Springfield Air Center

National Labor Relations Board - Board Decisions

Jul 13, 1993

311 N.L.R.B. 1151 (N.L.R.B. 1993)

1151
311 NLRB No. 133
SPRINGFIELD AIR CENTER
1 In adopting the judge’s finding that Delaney and Shafer acted in
concert with each other, we rely on the principles set forth in Meyers
Industries, 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988), rather than those set forth
in NLRB v. City Disposal Systems, 465 U.S. 822 (1984).
We correct the judge’s reference to the dates of hire for certain
individuals: Randy Shafer, Harold Delaney, and Gregory Gifford
began employment with the Respondent in December 1990, January
and July 1991, respectively. In sec. III,A, par. 10, L. 6 the name
‘‘Miller’’ should be ‘‘Gifford.’’ We find that these errors do not
warrant a different conclusion in the instant case.
To the extent that the Respondent has excepted to some of the
judge’s credibility findings, the Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all of the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform his
cease-and-desist language to the violation found. We shall also con-
form the judge’s reinstatement language to that traditionally used by
the Board.
Springfield Air Center, Inc. and Attorney James
Lynch on behalf of Harold Delaney and Randy
Shafer
Springfield Air Corporation and Attorney James
Lynch on behalf of Harold Delaney and Randy
Shafer. Cases 33–CA–9563 and 33–CA–9772
July 13, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 22, 1993, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in support
of the judge’s decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings as modi-
fied,1 and conclusions and to adopt the recommended
Order as modified.2
1. We agree with the judge’s finding that Harold
Delaney was not a supervisor within the meaning of
Section 2(11) of the Act after he tendered his resigna-
tion as director of maintenance on July 8, 1991. We
find it unnecessary to rely on the judge’s findings con-
cerning Delaney’s status before that date. The Re-
spondent contends that Delaney signed a timecard ap-
proving vacation pay for Randy Shafer after July 8 and
that therefore Delaney was still a supervisor at the time
of his August 16, 1991 termination. We find no merit
to the Respondent’s contention. Delaney’s superior,
Facility Manager Wes Pierceall, gave final approval
for the vacation pay request. In any event, Delaney’s
approval was an isolated incident and, in view of the
record as a whole, we do not regard it as sufficient to
establish the statutory authority contemplated by Sec-
tion 2(11) of the Act. See Birmingham Printing
Pressmen’s Local 55 (Birmingham News), 300 NLRB
1, 5 (1990).
2. The Respondent argues that the discharges were
lawful because the Respondent’s board of directors,
not President Morgan, made the final termination deci-
sion and the board of directors had no knowledge of
the protected, concerted activities of Delaney and
Shafer. The record shows that Morgan had knowledge
of their protected, concerted activity, made the decision
to terminate, and sought confirmation from the direc-
tors. We find that Morgan effectively made the deci-
sion to discharge Delaney and Shafer. We further find
that even if the board of directors had made the final
decision, the unlawful motivation of the Respondent’s
president would be imputed to the Respondent, in the
circumstances here, where Morgan had direct input
into the decision. See Grand Rapids Die Casting Corp.
v. NLRB, 831 F.2d 112, 117 (6th Cir. 1987), enfg. 279
NLRB 662 (1986); JMC Transport v. NLRB, 776 F.2d
612, 619 (6th Cir. 1985), enfg. 272 NLRB 545 (1984),
and cases there cited.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Springfield Air Center, Inc., and Springfield Air Cor-
poration, Springfield, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Discharging any employee for engaging in con-
certed activity protected by Section 7 of the Act.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Offer Harold Delaney and Randy Shafer imme-
diate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed
and make them whole for any loss of earnings and
other benefits suffered by them as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the judge’s decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1991 unless otherwise indicated.
2 Golden State Botttling Co. v. NLRB, 406 U.S. 272 (1972).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
Accordingly, we give you the following assurances.
WE WILL NOT discharge employees for engaging in
concerted activities protected by Section 7 of the Act.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer Harold Delaney and Randy Shafer
immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously
enjoyed.
WE WILL make them whole for any loss of earnings
and other benefits suffered by reason of their unlawful
discharge, with interest.
Our employees are free to engage in any of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
SPRINGFIELD AIR CORPORATION FORMERLY D/B/A
SPRINGFIELD AIR CENTER, INC.
Deborah A. Fisher, Esq. and Valerie L. Ortique, Esq., for the
General Counsel.
John H. Germuradd, Esq., for Respondent Springfield Air
Center, Inc.
Michael R. Liese, Esq., of Springfield, Illinois, for Respond-
ent Springfield Air Corporation.
James D. Lynch, Esq., of Springfield, Illinois, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
These consolidated matters were heard in Springfield,
Illinios, on September 29 through October 1, 1992. Subse-
quent to an extension in the filing date, briefs were filed by
all parties. The proceeding is based upon charges filed Sep-
tember 23, 1991,1 and April 6, 1992, by individuals Harold
Delaney and Randy Shafer. The Regional Director’s consoli-
dated complaint dated May 22, 1992, as amended, alleges
that Respondents Springfield Air Center, Inc. and Springfield
Air Corporation violated Section 8(a)(1) of the National
Labor Relations Act by terminating the two charging individ-
uals because of their protected, concerted activities.
On a review of the entire record in this case and from my
observation of witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent Springfield Air Corporation is engaged in pro-
viding aircraft fuel, charter, rental, repair, and flight instruc-
tion at its fixed base in Springfield, Illinois. Springfield Air
Center was in operation at the time of the alleged unfair
labor practices herein. On Friday, March 27, 1992, it ceased
operations and on March 30, Springfield Air Corporation
began business operations at the same location and Spring-
field Air Corporation continued to operate the business of
Springfield Air Center in basically unchanged form and
Springfield Air Corporation admitted that it is a Golden
State2 successor for purposes of liability herein.
Respondent annually purchases and receives goods and
materials valued in excess of $50,000 directly from points
outside Illinois. It admits that at all times material is has
been an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It also is noted that because Respondent is not a common
carrier by air engaged in commerce, the exercise of jurisdic-
tion here is under the National Labor Relations Act and not
under the Railway Labor Act, see McKinley Air Transport,
227 NLRB 267 (1976). Safair Flying Service, 207 NLRB
119 (1973).
II. THE ALLEGED UNFAIR LABOR PRACTICES
On August 15, Respondent sent a significant aircraft en-
gine component (a magneto) to a qualified repair facility.
When it was returned the following day and appeared to be
ready for installation aviation mechanics Harold Delaney and
Randy Shafer, who had been working on the repairs of the
plane observed that the magneto was not accompanied by the
usual ‘‘maintenance release,’’ a required Federal Aviation
Administration (FAA) certification that repairs have been
done correctly. Rather than installing the magneto, they
began work on another plane, a Cessna 310. When Company
President Mike Morgan asked why they were not making the
installation, they said that they needed the maintenance re-
lease and Morgan left. A short while later Facility Manager
Wes Pierceall came up to Shafer’s window (both mechanics
were in the plane with the engines running) told them Mor-
gan wanted them to go ahead and install the magneto.
Pierceall asked if a faxed copy of the release would be suffi-
cient and Shafer replied that that would be for installation
and ground testing but that the plane couldn’t be released for
flight until the original came in and looked at Delaney who
1153SPRINGFIELD AIR CENTER
3 In this respect I find Miller’s testimony about Morgan credible
an corroborative of testimony by Delaney and Shafer and I do not
credit Harrison’s disclaimer on the same subject.
nodded he agreed. Pierceall also testified that when he (first),
told them what Morgan wanted, Delaney (who was in the
seat furthest away from Pierceall), replied: ‘‘Fuck Morgan.’’
Neither Delaney or Shafer recall this comment being made.
Pierceall did not have a faxed copy of the maintenance re-
lease with him when he spoke to Delaney and Shafer but he
tetified that Morgan told him he had a faxed copy and that
he [Morgan] would show it to the employees. Pieceall also
testified that Morgan became upset when he told Morgan that
the employees had refused to install the magneto unless they
were shown a faxed copy of the maintenance release but that
Morgan did not react when Pierceall conveyed Delaney’s al-
leged comment. (Morgan, who is no longer with the Re-
spondent, and apparently no longer in the area, did not ap-
pear as a witness.)
Delaney and Shafer completed the ground test on the
Cessna 310 and Shafer gathered the necessary tools to install
the magneto in anticipation of being shown a faxed copy of
the maintenance release. At 11 a.m. Pierceall returned to the
shop and asked Delaney to locate some records on another
aircraft. Delaney complied. Shafer testified that he saw
Pierceall speaking to Delaney although he could not hear
their conversation and that Pierceall then approached him
and instructed him to put the magneto in the Navajo. Again,
Shafer told him that he could not install the part at that time
because he did not have any maintenance release for the part.
Delaney had ben looking for the records Pierceall re-
quested about 10 minutes when Pierceall returned and in-
structed both employees not to touch any aircraft and to go
to the maintenance office.
After waiting about an hour and a half (until 1 p.m.),
Pierceall came in and asked them into his office. When they
did, Steve Thomas, the company accountant, was present.
Pierceall handed the employees their paychecks and a letter
of termination signed by Mike Morgan. The letter simply
stated that their services were no longer needed. After, read-
ing the letter, Delaney asked Pierceall if he was being fired
for any other reason. According to Delaney, Pierceall’s only
response was ‘‘that’s from Mike.’’ Pierceall stated during di-
rect examination that he was never told why Delaney and
Shafer were terminated.
III. DISCUSSION
These cases arose over a brief refusal of two aircraft me-
chanics to install a vital aircraft engine part until they had
documentation they believed was required by FAA rules and
regulations and the Respondent’s prompt reaction in dis-
charging them for their action.
The Respondent defends its conduct by asserting that
Delaney was a statutory supervisor, that Delaney and Shafer
were not engaged in protected concerted activity, that they
both were terminated for insubordination, and that, otherwise,
the Company had planned to release Shafer in the near future
because of economic reasons.
A. Supervisory Status
Inasmuch as the Respondent raised Delaney’s purported
supervisory status as a defense, the burden of proof rest upon
the Respondent to establish that status. See Thayer Dairy
Co., 233 NLRB 1383 (1977).
Section 2(2) of the Act defines a supervisor as:
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsible to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The existence of any one element can be sufficient to con-
vey supervisory status, however, sporadic or occasional exer-
cise of supervisory authority is insufficient to make an em-
ployee a supervisor. Also, investiture with a title and theo-
retical power which may imply supervisory authority like-
wise is insufficient to transform a rank-and-file employee
into a supervisor. See Thayer, supra, and Teamsters Local
574, 259 NLRB 344 (1981), and cases cited therein. More-
over, it is important that authority is actually exercised with
the use of independent judgment and hat the supervisor be
something more than a mere conduit for managerial direc-
tives, see Hydro Conduit Corp., 254 NLRB 433 (1981).
Of special interest here is the fact that when Shafer first
began to work for Respondent in January 1991, he was in
the position of director of maintenance. He thereafter re-
signed that position and continued employment as an aircraft
mechanic. Delaney was hired as an aircraft mechanic in De-
cember 1990. After Shafer’s resignation of the ‘‘Directors’’
position, Manager Morgan asked Delaney to take the posi-
tion, which he did in mid-June 1991, at an annualized in-
crease in pay of $4000.
Both Shafer and Delaney had received FAA approved
training, and held A&P licenses (airplane and powerplant)
and inspection authorization certification (as did one other
mechanic Robert Miller who had worked there between Feb-
ruary and mid-August 1991, when he was laid off for lack
of work), and they had received school instruction in and
were reasonably familiar with applicable FAA regulations in-
cluding those dealing with parts repair documentation, and
penalties for failure to follow regulations. Gregory Gifford
also worked as an A&P mechanic for a few months prior to
August 1991. He filled out an application and spoke with
Delaney (Delaney also interviewed another applicant who
was not hired) who later called him and asked if he was still
interested in the job. He testified that he was the ‘‘junior’’
man there and that Delaney ‘‘basically’’ gave him instruc-
tions but that ‘‘we came in and we knew what we were
doing’’ and that when he was ready for his next job he
would ‘‘look at the sheet or ask Harold (Delaney) or any of
the other guys.’’ Miller testified that he sometimes ordered
parts himself and also observed that Manager Morgan took
a more active role in the shop ‘‘toward the end.’’
Delaney also testified that although he originally attended
weekly Monday meetings with Pierceall and the Customer
Service Manager Harrison3 and Avionics Manager Musgrave
(the only person in that department) these meetings petered
out after Morgan began to be onsite full time. This occured
subsequent to July 8 when Delaney resigned from the posi-
tion as director of maintenance (he also requested that he re-
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turn to his mechanics position). Morgan was unhappy that
Delaney resigned without notice and asked him to stay until
someone could be hired to assume the director of mainte-
nance responsibilities to sign for their FAA Air Taxi certifi-
cate. Morgan agreed to assume the managerial responsibil-
ities for the position and agreed that when a replacement was
hired Delaney could remain as a mechanic.
Delaney estimates that prior to July 8 he spent 80 percent
of his time working as a mechanic and the rest scheduling,
calling and dealing with customers and that after July 8 his
time spent as a mechanic increased to 90 percent.
During the first week of August (mechanic Gifford was
gone and Miller was about to be laid off) Delaney and
Shafer were introduced by Morgan to Phil Hill and were told
he would begin as director of maintenance after September
1.
Delaney’s resignation listed 17 major items he said he was
expected to do (besides his mechanics work) which included
‘‘supervise 3 people’’ and numerous ministerial items such
as ‘‘research and order parts,’’ accounting and cost analysis,
‘‘billing,’’ ‘‘deal with customers,’’ and ‘‘housekeeping,’’
said that it all embraced duties enough for 2 or 3 people and
that performance of such duties was ‘‘hampered by a lack of
understanding and lack of support from upper levels of man-
agement.’’
Although Delaney exercised a few of the indicia of super-
visory status prior to July 8, it appears that except for a few
sporadic occasions (such as when he interviewed and effec-
tively recommended that Miller be hired) his added duties as
director of maintenance were clerical, ministerial, and routine
in nature. Although his inspection and approval of work as
required by FAA rules and regulations was important, it was
nevertheless routine and ministerial rather than supervisory
and appears to have somewhat pro forma and interchangeable
with anyone holding appropriate licenses or certificates (as
evidenced by the exchange of jobs between Shafer and
Delaney).
To the extent that Delaney engaged in any assignment of
work it was routine in nature and did not depend or require
the exercise of independent discretion. Here, Delaney was
given the title director of maintenance not because he was
expected to perform independent supervisory authority or be-
cause his job was considered to be part of the managerial
hiarchy, but solely because the nature of Respondent’s busi-
ness in the maintenance of aircraft and the performance of
FAA licensed Air Taxi operation required that a person who
holds and A&P certificate be designated as director of main-
tenance and he be responsible for overseeing required main-
tenance. In any event, the mere fact that a person may hold
a title and responsibility under the rules of one agency does
not control the evaluation to be afforded under the unique
and specific provisions and president of the National Labor
Relations Act and the Board’s responsibility and expertise in
exercising its authority.
After July 8 Delaney retained only a technical title and his
FAA responsibilities for inspections. To the extent that he
might have had or exercised ‘‘supervisory’’ function before,
such duties were thereafter assumed by Morgan or others and
I find that his resignation and Morgan’s agreement to assume
his non-FAA required duties, effectively places Delaney in
the position of an employee, not a supervisor, on and after
July 8.
After Miller left, there was no one for Delaney to super-
vise, except Shafer who is shown to hold essentially equal
status in the area of FAA qualifications. Moreover, Hill al-
ready had been hired (to start in early September).
If, in fact, Delaney were considered to be a supervisor by
management, he could have execise independent judgment
and made a firm decision that a repaired engine part could
not be installed without the appropriate FAA-required docu-
mentation. Here, he was not allowed to make any inde-
pendent decision but was overruled, in effect by Manager
Morgan without consultation, and it clearly indicates that
management considered him to be a mere employee and not
someone who was part of management and responsible for
exercising independent discretion. Moreover, it also appears
that Pierceall spoke to Shafer, not Delaney, about installing
that part, an action inconsistent with the concept that
Delaney was a supervisor.
After July 8 Delaney had a bare supervisory title but no
supervisory authority and I conclude that the Respondent has
not shown that he was a supervisor within the meaning of
Section 2(1) of the Act in August at the time of the alleged
discrimination against him.
B. Concerted Activity
Delaney and Shafer both testified that they were taught in
FAA school to inspect the maintenance release prior to in-
stallation of repaired parts. Just prior to sending the magneto
for repair John Rhoads, flight safety inspector for the FAA
had spoken to Delaney about the magneto. At the time,
Rhoads visited the facilities of Midway Airlines at the
Springfield Airport almost everyday in the perfomance of his
inspection duties and would pass through Respondent’s hang-
ar area to get to Midway. As he went through on August 15,
Rhoads recalled seeing Delaney working on a Piper Navajo
plane and that Morgan was also present during the conversa-
tion. Rhoads and Delaney both testified that Delaney was
checking the points on the magneto with a feeler gauge and
Rhoads asked him about a maintenance manual for the mag-
neto and indicated that Delaney did not have the proper tools
to work on the magneto. When Delaney agreed Morgan then
suggested that the magneto be taken elsewhere for repair.
In addition to Respondent’s own witnesses, Rhoads, who
has been an FAA safety inspector for over 6 years, testified
that FAA regulations state that record entries shall be made
when you perform maintenance. He said that based on his
experience the directive that a record entry shall be made fol-
lowing maintenance means immediately following perform-
ance of maintenance. Rhoads explained that if a part was re-
installed without a maintenance release and subsequently
malfunctioned, the FAA would investigate both the person
that installed the part and the person that flew the aircraft.
Potential penalties, depend on the severity of the problem
and could include license suspension or revocation or some
civil penalty. Rhoads agreed that if he was a mechanic, he
would want to have the maintenance release prior to install-
ing a part such as a magneto and that he would not reinstall
the magneto without a maintenance release being present.
Here, Delaney and Shafer reached a mutual agreement that
they needed to see a maintenance release form verifying the
repair performed prior to installing the repaired magneto.
Their agreement was based on their understanding of FAA
regulations, an understanding that had a reasonable basis
1155SPRINGFIELD AIR CENTER
consistent with their training, as well as the opinion of an
FAA inspector and the opinions of several other mechanics
who testified. It would appear to be of special importance to
Delaney to handle the matter properly inasmuch as the FAA
inspector had observed the actual work in progress and the
decision to send it away for repair and he was also known
to frequently pass through the area where the final installa-
tion would occur.
Clearly, both Delaney and Shafer understood that their
continued employment could be affected by their participa-
tion in conduct violative of FAA regulation and possible dis-
cipline or loss of license as a result thereof. They also under-
stood that the regulations involved were designed for the
safety and protection of the general public and that their in-
stallation of an engine part that had not been properly re-
paired could create an unsafe condition. They therefore acted
together for a protected purpose concerning both their condi-
tions and terms of employment and for the protection of he
public over a perceived unlawful and unsafe violation of
FAA regulations.
Here, Delaney and Shafer were engaged in concerted ac-
tivity and both Facility Manager Pierceall and General Man-
ager Morgan knew of the concerted nature of their refusal to
install the undocumented engine part see NLRB v. City Dis-
posal Systems, 465 U.S. 822 (1984), on remand 766 F.2d
969 (6th Cir. 1985).
C. The Employer’s Motivation and Alleged Reasons
for its Actions
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ees’ union or other protected, concerted activities were a mo-
tivating factor in the employer’s decision to terminate them.
Here, the record shows that Respondent’s management was
well aware of the employees’ concerns and had even en-
gaged in a discourse over whether or not a faxed copy of
the release would be sufficient for them to start the actual
installation.
There is no explanation why a fax was not shown to them
but it was not and management thereafter elected to react to
the employees conduct by pulling them out of the shop, hav-
ing them sit in the office for over an hour, and then termi-
nating them for their refusal to install an undocumented air-
craft engine part. Clearly, their concerted activity was a moti-
vating factor in management’s decision and, accordingly, the
testimony will be discussed and the record evaluated in keep-
ing with the criteria set forth in Wright Line, 251 NLRB
1083 (1983), see NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), to consider Respondent’s de-
fense and, in the light thereof, whether the General Counsel
has carried his overall burden.
Respondent’s principal defense is based upon its conten-
tion that both mechanic were engaged in insubordinant con-
duct, that Delaney had used profane language and that Shafer
was ‘‘already’’ to be terminated because of lack of work.
The Respondent speculates that Delaney was engaged in
some sort of power struggle or personality conflict with Mor-
gan, as indicated by Delaney’s alleged ‘‘Fuck Morgan’’ re-
mark to Pierceall, and that caused both Delaney and Shafer
to suddenly become insubordinate and refuse to work.
This speculation has little factual basis and no probative
value and it does not change that fact that the apparent solu-
tion to insuring the prompt installation of the engine part was
within management’s control. The record shows that both
Delaney and Shafer were willing to do the work but did
other work rather than waste time and Shafer had proceeded
to get his tools ready. If in fact Respondent had a fax of the
appropriate document, it would appear to a provocation on
management’s part to decline, for whatever reason, to show
it to Delaney and Shafer in the shop. It was not the mechan-
ics’ burden to go from the shop to beg Morgan for what
should have been provided them in the first place. And, con-
trary to Repsondent’s suggestion, there is nothing in the
record to show that they did ‘‘know’’ that it was in fact
there.
Instead, Morgan decided to immediately discharge both
Delaney and Shafer, even though it would leave Respondent
with no mechanics. Morgan did seek confirmation for his de-
cision by checking with two members of Respondent’s board
of directors. Delaney’s alleged statement in response to an
apparent request to install the magneto without having the
documentation of ‘‘Fuck Morgan’’ was relayed to board
member Kevin Leary who concurred that the mechanic had
been insubordinate and could be immediately terminated
without any further warning.
Neither Leary nor the board made any meaningful inves-
tigation or any attempt to get any facts or explaination from
the mechanics. They cannot assert responsibility for the ter-
mination while at the same time disclaiming any knowledge
that their general manager, Morgan, was basing his claim of
insubordination on a protected activity that was an attempt
to avoid a violation of Federal regulations, and that such re-
fusal to perform certain work otherwise was provoked by
Morgan’s failure to show a purported faxed copy of appro-
priate documentation to the employees.
Although employee misconduct can disqualify an em-
ployee from the protection his concerted protest would other-
wise enjoy under Section 7 of the Act, it is not at all clear
that Delaney made the comment attributed to him. In any
event, I conclude that Delaney’s alleged language was a pro-
fane colloquialism that connotated a disinclination to agree
to do what Pierceall was saying Morgan wanted them to do
(i.e., install the repaired part without having the proper docu-
mentation). The remark was not threatening and it was, at the
most, a refusal to engage in conduct that in all likelihood
would have violated Federal regulations and I find that if it
occured it was not eregious misconduct that would lose the
protection of the Act, see Leasco, Inc., 289 NLRB 549
(1988).
The Respondent also raises an economic type defense, al-
leging that the maintenance department was losing money
during the Summer and that it was the subject of customer
complaints. This is not relevant to the underlying concerted
action and Respondent’s decision to immediately terminate
its only two mechanics. Respondent also asserts that for
these same reasons it also had planned to dismiss Shafer (but
keep Delaney) when its new director of maintenance, Hill,
began in September. It is possible that (if true), that this
might have some bearing on the tolling of Respondent’s
backpay liability but that is a matter for the compliance stage
of the proceeding. Otherwise, I find that Respondent’s at-
tempts to digress into periferal matters and criticisms of the
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. Sec. 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
mechanics tends to indicate that such reasons are pretextual
and confirms that the real reason both mechanics were termi-
nated on August 16, was because of their protected concerted
activity in refusing to install an undocumented aircraft engine
part.
Under these circumstances, I find that the Respondent has
failed to show that it had any valid reason for making a pre-
cipitous decision to immediately terminate its only two me-
chanics for their concerted refusal to engage in one aspect
of work assigned to them that would in all likelihood have
been a violation of applicable Federal Aircraft Safety Regu-
lations, and I conclude that the General Counsel has met his
overall burden of proof and persuasively shown that the Re-
spondent’s discharge of Delaney and Shafer was in violation
of Section 8(a)(1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. On August 16, 1991, and at all times material herein,
Harold Delaney was an employee within the meaning of Sec-
tion 2(3) of the Act and was not a supervisor within the
meaning of Section 2(11) of the Act.
3. By discharging employees Harold Delaney and Randy
Shafer on August 16, 1991, because they engaged in a pro-
tected, concerted activity, Respondent engaged in an unfair
labor practice in violation of Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate each of
the discriminatees to their former jobs or substantially equiv-
alent positions, dismissing, if necessary, any temporary em-
ployees or employees hired subsequently, without prejudice
to their seniority or other rights and privileges enjoyed, and
make them whole for any loss of earnings they may have
suffered because of the discrimination practiced against them
by payment to them of a sum of money equal to that which
they normally would have earned from the date of the dis-
crimination to the date of reinstatement in accordance with
the method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).4
The Respondent also shall be ordered to expunge from its
files any reference to the illegal terminations and notify them
in writing that this has been done and that evidence of the
unlawful discharge will not be used as a basis for future per-
sonnel action against them. Otherwise, it is not considered
necessary to issue a broad Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Springfield Air Center, Inc., and Spring-
field Air Corporation, Springfield, Illinois, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging any employee for activity protected by
Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Harold Delaney and Randy Shafer immediate and
full reinstatement and make them whole for the losses they
incurred as a result of the discrimination against them in the
manner specified in the remedy section of this decision.
(b) Expunge from its files any reference to the discharge
of Delaney and Shafer and notify them in writing that this
has been done and that evidence of the unlawful discharge
will not be used as a basis for future personnel actions
against them.
(c) Preserve and, on 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 necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Springfield, Illinois facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region 33, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.