United Aircraft Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1969

179 N.L.R.B. 935 (N.L.R.B. 1969)

UNITED AIRCRAFT CORP. 935
United Aircraft Corporation (Pratt & Whitney
Division ) and Local Lodge 1746, International
Association of Machinists and Aerospace Workers,
AFL-CIO and Carrel Lodge No. 700, International
Association of Machinists and Aerospace Workers,
AFL-CIO and Local Lodger 1746 -A, International
Association of Machinists and Aerospace Workers,
AFL-CIO
United Aircraft Corporation ( Hamilton Standard
Division ) and Local Lodge 743, International
Association of Machinists and Aerospace Workers,
AFL-CIO. Cases 1-CA-5681, 1-CA-5987,
1-CA-6011, 1-CA-6317, 1-CA-5710, 1-CA-5986,
and 1-CA-5682
December 8, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 12, 1968, Trial Examiner Paul E. Weil
issued his Decision, and, on August 20, 1968, his
Decision and Supplemental Decision in the
above-entitled consolidated proceeding, finding that
the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decisions. The Trial Examiner further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that those allegations be
dismissed. Thereafter, the Respondent, the Charging
Parties, and the General Counsel filed exceptions to
the Trial Examiner's Decisions and supporting
briefs, and the General Counsel and Charging
Parties filed answering briefs.
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 these cases to a
three-member panel.
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 Supplemental Decision,
the exceptions, the briefs, and the entire record in
these cases and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner, as modified below.'
'The Respondent excepts to many of the Trial Examiner's credibility
findings. It is the Board's established policy, however, not to overrule a
Trial Examiner's resolutions with respect to credibility unless, as is not the
case here, the preponderance of all the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3), We are also satisfied, on the basis of the
e4re record, that the Respondent' s allegations as to the Trial Examiner's
prejudging of the issues and to his conduct during the hearing are without
merit
'Subsequent to the issuance of the Trial Examiner's Decisions in these
1. The Trial Examiner found and the record
clearly establishes that the Respondent3 violated
Section 8(a)(1) by coercive interrogation, threats,
warnings, and seizure of a union authorization card;
and violated Section 8(a)(3) by discharging stewards
Menard, Nelson, Gahagan, and DeMerchant, and
suspending steward Tardiff. We further find,
contrary to the Trial Examiner, that the Respondent
also discharged stewards D'Andrea and Brandt for
discriminatory reasons in violation of Section
8 (a)(3).
Most of the Section 8(a)(1) conduct engaged in by
the Respondent related to the investigations of
stewards for alleged violations of company rules
and/or contract provisions prohibiting union
solicitation and activity on company or working
time. The investigations were conducted by members
of the Respondent's internal security department,
and during the course of the investigations the
steward involved was interrogated at length by two
security officers in a coercive and accusatory
atmosphere.
As found by the Trial Examiner, Kenneth Menard
was elected shop steward at the Respondent's
Middletown plant in September 1966. A day or two
later, as part of his duties as steward, he approached
several employees to get their name, address, and
clock number. Shortly thereafter, his foreman,
Karlon, initiated an investigation by reporting that
Menard had solicited employee Guyette to join the
Union. From this report, which subsequently was
proven false," the Respondent undertook an
extensive investigation which not only included
lengthy interrogation of Menard, but also the
questioning of foreman Karlon and several
employees in his department, some of them more
than once. During his session with the investigators,
which lasted nearly 4 hours, Menard was confronted
with false and inconsistent statements obtained from
others and asked repeatedly to admit soliciting for
the Union on company time. Menard protested that
he had only carried out instructions to obtain names
and addresses, largely during his lunchbreak. The
investigators told Menard that in such cases as his,
the company took into consideration whether the
employee subsequently quit the Union, and that
cases, Trial Examiner Ivar H Peterson issued his Decision in United
Aircraft Corporation , Cases 1-CA-6475 and 1-CA-6602 The Charging
Parties and the General Counsel have moved that the latter cases be
consolidated with the instant cases on the ground that similar issues are
involved However, in view of our determination herein, we find it
unnecessary to consolidate, and therefore deny the motions Other
documents subsequently filed by the parties are treated below
'The Respondent's plants involved in these proceedings are Pratt &
Whitney Division plants in Connecticut at East Hartford and Manchester,
represented by Lodge 1746 , at Middletown, represented by Lodge 700, and
at Southington, represented by Lodge 1746-A, and the Hamilton Standard
Division plants at Windsor Locks and Broad Brook, Connecticut,
represented by Lodge 743
'Guyette and Karlon both testified that Guyette did not tell Karlon that
he had been solicited to join the Union but rather told him that he had
been asked for his name, clock number, and address Moreover, when the
security investigators interviewed Guyette on October 17, he told them that
Menard asked only for his name, clock number, and address
179 NLRB No. 160
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the past who had been involved in
similar cases and had quit the Union were still
working for Pratt & Whitney. Menard then signed a
statement prepared by the investigators admitting
that he had conducted union business during
working time . Following this " interview " Menard
returned to his work station where foreman Karlon
suggested that "it might help out if I (Menard) did
quit the Union;" and Menard mailed his letter of
resignation to the Union.
In connection with its inquiries into Menard's
activities, the Respondent called employees Frank
Partridge, Raymond Desloges, and Armand Morin
individually to the internal security office. Morin
was interviewed on two occasions. Partridge was
warned that "nothing that is said in this room is to
be repeated outside of this room. If it is you will be
back here." The investigators then told him that the
Respondent had evidence that he had been
discussing Union matters on company time. When
Partridge denied this allegation , the investigators
accused him of discussing union business with
Menard on company time and showed him three
pictures of Menard. Partridge then told them that
the only conversation he had with Menard was when
Menard introduced himself and welcomed Partridge
to the department. As to Desloges, even after he had
made clear to the investigators that the only
approach made to him with regard to the Union had
been in the parking lot, the interrogators persisted in
asking him if anyone else had asked him to join the
Union during working hours, and inquired as to who
had approached him on the parking lot.
The Trial Examiner found that Nicholas
D'Andrea became a union steward in April 1967
and soon thereafter filed a grievance against
foreman Mason for assigning work unfairly.
Consequently, several employees who had lost the
extra overtime they had received before the
grievance was filed, decided to report to Mason that
D'Andrea had engaged in union activity in violation
of the rules . The internal security department
immediately began sweeping investigations of this
report, obtaining statements from many employees,
only two of whom the Trial Examiner credited, that
D'Andrea had asked them to join the Union on
working time. D'Andrea was subjected to
questioning on 2 successive days during which the
investigators raised their voices, shouted, and
"hollered at" him. The investigators told him "we
know you're guilty, and we're going to prove it,"
and even refused to allow him to go to the
washroom alone because, as one of them told him,
"I thought you were running away." As a result of
the overbearing and coercive manner in which the
investigations were conducted, D'Andrea became ill
and required medical attention on both occasions.
John Tardiff was a shop steward and union
committeeman in November 1967. On November
20, 1967, he was ordered to report to internal
security where he was told the Respondent possessed
employee statements in which he was accused of
passing out employees' merit ratings' during
company time. He admitted passing out the slips
but said that to his knowledge he had not passed
them out on company time. After rephrasing their
inquiry several different ways and receiving Tardiff's
denials and his refusal to sign a prepared statement,
the investigators allowed Tardiff to return to his job.
Tardiff testified that it takes about 3 seconds to pass
out a merit rating. Although, as the Trial Examiner
found, Tardiff did not distribute the ratings on
working time, Tardiff was suspended for 3 days
allegedly for violating company rules.
Employee Lancelot sent a letter to the
Respondent saying that he had been discriminated
against in the assignment of work. As a result
Lancelot was interviewed by a personnel advisor to
whom he repeated the statement in his letter.
Although this accusation related primarily to
Lancelot's foreman, no investigation of this
accusation was made. Instead, the Respondent
launched an investigation of Nelson, the union
steward in Lancelot's department, based on
Lancelot's statement to the personnel advisor that
Nelson solicited him during working hours to join
the Union. Several other employees in Nelson's
department were summoned by the security
investigators. Although all stated that they were
solicited on nonworking time, as the Trial Examiner
found, the investigators obtained their signatures to
affidavits deliberately worded to imply that Nelson's
solicitation had occurred on working time. Nelson
was sent to the internal security department by his
foreman. During his interrogation, which lasted over
2 hours, Nelson was asked repeatedly whether he
had solicited employees for the Union on company
time. Although he refused to sign a statement
prepared for him, and, as the Trial Examiner found,
had not solicited on working time, he was given a
choice of being discharged or quitting, and chose the
latter.'
'Merit ratings, which are apparently used when employees are considered
for promotion or transfer, are given to the union stewards to furnish to the
employees
'The investigation of Howard R Rooney, another steward, was the
result of a conversation he had with employee Joyce Carroll during which
she offered to return a copy of the Union contract that she had borrowed
from Rooney Shortly thereafter, Cochran, Rooney's foreman, asked why
he had been talking to Carroll and what he was doing with the contract
Rooney explained that it was his copy and that Carroll had offered to
return it, whereupon Cochran said, "Mr , when you put that (union) badge
on, you're on thin ice " Cochran immediately went to Carroll who
apparently told him that Rooney had not been carrying on union business
and verified Rooney's account of the conversation Nevertheless the
investigation continued The security investigators first called in Carroll,
and even though she confirmed that no solicitation was involved,
summoned Rooney Rooney was required to spend about an hour in the
internal security department during which he was asked repeatedly whether
he was certain that he had not tried to solicit Carroll for the Union
Rooney refused to sign a statement prepared for him by the investigators
and subsequently quit his job The Trial Examiner found, and we agree,
that the interrogation of Rooney was coercive and in violation of Sec
8(a)(1) of the Act
UNITED AIRCRAFT CORP.
The Respondent asserts that the above
investigations were conducted for the purpose of
enforcing a contract provision and company rules
prohibiting union solicitation and activity on
company or working time. The above evidence
clearly establishes, however, as the Trial Examiner
found, that they were actually conducted for the
purpose of harassing the union stewards involved,
making them realize that their union activities were
being watched closely by the Respondent, and to
garner enough evidence to support subsequent
discharges. Thus, (1) the Respondent admittedly had
knowledge of their roles as union stewards; (2)
although all four were allegedly disciplined for
conducting union business on company time for
periods of from 3 seconds to a few minutes, the
Respondent conducted widespread investigations
lasting as long as 2 weeks, even though the evidence
obtained was false, biased, minimal , or distorted, in
an attempt to support its disciplinary actions against
the union stewards involved; (3) the investigators
behaved toward the employees being interviewed in
an overbearing and intimidating manner, and
infringing on their statutory rights by coercive
interrogation; (4) the Respondent's demonstrated
hostility toward unionism and proclivity towards
violating the Act as established by its unlawful
conduct described herein. In these circumstances, we
find that whether or not stewards Menard, Nelson,
and Tardiff actually engaged in union solicitation or
activity during working time, this was merely a
pretext to conceal the Respondent's discriminatory
motive in disciplining them.
Moreover, we find, contrary to the Trial
Examiner, that the discharge of steward Nicholas
D'Andrea cannot be abstracted from Respondent's
other unlawful activities, nor should it be viewed
separately from that of the other stewards. Against
this background, including the Respondent's
unlawful interrogation of D'Andrea, we find that the
reason asserted by the Respondent for D'Andrea's
discharge was also a pretext to conceal its real
motive of ridding itself of another active union
steward.
The Trial Examiner found, and we agree, that the
Respondent discharged stewards Hattie Gahagan
and Winston DeMerchant on April 23, 1968,
because of their union activities,, in violation of
Section 8(a)(3) and (1) of the Act. The Respondent's
asserted reason for the discharges of Gahagan and
DeMerchant was that they solicited union
membership during working hours in violation of
company rules. Both Gahagan and DeMerchant
testified credibly that they had not solicited during
company t ime and Respondent offered no evidence
to the contrary. We further find, contrary to the
Trial Examiner, that the discharge of steward
Dennis Brandt also violated the Act. Brandt, a shop
steward, was terminated on April 11, 1968, for a
"violation of company rules." In response to the
allegation in the complaint that Brandt was
9 37
discharged because of his union activities,
Respondent produced no evidence other than its
investigative files which it contends were the basis of
the discharge. The files contained information
regarding union solicitation during working hours
and posting union stickers on walls. The Trial
Examiner was unable to determine from the files the
basis of the Respondent's decision to discharge
Brandt, and, consequently, found that the General
Counsel had not sustained the burden of proving the
violation. The Respondent's files reveal that its
investigation of Brandt, a known union steward,
provided no basis for discharging him for
solicitation during work time, which Brandt denied
on the stand. Brandt did admit to posting a 3-inch
union sticker in the men's room. While the
Respondent apparently had never disciplined others
for putting up stickers that appeared from time to
time in the men's room, Brandt was summarily
discharged. In these circumstances, and in view of
the Respondent's discrimination against other union
stewards described above and its other unfair labor
practices found herein, we find that the motivating
cause for Brandt's discharge was his union activity.
We, therefore, find that Brandt's discharge violated
Section 8(a)(3) and (1) of the Act.
2. The Trial Examiner further found that the
Respondent violated Section 8(a)(5) by refusing,
during the term of its 2-year contract entered into
on September 8, 1966, with Lodge 1746, the services
of Lodge 1746 stewards, requested by employees
who sought to discuss grievances and by certain
employees named above when called to the
Respondent's internal security office prior to
discharge. Although the Respondent in its answer to
the 8(a)(5) allegations of the complaint' denied that
Lodge 1746 was the majority representative of the
employees involved, the Trial Examiner refused to
permit the Respondent to litigate its contention that
it had no duty to bargain with the Union. The Trial
Examiner relied on the Board's decision in United
Aircraft Corporation (Case 1-CA-5345 and 5372),
168 NLRB No. 66, finding inter alia that the
Respondent unlawfully withdrew recognition from
Lodge 1746 on March 10 and 11, 1966, and
ordering the Respondent to bargain with that
Union. However, subsequent to the Trial Examiner's
Decision herein, the United States Court of Appeals
for the District of Columbia Circuit denied
enforcement8 of the Board's order to bargain with
Local 1746 in United Aircraft Corporation (Case
1-CA-5345 and 5372), on the basis of the Court's
'An allegation covering the Respondent's refusal to provide a Lodge
1746-A steward during the predischarge interview with employee
D'Andrea, who worked at the Southington plant, was specifically stricken
from the complaint by the General Counsel's amendment dated November
30, 1967. In these circumstances, and as the Trial Examiner did not base
his 8(a)(5) findings on the Respondent's conduct toward D'Andrea, we find
no violation of Sec. 8(a)(5) by the Respondent with regard to Lodge
1746-A
'United Aircraft Corporation v N L R B, 416 F 2d 809 (C A D C)
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding of sufficient evidence to cast serious doubt
on the Union 's continued majority status and the
absence of evidence that the Union enjoyed such
status . Thereafter , the Respondent filed a Motion in
the instant cases requesting the Board to give effect
to the Court 's decision in Cases 1-CA-5345 and
5372, by dismissing all 8(a)(5 ) allegations herein.
In opposition to the Respondent ' s Motion, the
Charging Parties filed a Reply and a Supplemental
Reply, and the General Counsel filed an Answer and
a Motion to Reopen the Record . The Charging
Parties and the General Counsel urge the Board to
reopen the record to receive additional evidence, and
find that the Respondent cannot challenge the
Union 's majority during the period material herein.
They contend that the Court ' s decision was
concerned only with the Union ' s majority status as
of March 10 and 11, 1966 , when the Respondent
withdrew recognition; that 6 months later the
Respondent negotiated the 1966 contract involved
herein and relied on its terms in its defense to the
charges in these cases . The Unions and the General
Counsel offer evidence that in 1968 the Respondent,
after initially challenging majority status, thereafter
renegotiated and entered into subsequent contracts
with these Unions when the Unions offered to
submit authorization cards or participate in an
election ; they also offer evidence of current majority
status as of April 1969. We find no merit in these
contentions . As the . Respondent had no obligation to
bargain in March 1966 , as the court held, it had no
such obligation 6 months later , or at any time
material herein , because, aside from other
considerations , the Respondent , as in the prior case,
continued to challenge the Union's majority status
and there is no evidence , and none is offered, that
the Union in fact enjoyed such status. Even if the
Respondent withdrew its challenge at the time the
subsequent contract was negotiated in 1968, and
even if the Union represented a clear majority in
1969, such facts are irrelevant to the issue of
majority status in 1966 and 1967. Nor do we agree
that the Respondent waived its right to defend
against the 8(a)(5) allegations on this ground by
entering into the 1966-68 contract with the Union. It
is clear that that contract was negotiated in
compliance with an injunction issued by a United
States District Court on August 5, 1966 , directing
the Respondent to restore recognition and resume
bargaining . pending litigation , in Cases 1-CA-5345
and 5372, of its obligations under the Act.9 No such
obligation having been found to exist, the
Respondent cannot be penalized for obeying the
District Court ' s Order or for relying on provisions
of the contract as an alternate defense herein.
As the Respondent 's obligation to honor
employee requests for Union stewards was
dependent upon the majority status of the Union,
'As the District Court noted , the Respondent specifically preserved its
position on this issue in the contract
and as the majority status of Lodge 1746 was not
established during the relevant period, we find that
the Respondent did not violate Section 8(a)(5) by
denying such requests.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
United Aircraft Corporation (Pratt & Whitney
Division), East Hartford, Manchester, Southington,
and Middletown, Connecticut; (Hamilton Standard
Division), Windsor Locks and Broad Brook,
Connecticut; their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating or intimidating
employees in connection with their union
membership, sympathies, or activities.
(b) Threatening employees with reprisal for their
union membership or activities.
(c) Discouraging membership in Local Lodges
1746 or 1746-A, International Association of
Machinists and Aerospace Workers, AFL-CIO, or
in any other labor organization, by discharging or in
any other manner discriminating against employees
because they engage in concerted or union activities.
(d) In any other manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to Kenneth Menard, Clifford Nelson,
Nicholas D'Andrea, Hattie Gahagan, Winston
DeMerchant, and Dennis Brandt immediate, full,
and unconditional reinstatement in their former, or
substantially equivalent positions of employment
without prejudice to their seniority or other rights
and privileges, and reimburse them for any loss of
pay suffered as a result of the discrimination against
them in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, 291-93, and Isis Plumbing
& Heating Co., 188 NLRB 716.
(b) Make whole John W. Tardiff for the wages
lost as the result of the discrimination against him.
(c) 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 necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Post at its above specified places of business,
UNITED AIRCRAFT CORP. 939
copies of the attached notice marked "Appendix."10
Copies of said notices, on forms provided by the
Regional Director for Region 1, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent 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
Respondent to insure that said notices are not
altered, defaced, or-covered by any other material.
(f) Notify the Regional Director for Region 1, in
writing, within 10 days from the date of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint,
insofar as it alleges unfair labor practices other than
those found herein, be, and it hereby is, dismissed.
"In the event this Order is enforced by a judgment of the 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 of Appeals enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of The National Labor Relations
Board , an agency of the United States Government
WE WILL NOT discourage membership in Local
Lodges 1746 or 1746-A, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization , by discharging or otherwise
discriminating against employees because they engage
in union activities.
WE WILL NOT interrogate , intimidate, or threaten
employees with reprisals for engaging in union
activities.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL immediately reinstate stewards Kenneth
Menard, Clifford Nelson, Nicholas D'Andrea, Hattie
Gahagan, Winston DeMerchant, and Dennis Brandt to
their former or substantially equivalent jobs, and pay
them any money they lost as a result of the
discrimination against them ; and WE WILL pay John W.
Tardiff the wages he lost as a result of our
discrimination against him.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
Dated By
UNITED AIRCRAFT
CORPORATION , PRATT &
WHITNEY DIVISION AND
HAMILTON STANDARD
DIVISION
(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.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
20th Floor, John F. Kennedy Federal Building,
Cambridge and New Sudbury Streets, Boston,
Massachusetts 02203, Telephone 617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: Charges and amended
charges were filed on October 10 and December 29, 1966,
respectively, by Local Lodge 1746, International
Association of Machinists and Aerospace Workers,
AFL-CIO, hereinafter called Lodge 1746, against United
Aircraft Company (Pratt & Whitney Division), hereinafter
called Respondent Pratt & Whitney (1-CA-5681), on
October 10, 1966, by Local Lodge 743, International
Association of Machinists and Aerospace Workers,
AFL-CIO, hereinafter called Lodge 743, against United
Aircraft Corporation (Hamilton Standard Division),
hereinafter called Respondent Hamilton (1-CA-5682); on
November 7, 1966, by Canel Lodge No. 700,
International Association of Machinists and Aerospace
Workers, AFL-CIO, hereinafter called Lodge 700, against
Respondent Pratt & Whitney (1-CA-5710); on June 21,
1966, and amended September 26, 1967, by Local Lodge
1746-A, International Association of Machinists and
Aerospace Workers, AFL-CIO, hereinafter called Lodge
1746-A, against Respondent Pratt & Whitney
(I-CA-5986); on June 21, 1967, by Lodge 1746 against
Respondent Pratt & Whitney (1-CA-5987); on July 1,
1967, by Lodge 1746 against Respondent Pratt &
Whitney, amended September 26, 1967 (1-CA-6011). The
General Counsel issued a complaint on charge 1-CA-5710
on December 21, 1966, and thereafter consolidated each
of the other cases above set forth and issued an amended
complaint on September 29, 1967, which amended
complaint was in turn amended at various times thereafter
before and during the hearing herein.' By motion dated
May 31, 1968, the General Counsel moved to reopen the
hearing, consolidate Case I-CA-6317, and amend the
already much amended complaint Opposition was duly
filed by Respondents and the motion was granted, with
the hearing noticed for July 15, 1968 By answers duly
filed and after a plethora of collateral pleadings and a
pretrial conference, the issues were joined and the matter
came on for hearing commencing December 18, 1967,
continuing on various dates thereafter for a total of 18
days and finishing March 13, 1968, resuming July 15 and
concluding July 22.
With all parties represented I heard the case in
Hartford, Connecticut. Briefs were filed by each of the
parties and have been duly considered. Upon the entire
record in the case and from my observation of the
witnesses and their demeanor, I make the following.
'General Counsel 's motion made on January 30, 1968, at the close of his
case-in-chief, to further amend the consolidated and already much
amended complaint by the addition of allegations regarding Respondent's
alleged rejection and refusal to honor checkoff authorization cards
involving some 87 employees at 3 of Respondent 's plants was denied on
the ground that the amendment sought did not state a cause of action in
terms of the Act
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
B Issues
The General Counsel contends that the Union, after
losing a strike in 1960 and suffering years of weakness, is
"resurgent" in that it is gaining adherents and attempting
to better service the employees with a view toward further
gains in membership. The chief visible presence of the
Union is embodied in its shop stewards who are equipped
with distinctive badges and wear uniform colored shirts
with the IAM designation on them. In addition to
representing the employees in grievances, stewards are the
most effective organizing arms of the Union. All of the
alleged unfair labor practices dealt with in this proceeding
have as their basic subject matter the stewards, their
rights, their duties, their limitations, and the number of
them that are recognized by Respondents.
The complaint alleges that Respondent Pratt &
Whitney violated Section 8(a)(1) of the Act by
interrogating employees about the activities of stewards
and by interrogating stewards about their own activities,
"coercively and excessively." Respondent contends with
regard to these allegations that it did no more than
normal investigation of alleged breaches of its
no-solicitation rule and of a contractual provision that
"there shall be no solicitation of employees for union
membership or dues conducted upon the premises of the
Company during working hours by the Union, its
representatives or by employees "
The complaint, as amended, alleges that Respondent
Pratt & Whitney threatened stewards with reprisals for
engaging in lawful protected steward activities, intimidated
and interrogated stewards, appropriated signed union
cards, and discriminatorily enforced its no-solicitation
rule. Respondent denies the utterance of the alleged
threats and denies the discriminatory enforcement of the
no-solicitation rule.
It is further alleged that Respondent Pratt & Whitney
constructively discharged a steward, Nelson, discharged
stewards Menard, D'Andrea, Brandt, Gahagan, and
DeMerchant and discriminated against steward Tardiff
Respondent contends that Nelson and Menard quit,
D'Andrea, Brandt, Gahagan, and DeMerchant were
discharged for cause and that there was no discrimination
with regard to Tardiff
General Counsel contends that the Respondents refused
to bargain with Lodges 1746 and 743 by the following acts
and conduct.
(1) By unilaterally changing the "historic shop
steward-employee ratio formula agreed to originally in
1950 "
(2) By an oral threat uttered by Attorney Wells to
Attorney Ratner to repudiate the "historic shop
steward-employee ratio formula" unless the Charging
Party made concessions on matters originally agreed to be
binding terms of an agreement.
(3) By refusal to furnish information regarding
population in the departments by shifts, up-to-date
steward area maps, and other data.
(4) By the refusal to call shop stewards and process
grievances through normal channels during three periods
of time:
(a) Between withdrawal of recognition and the signing
of new contracts on September 26;
(b) between September 26 and December 12, 1966,
during which time agreement on the number of shop
stewards and the designation of such shop stewards had
not been reached; and
Respondent Pratt & Whitney operates plants in East
Hartford, Middletown, Southington, and Manchester,
Connecticut. Respondent Hamilton operates plants in
Broad Brook and Windsor Locks, Connecticut. Both are
subsidiaries of United Aircraft Corporation. At their
various plants Respondents are engaged in the
manufacture, sale, and distribution of aircraft components
and electronic devices. In the operation of their enterprises
each of the Respondents annually receive goods and
materials valued in excess of $1 million at their plants in
the State of Connecticut shipped from points outside the
State of Connecticut, and ship substantial quantities of
their products in interstate commerce from their
Connecticut plants to other States of the Union.
Respondents are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Lodges 700, 743, 1746, and 1746-A are each labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Lodge 1746 was certified by the Board as the
collective-bargaining representative of employees in
Respondent Pratt & Whitney's East Hartford plant in
1945. Lodge 743 was certified by the Board as the
collective-bargaining representative of employees of
Respondent Hamilton at its Windsor Locks plant in 1941,
and at its Broad Brook plant in 1954. Lodge 1746-A was
certified by the Board as the collective-bargaining
representative of the employees in a unit at Respondent
Pratt & Whitney's Southington plant in 1951. Collective
bargaining relations existed between the two Respondents
and Lodges 1746 and 743 until March 2, 1966, at which
time Respondents withdrew recognition during contract
negotiations.' Thereafter pursuant to an injunction action
before the United States District Court for the District of
Connecticut, Respondents resumed recognition and
entered into contracts with those two lodges. Respondent
Pratt & Whitney has continued recognition of Lodge
1746-A in its unit at all times relevant hereto.
On November 27, 1967, the Board found that
Respondents had violated Section 8(a)(5) of the National
Labor Relations Act, as amended, in refusing to bargain
with Lodges 1746 and 743 and directed that Respondents
bargain with those lodges as representatives of the
employees at the Broad Brook and Windsor Locks plants
and at the East Hartford and Manchester plants.' The
allegations concerned herein deal with the relationships
between, Respondents and the various lodges after the
withdrawal of recognition and until the present.
'Although recognition was withdrawn on March 2, it appears that
contractual relations continued until the then existing contracts expired, a
matter of a month or two.
'168 NLRB No. 66. I take administrative notice of the Board' s Decision
therein
UNITED AIRCRAFT CORP. 941
(c) after December 12.
(5) By refusing to call a shop steward to assist other
shop stewards being interrogated by Respondent's security
officers.
As to the refusal-to-bargain allegations Respondents
contend that (a) there is no historic shop
steward-employee ratio formula, (b) Attorney Wells'
statements to Attorney Ratner did not constitute a threat
of repudiation of an agreed on contractual provision, (c)
Respondents furnished all relevant information requested
to the extent that such information was available, (d)
during the period from the withdrawal of recognition until
December 12 when agreement was reached on the number
of stewards, their areas and designation, it was impossible
to follow the usual grievance procedure because, under the
terms of the contract, designated stewards only could be
called and none had been designated. As to the refusal to
call stewards after December 12, Respondents contend
that if any such incidents in fact occurred they are
attributable to mistakes reasonably to be anticipated
under the circumstances that there are large numbers of
supervisors and over 20,000 employees, wherefore a
reasonable margin of error must be afforded in deciding
whether a given request that a steward be called falls
within the limits in the contract, which provides what type
of complaints of employees are grievable through the
contractual grievance procedure.
The 8(a)(5) allegations require inquiry into two basic
issues: (1) whether a "historic shop steward-employee
ratio formula" existed as a term or condition of
employment, and (2) the extent to which employees have
an absolute right to representation by a shop steward in
their dealings with the employer.
C. The 8(a)(1) and (3) Allegations
Most of the 8(a)(1) and (3) allegations relate to the
alleged discharges of the stewards named above, each of
whom was accused of soliciting for the Union on company
time and terminated as a result thereof.'
Each of the stewards was the subject of an investigation
by members of the Employers' internal security force
during the course of which each was interrogated by two
security officers on one or more occasions. The General
Counsel contends that the interrogations were coercive
and "excessive" and that the investigations of the alleged
violations by the stewards of company rules were more
comprehensive and searching than investigations by the
internal security department of other employees for
breaches of company rules unconnected with the Union.
Thus, the General Counsel contends that not only the
content of the investigation gave rise to violations but that
the nature and 'extent of the investigations discloses a
pattern of coercion directed at employees and shop
stewards and directly attributable to the fact that their
activities involved the Union. We shall first consider the
facts with regard to the stewards.
All parties have agreed that it is important to their
future relationships to have the issues herein decided at
the earliest possible date. Inasmuch as the issues
concerning stewards Brandt , Gahagan, and DeMerchant,
the subjects of the reopening of the hearing and the fourth
amendment to the complaint, are cumulative to the
similar issues tried earlier and discussed below, I believe
that the overall policies of the Act will best be served by
'Rooney is not alleged to have been discharged . He in fact quit, allegedly
because of harassment by his foreman.
the forthwith issuance of the decision on the remainder of
the case, reserving for a supplemental decision my
discussion of the issues raised by the fourth amendment to
the complaint. This cannot prejudice any of the parties
concerned, for I shall have before me all the evidence in
the earlier portion of the case for consideration of that
produced in the latter, as well as the arguments addressed
to the affected portions of the complaint in the parties'
briefs.'
1. Kenneth R. Menard
Kenneth Menard, inspector, was transferred to the
Middletown plant on the second shift about September 16,
1966, when a new department was formed there. Shortly
after his transfer Menard was elected shop steward and
assigned, among his other duties, to obtain, if possible, the
names, clock numbers, and addresses of each of the
employees in the departments which he served.' Menard
asked his leadman and then his foreman, Karlon, for the
information. Karlon suggested that if Menard wanted the
information he would have to get it on his own.
A day or 2 later, after his shift ended, Menard
approached an employee on the third shift who had
recently been transferred to the plant. Menard introduced
himself as the shop steward and welcomed the new
employee to the plant and then left.
Foreman Karlon testified that he was informed by
other foremen and leadmen that Menard had approached
them with the view to getting the information which
Karlon had refused to divulge to him. He also testified
that at 10 minutes past midnight, which was 10 minutes
after the ending of Menard's shift, he saw Menard talking
to an employee in another department. Karlon was
accompanied at the time by the foreman of the other
department. Karlon called Menard to his desk and told
him that he had been found in another department before
the shift, that he was seen at 10 minutes after 12 talking
to another employee, and that in spite of Karlon's
suggestion that Menard go back to the man who wanted
the information and ask him for the proper procedure to
get it, Menard persisted in attempting to get it through his
own means. Karlon warned Menard that he was breaking
the rules and told him to stop it. According to Karlon,
Menard asked when he could get in contact with other
people about union business and Karlon answered it was
not his responsibility. Menard asked if he could leave
messages on Karlon's desk for Karlon to deliver to
employees and Karlon told him that he was not the U.S.
mail. Menard then said that he would have to think of a
"sneaky" way of doing it, whereupon Karlon warned him
that he was not to conduct any type of union business on
company time, either Menard's time or the time of the
employees whom he might be contacting.
The following day Karlon reported to the personnel
section that an employee, Guyette, had asked him if he
had to join the Union in order to work at the plant and
'Similar actions have been taken in the past by Trial Examiners,
including Sidney Sherman in J W Mays, Inc, 147 NLRB 942, and
Joseph I. Nachman in Schimmel Hotel Company, 147 NLRB 1378, as
well as by the Board in Dubo Manufacturing Company. 142 NLRB 431
and 813.
'It appears that as a result of the injunction action which led to the
signing of the contract, Respondents had supplied the Union with some
requested information , but had declined to furnish the information
concerning the names and addresses of employees in the unit. The
Employer's refusal to furnish the requested information is not in issue in
the instant proceeding.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed him that the steward, whom he identified as
Menard, had asked him to join the Union and to give his
name, clock number, and address. An investigation
ensued.
Menard testified that he solicited 35 to 40 employees to
join the Union after he became shop steward and that he
asked all of the employees in his section, which numbered
about 30, for their names, addresses, and clock numbers
for the Union. He testified that he may or may not have
solicited employees to join the Union during working time
and that it was not until a few days before he was first
spoken to by Karlon concerning his activities that he knew
that he was not supposed to solicit for the Union during
working hours. Thereafter, he testified, he did not do so.
Under the circumstances that there were two lunch
periods in his and surrounding sections it is not
improbable that, as he testified, he could have been on his
lunch hour and a person to whom he was talking or whom
he was soliciting was on their working time He testified
that at no time did he attempt to actually sign up an
employee on working time because of the time required to
have them fill out the union application and
dues-deduction cards.
The investigation was conducted by two security
investigators, Vardon and Massett. It commenced with
Karlon's report that Menard had solicited employee
Guyette to join the Union. Why Karlon so stated must be
left to the imagination. Both Guyette and Karlon testified
that Guyette did not tell Karlon that he had been solicited
to join the Union but rather told him that he had been
asked for his name, clock number, and address. At any
rate the security investigators interviewed Guyette on
October 17 and took a statement from him in which he
stated that while he was at the toolcrib in his department
Menard came up to him and asked him for his name,
clock number, and address. He gave Menard the
information. Menard wrote it down and told him that
soon he would be receiving papers in the mail about his
base pay, hourly rate, and wages. He stated that he
noticed that Menard had the name of Armand Morin in
his notebook and he commented, "Oh you have another
fellow from my department," to which Menard answered
"yes." Guyette finished his statement saying, "I have not
spoken with Menard since that time and he has not said
anything to me about the Union or anything else and as
yet I have not received any papers referred to by Menard
in the mail."
Vardon and Massett next interviewed Morin who gave
them a statement saying that on the evening of the 14th or
15th, just after the luncheon break, Menard walked up to
him, asked to see his badge, and wrote information in his
notebook. He testified.
After he wrote down my name he asked me for my
home address . . . but I asked him anyway why he
wanted it. He answered "You'll find out later." Then I
gave him my address and he asked what the initial "A"
was for on the badge and I told him Armand and even
spelled it out for him. After he wrote all of this down in
his note book he and Sloan just walked away from the
area. Sloan didn't say anything to me at all during this
Obviously neither Guyette nor Morin supplied evidence
to support Foreman Karlon's report that Menard had
solicited anyone to join the Jnion. After consultation with
Thomas Connolly, their supervisor, the investigators then
interviewed Karlon on October 18 Karlon signed a
statement that Guyette had told him on the 14th that
Menard had asked him for his address and "and also
asked him if he wanted to join the Union "
Why a statement was taken from Karlon was not
adequately explained. It is clear that normally statements
are not taken from foremen in investigations of this
nature and normally statements are not taken from
individuals who have no direct evidence to offer.
Nevertheless, although the investigator recognized that
Karlon provided only hearsay information and Karlon
added nothing that had not already been found
unsupported, Investigator Massett was able to testify only
that he was ordered by Supervisor Connolly to interview
Karlon '
On the 18th Karlon informed investigators that Menard
had approached John Boucher. Boucher was interviewed
on the 19th and told the investigators that Menard came
to him while he was working and asked for his name,
clock number, job code, and hourly rate. He asked why
Menard wanted the information and Menard answered,
"because the Union would like to know your name, clock
number, job code and how much you make so they can
send you a labor grade card to carry in your tool box "
Later on in the shift Boucher said he met Menard in the
men's room and Menard reminded him not to forget to
give him the information and that he would pick it up the
next night. He went on to say, "Since I have been in the
Middletown Plant this is at least the fifth or sixth time
that this man has approached me in the shop during
working hours concerning joining the Union. The first
time that he has talked to me about it was on the very
first day that I was assigned to the Middletown Plant. I
think that this was on September 26, 1966. 1 can
definitely remember that on that day Menard came to me
in the shop and said `would you like to join the Union.'
He followed this by saying, `why don't you join the Union
right now and then they would make you a union steward
in your department "'8 Boucher went on to say that his
leadman came over after Menard's visit and asked what
Menard wanted and he told him that Menard had been
asking him about joining the Union.
On the following night Vardon and Massett again
interviewed Boucher, this time taking a statement to the
effect that the September 26 incident occurred while
Boucher was working at his job
Vardon and Massett testified that Boucher mentioned
that Morin was present on the October 18 occasion.
Accordingly, on October 25 Morin was again interviewed
and told them that on October 18, about 5 p in , Menard
came up and engaged Boucher in a conversation. He
testified, "I could not hear the conversation word for
word but from what I did hear I know that Menard was
talking to Boucher about the Union. I heard him asking
Boucher about his job code and hourly rate and say
something about what the Union could do for him to help
him. The conversation went on along these lines for 2 or 3
minutes and then I heard John Boucher tell Menard
something to the effect that when he felt like joining the
Union he would do so on his own "
Massett testified that this statement by Morin
corroborated that of Boucher It appears to me that it
does nothing of the sort. On the contrary, it appears to
reveal a serious discrepancy. Boucher did not testify to
any such statements in the October 18 conversation nor
did he tell Vardon and Massett that there had been any
'Connolly's title is apparently Supervisor of Internal Security
Investigation Division of the Plant Protection Department of Pratt &
Whitney Aircraft
This is taken from the statement written by the investigators and signed
by Boucher
UNITED AIRCRAFT CORP. 943
such statements in that conversation . Comparing
Boucher ' s testimony with the version contained in his
statement of October 19 to Massett and Vardon further
discrepancies appear . On the witness stand Boucher first
stated that on October 25, when he first went to work in
the department , Menard came to him and asked him to
join the Union and he answered , "If I do join the Union I
will do it on my own time." He then testified that a few
days later Menard asked him to join the Union and told
him that he could be a union steward if he did so because
he would be the first man in his department.
After showing him his October 19 statement (which
Respondent 's counsel characterized as his October 18
statement ), Boucher testified that the first conversation he
recalled took place on September 16 and he further
testified that it was his first day at the Middletown plant
and that it was Menard's first day at the Middletown
plant. Later he testified that at that time Menard was not
a shop steward, which accords with Menard's testimony
and with the security investigative report which revealed
that Menard was not appointed shop steward until
September 28 and the appointment did not become
effective until October 15.
After Respondent's counsel again refreshed Boucher
from his statement , Boucher testified that he had a
conversation on October 18 at which Morin was present
at which Menard "asked me if I would join the Union
now. If I would I would have a good chance of being
union steward in my department," to which he answered,
"I told him if I joined the Union I'd do it on my own, not
on company time." He next testified that he could have
had a conversation similar to this one in September with
Menard and finally, asked not whether it could have been,
but whether there was such a conversation, he gave the
following answer:
That when he came up to me and asked if I joined
the Union and then before.October 18, there, he come
over to my machine and he asked me, that when Mr.
Morin was with me over there and he asked me if I
would leave, take a piece of paper, leave my name,
clock number and my labor grade, also my home
address so that he could have it, so I asked him the
reason why so he told me said so that we'll send it to
the Union so I can receive a card, a union card, either I
carry in my wallet or my tool box, and I asked him
why he said to see if you are making the proper wages,
you're underrated or not.
After what can only be characterized as further urging by
counsel, Boucher testified that before Menard walked
away, he said to Menard, "I told him I join the Union on
my own time, it was wrong to talk business on company
time."
In the statement that Boucher gave Vardon and
Massett he stated that on the first day that Menard talked
to him Menard told him that the union dues were $5 to
join and a $1.25 a week and "he also said that he didn't
care who joined, as long as he got their $5 he didn't care
any more."
I consider that Boucher's testimony is worthy of little if
any credit. It appears to me that the statement he first
gave Massett and Vardon with regard to the October 18
incident, which revealed that the incident dealt only with
Menard's effort to get his name, address, and clock
number was probably the only credible statement that
appears. His statement in the same document concerning
Menard's solicitation to him on September 26, which in
his testimony on the witness stand became September 16,
is incredible in that it does not appear in anyway likely
that Menard would have said that he didn't care who
joined as long as he got their $5 at a time prior to his
becoming shop steward since he would have not gotten
their $5 unless and until he became shop steward.
Boucher's testimony upon cross-examination that Menard
was not a shop steward on that occasion is curiously at
odds with the statement that he attributes to Menard.
Even more curious is the alleged corroboration to
Boucher's statement to be found in the second statement
of Guyette taken a week later since Guyette
"corroborated" to the satisfaction of the investigators
information that they did not have and that first appeared,
as far as anything on the record in this proceeding reveals,
at the time Boucher was on the witness stand.
It appears to me that Guyette's first statement is
partially credible, his second is certainly not, nor is his
testimony at the hearing. We can only conjecture as to the
reasons why Guyette gave the second statement to the
security investigators. It is clear that after the first round
of investigation there was no evidence that Menard was
guilty of soliciting for the Union as Karlon had charged.
Accordingly, Karlon's statement was taken and he stood
by his charge. Then, fortuitously, it came to Karlon's
attention that Boucher had been approached by Menard
and accordingly Boucher was brought to the security
investigating department. Boucher's account of the
October 18 conversation was no help to support Karlon's
position. Yet, Boucher makes the conclusionary statement,
after he recounted it, that "this is at least the fifth or sixth
time that this man has approached me in the shop during
working hours concerning joining the union." (Emphasis
supplied.) What led to his recounting of the alleged
conversation on the first day of his employment, which
was palpably false, is not shown. Not until he signed his
statement on October 19 was any information in the
hands of the security investigators that Menard might
have broken the rules
I have no doubt that Menard did in fact contact 35 or
40 employees and asked them to join the Union as he
revealed, and there can be little doubt that at least some
of them might have been contacted on his or their
working time, at least to the extent of asking them during
a conversation whether they were interested in joining the
Union There is no evidence that any contact other than
that was made during working hours. On the other hand,
the investigative file upon which allegedly the
Respondent's decision to discharge Menard was made is
clearly full of inconsistencies so that no person
experienced in investigating or in reviewing results of an
investigation could conclude that any sort of a case may
be made out. Vardon, who was the agent in charge of the
investigation, testified to over 23 years of investigative
experience. Massett, who assisted Vardon, had 13 years of
investigative experience, according to his testimony.
Presumably their supervisor, Connolly, had some
experience It is inconceivable to me that they could have
reached the conclusion recited in their investigative report
on the evidence that came to them especially in view of
the way the evidence came to them.
I am convinced that the "investigation" conducted by
Respondent was undertaken solely for the purpose of
making a paper record adequate in the opinion of
Respondent to substantiate the discharge of an active and
successful shop steward. It was initiated by a false
statement from Karlon and supported by a false statement
from Boucher who demonstrated his bias very plainly in
his initial statement. I conclude that whether or not
Menard was guilty of soliciting for the Union on company
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, his discharge' was consummated for the purpose of
discouraging other shop stewards and employees in their
union activities in violation of Section 8(a)(3) and (1) of
the Act.
2. Clifford Nelson
Clifford Nelson was a maintenance electrician, one of a
group of seven or eight who worked together. In the
normal course of their activities they worked all over the
several plants of Pratt & Whitney installing electrical
apparatus, wiring new departments, and the like. Each
man had a small wagon with his tools, equipment, and
supplies.
Nelson was also the union steward in his section.1°
Nelson was an industrious and effective organizer for the
Union and, possibly as a result of his activities, most of
the employees in his section were members.
Walter Lancelot was employed in the same section as
Clifford Nelson doing the same type of work. Lancelot
had been employed by the State government on a road
maintenance crew before he came to work for Respondent
and wanted to return there. In December 1966 he
arranged to return there after his wife, who was pregnant,
was delivered, as he did not want to risk losing the
insurance benefits that were connected with his
employment at Respondent 's plant.
In March , having ascertained that a job was available
to him in the State road department, Lancelot quit his
employment with Respondent. On March 15 he wrote
three copies of a letter, one of which he gave to the
general foreman , one to his foreman, and one to the
personnel office. The letter stated:
To Whom It May Concern:
I, Walter Lancelot, will be terminating the 26th of
March for the following reasons.
I feel I cannot get ahead because I did not join the
union , nor did I fit in the clique that is in our crew. I
do not approve of favoritism.
/s/ Walter Lancelot
A personnel advisor, Mabey, interviewed Lancelot who
told him that he thought that he had been discriminated
against in the assignment of work because he had not
joined the Union and complained that he had been
solicited by Clifford Nelson during working hours on "at
least five or six different occasions and had given him a
union membership application card." He recited an
incident which happened during the summer in the
toolcrib in the "J Building" when Nelson asked him to
join the Union and he refused td do so, whereupon Nelson
referred to him as being cheap and no good. Later the
same day he and Nelson almost got into a fight. He
referred to another incident in October 1966, when Nelson
'Respondent 's contention . that Menard was not discharged but in fact
quit is scarcely worthy of note. Menard on being told that he was
discharged was told that to make his record look better it would be put
down as a quit . The discharge becomes no less a discharge by the
Employer's-falsification of the personnel papers
"The company recognizes shop stewards in the handling of grievances
and pays them up to 2 hours a week for this purpose. There is an
additional class of steward known as union stewards who are not
recognized by the Employer in handling grievances or any other respect.
Their function is to form a liaison between the men in their departments or
sections and the shop steward, to help organize , to pass information out to
the employees, and to assist the shop steward in other ways While shop
stewards are distinquished by red shirts with IAM insignia on them and a
red border on their identification badge, union stewards wear blue shirts
with IAM insignia and a blue border on their identification badge.
asked him to join the Union while they were in
department 661 and he recited an instance, about the first
of March 1967, when Nelson had asked another
mechanic, whom he identified as Brian Kelley, to join the
Union
In each instance Lancelot mentioned the name of other
members of the crew who were present when the alleged
infractions took place.
Kelley testified that he was called to the internal
security office and questioned by two men who told him
they were investigating a complaint signed by an employee
and asked him whether he had ever been asked to join the
Union. Kelley said that he had been asked by a fellow
employee whom he named as Hardie. The investigators
showed him pictures and asked him to point out the man
and he identified Nelson He told them that Nelson had
approached him in department 661 during the lunch hour.
Both men kept asking him whether it was during working
time. He testified, " I kept trying to tell them that it
happened during the lunch hour, but it seems to me they
wanted to say that it happened while we were working in
661. They kept putting the words while we were working
in there."
They asked him about Lancelot and he told them that
Lancelot had worked for him as a helper for about 3 days.
They asked him what kind of a man Lancelot was and he
told them that Lancelot was a "goof-off." When the
interview was completed, they dictated a memorandum for
his signature and he pointed out that the dictator didn't
mention the fact that he had said that they were washed
up and on their way to chow, but said that this happened
while they were working. The investigator said, "We'll get
it typed, and if you want to make any changes then we
can make them." When the typed copy was brought back,
Kelley testified, the same statement was in it and he
mentioned it again, whereupon the investigator said, "well
we'll put a circle around it" and he drew a red circle and
said, "we'll have it taken out." Kelley testified that he
initialed the place which they had circled and then signed
the document on the second sheet, trusting that the
investigators would take out the words to which he took
exception. He had not seen the statement again until it
was produced at the hearing.
The statement itself stated in pertinent part: "Nelson
asked me if I was interested in joining the Union and he
talked to me about it for 5 minutes. While we were
talking Nelson gave me two cards, a union application
card and a union dues checkoff card and told me how to
fill them out. I took the cards from Nelson and told him
I'd have to think about it for a while. I don't recall what
time of day this took place, except that it was while we
were in department 661." In the paragraph preceding the
above quotation, the following sentence appears: "About a
month ago, while I was working with other members of
my department on a plating job in department 661 .
etc." In the paragraph after the quote, is the following
sentence: "About 3 days after I had been given the cards
Nelson came up to me while I was standing by the work
cart of Bill Hardie in department 661, we were still
working on the same job in that department, and he asked
me if I had made up my mind yet about the Union and if
I had signed the cards." Strikeovers and deletions are
initialed.
Kelley testified that he did not know Nelson personally,
that he no longer worked for the Respondent and that he
never joined the Union. He stated that Nelson never
spoke to him about joining the Union other than on the
two occasions, one the day the cards were given to him
UNITED AIRCRAFT CORP. 945
and the other 3 days later .when Nelson asked for the
return of the cards. He further testified that neither of
these occasions took place during working hours. In the
one case they had quit and were on their way to lunch,
and the other case was near the end of the lunch period
when the men were standing around waiting until it was
time to go to work.
The security investigators, Massett and Dobbins, next
interviewed Robert Herring, who told them that in March
of 1967, in department 661, while they were putting the
tools away, getting ready to leave for lunch, he was
locking his cart and he saw Kelley with a union card in
his hand. He went to lunch with Kelley, and Kelley told
him that Nelson had given the union cards to him and had
asked him to join,the Union. Kelley told him that this had
happened just before lunch. Herring's statement given the
investigators goes on in the following fashion: "About
three days later while we were still working in Department
661, Kelly and I were over by the work carts when Nelson
came up and asked Kelly if he had made up his mind yet
about joining the Union and if he had signed the cards.
Kelly just told Nelson that he hadn't made up his mind
yet and that he thought he had lost the cards somewhere."
Herring testified that he told the investigators that both of
these incidents took place during the lunch hour and that
they were closing their trucks up to go to lunch. Massett's
investigation report indicates that Massett considered that
this was a substantiation of Lancelot's allegations. In the
same report Massett reported that Kelley had confirmed
Lancelot's allegations that Kelley had been solicited for
the Union during working hours.
The investigators next interviewed William Hardie, who
told them that the incident in department 661 took place
while the men were standing around the working carts in
the department. He did not recall anything other than a
conversation "about union activities," and he recalled that
this took place about 3:15 p.m. He stated, "I don't recall
this as having taken place before lunch."
Hardie's statement too was reported as a corroboration
of Lancelot 's allegations and of Kelley's alleged
corroboration of Lancelot 's allegations.
Respondent produced a witness , Robert Pogg , who had
been a union steward in the same section with Nelson and
Lancelot. Pogg testified that he was a friend of Lancelot
and was no longer employed at Respondent's plant. Pogg
testified that he was present at the incident in J crib and
generally corroborated Lancelot's story. He placed the
original solicitation around 10 to 10:30 in the morning,
stated that Hardie and Don Soucier were present and
stated that Nelson called Lancelot a cheap . He
testified that latei that day after they had washed up,
about a quarter to 12, they were standing outside the crib
and Lancelot and Nelson had another discussion , during
the course of which Nelson called Lancelot a vile name,
whereupon he remonstrated with Nelson that this was not
the way to convince Lancelot to join the Union and that if
he kept it up Lancelot was going to hit him. He placed
Soucier , Hardie, Nelson, and Herring as well as Casey
and Lancelot at the scene. He also testified about Nelson
handing cards to an unidentified employee during a
coffeebreak in the morning at another time.
Nelson 's version of the J Building incident is as follows:
Well, we were, this here was I believe over in J
Building , this was at the timeclock there and we were
waiting to go back to work, we were still on lunch
hour , it was five or ten minutes before we were quitting
to go back to work, and I asked him, "Have you made
up your mind yet about joining?" He said, "Why the
hell should I join the union , they are no good and I get
the same benefits, why should I pay the five dollars a
month for dues?" and he said nasty remarks about the
union , and I said, "You're probably too cheap to join
anyway." then he started to come out with some real
nasty stuff then. . . He said he would kick my fat
right then. . . . I said, "I don't think you could."
With regard to the investigation Nelson testified that he
was told by his supervisor to go to the security
department and knowing that the security department had
already interrogated a number of his fellow workers, he
suspected that "the Company was out to get me because I
was a union steward " He asked his foreman for
permission to take a shop steward with him. The foreman
made a telephone call and told him that it was not
permitted He went to internal security where he was
interrogated by Massett and Montgomery. He asked them
if he could have a shop steward and the answer was, "the
only one that can answer the questions are you, the shop
steward can't help you, and that it didn't have anything to
do with the union, they were just trying to find out
whether I fractured any company rules." They asked him
about the incidents with Lancelot and Kelley, and wrote
up a statement for his signature When they gave it to him
to sign he said that he had no intention of signing it, that
he wanted to take a copy and show it to Attorney Ratner.
They refused to let him do so, and he refused to sign it.
His interrogation lasted about 2 hours.
On May 10 the general foreman came to Nelson and
said, "Due to the investigation here, you have a choice of
either being fired or quitting. If you quit we'll put down
on the paper that you left for a better job or something, it
would look better. I suggest that you do that. Either way
you're going to go Get all your tools together and come
with me." Nelson testified that because he feared that he
would be blackballed if he was fired, he opted to quit, and
his records so show."
Nelson testified that he was well aware of the rules
about soliciting on company time and took care not to do
so and I believe that within his definition of the terms he
was not guilty of the violation with which he was charged
The incidents which the investigation revealed all took
place while the men had broken for coffee, were at lunch,
or coming and going from lunch. The record is clear that
the maintenance electricians, when they are working at a
spot distant from their own timeclock, are not required to
clock out for lunch. It appears that they break a few
minutes before the lunch period begins, lock up their tools
and wash up, and then take their lunch, usually together.
The incident with Lancelot at J Building, according to the
testimony of Kelley, which I credit, commenced in the
morning during a coffeebreak12 and the further incident, in
which the argument became somewhat bitter, took place
when they had broken for lunch but before they proceeded
to the lunchroom. Similarly the incident with regard to
Kelley took place after they had washed up and before
they proceeded to the lunchroom It may very well be that
the lunch period in either case had not actually
commenced but it is clear that the employees were no
longer at work when the incidents occurred
Respondent contends that Nelson was "picking on"
Lancelot because he would not join the Union. There is
"Again I reject Respondent 's contention that Nelson was not discharged
but quit It was at least a constructive discharge
"The Company has no formal coffeebreak period, however it is clear
that employees normally break for a few minutes in the morning between
10 and 10.30 and have a cup of coffee together.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some evidence in the record that ill feeling between
Lancelot and Nelson preceded the union disucssion. At
any rate I find that when Nelson asked Lancelot to join,
Lancelot in fact went further than merely stating that he
would not do so, as he testified, but in fact stung Nelson
with the rejoinder that he didn't have to join the Union
and pay dues because he would get any benefits accruing
from the Union's contract without a fee I have no doubt
that Nelson referred to him as cheap and probably used
the language attributed to him in commenting to other
employees about Nelson in Nelson's presence. On the
other hand, it is clear that Nelson's harsh language to
Lancelot was not the reason for his discharge
The narrow legal issue in connection with Nelson's
discharge is whether the no-solicitation rule and
contractual provision was properly applied to the
situation I believe that the investigators deliberately
created ambiguous statements and relied on the ambiguity
to attempt to avoid raising this issue Their report makes
it appear that the employees were in fact at work when
the solicitation took place That Massett must have
recognized the implicit ambiguities appears equally clear
to me. He is an experienced investigator and in a similar
situation a few months earlier with regard to Menard he
in fact went back and took a second affidavit to clear up
an almost identical ambiguity The accounts of the
employees interviewed, and particularly of Kelley,
confirmed my opinion in this regard. Even Massett's
testimony with regard to the changes made in Kelley's
statement confirmed that Kelley insisted that the affidavit
be changed to reflect the fact that Kelley did not state
that they were at work when the incidents took place.
It is noteworthy that the main thrust of Lancelot's
letter which gave rise to the investigation concerned
discri-nination in the assignment of work but no
investigation whatsoever was made of that allegation. It
was only after Lancelot was interviewed and the personnel
advisor, George Mabey, reported that there had been
solicitation during working hours that an investigation
ensued and it is clear from the multiple reports submitted
by the investigators that the investigation was closely
followed and directed by the personnel department and
especially by Joseph Regan, staff assistant to the
personnel manager. Regan even went so far as to insist on
the order of interviews. This is interesting information in
light of the general denials by each of the investigators
that the personnel department had any authority to direct
them in their investigations I do not accept the
impression that I believe they were trying to give that the
investigation division is a semiautonomous section which
deals with Personnel only through upper echelons of
supervision and accepts no direction from the personnel
department
As in the case of Menard, from the record as a whole,
I conclude that the investigation was undertaken and was
conducted for the sole purpose of garnering enough
evidence to support the discharge of an effective union
steward and the mere fact that the evidence garnered
during the investigation was ambiguous and, in the case of
Lancelot, clearly biased was deliberately overlooked The
fact that the investigators deliberately wrote misleading
statements can afford Respondent no immunity in this
regard. The investigators were clearly acting within the
ambit of their agency and reporting closely both to
Connolly, their supervisor, and to Regan in the personnel
department as their investigation proceeded. I see no
reason to believe that they did not report honestly in their
verbal reports to these two men but in any event their
action within the scope of their agency is attributable to
Respondent.
I also hold that the application of the no-solicitation
rules relied on by Respondent is invalid. The only
justification for a no-solicitation rule is that the employer
has a right to expect his employees to work during
working hours. The solicitations that took place here were
conducted during the periods that employees broke to
drink coffee and broke early to wash up for lunch. The
coffeebreaks and washup periods are not formalized in the
contract but are normally granted at the discretion of the
foreman. Such times were characterized by Personnel
Director Morse as well known exceptions to the rule
against loafing. It is clear that these are not working
hours and employees were in fact permitted to talk about
any matter that they wanted to talk about, personal or
otherwise, other than the Union." The application of the
rule in this case was not in any way designed to protect
the employer from any alleged loss of employees' working
time; rather it was to inhibit the solicitation of the
employees to join the Union and to dispose of a union
steward who had been successful in soliciting employees
for that purpose. I find that the discharge of Nelson is
violative within the meaning of Section 8(a)( 3) and Q) of
the Act.
3. Nicholas D'Andrea
Nicholas D'Andrea, a stock chaser on the first shift at
Pratt & Whitney , Southington , joined the Union in April
1967 and was appointed union steward at the first union
meeting he attended His first act was to file a grievance
that a foreman , Mason , ws assigning overtime unfairly.
As a result of the grievance a number of employees, who
had theretofore been getting excessive overtime lost this
advantage . They determined to retaliate against
D'Andrea, whom they blamed , by reporting that he was
engaged in union activity in violation of the rules. Their
leader, Bryda, who had been the union steward before
D'Andrea's appointment , led off by "reporting" to Mason
that D ' Andrea had pressured employees to join the Union,
refused to cooperate with nonunion employees, and called
them scabs.
Mason turned over the matter to internal security,
adding the allegation that D ' Andrea also was soliciting
employees during working hours.'
The investigators made a sweeping investigation during
the course of which they took statements from Bryda
(who knew only hearsay ), Swett , Licnikas, Meyer , Crosby,
Dodge, and Valliere, all employees who had lost overtime
as a result of the grievance. They also interviewed one
Cosineaux.
Each of the above-named employees except Crosby and
Cosineaux were so incredible, their testimony contradicted
the stories they told the investigators and they
contradicted each other, and each was so plainly
motivated by the vendetta they had undertaken to retaliate
against D ' Andrea because of the overtime grievance, that
I discredit them entirely.
Cosineaux , however , related two incidents in which he
was asked by D'Andrea , while he was at work , to join the
"See Plasticoid Company,168 NLRB No 26 (TXD)
"From the fact that Mason had no support for this allegation, it appears
that Mason was either involved in the plot with Bryda or had his own
grudge against D'Andrea Mason was the foreman responsible for the
overtime grievance and had been the recipient of a gift of money collected
by an employee, Dodge, one of the employees favored by the overtime
assignments
UNITED AIRCRAFT CORP.
Union. D'Andrea did not deny either incident. While
Cosineaux gave some fairly incredible testimony, the fact
that these incidents were not denied gives them credence.
Ralph Crosby testified, consistently with his statement
to the investigators, that D'Andrea came up to him while
he was working in the shipping well and asked him to join
the Union. He answered that he was not interested, and
D'Andrea did not push him any further He was not
cross-examined, and his testimony was not controverted. I
credit him.
I have concluded that D'Andrea did solicit employees
to join the Union during his and/or their working time.
Under the terms of the contract between the Charging
Parties and the Employer, solicitation was forbidden and
there can be no question that D'Andrea knew it, for he so
admitted. Thus, while most of the evidence adduced by
Respondent at the hearing and adduced by the security
investigators in their investigation was false, the single
instance that Crosby related is ample to warrant
D'Andrea's dismissal under the terms of the contract.
General Counsel contends that the no-solicitation rule
of Respondent was invalid because its application by
Respondent was discriminatory. He adduced much
evidence that solicitation on behalf of various charitable
enterprises and other matters was constantly being
undertaken at Respondent's plant. While some of
Respondent' s witnesses denied that this was in fact true,
both Licnikas and Dodge testified that there were
employee solicitations during working time and it is quite
clear on the evidence of various employees that not all of
these solicitations were authorized by Respondent's higher
levels of supervision, as leadman Sullivan testified, or
were conducted during nonworking time. If we were faced
only with a no-solicitation rule such as is found in the
employee handbook, the General Counsel's position might
be well taken. However, there is an additional element
which must here be considered. Each of the contracts
between the Charging Parties and the Employer have
contained language similar to this: "There shall be no
solicitation of employees for union membership or dues
conducted upon the premises of the Company during
working hours by the Union, its representatives or by
employees." Ordinarily an employer's rights to reserve
work time for work are not augmented by such a
contractual prohibition," to the extent that the contractual
provision above quoted exceeds the permissible scope of a
no-solicitation rule unilaterally imposed by the employers.
It is within the authority of an incumbent union to agree
to such restriction on its own behalf (although it may not
deprive employees of their rights to solicit or distribute
literature during nonworking time in opposition to the
incumbent union). Where a no-solicitation rule by the
employer may not be enforced against solicitation on
behalf of the union because such enforcement would be
discriminatory, in view of the employer's failure to enforce
the rule with regard to other types of solicitation, I believe
that the contractual provision has the effect of
reestablishing the rule solely with regard to solicitation on
behalf of the Union. Here there can be no question that at
least so far as D'Andrea's solicitation of Crosby is
concerned he violated the contractual provision. There is
no question but that the Employer vigorously enforced
this contractual provision, even, as I have found above, to
the extent of discrimination. It is clear from the record
that this vigorous enforcement has proceeded over the
years since the contractual provision was first adopted. I
find that the discharge16 was a valid exercise of the
contractual provision and is not violative of Section
947
8(a)(3) or (1) of the Act For the foregoing reasons I shall
recommend that the complaint be dismissed insofar as it
alleges the discharge of D'Andrea to be violative of the
Act."
4. John W. Tardiff
John Tardiff was employed on the second shift at the
Pratt & Whitney Middletown plant as a machine
operator In November 1967 he was a shop steward for
Lodge 700 and a committeeman in that lodge.
Respondent's employees are regularly rated by their
supervision on their work and other attributes. The ratings
given, known as merit ratings, are apparently used in
consideration of employees for promotion or transfer from
one grade to another. If the employee wishes to know his
rating he may ask his foreman, who will supply it to him
in the form of a five letter code. It appears that the
numerical equivalents of the code are known only to
supervision. The Union is supplied with the merit ratings
of the employees in the unit in letter form. The union
officers have the numerical equivalents and, as a service to
the employees in the unit, furnish the employees with their
ratings both in letter and number form.
During his first month as shop steward, Tardiff received
ratings for some or all of the employees in his
department. He wrote the ratings on 3 by 5 inch slips of
paper along with the employee's name and handed them
out to the employees concerned, both on his worktime and
on his nonwork time
On November 20 Tardiff was interviewed in the
internal security office by Internal Security Officer
Vardon and Personnel Supervisor Lee who told him that
they had a signed sworn statement that he gave employees
a merit rating between 11:25 and 11.55, and asked him if
he had passed out merit ratings in the past. He
acknowledged that he had done so, but said that to his
knowledge he had not passed them out on company time.
He asked for a shop steward to be present during his
interview and he was refused After rephrasing their
question a number of different ways, and getting the same
answer from Tardiff, Vardon dictated a statement to be
signed by Tardiff which states in pertinent part:
I have been Committeeman representing the Union in
Bldg 150 for approximately one month. During this
period I have provided to an undetermined number of
employees merit rating information I provided this
information to an undetermined number of employees
while the employee and I were on our supper hour or
prior to the beginning of our respective shifts. I deny
that I have provided merit rating information to any
employees while either that employee or myself were on
company time.
Vardon asked Tardiff to sign the statement and Tardiff
refused to do so, whereupon he was released to go back to
his machine. A week later, on November 27, Foremen
Burk and Ingras told Tardiff that he was suspended for 3
days for the violation of company rules. Tardiff protested
that he had not violated company rules and left the plant.
"Glenn Berry Manufacturers , Inc, 169 NLRB No 121.
"Again there is no question that D'Andrea was discharged Although,
like Nelson, he was given an opportunity to resign rather than be
discharged, he declined to do so
"Gale Products , Division of Outboard Marine Corp , 142 NLRB 1246,
enforcement denied 337 F 2d 390 (C A 7), Armco Steel Corporation, 148
NLRB 1179, enforcement denied 344 F 2d 621 (C A. 6), General Motors
Corporation. 158 NLRB 1723, Glenn Berry Manufacturers , Inc, supra
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tardiff testified that during the 18-month period he had
been working at this plant since 1966, he recalled at least
five collections that had been taken up in his department,
four of which were taken on company time. He testified
that the foreman knew of the collections because he had
seen them, had donated on occasion, and on one occasion
when he donated asked that his name not be put down as
a donor. On the witness stand Tardiff testified that he
recalled giving some merit ratings during working hours,
specifically one to Walter Mank, and that his recollection
had been refreshed after the interview with the security
investigators when he was relieved as shop steward and
had read and destroyed certain notes that he had made at
the time he was handing out the merit ratings.
On cross-examination Tardiff testified that he knew
that he was not supposed to conduct union business on
company time, and that he had been so informed by the
Union's agents to avoid complications and to avoid
trouble When he was asked what kind of trouble, he
answered "Such as me being suspended for 3 days."
Respondent did not supply any evidence with regard to
Tardiff's layoff other than to supply a file which was
stipulated to be the investigative file with regard to
Tardiff's disciplinary layoff. The investigative file bears a
face sheet which states that the classification of the report
is "employee delinquency - irregularities (conducting
union business on company time)." The file contains four
statements, one from Group Supervisor Gamble, who
stated that Mank complained that Tardiff had given him a
copy of his merit rating and he thought it was an invasion
of privileged information that Tardiff was able to get such
information. Gamble immediately advised General
Foreman Forrest of this conversation. The second
statement was that of Forrest, who stated that Group
Supervisor Gamble advised him that Mank had been
provided with his merit rating by Tardiff prior to the
completion of his shift, whereupon Forrest at 1 in the
morning discussed the situation with Mank, who told him
that shortly before the start of the third shift Tardiff had
provided him with a copy of his merit rating. It would
thus appear that Tardiff was on duty at the time he
provided Mank with the merit rating. At 5:40 in the
morning Forrest obtained the telephone number of
Personnel Supervisor Lee, whom he then called. Lee
advised him that he would be in contact with him prior to
the completion of the shift The statement of Mank
reveals that between 11:52 and 11:55 p.m. Tardiff handed
him a slip of paper and stated, " Here is your rating for
the last rating period." Tardiff went on to say that he was
getting more of the ratings as they became available and
Mank's was one of the highest ratings that he had seen,
and stated, "you only need seven more points for a
raise."ts
The fourth statement was that of Arthur Collins stating
that Tardiff at 3:25 p.m. handed Collins a slip of paper.
Collins said, "What is this?" Tardiff replied, "this is your
merit rating." Collins said that he was en route to the
timeclock when Tardiff handed him the slip of paper. He
turned the slip of paper over to his foreman who had seen
Tardiff hand it to him and asked what it was. He then
proceeded to the timeclock and clocked out.
In the absence of any evidence from Respondent, I
presume that Tardiff was laid off for 3 days in
punishment for his activities with regard to Collins and
Mank in handing them their merit ratings. I suppose
"Mank had already received training as a group supervisor and was
apparently on the verge of being appointed to that position
Tardiff's actions could be deemed union business. What
precise rule he is alleged to have breached by his actions is
impossible to say. There is no rule as such against
conducting union business on company time or any other
time. The no-solicitation provision in the contract deals
only with soliciting union membership or union dues, and
obviously he was guilty of neither. While in the two
instances one or the other of the employees was "on the
clock," it is apparent that both took place during the
change of shift and the record is replete with evidence that
employees are permitted to cease work early in order to
wash up and get to the timeclock. In fact Collins was en
route to the timeclock when he was handed the slip of
paper by Tardiff. Respondent stipulated that the
employees are not forbidden to talk during working hours
and it is clear from the evidence that as long as their work
is not substantially interfered with, considerable latitude is
given the employees with regard to their personal
communications. It is completely clear that Tardiff was
laid off only because he was a shop steward engaged in an
activity on behalf of the Union which could enhance the
Union's position vis-a-vis the employees. Whatever rule
was applied in Tardiff' s case was certainly applied
discriminatorily.19
I have detailed the evidence with regard to the four
alleged discriminatees to a far greater extent than
ordinarily would be necessary for the reason that in
addition to the 8(a)(3) allegations which I have dealt with,
the General Counsel has alleged that Respondent
committed various violations of Section 8(a)(1) and (5) by
the actions taken in connection with the discrimination as
well as by other acts and conduct which I shall consider
below. I shall first consider the allegation that
Respondent, by its security investigators, subjected shop
and union stewards to coercive and excessive
interrogations and investigations concerning their union
activities under the color of enforcing Respondent's rule
against union solicitation during working hours. In
addition to the investigations with regard to Menard,
Nelson, and D'Andrea, the General Counsel alleges
incidents relating to stewards Buchans and Rooney.
Lamar Buchans was a union steward in the spring of
1967. Near the end of April as he was coming into work,
"Vardon, when he testified, although he was not asked about the Tardiff
case , testified that the rule as he understands it is that "all union activites
will be conducted on other than company time " When asked what rule he
was referring to, he referred to rule 5 in the company book which prohibits
gambling , taking orders, selling tickets, or soliciting money or other types
of solicitation . At another point in his cross-examination he testified that
there is a clause in the contract which stipulates under what circumstances
union business can be conducted Foreman Carlin , testifiying about the
Menard case on cross-examination , revealed that he believed that asking
for information which would ultimately be given to the Union is
solicitation within the meaning of the rule Perhaps the most engaging
definition of the Employer's concept of solicitation is to be found in the
testimony of Investigation Supervisor Connolly, who appears to have
included in his definition, passing an obscene note, timecard irregularities,
distribution of unauthorized literature ( i.e., a male employee passed a
paper to a female employee with two words on it which had a sexual
connotation), refusing service at the toolcrib, attempted seduction on the
parking lot , harassment on the parking lot, use of company mail for
personal business, a complaint of an interdepartmental reassignment with
malice signed by an employee against his supervisor , extension of overtime
breakperiod , misuse of a company vehicle , falsification of tool records, and
gambling . Connolly, who testified with a minimum of candor and a
maximum of equivocation, apparently conceives solicitation to include any
circumstances in which one person speaks to another or may have spoken
to another . Foreman Cochran, who was involved in an incident not yet
related, testified that it is against the rule to talk about the Union or
engage in activities of the Union during working hours
UNITED AIRCRAFT CORP. 949
escorting a group of individuals who were not cleared by
security but were assigned to work on some machinery in
his department, he stopped at the gate to identify the
persons he was escorting to the security guard. According
to his story the guard seized him by the upper arm, jerked
him to the side, and said that he was obstructing the flow
of traffic. Buchans profanely, told the guard to take his
hands off his arm and an argument ensued During the
argument the guard noted that the picture of Buchans on
his company badge did not match Buchans' appearance in
that he had grown a mustache since the picture was taken
The guard informed Buchans that he would have to have
his badge changed and that he would not be allowed in the
department again without • having it changed. Buchans
proceeded to his foreman, George Johnson, whom he told
of the incident. Johnson suggested that he get the guard's
name and badge number. Buchans returned to the guard
post where he asked the guard for his name and badge
number. The guard. gave him the requested information
and said, "I am apologizing to you in front of these
witnesses." Buchans said that he would not accept the
guard's apology. Buchans went back to his foreman and
told him what had happened. The foreman said, "I think
the guard has probably got the idea. He'll probably never
grab anybody and jerk him around. I think you'd better
drop it." Buchans agreed to do so.
About 2 weeks later Buchans was called to the internal
security office where he was interviewed by two agents,
Clifford and Krieger, When he entered their office he was
informed that the guard, Starzyk, had filed a formal
complaint against him. He asked for a shop steward to be
called and they denied his request stating that this was a
matter involving the internal security of the plant, not
covered under the contract and that he would not be given
a shop steward. They read to him from a document which
they stated was Starzyk's complaint and he asked them
for a copy, which they refused. Buchans related the
incident to Clifford and Krieger, as it is set forth above
and answered questions regarding it. His statement was
taken down in -longhand- and he was asked to sign it. He
again asked for a shop steward and was denied. He
refused to sign the statement because he was not given
representation and asked if he could have a copy of the
statement, stating that he would check with an attorney
and if so advised would sign it. He was refused this
request with the statement that if he did not sign it they
would sign it for him.=He answered that he would not sign
it and asked to call his foreman which was permitted. He
telephoned his foreman and asked if it was legal for them
to deny him a shop steward and a copy of the statement
and Starzyk's complaint. The foreman suggested that it
was legal and that he sign it, Buchan agreed to sign the
statement if he could add his own statements to it and
they permitted him to do so. Accordingly, he wrote on it
that he was denied a shop steward and that he was denied
a copy. He then signed it and left it with them.
Several days later he was called back to the internal
security office where he met the same men. As soon as he
got there he again requested a shop steward and his
request was denied. The security investigators told him
that the statement that he had signed was too messy, and
they had had it typed, and wanted him to sign it. He
agreed to sign it if they gave him a copy or if they would
let him show it to an attorney. One of the investigators
left the room and came back with a third person who
strongly informed Buchans that in internal security he was
not entitled to representation of a shop steward or to a
copy of anything that went on and that he should know it.
The third man told the security investigators to read
Buchans the statement and that if he still refused to sign it
to call the man back and left the room. They read the
statement to him The statement was similar to that which
he had dictated the previous week but did not include the
additions that he had made. Buchans refused to sign it
and one of the investigators brought the third man back
into the room. Buchans told him that he was under the
impression that he was entitled to representation any time
a charge was filed against him and the third man told him
that he was not entitled, in that office, to representation,
that this was not like being taken to a police station where
you could demand a lawyer. He asked if Buchans still
refused to sign the statement and Buchans said he would
not sign it without representation, whereupon the third
man told the security investigators to sign it for him and
put it in the record One of the investigators said, "Why
don't you think about it over night and if you decide to
sign it between now and tomorrow give us a call." When
Buchans returned to his department he asked for a shop
steward and one was called.
In response to the General Counsel's subpena
Respondent supplied what purports to be an investigation
file in Buchans' case. The file contains an unsigned typed
statement purporting to be that of Buchans and a signed
typed statement purporting to be that of Starzyk.
Security Investigator Clifford was called by Respondent
with regard to another matter but was at no time asked
about the incident with Buchans. Starzyk was not called
nor was Security Investigator Krieger. The third man in
the second interrogation was not identified at any time.
Buchans appeared credible and his testimony is
uncontroverted. Accordingly, I accept his version of the
events set forth above.
The last incident considered by the General Counsel to
support this allegation concerned Howard R. Rooney who
was employed as an inspector and was a union steward in
the East Hartford plant On or about June 23, 1967,
Rooney had a conversation with Joyce Carroll who,
according to his information, was about to quit her
employment. Rooney testified that he went to Mrs.
Carroll to say goodbye and to wish her luck. She told him
that she had changed her mind about quitting and the two
had a conversation about her reasons for remaining.
During the course of the conversation she offered to give
him back a copy of the contract in booklet form which he
had theretofore supplied her. He told her to keep the
contract because he had another copy.
Shortly after the conversation with Carroll, Rooney's
foreman, Cochran, came to him and asked him why he
was talking to Carroll. Rooney said it was a personal
matter and Cochran asked what he was doing with the
union book. Rooney explained that it was his book and
that she had offered to give it back and he told her to
keep it because he had one. Cochran said, "Is that all?"
Rooney said, "yes" whereupon Cochran said, "Mr. when
you put that badge on you're on thin ice" and walked
away Rooney watched Cochran and saw him go directly
to Carroll. He put his hand out and said something,
whereupon she opened her drawer and gave him the union
contract 20
'*The contract was published in booklet form apparently by the Union,
and distributed solely by the Union I can recall no place in the record in
which any representative of Respondent referred to it as a contract. It is
apparently spoken of only as the union book and it appears that the
possession of a copy of the contract is deemed by the security department
to be prima facie evidence that the possessor was either soliciting or had
been solicited
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same evening, 2 hours later, Cochran told Rooney
to go to the security office, which he did. He was met
there by security investigators Clifford and McLaughlin
who told him to come in and have a seat . Rooney asked
for a shop steward and Clifford answered that he had no
right to a shop steward because this was an internal
security matter that had nothing to do with the Union.
McLaughlin said that an incident had been reported about
something that had happened in the department and asked
Rooney to give his version of the incident. Rooney asked
who reported the incident and McLaughlin said that the
only thing they knew was that it had been reported and he
had to investigate it. Rooney gave his version of the
incident with Carroll. McLaughlin asked whether he was
sure he did not try to solicit her into the Union which
Rooney denied and McLaughlin asked again if Rooney's
only purpose was to say goodbye which Rooney agreed to.
Rooney told of his conversation with Cochran and
complained of Cochran's statement that he was on thin
ice. Clifford asked if he wanted that in his statement.
Rooney said that he did because he was going to go to
personnel about this. Clifford answered that this was a
problem for personnel to handle. Rooney answered that he
did not care whose problem it was, that Cochran had
made the statement, and that he (Rooney) was going to
complain about it. Rooney said he felt that he was being
harassed by Cochran and that it was his opinion that was
the only reason he had been called down to the security
office. When his statement was completed Rooney was
asked to sign it and he said he would ask the union lawyer
and would sign it or not depending on what the Union's
lawyer recommended to him. McLaughlin wrote on the
statement that Rooney had refused to sign it. Rooney
returned to his department."
Rooney also testified that he had had a conversation
with Cochran after he had gone to the personnel
department without Cochran's permission and filed a
grievance against Cochran. He had theretofore
complained to Cochran that he had been denied transfers,
on several occasions he had been denied a raise, and he
had not received his rating and asked Cochran to provide
him with a shop steward so he could fill out a grievance.
Cochran said he didn't think he had a grievance to which
Rooney replied, "I just as soon let the shop steward
decide that." Cochran made a telephone call after which
he told Rooney that he did not have a grievance. Rooney
asked, "who's opinion is that, your's or the Company's?"
Cochran answered, "That's the Company's and if anybody
knows the company policy, I do "
Foreman Cochran was called to testify. His testimony
of the incident between Joyce Carroll and Rooney is
generally corroborative of Rooney's account except that
Cochran stated that the conversation between Carroll and
Rooney lasted at least 10 minutes where Rooney stated it
lasted only a few minutes. In his account of the
confrontation with Rooney Cochran stated:
I asked Mr. Rooney what he had been doing talking
to Mrs. Carroll after the lunch period was completed,
and he replied that he had heard that she was leaving
and he had gone over to say good by to her. Then I
asked him if it wasn't a fact that there was a union
book on the table in front of them and he admitted that
there was.
So, I said what was the purpose of this. Well, he
said, she was explaining to me and pointing out to me
"At the end of July Rooney resigned from Respondent 's employ stating
that his resignation was occasioned by Cochran' s continuing harassment.
why she had changed her mind about leaving . I said,
well, you were in fact talking about union activities. He
gave a shrug of his shoulders and that was it . I
remarked to him at the time that he was on rather
"thin ice."
Cochran went on to point out that he had various
objections to Rooney as an employee. They appeared to
boil down to an incident in which he had missed a gauge,
the incident when he went to the personnel office and filed
a grievance against Cochran without his permission, and
an incident where Rooney questioned a leadman who had
been sent to the crib to search for a tool. The crib had a
sign on the door "authorized personnel only" and
Rooney questioned the leadman 's authority to
enter the crib and the authority of the foreman to
authorize him to enter the crib. All of these incidents took
place after Rooney became a shop steward. In
cross-examination it developed that Cochran had called
the personnel office before speaking to Rooney because it
was "a very ticklish subject." Asked what was ticklish
about two employees engaged in a conversation on
company time he stated "the fact that there was a union
book before them . if they were discussing the union
book they were talking union affairs." Asked what he
would have done if they would have had a magazine
article rather than a union book before them he stated
that he would not have called personnel because "I don't
believe that this is a bad enough article or bad enough
item to request any further information."
Discussion
The thrust of the General Counsel's allegation as
contained in the paragraph is manifold. Both the
investigation and the interrogations of the shop stewards
are allegedly unlawfully coercive. The General Counsel
defined his term excessive as follows. "The term excessive
means unreasonably, defined in terms of the balance
which the Board must maintain between the employer's
legitimate investigation and enforcement of rules against
solicitation of union membership on company time on the
one hand and the employees' statutory interest in freedom
to organize without unnecessary or discriminatory
restraint on the other, evaluated in light of rational norms
and the employer's practices and policies in investigation
and enforcement of other rules governing employees'
activity on company time, such as rules against loafing,
distribution of unauthorized literature, visiting other
departments without permission and loitering." It appears
therefore that we are faced in a first instance with a
subdivision of the allegation into "investigation" and
"interrogation." I conceive that an investigation could be
coercive in terms of the Act only if it were evident to
employees that the investigation exceeds in scope the
investigation normally conducted by the Employer with
regard to breaches of the Employer's rules or contractual
provisions unrelated to union activity. I do not believe
that the General Counsel contends that an investigation as
such into a potential breach of contract or breach of
Employer's rules is violative. The Board and the courts
have too often found the contrary. At least insofar as the
allegation concerns investigations, it is only by a
comparison with other investigations that the General
Counsel's position can be tested.
The General Counsel called for the production by
Respondents of all files, records, memoranda, etc.,
maintained by Respondents for its East Hartford,
Middletown, and Southington plants from January 1,
UNITED AIRCRAFT CORP. 951
1966, to September 29, 1967,,. pertaining to each
investigation undertaken by the internal security
department during that period, as to violations or
suspected violations of its no-solicitation rule, a rule
against distribution of unauthorized literature, visiting
other departments, and loitering. Pursuant to discussions
between counsel and Trial Examiner's rulings on
Respondents' request to, revoke, Respondents supplied
some 60 files which Respondents contended were all the
files involving violations of rules 5, 6, and 8 of the
Employer's rule book, which in general are the rules
against gambling and soliciting, distribution of
unauthorized literature, and visiting other departments
without permission or, interfering in any way with the
work of others.7,2 The 60 files produced, together with the
6 files involved in the investigations set forth in the section
above, according to the assertion of Respondents' counsel,
constitute all of the files relating to the enforcement of
those 3 rules.
After using the files for the purpose of cross-examining
Supervisor Connolly, the General Counsel made no move
to introduce them in evidence. The Respondents however
selected from the 60, 37 files which he introduced for the
purpose of showing the nature of the investigation
conducted in regard to violations other than those
connected with union' activities of its employees. I have
carefully considered each of these 37 files as well as the 6
files introduced by. the General Counsel and I other file
introduced by the General 'Counsel for other purposes,
dealing with the investigation of an offense characterized
as "use of company mail for personal business," for
purposes of comparing,, to the extent that I was able to do
so through contents of the files, and nature and extent of
the investigations taken.
First, the General Counsel appears to contend that the
investigations of union-oriented violations are somehow
more stringently carried out, by the fact that it appears
that each witness interviewed in such investigations was
interviewed by two persons,. Credence was offered General
Counsel's position by the evasive and sometimes false
testimony of the various investigators called -to the witness
stand that the invariable custom when interviewing an
employee concerning a violation was to have two persons
present. All of the investigation files concerning
union-oriented violations revealed that statements were
taken from employees in the presence of two
interrogators. Of the 38 files otherwise produced 16
appear on their face to contain statements taken in the
presence of only I investigator, 18 contain statements
taken in the presence of 2 or 3 investigators (2 files
contained both statements taken by 1 investigator and
statements taken by 2 investigators), and 7 contained no
statements at all. It does not appear therefore that the
General Counsel's contention in this regard is supported
by the evidence.
From the standpoint of the completeness with which the
allegations in the various files were investigated, I can see
no significant difference between the files dealing with
union-oriented offenses and those dealing with other
offenses. In both cases it appears that witnesses were
reinterviewed when their initial interviews disclosed
t2The text of the rules is as follows : 5, gambling , taking orders, selling
tickets, or soliciting money or any other type of solicitation 6, posting or
distributing unauthorized pictures or literature 8, visiting other
departments except in respect to assigned work, or with the expressed
permission of the foreman or department head , or interfering in any way
with the work of others.
ambiguity or when later developed evidence indicated a
need for reinterview and in both types of cases it appears
that to some extent the personnel office was directly
involved in the investigation23 to the extent of requesting
the interview of certain witnesses and delaying the
interviews of others. I cannot say that the record discloses
that the security investigators engaged in any different
type of investigation with regard to union-oriented
violations than with regard to other types of violations.
Nor, judging from the results of the investigations as
indicated on both the investigation files and in an exhibit
offered by Respondents to reveal the dispositions taken, is
there any revealing difference between the 38 files
produced by Respondents and those specifically alleged in
the complaint Of them, 13 subjects resigned, 5 were
dismissed and employees were suspended in 9 cases 24 In
addition, in other cases, warnings both written and verbal
were given and in seven cases no action was taken.
It could be argued that General Counsel's contention is
supported by the fact that in a plant with employees
numbering in the tens of thousands the ratio of
union-oriented investigations to other types of
investigations is too high. However, with the exception of
evidence that the no-solicitation rule, as distinguished
from the contractual provision relating to solicitation for
union membership, was honored more in the breach than
in the observance, the General Counsel has not adduced
evidence that in fact a higher ratio of investigations to
violations of each type of rule infraction appears, other
than the fact that there is copious evidence that employees
were permitted to engage in conversation during working
hours, and Investigator Vardon, who was the only
investigator at the Middletown plant, had never
investigated any employee for this alleged violation.
In short, in no respect can I find that the investigations,
as distinguished from the interrogations conducted during
the course of the investigations, were conducted
excessively or coercively and to the extent that the
complaint so alleges, I shall recommend its dismissal.
With regard to the interrogations conducted, a different
series of considerations must be made. Here we must
consider whether the individual interrogations were, in a
sense, in vacuo, excessive and coercive, or whether in
comparison they were so with interrogations conducted
with respect to other rule violations.
The General Counsel adduced no evidence that the
method of interrogation by the security investigators
differed in any way in the two types of cases. The
purported statements appearing in the 35 investigative files
which had no relationship to union activities26 give no clue
to the type of interrogation indulged in by the security
investigators in obtaining the files. Their content however,
as compared with the content of the statements in the files
offered by the General Counsel, is not so dissimilar in
form or in substance that it could be said that they
evidence a different type of interrogation. Accordingly, I
find that the General Counsel has not sustained his burden
of proof that, as compared to interrogation having to do
with matters other than union activity, the interrogations
complained of were coercive.
"Again contrary to the assertions of the investigators on the witness
stand
"There is an overlap because in three cases, all involving gambling, one
person was dismissed and others were given suspension of i week
"Of the 44 files, 3 introduced by Respondent dealt with alleged union
solicitation One of the seven files introduced by the General Counsel
related to a violation which had nothing to do with the Union
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, with regard to the interrogations conducted by
the security agents, which were fully reported on the
witness stand in the instant proceeding, the General
Counsel contends that under the decisions of the Board
and the courts the interrogations were inherently coercive
in themselves and without regard to the practice of the
Employer in other investigations, or as he puts it
"evaluated in the light of rational norms "
This is no new concept to the Board It is true, as
Respondents point out, that the right of employers to
establish rules to govern the conduct of its employees on
company time and premises is recognized to bear with it a
concomitant right to investigate to determine whether such
rules have been breached by the employees.36 As Trial
Examiner Funke stated in Montgomery Ward & Co. (145
NLRB 846), "1 do not know how a company could
enforce a no-solicitation rule unless it could make inquiry
concerning reported violations and I do not know how
inquiry could be made without interrogating the
participants." But this right is not absolute because its
exercise necessarily requires that the employer delve into
the union activities of its employees. When the rules it is
enforcing have to do with such activities it is necessary for
some accommodation to be made between the employer's
right to enforce its rules and the employees' right to
engage in such activities without undue coercion or
restraint from the employer. In the Montgomery Ward
case the Board laid down two of the boundaries. First, the
rule which is being enforced must be a valid rule as
distinguished from a rule which is itself unlawful. Second,
the purpose of the employer engaging in the interrogation
must be made known to the employees questioned These
are certainly reasonable restrictions
In Pepsi-Cola Bottlers of Miami, Inc. (155 NLRB 527),
the Board found the interrogation of an employee
impermissible because it was carried out in support of an
illegal no-solicitation rule. The Board further found it
improper because the questioning occurred in the presence
of a court reporter and against a background of
demonstrated union animus by respondent Another
apparent boundary was established in Springfield Garment
Manufacturing Company (153 NLRB 1126), in which the
Board found that persistent questioning of employees by
the employer's attorney in the face of their refusal to
volunteer information, under the circumstances of
demonstrated union animus, constituted coercion. These
interviews dealt with pretrial preparation by counsel rather
than with the enforcement of rules of conduct by the
employer. I can conceive of no rationale to distinguish
between the two situations and I consider that the case is
in point in the instant consideration. In Lexington Chair
Company (150 NLRB 1328), the repetitive questioning of
whether another employee had been "pressuring or
bothering him about the Union," after receiving a
negative answer, was found violative against a background
of demonstrated union animus.
In addition, the privilege of interrogation of employees
concerning union activities accorded employers in both the
situation of pretrail preparation and of enforcement of
valid employer rules is limited to asking questions as
relevant to the purposes of the inquiry as possible. Hence,
in a situation where the interrogations have gone beyond
the need for information into the concerted activities of
either the interrogatee or fellow employees, the Board
uniformly finds a violation.27
I must therefore consider whether the incidents of
interrogation with which we are here dealing fall within
the restrictions set forth in the above cases
1. The rule seeking to be enforced must be valid and
lawful.
2 Interrogation must be conducted against a
background free of union animus.
3. The employee must be informed of the purpose of
the interrogation.
4. If the employee refuses to respond to the
interrogation, it must not persist.
5. The questions asked must relate reasonably to the
rule seeking to be invoked.
Bearing these in mind we shall examine the interrogations
here charged to be unlawful.
5. Menard
Menard testified that he was called into the office of
the security investigators where he was interviewed by two
men from internal security and a secretary He testified
that the men identified themselves, what their jobs were,
and asked him if he knew why he was there. He answered
that he figured that it had something to do with the
Union They asked him repeatedly whether he admitted
conducting union business during working hours and he
told them that he might have but he might not have, he
didn't know because there were two different lunch hours
and he didn't know who was on lunch and who wasn't on
lunch and he only asked people to join the Union when he
was on his lunch. They asked him when did he join the
Union and where and who the shop steward was. He told
them that he joined in East Hartford, during the day, and
that he couldn't recall the name of the shop steward. They
identified a man and he told them that he remembered
him as the shop steward but did not remember it was
done during working hours. They told him that it was.
They also asked if he had any personal problems and said
that a lot of times people have personal problems and
come to the security investigators and they try to help
them out, whereupon Menard went over his personal
problems and told them what they were. All the time they
kept going back over and over again asking him whether
he admitted conducting union business during working
hours and he told them he did not admit it, that he may
or may not have done so. They informed him that they
had a couple of men planted in the department who
"admitted" that he had come to them and conducted
union business during working hours and that they had
photographs proving that he was conducting union
business during working hours. He asked to see the
photographs but they said that they were not authorized
to show them to him. They gave him the names of a few
employees in the plant that he had supposedly solicited
and asked him if he could recognize their names but he
did not recognize them. They asked if he was going
around collecting names and addresses; he said that he
had. They asked him why and he told them that he didn't
know. He told them that the Union asked, if it was
possible, if he could get the names and addresses and he
said that he would try, but he didn't ask why and he
wasn't told In response to a leading question he recalled
that they asked him if he was a member of the Union and
"Star- Brice Industries , Inc., 127 NLRB 1008, Georgia-Pacific
Corporation , 132 NLRB 612, Procter & Gamble Manufacturing
Company, 160 NLRB 334
"Lindsay Newspapers, Inc, 130 NLRB 630, Guild Industries
Manufacturing Corp , 133 NLRB 1719, Aladdin Industries , Inc, 147
NLRB 1392
UNITED AIRCRAFT CORP.
asked when it was almost over if he had any intention of
quitting the Union. He told them that he didn't know and
they said that they had heard in the past of people who
had quit the Union and the Company had taken it into
consideration and these people were still working at Pratt
& Whitney. He said he would think about quitting.
Menard then said that they dictated the statement and the
first thing they said was "I Kenneth R. Menard, admit
conducting union business during working" and he told
them that he did not admit that. When the statement had
been typed they gave him a copy of it and said to initial
any errors and read it to him. He stated that he was tired
and scared and did not bother reading it. He just let them
read it and when they pointed and said to sign, he signed
it. He initialed it where they told him to initial it. He
claimed he has never read the document.
Investigator Vardon testified that he, together with
Investigator Massett, interrogated Menard. He denied
asking him during the interview if he admitted conducting
union business during working hours. He denied asking
him during the interview when he had joined the Union
and testified that Menard volunteered that information.
He denied asking Menard if he had any personal problems
and testified that Menard brought that out voluntarily and
expounded on it for quite some time. He denied telling
Menard that he had a couple of men planted in the
department who had told the investigators that Menard
had been conducting business during working hours He
denied telling him that there were photographs proving
that he had been conducting union business during
working hours, denied suggesting that other persons had
quit the Union and the Company had taken this into
consideration, and that those employees were still
employees of Pratt & Whitney. He did testify on
cross-examination that he did find time to ask Menard
questions but at no point in his examination did he give
an account of the interrogation nor say what questions he
asked Menard.='
Investigator William Massett testified that he was
assigned to assist Vardon in interviewing the witnesses in
the Menard case , and that he was present during
Menard's interview. He testified that after they identified
themselves to Menard they asked him several identifying
questions, explained the allegations that he had been
conducting union business during working hours and
asked him to tell them about it. At this point Menard told
them that he had been assigned to and had been
attempting to obtain the names and addresses of all the
'1Vardon also denied even interviewing an employee, Raymond Desloges,
with regard to the Menard case Desloges had been called by the General
Counsel and' testified that he was called to the security office and
interviewed by two men whom he could not identify, although he knew one
of them by sight . Later in the hearing he identified Vardon as one of the
security men who had interviewed him. He testified that Menard had
solicited him on the parking lot to join the Union but that he had not done
so, and that when he was called to the personnel office he was asked
whether he had been approached to join the Union and by whom. He refused
to give Menard' s name , stating he was a good friend, but said he was
,solicited by the shop steward . He told them that the only time Menard had
approached him was on his lunch break , and that he was only approached
two other times but just jokingly with a few members in the department
On cross-examination he testified that they asked him whether anyone had
asked him to join the Union during his working hours and asked if it was
the steward in his department , who was Menard . He also testified that they
asked whether anyone other than Menard had solicited him to join the
Union and he answered no. He testified that no statement was taken. I
credit Desloges but, except for an additional shadow on the credibility of
Vardon, who denied interviewing Desloges, I see no relevance to his
evidence
953
employees in the building in which he worked , and that he
utilized his lunch period to try and take care of this
assignment . He said that because the lunch periods were
staggered he would often be talking to someone that was
still at work , getting the information that the Union
wanted . Menard also said that sometimes he used his own
regular working time to talk to people concerning the
Union. Menard said that he found the job more than he
could handle , he said he was going to drop his
stewardship , and eventually his union membership because
the amount of dues he had to pay out was too much of a
financial strain on him This Menard told them in
confidence . Menard went on concerning his financial
problems and told him about his personal problems at
great length Menard told them that until Foreman
Karlon had spoken to him about conducting union
business during working hours he had no idea there was
anything wrong with it and explained that while he was in
the East Hartford plant he had been asked by the shop
steward in his department to join the Union during
working hours and had been signed up, paid dues, and
given his pin and membership card all during working
hours. Menard took a booklet out of his shirt pocket and
showed it to them saying it was a copy of the union
contract that he had just received the day before and had
not yet read . The investigators asked Menard again who
the shop steward was that signed him up and he said he
preferred not to name him . They mentioned the names of
several employees from his department including Guyette,
Morin, and probably Boucher. Menard said he had talked
to so many people that he could not remember any
specific person . He testified that the entire interview took
about 2-1/2 hours including the time spent waiting for the
statement to be typed. When the statement was typed
Menard went over it, appeared to be reading it, and
signed and initialed it in the appropriate places.
I do not completely credit any of the three accounts of
the interview . From his attitude and his testimony on the
witness stand I believe that Menard in his testimony
sought to justify himself, sometimes at the expense of
candor. Vardon and Massett both distingushed themselves
in cross-examination in their evasiveness concerning their
handling of this and other investigations and of their
understanding of the rules in which they were involved in
the enforcement . From the statement that Menard signed,
from the affidavits which he thereafter signed , and from
an amalgam of the testimony of the three witnesses to the
interview , I believe that the investigators called Menard
in, informed him that a number of employees had signed
statements that he had conducted union business with
them on company time, and asked him to explain himself.
I believe that he told them in this regard substantially
what Massett testified , i.e., that he had been instructed to
get the names and addresses of the employees and that he
had done so to the best of his ability, largely during his
own lunchtime . I believe that he was interrogated
repeatedly with regard to the various allegations that they
had embodied in the statements signed by Guyette, Morin,
and Boucher, the truth of which I have dealt with above,
and that they accused him of committing each of the
violations . I believe that the length of the interview
together with the accusatory nature of it put him in fear
of his job and that he sought to appeal to them by
recounting his various personal troubles and by hinting
that he was considering resigning from his stewardship
and resigning from the Union . I believe that one or the
other of the investigators , after they left the room and
consulted together , suggested to him that it might go
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
easier for him if he did resign from the Union. Finally, I
believe that Menard knew very well what he was signing
and read the statement."
Applying the rules set forth above to the interrogation
of Menard, I conclude that the interrogation is unlawful
within the meaning of Section 8(a)(1). The inquiry
certainly was relevant but it was relevant to an invalid
rule; i e , a rule against "conducting union business on
Company time." Also, the antiunion background
throughout this case is perfectly clear as I shall discuss
elsewhere.
6. Nelson
Clifford Nelson testified that he was called to the
security office and interviewed by Officers Massett and
Montgomery. They told him that they did not have to tell
him what the interview was about because he probably
knew, and advised him that they were taking notes. He
asked for a shop steward and they answered that he could
not have one and that the interrogation had nothing to do
with the Union. Only Nelson could answer the questions,
the shop steward could not help him and they were just
trying to find out whether he "fractured" any company
rules. Massett asked most of the questions. Nelson asked
whether he could take notes and they gave him permission
to do so. His notes included the questions they were
asking and other things.30 They asked him if he knew
Lancelot and whether he had ever pestered him about
joining the Union on company time and he answered that
he had not They asked whether he had an argument with
Lancelot at J crib that almost ended in a fight, and he
said no he did not. One of them asked, "are you sure that
you never asked him to join the Union on company
time?" He answered, "yes, I never asked anybody to loin
the Union on company time because the Union said the
only time we can solicit people is before seven, after work,
or during lunch hours" They asked if he knew Bernard
Kelley and he agreed that he did They asked if he had
ever asked Kelley to join on company time and he said he
had not. They told him they had sworn statements that he
had asked those men to join on company time. He asked
to see the statements and they refused to let him do so.
He again said that he had never asked anyone to join the
Union on company time. They asked again, "are you sure
you didn't ask Kelley to join" and he answered yes. They
asked him if he ever called Lancelot any names and he
answered he had never used that particular language to
him. They continued to ask him about asking these men
to join on company time and he continued to deny having
done so When the statement was typed he was given it,
asked to read it, and sign it. Nelson said he had no
intention of signing it, that he would take it and show it
to Attorney Ratner and if he agreed that it was alright to
sign it he would sign it They said that it was a perfectly
legal statement and Ratner couldn't help him out, and
assured him that it was alright to sign it, but Nelson
answered that maybe Ratner could find some loopholes in
it, changing the phrases and words around, and saying
something that he didn't mean. So they took the papers
"The General Counsel adduced a letter written by Menard the next day
after his interview resigning as shop steward and union member and
referring to his interview in the internal security division stating "What
happened there shook me up so bad I had to take the rest of the night off
I can't afford to go through this again and I can't afford to lose my job
over this " After talking to a union representative, Menard decided to stay
with the Union and attended a meeting the following Sunday in which he
was elected to the contract negotiating committee
and dismissed him.
According to the statement which he did not sign,
Nelson stated that he had asked Kelly to loin the Union
at lunch and denied ever having given Lancelot a checkoff
card. Otherwise the statement appears to follow pretty
closely Nelson's testimony
Montgomery was not called to testify. Massett testified
that he interviewed Nelson together with Montgomery and
his account of the interview is substantially the same as
Nelson's except that he testified that the statement, when
it was typed, was read to Nelson and he agreed that it was
accurate but would not sign it until Ratner or another
IAM official could look at it
Again applying the rule that I have set forth above, it is
quite apparent that, as I have found in considerat.on of
Nelson's discharge, the investigation was carried out
primarily in support of a rule against conducting union
business on company time which rule was discriminatorily
enforced and therefore unlawful. Accordingly, the
interrogation is impermissible and violated Section 8(a)(1)
of the Act."
7. D'Andrea
The General Counsel contends that both interrogations
of D'Andrea, those of May I I and 12, are violative of the
Act D'Andrea testified that in the first interrogation
conducted by investigators Crosson and Dobbins, Dobbins
led off telling him that some of his fellow workers had
registered complaints against him. He asked Dobbins for
representation or a shop steward and Dobbins said that he
could not have one. D'Andrea then asked if he might
return to work and Dobbins said that he could not, that it
was a reasonable request by management to get him to
tell his side of the story concerning the charges that were
registered against him by his fellow workers. D'Andrea
said, "Well I am not sure what you are trying to get at.
Are you trying to prod me into something?" Dobbins
answered, "You mean that you don't know that three
people have said you signed them up on company time?"
Dobbins also said something about nine people having
signed statements that D'Andrea solicited them on
company time. D'Andrea testified that Dobbins raised his
voice and "hollered" at him. He told Dobbins that he was
getting nervous and asked him to lower his voice Dobbins
accused D'Andrea of being very ambiguous and D'Andrea
returned the favor. Then Dobbins asked whether
D'Andrea had solicited on company time, refused to
cooperate with workers, and told them that he would
refuse to cooperate with them and called people "scab"
and the likes. D'Andrea answered, "No, what you getting
at')" Dobbins reminded him of the occasion in the J crib
where he allegedly called Swett a scab. D'Andrea told
them his version of the story and Dobbins said, "Do you
mean you never gave Mr. Swett a union card to sign. Isn't
it true that on such and such a date that you did hand
Hazen Swett cards " D'Andrea answered that he recalled
clearly that he gave Hazen Swett union cards in the credit
union and recounted that conversation as well as an
earlier conversation, and stated that in the conversation in
the credit union Swett agreed to sign the card, whereupon,
he gave cards to Swett. Dobbins then asked if it was not
true that D'Andrea had solicited Valliere on company
time even before he had completed his probation 33
"His notes were not produced at the hearing.
"Pepsi-Cola Bottlers ofMiami, Inc, 155 NLRB 527
"Dobbins apparently was under the impression that there is something
unlawful about asking an employee to join the Union before he completed
UNITED AIRCRAFT CORP. 955
D'Andrea countered this question by telling how he signed
up Valliere while they were eating lunch together in a
storeroom . At this point , according to D'Andrea , Dobbins
shouted to him again and he asked Dobbins if he could go
get a drink of water . Dobbins agreed to let him do so and
detailed Crosson to accompany him. He went to the water
fountain in the hall and then went into a washroom to
relieve himself. Crosson followed him into the washroom
and D ' Andrea suggested to Crosson that he was following
him around like a police dog. Crosson answered, "I
thought you were running away." D'Andrea said he was
not running away and accused Crosson of acting like a
Fascist . Crosson then led him to the supervisor's lavatory
and then back to the internal security office . When they
returned to the security office, D'Andrea asked Dobbins
why he had Crosson follow him and asked what they were
trying to do to him . Crosson explained that he was just
trying to show D ' Andrea where the other lavatory was
and that he thought D'Andrea was running away.
D'Andrea accused the investigators of trying to coerce
him and they denied it . At this point Dobbins said he was
going to lower his voice and ask him again to tell his side
of the story concerning the complaints and agreed to put
down whatever D'Andrea said. Dobbins was using a form
sometimes used by the security office which comences as
follows "I , Nicholas D'Andrea, of my own free will and
without fear .. As soon as D'Andrea saw that he
said, "Mr . Dobbins I am not here of my own free will and
I am afraid because you people are scaring me." Dobbins
attempted to reassure him and then reminded him that
nine men had signed statements that he had solicited them
on company time. D ' Andrea asked to see the statements
and the investigative report but Dobbins refused to permit
him to do so. D'Andrea complained that they were asking
him to sign a report without letting him know what the
charges were against him and said he would not sign any
statement , whereupon Dobbins rejoined that D ' Andrea
knew he was guilty, that they knew he was guilty, and
that they were going to prove it . At this point D'Andrea
said it was his lunchtime and asked Dobbins if he was
through. Dobbins told him he was free to leave. He gave
him a pass and D'Andrea left . D'Andrea went back to his
section and went out for lunch , sat around in the fresh air
for a while and decided he was too sick to go back to
work , whereupon , he got a pass to the medical office from
his foreman . The medical office took his temperature and
he asked for permission to go home. He stated that the
nurse said he had a temperature at that time ." After
D'Andrea left the factory he called Business Agent Nelson
who was in the East Hartford plant. Nelson asked him to
go to the union hall in Southington and meet him there.
He gave Nelson an affidavit of what had taken place
during his interrogation.34
D'Andrea was called again to the security office the
following day, May 12. The same investigators , Dobbins
and Crosson were present . Dobbins commenced asking
how D ' Andrea was feeling that day and D 'Andrea said, "I
am not feeling as bad as I did yesterday when you were
making me nervous . But I am not feeling very well."
Dobbins said , "yesterday you had a picnic in here, but
today it is going to be different ." D'Andrea said that if
Dobbins was going to make him nervous and pressure him
his probation Valliere was of the same opinion
"The Employer produced no medical records
"The affidavit was introduced by Respondent and is in substantial
agreement with D ' Andrea's testimony.
the way he did the previous day he would be sick again.
Finally Dobbins said, "I am going to ask you some
questions. You're going to give me some answers and
when you are through you can go back to work." He told
D'Andrea that he could take notes but that he would be
talking pretty fast. D'Andrea asked what the questions
were and Dobbins said, "You solicited on company time."
D'Andrea said, "That's false." Dobbins said, "Mr.
D'Andrea we know you did, you know you did, and we
can prove it and we will." He raised his voice and
D'Andrea said, "Mr. Crosson I am not feeling well. I
would like a pass to medical." He spoke to Crosson
because Dobbins was angry. Dobbins asked D'Andrea if
he would like to go into the other room. D'Andrea
stepped to the door and found a uniformed man there and
said, "I am not going in there with this uniformed man
here. This place is like a police station." Dobbins laughed
and said, "Mr. D'Andrea these men have been here for
over 25 years. Really you must think you are a pretty
good actor and we are going to give you the chance to see
how good you are." D'Andrea again asked to go to the
medical office. About this point Dobbins or Crosson
called for D'Andrea's supervisor who came and sent him
to the medical office. While they were waiting for
Foreman Mason, Dobbins said, "You know Mr.
D'Andrea you're really something. I'll bet you think this
is really something." D'Andrea answered, "Mr. Dobbins,
I don't think this is funny at all. You might think so, but
I am a working man. I have got a family to think of
What you people are doing to me isn't right." Dobbins
answered, "You just sit there. Nobody is going to bother
you." When Mason arrived Dobbins said, "Mr. D'Andrea
doesn't seem to be very cooperative" and asked Mason to
make a pass for the medical office D'Andrea went to the
medical office where he was examined by a company
doctor after the nurse took his temperature twice. When
she took his temperature the second time she said some
people just have an unusually high temperature. The
doctor examined D'Andrea and D'Andrea asked for a
pass to go home. The doctor sent him into another room
to rest and D'Andrea found Foreman Mason and General
Foreman Richey present. At this point they told him
that he would be discharged unless he agreed to quit
and urged him to quit so that it would be easier for him
to get another job.
The Respondent called both investigators Dobbins and
Crosson to the witness stand. Dobbins, who testified first,
related that D'Andrea arrived at 9 45 and took out a
notebook and said he was going to take notes to which the
investigators acquiesced D'Andrea then asked why he was
there and was told "that he was asked to come down at a
reasonable request of management and immediately he
offered himself that he knew the reason why he was down
there It was because recently he had become a union
steward and had submitted a grievance. And because of
this the company, namely his foreman, leadmen, and his
fellow workers were conspiring against him. Then he
accused me also as an investigator as being a tool of the
company's." Dobbins then told D'Andrea that his fellow
workers had made an allegation that he had been
prevailing on them during working hours to join the
Union, pressuring them, soliciting them, referring to some
of them as scabs, and also they alleged that he refused to
work with some people who are not union members in the
normal course of their duties. He was told that the
interview was held to give him an opportunity to tell his
side of the story. D'Andrea would not answer any
questions but would pose other questions. D'Andrea
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complained that while he was being interviewed he was
surrounded by policemen and he was told they were not
policemen . He was told that if he wanted to leave he
could do so . He was free to go anytime At this time he
said he wanted a glass of water or something and left the
office and was gone for 10 minutes with Crosson. When
he returned Dobbins asked him if he wanted to terminate
the interview and he said no , but said that he wanted a
lawyer or he wanted to call the Labor Board . He was told
that it would soon be his lunch period . He would be free
to take it when he wanted to but he preferred to continue
the interview . D'Andrea became very theatrical . Dobbins
stated that he told D'Andrea that nine employees had
made the allegations that he was accused of . At 11:27
Dobbins concluded the interview and D ' Andrea went back
to his department . As the above account indicates,
Dobbins' testimony was almost valueless as it was given
almost entirely in conclusionary terms. Respondent's
counsel asked him directly whether D ' Andrea asked for
representation by a shop steward and Dobbins answered
that he told him no. Dobbins denied raising his voice and
denied that D'Andrea raised his voice.
Dobbins occasionally referred to a document of which
he had a copy in the investigation file. He testified that it
was a time log that he made up for the investigation. He
testified he made the log as a personal habit and he
usually keeps a running log of the time witnesses come
and the time they leave . On cross-examination he said
that he sends the log as part of his report at times. He
further testified that he kept it in pencil and had the
secretary at the Southington plant type it up for him. He
further testified that he was told by the personnel office
who to interview , but later testified that he was told by his
supervisor , Connolly, who to interview and that Connolly
directed him throughout the investigation . He testified
that the comment in the investigation report that he was
instructed by personnel not to interview D ' Andrea was
incorrect and that he had been instructed by his
supervisor.
When Crosson took the witness stand he testified on
the contrary that it was he that made up the log. He was
regularly assigned to the Southington plant where this
took place and he normally kept a log to determine the
amount of time that it was necessary for a second
investigator to be assigned to the Southington plant. He
testified that the logs that he keeps are never included in
the investigative file. It is simply his personal record. He
also testified that he was requested by the personnel office
not to interview D'Andrea and that he relayed their
request to Connolly who agreed . Both Crosson and
Dobbins distinguished themselves with their evasiveness
with regard to their contact with the personnel office.
Returning to Dobbins , after he was cautioned to stop
generalizing and attempt to recall what was said during
the interview , he testified that he did not recall anything
that was said by anybody other than what he had already
testified to, whereupon Respondent 's counsel gave him his
report to read to refresh his recollection . He bagan to
read the report into evidence and was stopped.
Whereupon , Respondent ' s counsel elicited denials of
specific statements attributed to him by D'Andrea,
including the statements , "we know you are guilty, we're
going to prove it," and the statement that D ' Andrea told
him that he was ill . He testified he did not recall
D'Andrea making any mention of leadmen Sullivan. He
testified that he never asked any questions about
D'Andrea 's union activities on his own time . He identified
the form on which he had begun to write a statement for
D'Andrea and recalled that D'Andrea examined it and
questioned the language "of my own free will and accord,
without fear" saying "I am with fear - you have the
place surrounded by policemen." He stated that nothing
was mentioned about signing the statement because he did
not take a statement. Regarding the second interview, he
testified that D'Andrea came in and he told D'Andrea
that he wanted to talk to him if he was willing to
cooperate. He asked D'Andrea if he wanted to talk about
the three allegations and D'Andrea could answer the
question yes or no. D'Andrea merely said that he was ill
and wanted to go to the medical office.
Crosson testified, as I've stated above, that he was in
charge of the investigation, that when D'Andrea came into
the office on the first occasion he informed him that if he
wished to have a drink or use the lavatory,, or to smoke or
to terminate the interview, dust feel free to ask. He
testified that after a half an hour, approximately 10:15,
D'Andrea asked if he could have a drink and was given
permission to leave the room. When he left the room
Crosson remembered that he had no way of getting into
the men's room as the men's lavatory requires a key to
enter the room, whereupon he said to Dobbins, "Bill, I'm
afraid this poor man won't be able to get into the men's
lavatory. He has no key." And he left the office and
searched for D'Andrea and found him in the men's locker
room which he described as being downstairs in the main
plant at Southington. However, in relation to his office, it
apparently was 15 or 20 feet; it has no lock on it. He
stated that D'Andrea was "taking his personal relief," at
the conclusion of which he asked D'Andrea if he wanted
to wash his hands and, for some reason known only to
him, he then escorted him to the foremen's lavatory where
D'Andrea washed his hands, combed his hair, coughed,
and said, "I think I'm coming down with a cold or a sore
throat." Crosson asked if he wanted to go to medical or
to continue the interview and D'Andrea said he wished to
continue the interview. He testified that this is the only
time that D'Andrea indicated that he was sick. He denied
that he made any comment to the effect that he thought
D'Andrea was running away. Crosson was not asked to
give any other account of the interview, so I have only
Dobbins' generalized and conclusionary account of what
took place by way of controversion to D'Andrea's.
I conclude that Crosson and Dobbins managed between
them to make as coercive an atmosphere as possible for
the interview with D'Andrea. I think that in all
probability D'Andrea brought this on himself in large part
by his insistence on taking notes, his demand for the
presence of a shop steward, and his quite correct
statement that he was the victim of a conspiracy by his
fellow workers because of his successful grievance. While I
have no reason to believe that the investigators are
normally dispassionate in their investigation, I believe that
they were exasperated by D'Andrea's attitude and
accordingly conducted an interrogation very much along
the lines that D'Andrea testified to. I observed D'Andrea
closely on the witness stand and I noted that he was very
intense and nervous. I believe that the circumstances
under which he was interrogated aggravated this condition
and that he was probably physically upset as a result of
the interviews. I do not consider that the fact that he was
able to go from the company plant to the union office and
give a statement on each of the two occasions to Business
Agent Nelson is in any way inconsistent with this finding.
Once free of the conditions which caused his nervous
state, I can readily believe that D'Andrea was able to
function in a normal fashion, and his recognition of the
UNITED AIRCRAFT CORP.
need to record what had taken place at the earliest
possible moment would necessarily have added to his
determination to overcome his physical distress in order to
proceed with the business at hand.
I do not accept Crosson,s account of the reason he
followed D'Andrea to the men's room. I think that he
thought D'Andrea was terminating the interview and the
interviewers were not yet ready to reach this point. While
Respondent appears to contend that D'Andrea's statement
that he was "with fear" is a fabrication and that he had
nothing to fear, it is clear that in fact he was on the verge
of being discharged and he was discharged, and to the
extent that he was obviously well aware of the situation
with regard to the complaints of Bryda, Swett, and
Licnikas, I can well believe that he was apprehensive of, if
not convinced of, the imminence of his discharge. I do not
reach the conclusion- that the investigators acted in an
overbearing and coercive fashion easily. If either, or both,
of them had revealed an inclination to testify candidly and
without evasion, I might be more inclined to credit what
little they denied of D'Andrea's testimony. However their
testimony and their demeanor, adds corroboration to
D'Andrea's account. Accordingly, I find that the
interrogations of D'Andrea were coercive within the
meaning of Section 8(a)(l) of the Act.
8: Rooney
Howard Rooney was called to the security office where
he was interviewed by Security Investigators McLaughlin
and Clifford." I shall not burden this already overlong
Decision with a second account of the interview. It is fully
set forth above.
Clifford' s testimony made it completely clear that he
had almost no recollection of the interview with Rooney.
However he did recall , apparently, that the purpose of the
interview was to investigate the alleged violation of a
company rule regarding solicitation for union membership
on company time, or , perhaps, talking union business
during working time on company property . The latter
testimony was obviously a surmise on the part of Clifford
based on his recollection that it was reported to him that
some foreman , otherwise unidentified, had seen two
people talking and one of them had a blue book. In other
respects , Clifford' s testimony substantially corroborated
that of Rooney as to what took place.
Viewed as an inquiry into talking about union business
on company time, the interrogation of Rooney was clearly
coercive, because the rule; as I have pointed out above,
was invalid . Viewed as an inquiry into possible solicitation
of union membership , a somewhat different problem is
raised . Here Clifford testified that they had already
interviewed Carroll and she apparently told the truth, and
her account of the conversation revealed that there was no
solicitation involved . The'situation is somewhat like that
in Aladdin Industries , Inc., -147 NLRB 1392, where the
Board found a violation based in part on the fact that the
investigation was conducted after respondent had
ascertained the true facts, which established that the real
purpose of the employer was to learn of the protected
activities . In the instant'case the persistence of the security
agents in interviewing Rooney, after ascertaining that
there was no breach of the rule invoked , leads me
inevitably to the conclusion that the interview was
conducted solely for the purpose of harassing Rooney as a
steward , and making him realize that his activities on
"McLaughlin was not called to testify, Clifford was.
957
behalf of the Union would not be dealt with lightly by
Respondent. I do not accept the proposition that the
investigation division of Respondents is a sort of a
juggernaut that once put into motion, cannot be stopped
until it has completed its journey. It is quite apparent that
the security investigators were in constant communication,
not only with their supervisor but with the personnel
office, and as some of the investigators testified the
investigators normally sought "approbation" before
proceeding in an investigation to query the alleged
suspect. In Rooney's case there was nothing to inquire
about, and but for the effect of the interrogation on
Rooney, there appears to have been no occasion for an
interview at all. Viewed against a background of
Respondents' union animus, and particularly Respondents'
watchfulness over the activities of the stewards in the
plants, I believe that the interrogation was meant to be
and was coercive of Rooney and of any employees who
might have had occasion to deal with him in his capacity
as a shop steward to refrain therefrom. I find that the
interrogation violates Section 8(a)(1) of the Act, as
alleged.
9. Buchans
Buchans testified that he was interviewed by two
investigators, Clifford and Krieger, concerning a
complaint filed against him by a guard, that he told them
his side of the story and that it was written into a
statement. He testified that he asked to show the
statement to an attorney before signing it, and they
declined to let him take it. He called his foreman, George
Johnson, who recommended that he sign the statement
and told them that he would sign it if he could add his
own statement to it, first that he was denied a shop
steward, and second that he was denied a copy of the
statement. They permitted him to do this, he signed it,
and went back to work. A few days later he was called
back, and was handed a typewritten document which the
internal security investigators told him was a copy of his
statement. He noted that it did not contain the caveats
concerning calling a shop steward and seeking a copy of
the statement, and declined to sign it, whereupon they
called in a third party who told him that he had no right
to union representation, he had no right to a copy of
anything that went on in the office, and abjured him to
sign it. He refused to sign it and went back to his job.
Aside from the fact that Buchans was a union steward and
that he asked for and was refused the services of a
steward when he was interviewed, nothing in his interview
or in the incident that occasioned it had anything to do
with the Union. Among the 37 files which Respondent
introduced for purposes of comparison as to the
investigations are 5 having to do with obscenity directed
to guards or abuse of guards by employees So it is clear
that it is not unusual for an alleged infraction of this
nature to result in an investigation. I can see no way in
which the interrogation of Buchans could serve to coerce
any employee with regard to his union membership or
activities or concerted activities. Accordingly, insofar as
the interrogation of Buchans is alleged to be a violative
interrogation, excessive and coercive, with regard to union
activities, I recommend that the complaint be dismissed.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Additional Alleged Violations of Section 8(a)(1)
The General Counsel alleges that Respondents violated
8(a)(1) by the interrogation by Investigators Massett and
Vardon at the Middletown plant of employees, concerning
their union membership and that of other employees, on
October 20 and 25, 1966. The record does not disclose
that Massett and Vardon, or either of them, interviewed
anyone on October 20, 1966. The only employee other
than shop steward Menard who was interviewed on the
25th was Armand Morin. Raymond Desloges testified that
he was interviewed by Vardon sometime in October 1966
concerning Menard, and Frank Partridge testified that he
was interviewed by Booker and Vardon on October 19,
1966. Morin was interviewed by Massett and Vardon.
Of course, the rules that I have applied to determine
whether the interviews of Menard, Nelson, D'Andrea,
Rooney, and Buchans were violative, apply equally well to
employees who are not shop stewards. I have discussed
elsewhere the interrogations of Morin and Desloges. With
regard to Partridge, he was called in on the 19th to be
interviewed by Security Investigators Booker and Vardon.
Vardon initiated the conversation, pointing his finger at
Partridge and saying, "The first thing I want you to
understand is that nothing that is said in this room is to
be repeated outside this room. If it is you will be back
here." He then said, "We have evidence that you have
been discussing union matters on company time."
Partridge denied this allegation, whereupon Vardon stated
that they had evidence that Partridge had been discussing
union business with Menard during company time.
Partridge said, "Well, if you have evidence I suggest that
you present it and use it as you see fit." The investigators
showed Partridge three pictures from which he identified
Menard He told them that the only conversation he had
had with Menard was that Menard came up to him and
introduced himself and welcomed him to the department.
A statement was written out and signed by Partridge.
In view of my findings concerning the investigation of
Menard and his discharge, it is clear that applying the
rules set forth above, that each of the interrogations is
violative of Section 8(a)(1) of the Act. The basic rationale
for this conclusion is that the inquiry did not relate to the
enforcement of a valid rule. Of course, the antiunion
background of the Employer is present in all cases. There
is no evidence that either Partridge or Desloges was
informed of the purpose of the interview. With regard to
Desloges, after he had informed the investigators that the
only approach made to him with regard to the Union had
been in the parking lot, which was clearly not in violation
of the rules, the interrogators continued asking if anyone
else had asked him to join the Union during his working
hours, and asking who had solicited him on the parking
lot. I find that each of the three interrogations was
violative of Section 8(a)(1) of the Act.
The General Counsel contends that Respondent violated
the Act by a threat to steward Menard on October 25 by
Foreman Karlon, and on October 31 by General Foreman
Wolak, and by a threat to steward Rooney by Foreman
Cochran. The gist of the alleged threat by Karlon is
contained in Menard's testimony. Menard stated that
when he came back from his security investigation he told
Karlon what had happened, and stated in effect that it had
been suggested to him that he quit the Union and it might
work out better for him if he did. Karlon told Menard
that he wasn't admitting that it would but it might help
out if he did quit the Union, and that if the Company
intended to fire Menard they would let him know by the
following Friday. Karlon testified that he had this
conversation but that he did not make the statement
attributed to him. He testified that Menard showed him
his pocket booklet and his union badge and said that he
was going to send them back to the Union, to which
Karlon answered that it was entirely up to him. This is a
direct issue of credibility and I credit Menard. Karlon was
an unsatisfactory witness. He showed a tendency to
exaggerate where he thought it would improve
Respondent's case. Karlon testified that he had a short
memory and wrote notes to himself to help him recall in
the future anything that took place. Yet he testified he did
not write a note concerning the conversation of the 25th
but denied that his memory of the conversation was hazy.
I have already indicated in my discussion of Menard's
discharge that I considered Karlon an untrustworthy
witness. I believe that it is entirely consistent with his
character and with his activities that he would have said
what Menard attributed to him.
With regard to the allegation concerning General
Foreman Wolak on October 31 Menard's whole testimony
concerning the conversation was that Walick, having been
informed that Menard had become a member of the
negotiating committee, "wanted to know how I could
become a member of the negotiating committee if I had
informed the foreman the week before that I was going to
quit the Union, and I told him that I told Bob Karlon
that I was thinking about quitting the Union. I didn't say
that I was going to positively and I also told him that
over the weekend that I did some thinking and I had
decided to stay in the Union." I can see no threat,
interrogation, or other violative conduct in this
conversation and insofar as the complaint alleges it to be
violative it should be dismissed.
Rooney testified that when Foreman Cochran inquired
of him what he was talking about to Carroll36 the incident
closed by Cochran saying, "Mr. when you put that
[union] badge on you're on thin ice" and walked away.
Cochran testified that at the close of the conversation
after he had accused Rooney of talking about union
activities and Rooney shrugged his shoulders he remarked
that Rooney was on rather thin ice. He explained by that
that he meant that Rooney had been absent from his work
station without permission, had made errors in his work,
had questioned Cochran's authority, and had refused to
search for a tool. On cross-examination it appeared that
all of these charges boil down to an incident where
Rooney had made a mistake in setting a gauge, another
incident where Rooney went to the personnel office to file
a grievance against Cochran, and the incident where
Rooney questioned the authority of the leadman to come
into the crib in which he worked which was accessible
only to authorized personnel. He also testified that all of
these incidents which gave rise to his dissatisfaction with
Rooney took place after he became the union steward
although Rooney had been employed for approximately 2
years in the plant. I think that even accepting Cochran's
version a violation is made out. Clearly the activities that
gave rise to his admonition or threat to Rooney were
union activities and clearly as I have found above were
not in violation of any valid company rule. Be that as it
may, I do not accept Cochran's testimony but I believe
Rooney's in this instance. Cochran was an evasive witness
and his demeanor added no credit to his testimony which
was itself unsatisfactory.
"The incident was discussed above
UNITED AIRCRAFT CORP.
I find that the incident of October 25 and the Cochran
incident constitute violations of Section 8(a)(1).
John Farrall, a shop steward, testified that he was
signing up a new member, Richard Jackson, in Jackson's
department while both he and Jackson were on their
luncheon break. Foreman Frank Bogden , Jackson's
foreman, came up to them and asked what they were
doing. Farrall held up the application card and the
dues-authorization card that had just been signed by
Jackson whereupon Bogden took them from his hand and
told him he would give them back at 4 o'clock. It was
then 3:45 in the morning. At 4 o'clock he told Farrall that
he wasn't through with them and that he would return
them later, which he did, asking Farrall if he and Jackson
were both punched out for lunch and advising him that he
could be fired if he wasn 't punched out. Farrall told him
that he knew the rules and according to the contract it
was legal and that both he and Jackson were punched out.
Bogden did not testify. The General Counsel contends that
the above incident violates Section 8(a)(1) of the Act I
consider that he is clearly right. Farrall and Jackson were
engaged in protected, concerted activity. They were in
violation of no rules of the Respondent or provisions of
the contract. Bogden , on behalf of the Respondent, had no
warrant to interfere in any way. His action in taking the
cards from Farrall and withholding them from him until
later was clearly coercive and in violation of Section
8(a)(1) of the Act. I so find. Similarly Bogden's
interrogation of employee Jackson as to what he was
doing was equally violative.
Ronald Vincent testified that the first day he was a
union steward he wore a blue union steward's shirt and
button to work. In the morning , while he was checking in,
Foreman Ed Grous came to him and said that he should
not be hanging around . Grous said that wearing a blue
shirt and badge made him a target, he stuck out like a
sore thumb, and everyone would be watching him David
Williams, also a union steward, testified that while he was
walking through his department on business Foreman
Grous stopped him and asked where he was going When
he answered that he was going to his machine Grous said
that he should watch his step because he was being
watched and he should stop carrying the pink cards" in
his shirt pocket because it looked bad. He advised that
Williams should not talk so much because it looked like
he was talking union business on company time. Williams
had been wearing the `blue union shirt and badge and
carrying the pink union application cards in his pocket for
a week previous to this incident.
Other than to characterize the complaint allegations as
harassment, Respondents did not meet the allegations."
General Counsel contends that each of the incidents are
violative of the Act and constituted threats of discharge
and surveillance. I see no threat of discharge in the
incidents. There is no -doubt that Grous in effect warned
both union stewards that they would be kept under close
surveillance as long as they were union stewards. The
allegations dealt with here go to the very heart of the
tripartite relationship between the Union, the Employer,
and the stewards. The steward in order to be effective
must be able to conduct his union business within the
valid rules laid down by the employer and the union.
There is no contention here that either Williams or
Vincent was doing anything wrong , but Grous nevertheless
called on them to warn them simply because they were
stewards, that they would be watched. While he might
"Union application cards
959
very well have meant this to be a friendly warning, against
the background of the Employer's union animus and its
vigorous, and as I have 'found above, discriminatory
enforcement of its rules when they relate to stewards, I
consider that Grous' "warnings" are coercive within the
meaning of Section 8(a)(1) of the Act and I so find
Finally, the General Counsel contends that Respondents
violated Section 8(a)(1) of the Act by its actions in
threatening to discharge Menard, Nelson, and D'Andrea if
they failed to resign which actions took place at their
termination interviews. I have found with regard to
Menard and Nelson that the terminations were unlawful
and violative of Section 8(a)(3) and with regard to
D'Andrea that the termination was not unlawful. As the
Board has frequently found that a termination under these
circumstances violative of Section 8(a)(3) is derivatively
violative of Section 8(a)(1) I shall of course so find, but
the offer of a choice to resign rather than be discharged
adds nothing to the violation. It is simply an offer to
falsify the records and apparently is unrelated to union
activity. I see no warrant in finding a separate unfair
labor practice based upon these three incidents.
E. The Refusal-To-Bargain Allegations
The refusal-to-bargain allegations fall into two general
fields of inquiry:
The first deals with the alleged unilateral change in
working conditions by the refusal of Respondents to honor
an historic shop steward-employee ratio formula agreed to
originally in 1950, and the others, by its refusal at various
times to call shop stewards and process grievances through
normal channels.
Every contract between Respondents, either Hamilton
Standard or Pratt & Whitney, since 1950 has contained a
provision which states:
The number of shop stewards and the area of the shop
which each steward shall represent for the purpose of
investigating and adjusting grievances under this
grievance procedure shall be mutually agreed upon by
the Company and the Union. The number of shop
stewards and the areas which they represent shall be
subject to review upon request of either the Company or
the Union.
After the 1950 contract between Lodge 1746 and Pratt &
Whitney was executed, the parties on January 4, 1951,
executed a side agreement which provided in pertinent
part as follows:
It is agreed that there shall be 60 stewards recognized
by the Company based on a plant-wide complement of
12,000 employees. For each increase plant-wide of 225
above 12,000 employees, the Union shall be entitled to
name one additional steward. The allocation of the
steward to a specific area shall be determined by the
Union provided, however, that in the assignment of
stewards by the Union no more than one steward shall
be allowed for each 150 employees.
In a reduction of force below 12,000, it is agreed that
the Union shall reduce the recognized number of
stewards by one (1) for each reduction of five hundred
employees down to a level of 9,000 employees. If the
total plant employees are reduced to below 9,000, and
no agreement has been reached by the parties in
accordance with Section 1, Article V, which would
"Foreman Grous died after the above testimony was given, but before
being called to testify.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replace the then current understanding, then and
thereafter the number of stewards to be recognized by
the Company shall be equal to one steward for each 225
employees on a plant-wide basis. The Company will
notify the Union each three (3) months of the areas, if
any, that, under this understanding because of an
increase in employment therein will be permitted an
additional steward to be recognized.
No side agreement between the Hamilton Standard
Division and Local 743 appears to have been signed.
Butler Seedman, president of Local 743 testified that
"Prior to 1954 we had a steward on a ratio of 1 to 225
employees." Seedman testified that the ratio changed in
1954 in that in negotiations the Union proposed that it be
lowered to a ratio of 1 to 100. The Employer
counterproposed 1 to 175 which was accepted and
subsequently ratified by the employees. He testified that
the ratio of 1 to 175 had never been changed thereafter.
He testified that from the year 1960 until 1966 he had
never had occasion to compare the number of stewards
with the number of employees and in fact had not called
for up-to-date figures on the plant census. However, he
also testified that he was sure that the ratio remained
about I to 175.19 Seedman testified that he would annually
submit to the Employer the union proposal setting forth
the number of steward areas that he felt was necessary
together with the names of the stewards who could cover
those areas which he was able to fill, and he could only
conclude from the Company's agreement with his
proposal that it was within the "historic" ratio. He
admitted that there were years in which he definitely knew
that the Company was recognizing more stewards than the
ratio would permit but he did not see fit to propose a
reduction in stewards to fit the ratio. He also knew that
there were occasions when the Union had fewer. He also
testified that in every negotiation in which he was involved
the Union asked that the ratio be reduced and asked for
more stewards. He acknowledged that between 1958 and
1959 there was a layoff of approximately 2,500 people but
that only 2 stewards were removed during that time.
Herman Muise, who was business representative of
District 19, assigned to Lodge 1746, and had prior to that
time been the occupant of various offices of steward
committeemen, vice president, and president since 1951,
testified that he had been involved in the negotiations of
1953, 1955, 1957, 1962, 1965, and 1966 between Lodge
1746 and Respondent Pratt & Whitney, and that the
allocation of stewards was based in each contract upon
population of steward areas. He testified that the formula
between 1950 and 1959 was that set forth in the letter of
agreement which I have quoted above, but he also testified
that sometime along the line, first apparently in 1957, it
was changed to be based upon a ratio of I steward to each
150 population within a steward area. He testified that in
every negotiation the Union requested additional stewards,
generally based on their desire for one steward to each
department and in some cases I steward for each
foreman. On each such occasion the Employer rejected
their requests. He testified there was actually no
implementation of the formula, "there was just a
carryover from the formula that had existed throughout
"Seedman 's testimony in this and other regards was more conclusionary
and self-serving than illuminating . He contradicted himself variously that
he did and did not check population figures and compute ratios I find
however that he did not, during this period, compute ratios presumably
because the Union was unable to fill the stewards positions that the
Employer had agreed to , wherefore it was not particularly useful to seek
agreement on a greater number of positions.
the years . . at times sometimes during the period of the
year perhaps once a year perhaps twice a year the union
official who might be in charge at that time . . . noting
that perhaps areas might need readjusting in regard to
population, might request a meeting with the chief
personnel adviser to ascertain the population figures
within the areas ......
The Respondents contend that there was never a
formula except to the extent that the provision that in the
assignment of stewards by the Union no more than 1
steward shall be allowed for each 150 employees, which
Respondents referred to as the overloading provision, was
kept alive by all parties throughout the years.
Respondents contend that the contract means just exactly
what it says. Each contract with both Unions provided for
negotiations and agreement between the parties of both
the number of stewards and the areas and at various times
such negotiations were held and agreements reached. The
basic problem really is whether a "historic" formula had
ever arisen and whether its existence was of such
immutability that Respondents were guilty of a refusal to
bargain by unilaterally changing it after the 1966
contracts were agreed to. The testimony of both Seedman
and Muise reveals clearly that the formula was by no
means immutable. It was in fact changed according to
their testimony from 1:225 to 1:175 with Lodge 743 and
from the somewhat more complicated formula set forth in
the 1950 contract addendum to 1:150 with Lodge 1746.
Both changes took place according to their testimony
some time in the mid 1950's.
The documentary evidence before me profusely
illustrates that the parties in fact recognized that there
was a formula throughout the bargaining. The formula in
no instance except the 1950 addendum was reduced to
writing.'0 Each of the parties relies on the minutes of the
various meetings , which were supplied in evidence, to
support their case in certain respects, but each of them
decries the unreliability of the minutes in other respects
when it does not support their position. However a
reading of the minutes as a whole, together with other
documentary evidence, including a prolific exchange of
correspondence between the Union and the Respondents,
makes it clear that whenever the parties came to issue on
the number of shop stewards they had in mind the ratio as
it then existed.
But while I conclude that a ratio existed from year to
year, I cannot conclude that it supplanted the direct terms
of the contracts which provided for interim agreement of
these substantive issues. This conclusion is supported by
the fact that the Union clearly attempted, during and after
the negotiation of every contract, to change the number of
When the General Counsel called Muise and Seedman to testify and
the Repondents called Vandervoort on behalf of Hamilton Standard and
Morse on behalf of Pratt & Whitney to testify, it is clear that, as frankly
stated by Respondents ' counsel, none of the witnesses had any clear
recollection of the negotiations that had taken place back over the years
That this is only natural must be accepted . All of the parties called to
testify had been involved in literally hundreds of negotiation sessions over
the many years that they had occupied the various offices, and each of
them had obviously refreshed himself from whatever materials they had at
hand before taking the witness stand in the instant proceeding Their
testimony was largely self-serving and occasionally demonstrably
erroneous . While Seedman and Muise took exception with some of the
statements appearing in "the minutes " prepared by the Employer and
furnished the Union with regard to each negotiation meeting , it is quite
clear that except for the fact that they do not contain the same emphasis
which the various parties in afterthought and under the circumstances of
the hearing herein would have them display, they are fairly reliable reports
of what took place
UNITED AIRCRAFT CORP.
stewards and accordingly the areas in which the stewards
would operate. To find as the General Counsel would have
me find, that the ratio formula achieved by the magic of
the addition of the word "historic" a supra-contractual
status would do violence to the contracts which each
Union entered into throughout the period from 1950 to
the present.
The General Counsel argues that if there was a steward
formula that was in existence for many years and
suddenly the Company repudiates the formula after
negotiations have terminated and the contract has been
executed, this repudiation constitutes bad faith in
collective bargaining . But this is , not the case; the formula
was permitted to remain in existence year after year but
the Union never considered that it was immutable, the
Union in fact constantly attempted to revise it to provide
for more shop stewards, even during the years that it
could not fill the positions provided by the action of the
formula. The formula after all is nothing more than the
custom of the parties to base their computation of the
number of stewards on a ratio between stewards and
employees rather than some other basis such as a steward
for each department, building , shift, or other geographical
or temporal subdivision, or a steward ratio based on the
number of grievances or union members. I do not view the
action of the Company in the postcontract negotiations in
1966 with regard to the stewards as any more than the
Company's offer to increase the ratio which is really no
different than the Union's constant attempt to reduce it.
The contractual provision embodied in every contract
must have envisioned negotiations with regard to the
number of stewards that should be appointed. It clearly so
provided. I have never known it to be considered a refusal
to bargain for an employer to offer less when a union
demands more, and I see no refusal to bargain in the
situation as it is here disclosed to be.
The General Counsel appears to contend that the
negotiations were completed and that this position taken
by the Employer was a unilateral repudiation of the terms
of the completed negotiations . I have before me the
verbatim transcripts of the four negotiating sessions which
resulted in the two contracts with which we are here
concerned. There was no bargaining in those negotiations
regarding the number of stewards. The parties in fact
agreed that the new contracts would contain the same
language as the old, which obviously includes the
provision for a mutual agreement on the number of
stewards and the areas in which each should operate.41
I do not find that the refusal to continue to apply the
formula in the same ratio as that applied under former
contracts constituted a unilateral change in working
conditions. On the contrary, the evidence demonstrates
that the parties normally, pursuant to the contractual
provision, met together after the contract was executed
and attempted to effectuate the provision by agreement on
"The real bone of contention appears to be the provision in the contract
that the Employer will pay for the time of stewards up to 2 hours per week
spent in investigating br handling grievances At one point in the
negotiation sessions covered ' in evidence the Employer in fact told the
Union that they could have as many stewards as they wanted to as long as
the Union was prepared to pay for it , but the Union would not consider
this at the present time . The Union has a large number of union stewards
as distinguished from shop stewards , and their function appears to be
somewhat of an intermediary between the shop stewards who negotiate
with the Employer and the employees. The union stewards , however, are
not recognized by the Employer for the purposes of negotiating grievances
nor is any part of their time paid for by the Employer when used in
furtherance of the Union's business.
961
the number of shop stewards . That the Employer may
have been impelled in the instant situation , as the General
Counsel contends , by limiting the number of shop
stewards to limit the "presence" of the Union among the
employees because of its union animus and in the hopes
that the Union would thereby be less successful in
convincing employees that they should join is irrelevant in
my opinion , and it is equally irrelevant that for the first
time in 6 years the Union was in a position to fill more
shop steward appointments , as contended by the General
Counsel and the Union . This contention does not seem to
be borne out by the facts which reveal that the Union up
until the time of the hearing had not filled all of the shop
steward vacancies to which the Employer had agreed.
I shall recommend that the allegation , that the
Employer refused to bargain by unilaterally changing
working conditions in its refusal to recognize an historic
shop steward -employee ratio formula , be dismissed.
In connection with the alleged ratio, the second
allegation of a violation of Section 8(a)(5) concerns an
alleged oral threat by Attorney Wells, in a telephone
conversation to Attorney Ratner , that unless the Union, in
this case Lodge 1746, agreed to change from the type of
dues-deduction card previously used to an IBM card and
additionally agreed to set up new light occupational
groups for seniority purposes , not theretofore in existence,
the Employer in the negotiations concerning the number
of shop stewards in the areas in which they are to serve
would adopt and maintain an adamant position. The
General Counsel contends that the contract entered into
and already ratified at that time , foreclosed any right of
the Employer to bargain with regard to the form of the
cards or the occupational groups. The General Counsel
also contends that , as set forth above, the issue of the
shop stewards was resolved by the agreement other than
to mechanically apply the "historic shop
steward -employee ratio formula" to the then existing
population in the plant.
The evidence consisted of the testimony of the two
attorneys, Ratner and Wells. While there was
disagreement in their recollection of the conversations
which gave rise to the allegation, it was clear that Wells in
essence told Ratner that the Employer wanted to set up a
new set of light occupational groups for purposes of
seniority , especially with regard to layoff, to cover the
situation where women were in the same occupational
groups as men but were not able to do all the jobs, some
of which might be heavy. Under the contract as it now
exists women might be senior and be the only employees
left in a deep layoff and be unable to do the heavy work
entailed . The Employer wanted also to have the checkoff
cards printed on IBM cards which would change the size
and shape of the checkoff card , so that the checkoff might
be more readily handled by the Employer's payroll
system. Ratner took the viewpoint that both of the
changes constituted changes in the conditions established
under the contract which the parties had just entered into,
and that the Union was not going to renegotiate any part
of that contract , whereupon Wells pointed out that there
remained to be negotiated the number of shop stewards
and that if the Union were to be adamant with regard to
the IBM cards and the light occupational groups, they
were liable to find that their adamancy provoked an
adamancy on the part of the Employer with regard to the
shop steward issue.
The transcript of the negotiations which gave rise to the
contracts between the Union and the Respondents
revealed that the parties agreed that nothing remained in
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue between them other than to establish the wording
and color of the checkoff cards, and to negotiate, through
subcommittees, concerning changes in the appendixes to
the contract at the East Hartford plant which were labeled
A and B and dealt with noninterchangeable occupational
groups and seniority areas, which changes were
necessitated by the fact that the Employer had closed or
reduced some departments and increased or opened
others, thereby abolishing or adding seniority areas and
occupational groups
There can be no doubt that the parties may at any time
during the life of a contract agree to renegotiate the
matters contained therein, or meet and negotiate
concerning matters not covered within the terms of the
contract. Necessarily, if the parties may negotiate or
renegotiate the terms of a contract during its life, it must
be possible for either party to request such negotiations.
Surely the law does not require that negotiations of this
type must arise spontaneously. It would obviously be
inequitable to consider that the mere request for
consideration of an issue already resolved by the contract
is a violation of Section 8(a)(5). There remains of course
only the contention made by the General Counsel that
Respondents in effect threatened to unilaterally change
another condition of employment, i.e., the so-called
historic ratio, unless the Union acquiesced in its request.
Inasmuch as I have found above that Respondents' action
with regard to the "historic" ratio does not constitute a
unilateral change, I can hardly find that a threat to do
that very act constitutes a threat to make a unilateral
change. Finally, the Charging Party contends that
Respondents threatened to and became adamant in the
negotiations with regard to shop stewards in retaliation
for the Charging Parties' lawful intention not to allow
Respondents to "unsettle agreements which had been
made on subjects that had been closed" by the contract
which had been negotiated. But, as I have found above,
the subject of the ratio is not an agreement that had been
closed, and was a subject which remained to be
negotiated. The negotiations which took place after the
telephone call between Attorneys Wells and Ratner
revealed on the one hand that Respondents seriously
objected to raising the number of shop stewards to the
point demanded by the Union, but that the Union, rather
than present any rationale for their demand and
negotiating with a view to reaching agreement, stood by
their legal position that they had an absolute right to the
imposition of the "historic" formula and hence to the
number of stewards that they requested. The upshot of the
negotiations was that they accepted the Respondents' offer
under protest and filed the charges giving rise to this
portion of the instant proceeding. Respondents, on the
other hand, acknowledge that it declined to grant the
Unions' request, but points out what is not seriously in
dispute, that they offered to consider any need shown by
the Union for a greater number of stewards, and in fact it
appears that at least once since the occasions complained
of the number of stewards has increased on the showing
by the Union of the existence of such need. Accordingly,
I can find no adamancy to the point of a violation of
Section 8(a)(5) on the part of either the Union or the
Employer, and I shall recommend that the complaint
insofar as it alleges a violation of Section 8(a)(5) in
this incident be dismissed.
The General Counsel contends that the Respondents
refused to bargain by refusing to furnish information
necessary and relevant to the negotiation of the steward
issue He contends particularly that Respondents violated
the Act by refusing to furnish an up-to-date map of the
Pratt & Whitney plant on which the steward areas could
be drawn. The facts are not seriously in dispute as to the
incident. On September 28, Union Representative Muise
met with the Employer's Representative Morse in their
first attempt to work out the number of stewards and the
areas that they were to cover. Muise asked Morse for a
map and Morse furnished him a copy of the 1964 steward
area map. After some discussion, during which Muise
asked Morse to prepare a proposal and Morse declined to
do so stating that there had been "enough contentiousness
about company suggestions in the past few weeks and he
wanted to avoid any further," Morse suggested that Muise
prepare a proposal and submit it to the Company. Muise
agreed to do so, and said that he would call Morse's
assistant, Hall, later that day. He called Hall and told
him that the map was of no value, it was an old map, and
Hall replied that they had no other map. Muise testified
that he replied that a new map did exist because he had
one before him dated in 1966 which did include the new
construction areas. Hall asked if that was a steward map
and Muise replied that it was not,°r but that it was one
from which a steward map could be made. Hall agreed to
relay the information to Morse. Muise's testimony makes
the issue perfectly clear. This was no refusal to furnish
relevant information. The Union in fact had the
information and Muise testified that he had it before him
when he talked to Hall. This is simply another example of
the tendency of the Respondents and the Union to deal
with each other in terms of legal positions and legal
conclusions rather than in terms of the everyday
necessities of getting along. For the Union to contend that
the Company violated the Act in refusing to furnish a
map is sheer sophistry. The Union has a right to
information necessary in bargaining, but here the Union
had the information and admits that the information it
had was adequate for its purpose. I find no merit in the
General Counsel's position.
General Counsel further contends that Respondents
demonstrated their bad faith by refusing to furnish
information concerning the population in the plants by
department within the steward areas, contending that the
application of the formula required this information.
There is no indication anywhere in the record that the
steward areas were drawn along departmental lines or that
the formula, such as it was, was necessarily applied along
departmental lines, and the Union at all times contended
and still contends that the formula must be the basis for
the application of the shop steward areas, nevertheless I
can see relevance to the request for the information in
that conceivably the Union was prepared to request that a
different type of formula should be adopted, namely, the
formula once proposed, of one shop steward in each
department subject presumably to the "overloading"
agreement which all parties seemed to have understood
ever since 1950. I can also see that it could be relevant
even under the formula since the Union presumably would
be interested in having its steward areas coincide with
departments as nearly as possible for ease in handling
grievances between the shop stewards and the foremen or
department heads.
Muise testified that he asked for the population by
shift, by department, and by steward areas. He admitted
that the Union had never before asked for population
figures by department but explained that for purposes of
selecting stewards, if there were a number of departments
"There was no steward map in 1966
UNITED AIRCRAFT CORP. 963
in an area, the Union would prefer to appoint a steward
out of one of the larger departments in the area rather
than a steward out of a fragment of a department which
could be located in the area that might have as few as 10
people. Morse suggested to Muise that he use the
information which the Company was currently furnishing
to the Union as a result of the stipulation which was
entered into in the 100) court proceeding , which gave rise
to the bargaining in the first place. Morse pointed out that
the Company had no record from which the figures that
Muise wanted could be drawn readily other than those
which were furnished to the Union. The problem really
concerned some departments which occur in various areas
such as the toolcribs , inspectors , and the like. It is
estimated that there are as many as 2,500 employees in a
total plant population of 20,000 involved in such
departments Morse suggested that the only way the
Company could provide these figures would be to go
physically into the department and count the people
working there at any given time and he stated that the
Union could as well do that as the Company.
Muise admitted that the Union had been receiving
change-of-status forms for all the employees, which
showed transfers of individuals from one department to
another and also copies of the master wage and salary
cards showing where the people were assigned. He
admitted that if he took the master wage and salary cards
and the change-of-status forms that the documents would
trace any individual right through the plant. He stated
however that the Union did not have an adequate staff to
keep up to date with the forms that they were furnished
and therefore it would be easier for the Company, using
these forms and presumably its computers, to determine
the population by departments in areas, than it would for
the Union. Asked whether the basis of the Union asking
the Company to provide copies of these forms wasn't just
so that he could do these very things, i.e., make the
necessary computations , Muise's answer was, "Oh, no sir
I'm sure that's not the basis for the request. I think the
request was that our counsel felt that we had a statutory
right to that information."
Once again we see a situation where the real issue is
not the refusal of the employer to furnish necessary
information to the union, but rather the refusal of the
employer to do the computation necessary to make the
information valuable for the union's purpose. The Union
here, by the testimony of Muise, had the information but
did not have a staff adequate to collate it and draw the
conclusions which the Union wanted. Muise's testimony
seems to indicate that he felt that all the Employer had to
do to get such information was push a button on the
computer and it would roll out. What little I know of
computers indicates, to me at least, that it is not all that
simple. I cannot see that the Employer is guilty of an
unfair labor practice in its refusal to accede to this
demand. What the Employer in fact did was suggest that
the Union take the information it had and attempt to
work out the figures and if it failed to do so the Employer
would send somebody into the departments to count heads
and give the Union the information. This is not a situation
where the Employer had readily available facts which the
Union could ascertain only by expensive and inconvenient
means. The question really is whether the Union or the
Employer , both with the same basic information before
them, should spend the time and, necessarily, money
necessary to correlate the information to put it in the
form in which the Union desired it. I know of nothing in
the Act nor of any decision of the Board or the courts
that requires the employer to acquiesce. Under the
circumstances I shall recommend that this allegation too
be dismissed.
Finally the General Counsel alleges that Respondents
violated Section 8(a)(5) of the Act by their failure and
refusal under varying circumstances to call a shop steward
at the request of their employees The allegation is broken
down into three separate periods of time: from September
23 until December 12, 1966, during which time, although
a contract was in being , no shop stewards had been
designated, on and after September 26, concerning
grievances which arose during the period prior to
September 23 that Respondents had withdrawn
recognition; and after December 12 when stewards had
been named but foremen refused to call them at the
request of employees. In addition the General Counsel
alleges that Respondent Pratt & Whitney refused to
bargain by its failure and refusal to call shop stewards
during the interrogations of Nelson, Buchans, and Rooney
by the security investigators. It will be recalled that each
of those stewards requested representation by a shop
steward when they were called to the security department.
The contract between the Union and the Employer
provides that differences "concerning the interpretation,
application or compliance with the provisions of this
agreement" are to be handled pursuant to the contractual
grievance procedure. The contract provides "an employee
having such a grievance may, after notice to his
immediate supervisor take it up either directly with his
foreman or with the shop steward who shall take it up
with the employees' foremen."
Respondents had provided in its publication of
employee rules that employees may take up their
complaints either with the personnel advisers or with their
formen and suggest that the employees should consult
with the foremen first "since many of these matters can
be satisfactory settled by your foreman or supervisor."
The contract provides that the shop steward shall be given
an opportunity to be present at the adjustment of a
grievance arising under the terms of the contract which is
presented to the foreman directly by an employee but
makes no provision regarding adjustment of grievances by
personnel advisers.
If an employee asks to have the assistance of a steward
in presenting a grievance, the contract provides that the
employee shall make a statement to the foreman
identifying the specific nature of his grievance in simple
terminology whereupon, Respondents admit, the foreman
makes his own judgment as to whether the grievance
raised by the employee is one that is cognizable under the
terms of the contract. If he decides that it is not, he
refuses to call a steward. Under these circumstances the
employee may file a grievance by going to the Union on
his own time.
When a foreman declines to call a steward either the
employee concerned or a shop steward may sign a
grievance alleging that the foreman has improperly
refused to call a steward. Such grievances are not
arbitrable on a mandatory basis and Respondents have
never agreed to submit such a grievance to arbitration. If
a grievance is not adjusted at the first step, orally, it must
be reduced to writing on forms obtained from the foreman
and signed by the employee.
We thus have four separate issues to decide with
relation to calling a shop steward-
1. Whether Respondents had a duty during a period of
time when no contract was in existence and no shop
stewards had been designated to call a shop steward at the
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request of employees.
2. Whether the Respondents had a duty during the time
that a contract was in existence but no shop stewards had
been designated , pursuant to the provisions of the
contract, to call a steward at the request of employees.
3. Whether after the contract was in effect and shop
stewards had been duly designated pursuant to its
provisions Respondents violated the Act by providing that
its foreman at the lowest level should attempt to adjust
grievances prior to calling a shop steward and should
unilaterally decide whether a shop steward may be called.
4. Whether in the circumstances of the interrogations of
the union stewards and shop stewards by the security
investigators Respondents had a duty to afford them, at
their request, representation by shop stewards during the
interrogation.
Discussions
1. The statement of the first issue appears to provide its
own answer. If there are no shop stewards to be called it
is difficult to see how Respondents could have afforded
employees an opportunity to consult them. The terms of
the contract clearly envision that shop stewards should be
appointed in numbers and in areas to be mutually agreed
between the parties. Until such mutual agreement is
reached, it would seem to be the intent of the parties to
the contract, that no shop stewards would officially be
recognized by the Employer. The General Counsel and the
Charging Party argue that in prior years, when a new
contract supplanted an old one, the shop stewards who
were recognized under the old contract continued to
represent the employees in the areas that they had
theretofore convered, and were called at the request of
employees when the occasion arose prior to the agreement
of the parties under the terms of the new contract. They
argue that such should be the case during the period with
which we are now here concerned.
Certainly the argument has appeal but it fails to
recognize one real distinction between the situations that
had existed before and that which existed during the
period with which we are concerned. Then there was no
lapse in the bargaining relationship . In the instant
situation, however, there was a lapse of a number of
months between the withdrawal of recognition by the
Respondents and the resumption of recognition pursuant
to the court order. During that interval, according to the
testimony of both the Union's witnesses and the
Respondents ', considerable changes had taken place.
Respondents had set up a "nonunion " grievance procedure
pursuant to which it dealt directly with employees who felt
that they had a grievance. Departments had closed, new
ones had opened, and a considerable number of the shop
stewards no longer worked in the areas or departments or
on the shifts in which they had previously performed their
stewardship. As Respondents pointed out, the
implementation of the contract in a plant of 20,000
employees, with a large number of supervisors and
managerial employees , required that all the foremen be
advised of the identity and the areas of the shop stewards,
and that the paperwork necessary for stewards to go from
production time to the time allotted by the contract for
the handling of grievances, i.e., 2 hours a week, be
provided. In general the wheels had to be activated again
to handle grievances on a union basis.
The General Counsel appears to contend that
Respondents deliberately delayed negotiations on the
number of stewards and the areas which they should cover
in order to prolong the period during which the employees
were unexposed to the Union's representative status.
However, this is not alleged in the complaint nor on the
record before me could I find that it is supported by
substantial evidence. Such delays as there were appear to
me to be attributable as much to the Union's
representatives as to Respondents'. On the whole I must
reject this allegation . By the terms of the contract the
Union has agreed that the duty to call a steward arises
only after certain formalities are met, and the General
Counsel has not shown that those formalities had been
completed during this period of time.
2. After the contract was signed Respondents were, of
course, bound to process grievances through the
contractual grievance procedure which included inter alia
negotiating at the first step with the union shop stewards.
But there were still no stewards. All the considerations
that I have expressed with regard to the prior period,
when there was no contract, were still existent . I believe
that the Union bound itself by its contract to wait out the
period until shop stewards had been duly named and no
unfair labor practices are shown, absent a finding that the
Employer in some way made it impossible to name them
or delayed naming them. This allegation too must be
dismissed.
3. The third issue presents a difficult problem. The
Union complains that the custom, which the evidence
reveals to exist at least with some supervisors, is that
when an employee asks for the assistance of a steward the
supervisor , who is in most cases the person whose
activities gave rise to whatever complaint the employee
may have, inquires of the employee the reason why he
wants a steward. This must have been envisioned by the
contracting parties for their contract provides limitations
on the circumstances under which stewards are called at
the request of employees and provides that the employee
make a statement sufficient to identify the problem so
that the foreman can determine whether it is within the
contractual limitations. The Union complains, however,
that the foreman frequently goes further and discusses the
potential grievance with the employee even to the point of
trying to "talk him out of it" or of remedying the
situation if it is one that the foreman for one reason or
another prefers should not go through a more formal
procedure.
Viewed from the standpoint of the Union jealously
guarding its prerogative , its complaint may be j ustified.
However, in the avoidance of industrial strife which is
among the purposes for which this agency was establised,
it is hard to find that Respondents, by willingly and
without coercion remedying whatever gave rise to an
employee's grievance, violate the law. Inasmuch as the
parties certainly meant by their contract that the
supervisor should make an initial determination whether
any particular grievance is cognizable under the terms of
the contract and requires that a shop steward be afforded
the employee , it would seem that here again the Union
has put itself in the position where it must expect that the
foreman would ask the employee the details of his
grievance . The parties at the hearing gave examples of the
type of answer that an employee might make that would
clearly reveal to the foreman whether the complaint is a
grievable matter or not . But common experience teaches
us that the employee will not necessarily speak in clear
and unambiguous terms when asked by his foreman the
basis of the grievance , and further questioning by the
foreman would frequently be necessary to enable him to
make the determination required of him. I do not find
UNITED AIRCRAFT CORP. 965
that such questioning is violative of the Act.
Of course given the situation where foremen are acting
in bad faith and refusing to call stewards where they are
clearly warranted, a violation is made out. It is this
possibility, among others, that the General Counsel argues
in his brief. In support of his' argument General Counsel
first states that the eight incidents concerning which
evidence was adduced at the hearing were a
"representative group making testimony of additional
employees cumulative."" A brief resume of the incidents
upon which the General Counsel rests his allegations is in
order at this time.
Employee Joseph M. Gleason; a shop committeeman
for the Union, was asked by his foreman three times in 2
days to explain the fact that he was in departments other
than his own. In each case he had been sent into the other
departments on business and was conducting that business.
Feeling that he was being'harassed because of his position
as a shop committeeman, he determined to file a
grievance. He asked his foreman for a shop steward and
his foreman refused to furnish one.
The foreman was not called as'a witness. However, the
assistant superintendent, over that foreman, testified that
it was he that determined that a shop steward would not
be called and he reached the determination on the basis of
his belief that the contract had not been violated. He
testified that at his instructions the foreman called the
personnel office and was informed by the personnel office
that a shop steward need not be furnished because there
was no violation,of the contract.
During Gleason's conversation with the foreman, he
told Gleason that "I'd better talk you out of this or try to
talk you out of it." He asked Gleason whether, since
Gleason was a committeeman , they couldn't straighten the
matter out. In a later conversation the foreman again
tried to talk Gleason out of filing a grievance, first
representing that he had done Gleason a lot of favors and
second stating that Gleason was being foolish, making a
mistake, and just causing trouble.
There is no question that to harass an employee
because of his'position with the Union would substantially
affect his working conditions. The contract provides that
shop stewards shall be called if the grievances effect
employees' working conditions and the employee asked
for a shop steward. Here Gleason said that he was being
harassed and asked for a shop steward. Apparently all
contractual conditions were met but a shop steward was
not afforded him. The fact that in the Employer's mind no
harrassment had occurred and accordingly no breach of
the contract had occurred can hardly be considered to'
vitiate the Employer's duty to call the shop steward at the
request of the employee.
Robert Blair testified that he felt that he was not
getting his share of overtime and asked his foreman to
call a steward, The foreman declined to do so and said
that he had no grievance on overtime and to go back to
work. Later that week the foreman, Monty, asked Blair to
work the following Saturday . Blair said he still wanted to
file a grievance for not receiving a steward when he asked
for one. Monty said ,that he had no grievance and to keep
working. So he kept working. That night he went to the
"The General Counsel pointed out quite correctly that the total number
of employees who were denied ' stewards could not in any event ever be
determined since it is reasonable to assume that many employees may
never have reported the denials to the Union, especially those whose
grievances were, adjusted by Respondents contemporaneously with the
denials.
union hall and filed two grievances, one over Monty's
failure to call a steward and the other over the overtime
situation. The following week a shop steward came to his
department and discussed both grievances with him and
with Monty.
Monty testified that on the first occasion Blair did not
ask for a steward and he told him, "why don't you wait
until this weekend and see what the overtime is going to
be before you take any action " Blair said "okay" and
went back to work. On the second occasion he testified
that he told Blair that he was assigned to work the
following Saturday and Blair said "That's good. I'll be in
but I am still going to enter a grievance." The
conversation ended there and according to his testimony
Blair had still not asked for a shop steward. On January
12, a week after the first contact, he testified that Blair
asked him for a shop steward, that he called his general
foreman and the personnel advisors department, and that
a shop steward came to his department and discussed the
grievance.
The two stories of course are directly opposed. I credit
Blair . At the close of his direct testimony Monty testified
that Blair filed three grievances; one on discrimination,
one on overtime, and one on refusal to call a steward.
This testimony comports with Blair's testimony that he
went to the union hall on the night of the 5th and filed
two grievances, and it was as a result of the grievances he
filed at the union hall that a steward came to the
department on the 12th to handle the grievances. Monty's
testimony is inconsistent with his own statement that Blair
made no attempt to file grievances on either of the two
occasions or to ask for a shop steward and that the shop
steward was called by him on the 12th and came
immediately.
Here, again, we have a situation where the grievance
was clearly one contemplated by the contract to be
grievable and the employee one for whom a shop steward
was to be called. Inasmuch as it is clear that foremen
normally do not show overtime records to employees and
in fact have a decided disinclination to show them to shop
stewards until directed to do so, for the Respondents to
handle such a grievance as Monty attempted to do here,
i.e., by merely assigning overtime to the grievant, puts
neither the employee nor the Union in any position
whatsoever to determine whether the assignments have
now, or at any given point, resulted in equal distribution
of overtime. Such action on the part of Respondents
surely must have the effect of denigrating the Union in the
eyes of the employees, for the benefits of union
representation are denied the employee. Unless the
employee goes to the further and contractually
unnecessary step of going to the union hall to file
grievances the Union is not even apprised of the fact that
a problem exists.
Paul F. Graves testified that on March 9, 1967, he
asked his foreman, John Morigiloni, why a less senior
employee was put on a job, which he considered to be
better, rather than himself. The foreman told him that he
thought it best that the other employee do the job and
told Graves that if he needed help in the future he would
consider him. A couple of hours later Graves came to
Morigiloni and asked for the services of a shop steward.
Morigiloni asked why and Graves answered that that was
his business . Morigiloni told graves he would try to locate
one and "took off." He came back 20 minutes later and
said that Graves had no grievable matter and could not
have a steward.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morigiloni did not testify.
The conclusion here is very simple. The Union and the
Employer have agreed by contract that an employee
requesting a steward must inform the foreman why he
wanted the steward. While in the instant matter
Morigiloni might very well have assumed that Graves
wanted to grieve the assignment of the less senior
employee, he had no way of knowing it in view of Graves'
answer to his direct question. The Charging Party
contends that employees have an absolute right to the
services of a shop steward on request. We do not reach
this issue in this matter because of the contractual
commitment by the Union which is clear and
unambiguous , at least in this respect, that employees
seeking the services of a shop steward will inform the
supervisor of the reason therefor. Accordingly, insofar as
this incident is alleged to violate the Act, I shall
recommend that the allegation be dismissed.
Laurier M. Berube, a welder, testified that he was told
he was to be loaned to another department temporarily.
Believing that he was in danger of losing his
"qualification" in brazing, a type of work related to
welding but requiring a separate certification in order to
work on defense materials , he protested that, inasmuch as
he had greater seniority than any other welders, he should
not be loaned out so as to endanger his brazing
certification.- The foreman insisted that he go to the
other department immediately, whereupon Berube asked
for a shop steward to file a grievance. The foreman
summarily denied his request and told him to go to the
other department. An argument ensued which apparently
became quite vocal and eventually involved the general
foreman. As a result of the argument Berube went to the
other department and no shop steward was called. Later
Berube went to the union hall to obtain the services of a
shop steward on his own time.
Foreman Reikhet testified to approximately the same
situation except that according to him Berube became
somewhat more abusive, in fact threatening to "flaten
him." According to him, when Berube took his complaint
to General Foreman McAllister, McAllister explained that
Berube could pick up his qualification at a later date,
there was no ground for a union steward, to go down to
the department and see the job, and if he had any
complaint to come back. If the job was out of his line,
then he could have a union steward. Reikhet admitted that
both he and McAllister denied Berube's request for a shop
steward because they both felt his grievance had no
merit.45
41Berube testified that he feared losing his brazing qualifications because
in his 14-1/2 years' service with the Employer he had known employees
who had fewer qualifications to be laid off before junior employees with
more qualifications He had in the past already lost one qualification in
machine welding because a foreman had filed the wrong papers and he
feared that losing his brazing qualifications would make him more
vulnerable to future layoffs
"Reikhet, who was present during the examination and
cross-examination of two other foremen and was obviously a fairly
quick-witted person, denied that he had received instructions from the
personnel department as to what was required of him under the contract
and denied that he ever contacted the personnel department when requests
were made for stewards by employees. Under cross-examination by by
Attorney Ratner he was marvelously evasive, so much so that I am led to
believe that his testimony , especially with regard to any contact he may
have had with the personnel office, is false Indeed his demeanor was such
that not only do I not credit his assertions but I am led to believe that the
truth is the opposite of his story. See Dyer v. MacDougall , 201 F 2d 265,
269 (C.A. 2), N.L.R B. v Din Ion Coil Company, 201 F 2d 434 (C A 2),
N.L.R B v. Shattuck Denn Mining Corp , 362 F.2d 466, 470 (C.A 9)
Clearly this is a situation where the foreman and the
general foreman unilaterally reached a determination that
the employee's grievance had no merit and for that reason
alone declined to furnish him a shop steward It appears
that from the employee's viewpoint the point in issue, the
possible loss of Berube's qualifications as a brazer and the
attendant possibility of greater vunerability in case of a
layoff, was a matter closely tied to his hours and working
conditions if not his immediate wages. I see nothing in the
contract between the parties that gives the Employer the
prerogative of predicating calling a steward upon its
unilateral determination of merit of the employee's
grievance. Respondents contend that Berube lost nothing
as a result of the loan of his services to another
department inasmuch as he only worked there I day and
returned to his own department the next in time to
achieve the qualification that he feared losing. However
no one told Berube this. As he testified, as far as he knew
he could have been loaned out for a period of days, weeks,
or months. As I understand the law an employee with a
grievance has a right to representation by the union which
is his collective-bargaining agent in the handling of that
grievance. By contract the Union and Respondents here
have agreed on the machinery under which such
grievances are to be handled. By denying Berube access to
the machinery the Respondents breached not only their
contract, but the Act.
Michael C Nogas testified that he asked his foreman,
Lefebere, for a raise in pay and was refused whereupon he
asked for a shop steward to grieve concerning his rate of
pay. The foreman told him to go back to work and he did
so. About 15 minutes later Lefebere called him to his desk
and said "If I was you I would not take this any further"
and said that he did not feel that Nogas had a grievance
Nogas asked again for a shop steward and Lefebere said
if he wanted a shop steward he could see him on his own
time or at his lunch hour.
Lefebere testified that Nogas came up to him at his
desk and said that he wanted a steward. He asked Nogas
to repeat it and Nogas said he wanted a steward. Lefebere
asked why and Nogas told him it was because he was not
getting the job rate. Lefebere started to explain why in his
opinion Nogas wasn't getting the job rate and then told
Nogas to go back to work and he would explain the whole
thing to him later. Later on in the shift Lefebere called
Nogas to his desk and explained the entire company
procedure with regard to getting a job rate. He testified
that, as far as he knew, after his explanation Nogas did
not want a steward anymore, although he admitted that
Nogas did not say so. The next day according to Lefebere
he was informed that a grievance had been filed at the
union hall by Nogas and a steward wanted to see him He
saw the steward and asked "how come I get the
grievance " The steward explained that Nogas had filed it
at the union hall.46
It appears to me the situation is exactly like the last
preceding one. The employee felt he had a grievance, the
grievance was clearly cognizable under the terms of the
contract but the foreman decided unilaterally that the
employee's grievance lacked merit. That the foreman was,
or may have been, in the possession of facts that rendered
the filing of a grievance unnecessary is scarely impressive
in view of the fact that he chose not to tell Nogas that he
had, or was about to, put him in for the wage increase
"Lefebere testified that he had , 3 days prior to this incident, put Nogas
in for the job rate Nogas testified that he was informed that he was put in
for the job rate 3 days after filing the grievance
UNITED AIRCRAFT CORP.
Lefebere, who had the benefit of having observed other
foremen on the witness stand, testified "if the employee
wants a steward, he gets a steward, period, whether he's
right or wrong." But nevertheless he admitted he did not
call a steward. Although Lefebere stated that as a
foreman he does not make a decision whether or not an
employee will be entitled to a shop steward and that
personnel makes such a decision, he testified that he at no
time called personnel nor sent them a transmittal note and
that he did make the decision. Lefebere also testified that
it is the foreman's function to try to settle the grievance
with an employee before calling a steward and that only if
he fails to satisfy the employee does he give the employee
a steward. His testimony is not inconsistent with similar
testimony from other foremen and from Personnel
Director Morse. I consider that this is a fair statement of
the Respondents' policy in this regard I find that the
foremen's failure to afford the Union an opportunity to be
present at the time an employee's grievance was adjusted,
and to handle the grievance for the employee as he
requested, is violative of Section 8(a)(1) and (5) of the
Act.d7 This situation is distinquishable from that in which
the employee comes to the supervisor and states that he is
aggrieved by the fact that he has not received a raise or
promotion or some other matter and the supervisor,
noting that there is validity to the employee's complaint,
corrects it. In that instance as I have set forth above, I
find no violation, but here where an employee elects to be
represented by the Union in handling his complaint and
the complaint or grievance is cognizable under the terms
of the contract, I believe that the Respondent violates the
Act in refusing him the services of a shop steward.
Michael Judson testified that on February 4, 1967, he
returned from lunch a few minutes late because of
automobile trouble. When he returned his card was out of
the rack and his group supervisor was at the rack. He
called his foreman, White, and asked White to sign him in
for 10 minutes past 1, by which time he was at the
timeclock. White refused to do so although White had
kept him waiting from 1:10 to 1:23 when he returned to
the clock. White told Judson to clock in at that time,
1:23. Judson referred to the fact that the group supervisor,
Lynda, was present at 10 past when he was there,
prepared to clock in, to which White answered that he
was not there and he did not have to believe anybody. At
this point Judson asked for the services of shop steward
and White refused to call one. The following Monday,
Judson went to White at his desk and asked for a shop
steward so that he could grieve on his timecard. A union
steward was present but not a shop steward. White told
Judson that he did not have a legal excuse to have a shop
steward and to go back to work and Judson did so. The
following Friday White apologized to Judson and
re-signed the timecard so that Judson was paid for the 15
minutes that he lost as a result of White's former action.
The value of the 15-minute period was approximately 78
cents.
With regard to Judson, Respondents apparently are of
the opinion that he lost his right to a steward because he
"failed to meaningfully protect his contractual right by
filing a grievance alleging the foreman improperly refused
him a steward." Respondents conclude "the facts speak
for themselves and argument is unnecessary."
Respondents apparently are contending that their
contract, which requires that foremen will call a steward
under these and similar conditions, does not come into
"Bethlehem Steel Company, Shipbuilding Division, 89 NLRB 341
967
play unless and until the employee takes an additional
step of going to the union hall and filing a grievance that
the Employer has refused to call a steward, thus making
two grievances out of one. At other points in the record,
and in their brief, Respondents' position seems to be that
handling grievances is an expensive matter for
Respondents and that they consider themselves harassed
to some extent by the grievances filed and that they may
be further harassed by the grievances that Respondents
fear will be filed if the Union has more shop stewards.
This contention of course is in direct contradiction to any
contention that an employee must file a second grievance
to "protect his right" in filing the first, and should be
rejected out of hand. Respondents also belittle Judson's
grievance because the money involved was only 78 cents.
Perhaps to Respondents with millions of dollars worth of
government contracts 78 cents is not very important.
Perhaps to Judson, however, 78 cents is important. I have
no evidence either way. But the fact is, Judson was
aggrieved, asked for a steward, and was denied one. I find
a violation as alleged.
Robert W. Johnston testified that on January 25, 1967,
he went to his foreman and asked for a steward. His
foreman, Etchells, asked what the reason was. Johnston
said it concerned Assistant Foreman Kacin who was
"picking on me" and that he had a few other reasons.
Etchells departed and came back and said he would have
to know the other reasons, whereupon Johnston stated
that one of the reasons concerned Sunday overtime and
that he wanted a steward present to discuss the reasons.
Etchells walked away and came back a little later with the
overtime records. He took Johnston to his desk and
showed him where he was wrong because he had worked a
day of overtime that he had forgotten about and then
started discussing Assistant Foreman Kacin, telling
Johnston that Kacin was "a very conscientious man and a
great guy to work for." Finally he told Johnston that if he
were to call a steward in it might be held against him on
his "IE" sheet. Johnston asked if he were to forget his
grievance at this point if it would be held against him and
Etchells said that it would not Johnston withdrew his
request for a steward.
Respondents produced no evidence with regard to
Johnston and argue that since he withdrew his request
shortly after making it, argument is unnecessary. Here we
clearly have a situation of a forman handling a grievance
with the employee concerned without calling a steward,
although requested to do so. As I have found above, this
is clearly violative. Respondents however contend that the
employee withdrew his request. It is clear that he
withdrew his request only after being threatened that it
would be held against him on his IE sheet if he persisted
in demanding a steward. Johnston testified that at the
time he did not know what his IE sheet was. (It appears
that it is a time and performance record.) Johnston's
reaction, asking the foreman if he withdrew the grievance
if it would not be held against him, clearly indicates that
he was being coerced by the foreman's threat into
withdrawing his grievance. Aside from the Sunday
overtime, which is clearly cognizable under the contract,
Johnston's decision to grieve against what he deemed to
be harassment by the assistant foreman, and his request
for support from a shop steward when he did so, is
precisely the situation, in my opinion, when an employee
most needs the assistance of a union representative. A
grievance of this nature is a personal thing between a man
and his immediate superior and an employee would
necessarily be reluctant to air his grievances without even
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the benefit of a friendly witness while he did so.
Whether.Foreman Etchells called the personnel office,
which I, find to be the customary procedure in
circumstances of this type, cannot be ascertained. He
obviously consulted with someone during the intervals
between the first and second conversation for he came
back and said that before he got a steward for Johnston
he would have to know the other reasons. Whether he
consulted with someone again between the second and
third conversation cannot be ascertained from the record.
Frank R. Rogerlesci testified that his foreman
reprimanded him because he did not do enough work the
day before Christmas and told him that he had to do 13
"pieces" a day. Rogerlesci answered that it was
impossible to do that many in 8 hours and that 9 or 10
was a good day's work, to which his foreman answered
that he wanted 13 or else , explaining "the doors are open;
what are you going to do?" The foreman said, "let it go
for a couple of weeks and see how much you can
improve." Two weeks later the foreman came back to
Rogerlesci and said, "Well I see you improved a couple. I
think I am satisfied." Rogerlesci answered, "Well look,
that ain't the idea. Why don't you get me a shop steward?
We'll straightened this thing out." The foreman answered,
"I don't think- - -we don't need it. We can straighten it
out between you and I." Rogerlesci answered, "That ain't
the idea. I just want to prove my point that I can't do
what you demanded." The foreman again answered that it
was not necessary. Rogerlesci testified that he thought to
himself " it's no use arguing the point . If he's satisfied, I'll
let it go at that."
The foreman did not appear and Respondents contend
that Rogerlesci withdrew his request for a steward shortly
after making it and that no argument was necessary.
I hesitate to make a finding that the Rogerlesci incident
constitutes a violation . It is my opinion from viewing
Rogerlesci 's demeanor on the witness stand and from his
testimony that he knew well that he was in the wrong with
regard to the production on the day before Christmas and
he also knew well that the foreman's demand that he
produce 13 pieces daily was excessive. Accordingly, when
2 weeks later the foreman told him that he might be
satisified with the 9 or 10 that Rogerlesci was apparently
producing , although Rogerlesci entered into an argument
with him during the course of which he called for a shop
steward, before the two had stopped arguing he had
decided against grieving and was willing to accept the
situation as it was . While of course , as I have found
above, the foreman had a duty to furnish a shop steward
if one was called for under circumstances like this, I think
it must have been plain to him that Rogerlesci 's request
was made in the heat of debate and his failure to pursue it
further , even during the same debate, indicated that
Rogerlesci was not interested in proceeding any further.
Accordingly - I shall recommend that the complaint be
dismissed insofar as this incident is alleged to be a
violation.
With respect to the eight incidents above, Respondents
contend that, if anything, they constitute breaches of
contract rather than unfair labor practices, citing
Association of Westinghouse Salaried Employees v.
Westinghouse Electric Corp., 343 U.S. 437, fn. 2.
However, as the General Counsel points out, in many
cases the Board has found unfair labor practices which
also involved contractual breaches , and I believe that this
is one such case . Here we do not have a situation such as
Respondents posit where two or three supervisors "may
have improperly failed to call stewards upon request
during a 2-year period." In most if not all of these cases
the foreman acted only after conferring with the personnel
office. Presumably the personnel advisors are the
spokesmen for Respondents in matters of this nature, and
their advice reflects the Respondents' policy. It requires
no reach of the imagination to conclude that Respondents'
policy is clearly demonstrated by the record here to
discourage where possible the filing of grievances, to
remedy them if the Employer is clearly wrong, to decline
to call a steward for the purpose of filing grievances in
situations where Respondents are of the opinion that the
grievance is not tenable, or is too insignificant to warrant
invocation of the contractual grievance procedure. It is
not Respondents' function in such cases to make an initial
determination pursuant to which the employee is denied
the contractual right to a shop steward. By so acting I am
convinced that Respondents have violated the Act by
bypassing the Union when an employee has called for a
steward, by adjusting grievances under those
circumstances without the cognizance of the Union, and
by denying its employees the right of representation which
the law has provided to them. As I have stated above, I
consider that the fact that an employee can grieve the
refusal to furnish a shop steward is no defense to the
employer.
The Denial of Stewards to Employees Being
Interrogated in the Plant Security Department
4. The General Counsel contends that Respondents
violated the Act by refusing to furnish shop stewards at
the request of the employees who were called down to the
security offices to be interviewed prior to their discharges.
The General Counsel in essence relies on the Board's
decision in Texaco , Inc., Houston Producing Division, 168
NLRB No. 49, in which the Board found a violation in
that the employer therein refused an employee 's request
for a shop steward when faced with an interview by a
foreman with regard to the investigation of a matter
concerning the employee ' s alleged theft . The facts upon
which the employer in Texaco acted were known to
management representatives before the interview, and it
had concluded its case against the employee . It is clear
that the employee was called only to provide a record to
support disciplinary action . Under those circumstances the
Board found that the employee had a right to
representation when he was brought into this situation. In
a later case, Jacobe-Pearson Ford , Inc., 172 NLRB No.
84, the Board refused to find a violation where an
employee called for a shop steward when he was called in
to the company president's office to explain why he had
refused to do some work on the prior evening. The
employee may have feared that disciplinary action would
follow, but the record did not disclose that disciplinary
action was normally to be expected, nor that it followed.
The Board found that " In view of the absence of any
definite adverse action taken on Motes and Respondent's
willingness to explain and bargain with the Union any
disciplinary decision made, Respondent did not breach
any statutory obligation in denying union representation
to Motes at the fact-finding meeting of May 5," and
dismissed the complaint.
The instant case is of course distinguishable on the facts
from Jacobe-Pearson Here the Employer in fact ended up
invoking the sanction of discharge against the persons who
called for a steward , and, as I have found , at least two of
the discharges were discriminatory . In addition, in view of
the publicity given by Respondents to their stern
UNITED AIRCRAFT CORP. 969
enforcement of the -rule against union solicitation, by
reading to new employees upon their hire an account of
one such discharge, -and by the open and coercive
investigations conducted as I have found above, clearly the
employees concerned had reason to fear that there was a
"potential" for discipline in the meeting . - It avails the
Employer nothing to argue that these meetings were not
conducted with supervisors but rather were conducted with
security investigators,- The internal security department
does all the invcstigting, as the investigative arm of
Respondents, rather than their supervisors as at Texaco
and Jacobe-Pearson. To this extent the internal security
investigator supplants, the supervisor and this is so even
though the investigator allegedly makes no
recommendations with regard to discipline.
Furthermore, the instant case is distinquishable from
Jacobe-Pearson and like, Texaco in that the, Respondents'
investigations of the alleged defalcation were, complete,
other than to complete a record to support the disciplinary
action to be taken. There can be little doubt that the
disciplinary action to be taken was that which was taken,
and what little, if any, information the Respondents
obtained from the discriminatees added nothing to the
knowledge of Respondents concerning the alleged
violations. Accordingly, I believe and find that this case is
ruled by the Board's rule in Texaco, Inc., supra, and that
the refusal to supply shop stewards during the
"investigation " in the internal security offices violated the
employees' rights as well as the Union's, and thus violated
the Act both as to Section . 8(a)(l) and (5). 1 shall
recommend a remedy pursuant thereto.
IV. THE EFFECT OF ,THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities, of Respondents, set forth in section III,
above, occurring in connection with its operations as
described in section 1, 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 the free flow of commerce.
On the basis of the foregoing findings of fact, and upon
the record in its entirety, I make the following:
CONCLUSIONS OF LAW
1. Respondents are employers within the meaning of
Section 2(2) of the Act.
2. The Charging Parties are all labor organizations
within the meaning of Section 2(5) of the Act.
3. Local Lodges 1746, 1746-A, and 743, at all times
relevant hereto have been the exclusive
collective-bargaining agents of the employees in the units
set forth in the complaint, at Respondents' plants located
in East Hartford and Manchester, Connecticut;
Southington, Connecticut; and Windsor Locks and Broad
Brook, Connecticut; respectively, within the meaning of
Section 9(a,) of the Act, appropriate for collective
bargaining. -
4, By dening employees' requests that the Union
represent them' at such times as they were interrogated in
Respondents' internal security office concerning alleged
violations of Respondents ' rules , Respondents violated
Section 8 (a)(1) of the Act.
5. By denying the Union the right to represent
employees called for , interrogation to Respondents'
internal security office concerning alleged violations of
Respondents ' rules , and. by refusing to call stewards to
assist employees in filing grievances concerning wages,
hours, and working conditions and pursuant to the terms
of their collective- bargaining agreement, Respondents
have violated Section 8(a)(5) and (1) of the Act.
6. By discharging Kenneth Menard and Clifford Nelson
and by laying off John W Tardiff because of their
activitites on behalf of the Union, Respondents have
engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
7. By interrogating employees concerning their activities
on behalf of the Unions, by threats of reprisal to
employees for engaging in activities on behalf of the
Unions, by the discriminatory application of the
employers' rules, and by discrimination in the application
of the contractual prohibition of solicitation for union
membership or dues Respondents have interfered with,
coerced, and restrained employees within the meaning of
Section 8(a)(l) of the Act.
8. Respondents have not engaged in other unfair labor
practices as discussed above.
9 The unfair labor practices herein found are unfair
labor practices within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Both the General Counsel and the Charging Party have
suggested particular forms and provisions which they
contend are necessary to remedy the unfair labor
practices found I have carefully considered their
recommendations, and I conclude that the normal
remedies granted by the Board in similar cases are
adequate here, and the normal posting by Respondents
will sufficiently apprise employees of their rights and
Respondents' duties with regard hereto. However, in view
of the breadth of the violations found herein, and the fact
that these are not the first unfair labor practices found to
have been committed by Respondents herein, I deem a
broad order warranted, and I shall so recommend. I shall
further recommend that the Employer offer the
employees, named in the attached notice marked
"Appendix," immediate reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of pay sustained by reason of the
discrimination against them including interest at the rate
of 6 percent per annum, the computation to be made in
the customary manner in accordance with the Board's
decision in F. W. Woolworth Co., 90 NLRB 289, with
interest as provided in Isis Plumbing & Heating Co , 138
NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and-
conclusions of law and upon the entire record of the case,
I recommend the Respondents, United Aircraft
Corporation, Pratt & Whitney Division and Hamilton
Standard Division, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing any employee in the units represented by
International Association of Machinists and Aerospace
Workers, AFL-CIO, Local Lodges 1746, 1746-A, and 743
representation by shop stewards at any meetings with the
Employers' management, supervision, or internal security
investigators in which the employee is questioned about,
or required to defend himself against his own misconduct
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the course of his duties or occurring on or in relation to
Respondents' property where the employee requests
representation at the meeting by shop stewards of said
labor organizations.
(b) Refusing permission to the said labor organizations,
or any labor organizations , to attend any meeting and to
represent any employee in such meeting who is a member
of a unit of which it is the collective-bargaining
representative where the purpose of such meeting is to
question the employee about or to require him to defend
himself against his own alleged misconduct in the course
of his duties or occurring on, or in relation to, the
Respondents' property where the employee requests
representation at the meeting by said labor organization.
(c) Refusing to call shop stewards, pursuant to its
collective-bargaining agreements with the above-named
labor organizations, at the request of any employees in the
units represented by said labor organizations, when such
employee seeks to have a steward called for the purpose
of representation in connection with any grievance
concerning wages, hours, or working conditions.
(d) Encouraging or discouraging membership in the
above-named labor organizations, or any labor
organization, by discharging or in any other manner
discriminating against employees engaging in concerted or
union activities.
(e) Promulgating and enforcing rules against talking
about the Union or conducting union business on
company time in order to interfere with union
organization or enforcing such rules while permitting
other types of talking or soliciting on company time.
(f) Interrogating and threatening employees with
reprisals for engaging in activities on behalf of the Union.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to Kenneth Menard and Clifford Nelson
immediate and full reinstatement to their former or
substantially equivalent position and make them whole in
accordance with the section entitled "The Remedy "
Make whole John W. Tardiff for the wages lost as the
result of the discrimination against him
(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 necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Post at its places of business at which units
represented by the Charging Parties exist copies of the
attached notice marked "Appendix."48 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by the Company's
representative, shall be posted by the Company
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
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.d9
"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 "
"In 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 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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse any employee, represented by a
union , representation by shop stewards at any meeting
with management, supervisors, or internal security
investigators in which the employee is questioned about
or required to defend himself against his own alleged
misconduct in the course of his duties or occurring at
our plant, when the employee requests representation
by shop stewards at such meeting
WE WILL NOT refuse permission to the International
Association of Machinists and Aerospace Workers,
AFL-CIO, Local Lodge 1746, 1746-A, 743, or any
other labor organization, to attend any meeting and to
represent any employee in such meeting who is a
member of any unit represented for collective
bargaining by such union, where the purpose of such
meeting is to question the employee about or to require
him to defend himself against his own alleged
misconduct in the course of his duties or occurring at
our plant, when the employee requests representation at
the meeting by said labor organization.
WE WILL NOT refuse to call shop stewards pursuant
to our contracts with the above Unions at the request
of any employees in units represented by said Unions,
when an employee seeks to have a steward called for
the purpose of representing him in connection with any
grievance concerning wages, hours, or working
conditions.
WE WILL NOT discourage membership in any labor
organization by discharging or otherwise discriminating
against employees engaged in union activities.
WE WILL NOT make or enforce rules against talking
about a union, or conducting union business on
company time in order to interfere with union
organization, or enforce such rules while permitting
other types of talking or soliciting on company time.
WE WILL NOT interrogate or threaten employees with
reprisals for engaging in union activities.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL immediately reinstate stewards Kenneth
Menard and Clifford Nelson to their former or
substantially equivalent jobs, and pay them any money
they lost as a result of the discrimination against them;
UNITED AIRCRAFT CORP. 971
and WE WILL -pay John W. Tardiff the wages he lost
as a result of our discrimination against him.
WE WILL notify the above- named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
UNITED AIRCRAFT
CORPORATION, PRATT &
WHITNEY DIVISION AND
HAMILTON STANDARD
time. Respondent presented no evidence that they had
violated any company rules, but supplied the investigative
files which were stipulated to be the documents which
were before the person who made the decision to
discharge the stewards when the decision was made.
Accordingly, the only indication that we have as to the
reason for their discharge is the investigative file.
The file with regard to DeMerchant and Gahagan
indicates on its face that it is a report on Mena
Demetrion. It contains alleged statements of employees
Demetrion, Jasmin, and Kocal, and the summary sheet
therein gives as the classification of the investigation the
following: "Miscellaneous (alleged union solicitation
during working hours)." Demetrion, Jasmin, and Kocal
were not called as witnesses. According to the
Dated By investigative files Demetrion and Jasmin are leadmen '
DIVISION
(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, 20th Floor,
John F. Kennedy Federal Building, Cambridge and New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3300.
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
PAUL E. WEIL, Trial Examiner: On August 12, 1968, 1
issued my Decision in the above-titled, consolidated cases
reserving for a supplemental decision that part of the
issues which had resulted from the General Counsel's
fourth amendment to the complaint and which were heard
on July 15 and July 22, 1968, at Hartford, Connecticut,
with all parties represented by counsel.
At the close of the reopened hearing on July 22 all
parties waived oral argument and briefs. In conformity
with my action in the earlier decision, to which all parties
agreed, I shall now proceed to a determination of the
deferred 8(a)(l), (3), and (5) allegations.
Briefly the fourth amendment to the complaint alleges
that Respondent Pratt and Whitney violated Section
8(a)(3) by the discharge of three stewards, Dennis Brandt,
Hattie Gahagan, and Winston DeMerchant, all in April
1968, and further violated Section 8(a)(5) by its failure
and refusal to call a shop steward at the request of
Brandt, Gahagan, and DeMerchant when they were called
to the internal security department to be interrogated
about the matters which led to their discharges. General
Counsel, of course, contends that Section 8(a)(1) is
violated by the Respondent derivatively by Respondent's
action with regard to the three stewards.
Gahagan and DeMerchant
Hattie Gahagan and Winston DeMerchant were
discharged on April 23, 1968. Hattie Gahagan was told by
her foreman that she was discharged for soliciting
DeMerchant, although he asked why he was discharged,
was not told. A discharge paper subsequently furnished
him stated only that he was discharged for violation of
company rules.
Both Gahagan and DeMerchant testified that they had
not violated company rules and particularly that they had
at no time solicited for union membership on company
(Employer)
As I have stated, Hattie Gahagan testified that she had
never solicited for the Union on company time.
Respondent produced no evidence whatsoever that she had
done so. The only indication on the record that
Respondent had any reason to believe that she had done
so is in the investigative file, in the statement of Mena
Demetrion. Mrs. Gahagan appeared completely truthful.
Indeed, one of Respondent's witnesses, Ann Steves,
unwittingly corroborated her, testifying "I joined the
Union for Hattie just because she was a darned nice
person and she explained things to me and she wouldn't
do anything on company time."
As I see it I have no credibility issued to decide in this
matter. Mrs. Gahagan appeared truthful and denied the
violation of company rules for which she was discharged.
Respondent adduced no evidence that she had in fact
breached any rule, and chose to rely on the contents of the
investigative file, which evidence was placed before a
discharging official but not the truth of its contents. Either
the Employer did not believe the file and willfully
discharged Mrs. Gahagan, an effective and successful
union steward, for discriminatory reasons, i.e., because of
her effectiveness, or discharged her because it erroneously
believed that she had engaged in misconduct. In the
former case the violation is manifest, for an employer
may not discharge an employee because of her
effectiveness as a shop steward If in the latter alternative,
the rule is well settled that when an employee has engaged
in protective activity and is discharged because of the
employer's good-faith but mistaken belief that the
employee engaged in misconduct, the discharge violates
Section 8(a)(1) of the Act 2 Inasmuch as either alternative
results in a finding that the discharge of Gahagan is
violative of the Act and the remedy, whether it be under
Section 8(a)(3) under the former alternative, or Section
8(a)(1) under the latter, is the same, I find it unnecessary
to decide whether Respondent in fact had a good-faith but
mistaken belief that Gahagan had violated the rule against
solicitation.
'Normally the investigative file indicates that the report is made on the
person charged with the alleged breach of rules In this case Demetrion's
name appears rather than that of DeMerchant and Gahagan , although
DeMerchant and Gahagan were obviously the subjects of the investigation
The reason for this may be found in the fact that Demetrion was the
subject of an earlier ivestigation as a result of a grievance filed by an
employee whom Demetrion allegedly had struck and injuried on the job
One of Demetrion 's statements revealed that he blamed DeMerchant for
instigating the filing of a grievance by an employee through Shop Steward
Gahagan which led to the investigation . What, if any, action was taken as
a result of the investigation of Demetrion is not revealed
'Ownes-Corning Fiberglass Corporation , 172 NLRB No. 20; N.L R B
V. Burnup and Sims, 379 U S. 21.
97 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DeMerchant's position is the same as Gahagan's. He
too testified credibly that he had not engaged in
solicitation during working hours and Respondent
produced no evidence to the contrary. So for the same
reason as that set forth above with regard to Gahagan, I
find that DeMerchant's discharge violates either Section
8(a)(3) or 8(a)(1) of the Act.'
Dennis Brandt
With regard to the third alleged discriminatee, Dennis
Brandt; the story is somewhat different. Here again
Respondent produced no evidence other than the
investigative filed. However Brandt himself on the witness
stand testified that he had solicited employees during
"break" periods such as the time spent washing up in the
men's room before lunch and before the close of the day,
and the time spent at the timeclock or standing around
waiting to go to lunch or to go home in the evenings.
Respondent has contended throughout this proceeding that
this is "company time" for which the employees are paid
by the Employer, and accordingly the contractual
provision that there shall be no soliciting for union
membership or collection of dues, as well as the
no-solicitation rule, adheres.
I have considered this position taken by Respondent in
the initial Decision herein, and, based on the Board's
Decision in Plasticoid Company. 168 NLRB No 26, 1
have rejected it. The record is clear in the latter part of
this hearing as well as in the earlier, that employees are
permitted by management to take their relief when
necessary, to break early at lunch and at quitting time in
order to clean up and prepare to go home, and that during
such periods of time they are permitted to talk on any
subject with the exception of the Union.
In his examination, however, Brandt testified that he
had in fact, as the investigative file indicated, broken
another-rule of the Employer in pasting union stickers to
the walls in the men 's room. While the investigative folder
for Brandt states on its-,face that the investigation was
conducted with regard to an allegation of solicitation for
union membership during working hours, both the
synopsis and one of the statements contained in the file
refer to the posting of the union stickers on the walls in
the men's,room.
The employees' manual sets forth rules against posting
written material on walls, machines, etc., as well as
disfiguring the walls and machines. Brandt testified that
other stickers had been posted at various times in the
men's room but he did not know whether the Employer
was aware of the identity of the person who posted them,
nor whether any disciplinary action had been taken with
regard thereto. According to the employee manual, a
breach of the rules with regard to such matters is cause
for discharge. The General Counsel adduced no evidence
that Respondent dealt discriminatorily with Brandt in
regard to the rule or in fact that Respondent at any time
had identified an employee who did breach the rule
'The "facts" upon which the Employer's decision was allegedly based
with regard to DeMerchant included some corroboration of Demetrion's
allegation that DeMerchant had solicited during working hours This was
in the "statement" of Theodore Kocal that DeMerchant- had accosted him
in the men's room and at the timeclock prior to lunch Of course as I have
set forth in the principal Decision , I do not believe that the no-solicitation
rule reaches nonworking time of this nature Accordingly , assuming that
Respondent based the discharge upon Kocal's statement, the discharge
would be violative of Sec. 8(a)(3)
On the state of the record, in view of the stipulation
with which the investigative file was received, I cannot
determine whether Respondent's decision to discharge
Brandt was based upon the alleged solicitation or the
breach of the rule against defacing the walls in the men's
room. I have no reason to believe that either rather than
the other or both gave cause for the discharge. To infer
that the Respondent discharged Brandt because of his
alleged breach of the no-solicitation rule would be to infer
that Respondent engaged in an illegal act, whereas to infer
that Respondent discharged Brandt because of the
defacement rule would be to infer that Respondent acted
lawfully. In the face of two conflicting inferences I am
constrained to infer legality rather than illegality, even
though Respondent herein has demonstrated its
willingness to act unlawfully in other situations. Under all
the circumstances herein I find that the General Counsel
has not sustained the burden of proof with regard to the
discharge of Brandt, and I shall recommend that the
complaint, insofar as it alleges a violation in his discharge,
be dismissed
The General Counsel in his presentation of evidence in
the reopened hearing adduced testimony from Brandt
concerning a large number of solicitations conducted in
Brandt's department during working hours for the
collection of money for Christmas gifts and other gifts for
foremen and leadmen as well as for employees who had
suffered illness or death in the family. On
cross-examination Brandt named, to the best of his ability,
the alleged solicitors and the occasions on which the
solicitations were made. Each of the individuals alleged to
have engaged in the solicitations as well as the foremen
and leadmen alleged to have been the beneficiaries thereof
were called to the witness stand by Respondent, and,
without exception, each denied soliciting during company
time, or in the case of the foremen and leadmen knowing
of solicitation during company time.4 The credibility issues
thus raised would be difficult to decide. Brandt and some
of Respondent's witnesses appeared fairly credible. Others
of Respondent's witnesses were evasive or unresponsive
and one or two of them couched their denials in such form
that I do not believe them. On the other hand no evidence
was adduced by the General Counsel that Respondent's
officials had any knowledge that the solicitations had
taken place, except in one instance where Brandt testified
that a foreman had contributed during working hours,
which was specifically denied by the foreman.' I do not
feel called upon to resolve these credibility issues. The
record of the case-in-chief reveals many instances of
solicitation conducted during working hours, some of
which were obviously done with the knowledge of the
supervisor. Respondent acknowledges that it not only
condoned but furthered solicitations for certain charitable
enterprises which were conducted during working hours,
4The specitic instances of solicitation of Brandt to which he testified, he
was approached at his machine during working hours, were not specifically
denied
'Clearly the foreman must have known of the solicitation for
contributions to the gift which the foreman received, and clearly such
solicitations breached the rules, for Respondent has a rule against
supervisors receiving gifts from the employees whom they supervise There
is no indication in the record that any investigation was made of the
breach of this rule except the pretrial investigation conducted between July
15 when Brandt 's evidence was heard and July 22 when the employees were
called to testify That investigation was conducted by Personnel Advisor
Dominic Cordone, who admittedly called each of the employees named by
Brandt into his office, informed them that they had been accused of
soliciting during working hours, and heard their denials.
UNITED AIRCRAFT CORP. 973
and in fact such solicitations were made in the
departments with which we are here concerned, as well as
the other departments in the plants. However in view of
my conclusion that the no-solicitation clause in the
contract has the effect of revitalizing the no-solicitation
rule set forth in the employee manual to the extent of
solicitation for union membership or dues, I consider that
it is not necessary to determine whether a discriminatory
enforcement of the rule was conducted in this department.
Accordingly I make no findings with regard thereto.
The 8(a)(5) Allegation
The General Counsel contends that, by its refusal to
call shop stewards at the request of Brandt, Gahagan, and
DeMerchant when they were called for interrogation to
the internal security department, Respondent violated
Section 8(a)(5) and (1) of the Act.
The record discloses that since the events which were
considered in the principal Decision herein both
Respondent and the Union have established new
guidelines for the individuals concerned in the
interrogation process. The first revelation of these
guidelines, as far as the record reveals, took place when
Brandt was called to the security office on April 10.
Before Brandt went to the internal security office he asked
that a shop steward be called, but his foreman declined to
do so saying that Brandt did not know what the internal
security wanted to talk to him about. When Brandt
reported to the internal security office he was met by two
investigators, Benton and Driscoll, who told him that they
had a complaint that he had been doing union business on
company time and asked if Brandt had been signing
people up on company time. Brandt asked for a shop
steward and was told that they could not grant or deny
him a shop steward.6 Brandt then told the investigators
that he was not' refusing to answer the questions but
would write them down and take them to his attorney and
bring back an answer. The investigators declined to permit
him to do this stating that he would have to answer the
questions or remain silent. The investigators called in
Supervisor Connolly who informed Brandt that he had to
either answer the questions or remain silent. Brant said he
would remain silent. They then sent him back to his
department. He worked until about 12:20 at which time
his foreman told him. "we understand you were down to
internal security and you refused to answer the questions."
Brandt answered that he wasn't refusing to answer, that
he would write, the questions down and bring them the
answers. The foreman said, "You can't do this you've got
two choices, go *dbwli there and answer the questions or
go home." Brandt went home. That night he checked with
the Union and they told him to go in the next day and if
it appeared that he would jeopardize his employment by
refusing to answer the questions that he should do so.
The next day Brandt reported to work and found that
his timecard was not in the rack. He asked the foreman
for the timecard and the foreman said, "I don't know if I
can give it to you, I'll have to check." Brandt then walked
down to the internal security office with the foreman and
told the investigators that he was going to answer the
questions. Benton and another investigator, whom he
identified as Jordon but appears to have been Johnson,
were there. Brandt again asked for a steward and Benton
'Security Investigator Johnson testified to the same affect He stated
that the investigators have no "authority" to call a shop steward, that only
the foremen can do so..For some reason he did not appear to believe that
this was tantamount to a refusal to call a shop steward
said, "I told you yesterday you could not have one."
Brandt then again asked to copy the questions down and
bring them to the steward and said that he was directed
by the Union to listen to the questions. The investigators
proceeded to question him about whether he had been
signing people up on company time, and whether he went
to the men's room and talked about the Union on
company time. He answered "no" to both questions
whereupon Benton said, "Well we have a witness that said
you were up to the men's room talking about the Union
on company time, are you calling him a liar?" Brandt
answered "yes" to that question. They asked him whether
he passed out wage cards on company time and he denied
doing so. They asked him a number of other questions all
of which he answered. They then wrote up a statement for
his signature and asked him to sign it. He took exception
to the language of the statement, stating that in the first
place he was not there voluntarily but there only because
he was told to answer the questions or he could not work.
He then pointed out that he was not without fear because
he was in fear of losing his job. He was threatened either
to come down to the internal security office or not return
to work. The investigators told him to read the whole
statement through and then they would return and cross
out the portions to which he took exception. They read it
through and the investigators asked whether he was going
to sign it. Brandt asked whether he was going to get a
copy and the investigators said no. Brandt declined to sign
it and returned to his department. Later that day he was
discharged for "violation of company rules "
The next incident took place when DeMerchant was
called to be interviewed at the plant security office on
April 23. Before he went there he asked for a shop
steward and his foreman refused to send for one. At
internal security he was interviewed by two internal
security agents, Johnson and Krieger. He asked them for
a shop steward and they declined to provide one on the
ground that they were not authorized to do so. They
asked him whether he had solicited on company time and
he took out a pocket notebook and proceeded to write the
questions down. He told them that he proposed to write
down the questions and take them to someone from the
Union and return an answer to them. Johnson said,
"You're not going to answer the questions?" DeMerchant
answered, "I never refused to answer the questions."
Again Supervisor Connolly was sent for and came in and
asked DeMerchant, "You're not going to answer the
questions." DeMerchant told him that he did not refuse to
answer the questions but explained that he wanted to take
them to the Union. The interview was terminated and
DeMerchant was sent back to his department. At 3.15
that afternoon he was told by his foreman that he was
discharged.
Hattie Gahagan was called to the internal security
office apparently during the time that DeMarchant was
being interrogated. She was accompanied there by her
supervisor, Charron, who left her at the office. She waited
briefly and was then called in and interrogated by two
internal security investigators whom she did not name.
However, it appears that they were Johnson and Krieger.
They told Mrs. Gahagan that the had been accused of
soliciting and she answered "that's ridiculous I have been
warned not to do that." They asked whether she would be
willing to sign a statement to that effect and she said "it
sounds to me that you have a grievance against me and if
you have I'd like to have union representation here." They
told her that they could not do that. She then asked to
copy down the statement they wanted her to sign or the
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questions and she would take them to the union
representative and- bring them back. She stated that she
was not refusing to sign, she just wanted a chance to go
over them with the union representative. One of the
internal security men shrugged his shoulders and said
"we're at a standoff." Once again Connolly was called in.
He said, "Am I to understand you don't want to answer
these questions at this time, but you'd like to copy them
and take them over to a union representative or a shop
steward or a union steward or a lawyer or something and
have them go over them with you." She answered, "Yes."
Connolly then said "but you don't refuse to answer the
questions?" She answered, "No." Connolly then said,
"Well I guess we are at a standoff," and told her to go
back to her job. She did and was discharged that
afternoon for soliciting.
I have discussed, in the principal Decision in this
matter, the law as I see it with regard to interrogations
such as those set forth above and I have found that in the
interrogations considered therein the employer violated
Section 8(a)(5) and (1) of the Act by its action in calling
the employees to the internal security office, refusing them
representation, and interrogating them concerning the
alleged violation. I see nothing in the three incidents set
forth herein to distinguish them from those I found
violative in the earlier case. Again we have the following
factors present:
1. The employer's investigation with regard to each of
the three stewards was already complete. The investigation
obviously was being conducted only for the purpose of
completing a paper record to support disciplinary action.
The proof of this fact is that none of the three stewards
told the investigators anything supportive of the matters
alleged against them and two of the three denied the
allegations of which they were accused. Nevertheless each
of the three was discharged on the day of the
investigation.
2. The interrogations were conducted under duress.
Brandt, the first one with which we are concerned was in
fact laid off for part of a day because he refused to
answer questions and was told that he could not return to
work until he answered the questions. The Respondent has
made no showing that this was not in fact the rule or that
it has been changed. Also, each of the three stewards were
aware of the fact that they were in danger of losing their
jobs because of the allegations made against them and
their knowledge of the action that Respondent had taken
with regard to other shop stewards under similar
circumstances, which were litigated in the earlier part of
the proceeding.
3. Each of the stewards asked for and was denied
representation by a shop steward. Two of them, Brandt
and DeMerchant, asked their foremen before they went to
the internal security office and all three of them asked the
internal security investigators. The alleged rule that
internal security officers have no "authority" to call shop
stewards is no defense to Respondent. They obviously
have authority to call the foreman who may call a shop
steward and their refusal to provide a shop steward was
tantamount to a refusal of representation.'
There can be little doubt that within the Board's rule in
Texaco' Respondent's actions with regard to the
interrogations of the three stewards violate Section 8(a)(1)
and (5) of the Act and I so find.
It is conceivable that Respondent could argue that it
was the refusal of the employees to answer questions or to
sign statements that caused their discharge. That a rule
existed that such refusal was ground for discipline would
appear from the actions taken with regard to Brandt when
he originally refused to answer the questions until he had
conferred with union authorities. The Respondent neither
by its answer nor by evidence revealed what it considered
to be the cause of discharge and the General Counsel
made no effort to ascertain which alleged rule violations
resulted in the discharges.' This defense, if raised, could
avail Respondents nothing. The interrogations were
unlawful as I have found and a discharge for refusal to
submit to such a coercive unlawful interrogation violates
Section 8(a)(1) and (3) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
By discharging Hattie Gahagan and Winston
DeMerchant because of their activities on behalf of the
Union and in order to discourage union membership,
Respondent has violated Section 8 (a)(1) and (3) of the
Act.
I do not deem it necessary to make additional
conclusions of law with regard to the other violations
found inasmuch as the conclusions in the principal
Decision herein adequately represent my findings in the
Supplemental Decision.
THE REMEDY
Having found that Respondent unlawfully discharged
Hattie Gahagan and Winston DeMerchant I recommend
that Respondent be ordered to offer these employees
immediate and full reinstatement to their former or
substantially equivalent positions at Respondent's East
Hartford facility without prejudice to their seniority or
other rights and privileges and make them whole for any
loss of pay they may have suffered as a result of their
discharge by payment of sums of money equal to those
they would have earned as wages from April 23, 1968, the
date of their discharge, to the date of Respondent's offers
of reinstatement less their net earnings during such period
computed quarterly with interest in accordance with the
formula prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co, 138
NLRB 716.
Inasmuch as this is a Supplemental Decision and the
principal Decision in this matter, heretofore issued,
contains a Recommended Order with provisions for the
remedy of every allegation found to be violative in this
Supplemental Decision,for the sake of clarity and brevity
I shall not repeat my Recommended Order nor provide
for a second notice to be posted. I recommend however
that the Recommended Order be amended by adding to
paragraph 2(a), after the name Kenneth Menard, the
names Hattie Gahagan and Winston DeMerchant I
further recommend that the notice be amended by
'Investigator Johnson whose testimony was extremely evasive and
frequently incredible contended that there was no refusal as such to call a
shop steward. I regard his contention as nothing but a cynical evasion of
the fact.
'Texaco, Inc, Houston Producing Division, 168 NLRB No 49
'Hattie Gahagan testified that she was informed that her discharge was
for soliciting The other stewards were not informed
UNITED AIRCRAFT CORP. 975
including the names Hattie Gahagan and Winston With regard to the allegation that Dennis Brandt was
DeMerchant in the reinstatement and make-whole discharged in violation of Section 8(a)(3) of the Act, I
provisions in the same fashion. recommend that this allegation be dismissed