses.
C. Conclusions
It is apparent from the further facts developed and
found above that during all times relevant to this
proceeding that Respondent permitted the solicitation of
their employees during working hours for flowers to be
sent to the sick and to the widows of deceased employees
and for other individual charitable purposes. When
presented to the Court of Appeals as evidences of
disparate application of the Company's no-solicitation rule
the court rejected them as beneficent acts. Contrary to the
insistence of counsel for the General Counsel I am not
disposed to consider a further accumulation of such
beneficent acts as a flouting of the rule when it was not
held to be such before. I accordingly conclude that in the
light of the court of appeals ' holding such evidence is not
properly before us at this time and I will not consider it.
'The credited testimony of Employee Scaia.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The manner in which the election petition was
circulated is another matter. I have found that despite the
existence of the Company's no-solicitation rule involving
union activities a petition for an election among the
employees to determine their union preferences was
knowingly circulated among them for their signatures on
their working time. This is confirmed by the conduct of a
supervisor, Huston, as found above and in my previous
decision, and by the credited testimony concerning the
activities of Panthea Caldwell as she solicited employees
at work in the JEFM break room.
Solicitations such as I have found are clearly as
violative of the posted ban as were the activities of
employees McCarty and Haley for which each was
concededly discharged.' Yet there is nothing whatever in
the record to suggest that the rule was enforced in any
instances excepting those involving McCarty's and Haley's
solicitation of union membership . Nor do I accept as
credible evidence in this regard Vice President Hood's
protestations that' he went to untold ends to insure that
the union petition not be circulated on working time.
The record and findings in this case are replete at all
stages, before the Trial Examiner, the Board, and the
court of appeals, with evidence of the Respondent's
antiunion animus and its discriminatory motivation. No
purpose would be served to review this subject in any
detail at this juncture of the case. Suffice it to say the
only time the no-solicitation rule was enforced was to
punish those who favored the Union. And on the one
occasion when the same rule would have applied to efforts
made in opposition to the Union, the circulation of the
election petition, it was not enforced. I have no alternative
but to conclude, therefore, that the no-solicitation rule was
disparately enforced in such a manner as to discriminate
against two active union adherents , Alfred R. McCarty
and Joe D. Haley. I accordingly conclude and find,
contrary to my earlier conclusions in this matter, that
Respondent has discriminated against McCarty and Haley
in, regard to their tenure of employment for reasons of
their union membership and activity, thereby violating
Section 8(a)(3) and (1) of the Act.
D. The Additional Remedy
Having found upon the additional evidence before me
that Respondent has engaged in unfair labor practices not
previously found I shall recommend that it cease and
desist therefrom. Affirmatively, I shall recommend that
the two employees whom I have found to be
discriminatorily discharged be reinstated with backpay
from the date of their respective discharges, such amounts
to be computed in the customary manner ,' with interest
added thereto at the rate of 6 percent per annum.10
SUPPLEMENTAL RECOMMENDED ORDER
Upon the entire record in this case and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is further recommended" that Serv-Air, Inc.,
its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International
Association of Machinists , AFL-CIO, Smoke-Eaters
Lodge No. 898, International Association of Machinists,
AFL-CIO, or any other labor organization , by discharging
or otherwise discriminating in respect to the hire or tenure
of any employee under color of enforcing a rule against
solicitation applied for a discriminatory purpose or in a
discriminatory manner or on any other pretext.
(b) Threatening employees with discharge , layoff, or
other reprisal for exercising their rights under Section 7 of
the Act under color of a rule invoked or applied for the
purpose of restraining or coercing employees in the
legitimate exercise of these rights.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer immediate and full reinstatement, if this has
not already been done , to employees Alfred R. McCarty
and Joe D. Haley , to their former or substantially
equivalent positions with backpay and with interest added
thereto in the usual manner , as referred to herein in the
section entitled "The Additional Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports , and all other
records relevant and necessary to the determination of the
backpay due and to the reinstatement and related rights
provided under the terms of the Supplemental
Recommended Order.
(c) Post at its Vance Air Force Base and Kegelman
Field operations copies of the attached notice marked
"Appendix."" Copies of said notice to be furnished by the
Regional Director for Region 16, shall after being duly
signed by the Respondent , be posted immediately upon
receipt thereof, in conspicuous places , including places
where notices to employees are customarily posted, and be
maintained by it for a period of 60 consecutive days
thereafter . Reasonable steps shall be taken to insure that
said notices are not altered , defaced , or covered by any
other material.
(d) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision , what steps the
Respondent has taken to comply therewith."
recommend" there shall be substituted "the National Labor Relations
Board further orders."
"In the event that this Supplemental Recommended Order be adopted
by the Board , the words "a Decision and Order" shall be substituted for
the words "the Supplemental Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals , the words "a Decree of the
United States Court of Appeals, Enforcing a Supplemental Order " shall be
substituted for the words "a Decision and Supplemental Order."
"In the event that this Supplemental Recommended Order be 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
'161 NLRB at 392
'F W. Woolworth Co., 90 NLRB 289.
" Isis Plumbing & Heating Co, 138 NLRB 716.
"In the event that this Supplemental Recommended Order be adopted
by the Board , the word "recommended" shall be deleted from its caption
and wherever else it thereafter appears, and for the words "I further
Pursuant to the Supplemental Recommended Order of
a Trial Examiner of the National Labor Relations Board
and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our
employees that:
SERV-AIR, INC.
WE WILL NOT discourage membership in
International Association , of Machinists , AFL-CIO,
Smoke-Eaters Lodge No. 898 , International
Association of Machinists , AFL-CIO, or any other
labor organization by discharging or otherwise
discriminating in respect to the hire or tenure of any
employee under color of enforcing a rule against
solicitation applied for a discriminatory purpose or in a
discriminatory manner or on any other pretext.
WE WILL NOT threaten employees with discharge,
layoff, or reprisal for exercising their rights under
Section 7 of the Act under color of a rule invoked or
applied for the purpose of restraining or coercing
employees in the legitimate exercise of those rights.
WE offer immediate and full reinstatement to their
former or substantially equivalent positions to Joe D.
Haley and Alfred R. McCarty.
805
All of our employees are free to become or refrain
from becoming members of the above -named union, or
any other labor organization.
Dated By
SERV -AIR, INC.
(Employer)
(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 provisions , they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 334-3921.