United Aircraft Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 278 (N.L.R.B. 1969)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Aircraft Corporation (Pratt & Whitney
Division ) and Lodge 1746 and Canel Lodge 700,
International Association of Machinists and
Aerospace Workers, AFL-CIO and Local 1746,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Cases 1-CA-6475
and 1-CA-6602
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, United Aircraft
Corporation (Pratt & Whitney Division), Hartford,
Connecticut, its officers , agents , successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
be, and hereby are, dismissed.'
On August 8, 1969, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
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 Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended the dismissal of such
allegations. Thereafter, the Respondent, the General
Counsel, and the Charging Parties filed exceptions
to the Trial Examiner's Decision and supporting
briefs, and the Charging Parties filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations= of the
Trial Examiner.3
'The General Counsel and the Charging Parties have filed motions to
consolidate the instant cases with United Aircraft Corporation, (Pratt &
Whitney Division .) Cases I-CA-5681, which are presently before the
Board . The motions are denied In deciding the instant case we have taken
notice of our findings and conclusions in Case 1 -CA-5681, 179 NLRB No.
160.
'The Respondent argues, in effect , that the Board 's powers may not be
invoked or should not be exercised in this case because of the existence of
a provision in the collective-bargammg agreement authorizing arbitration
in the event of employee grievances , including discharges In this
connection, the existence of a grievance -arbitration procedure in a
collective agreement does not oust the Board of its power , nor relieve it of
its public duty, to act to inhibit unfair labor practices cognizable under the
Act. Section 10(a) of the Act explicitly provides that the power of the
Board with respect to unfair labor practices "shall not be affected by any
other means of adjustment or prevention that has been or may be
established by agreement , law, or otherwise ." In cases of this type,
the Board has been unwilling to defer to available arbitration, where the
parties themselves have chosen not to resort to that forum ; we find no
justification for abandoning our statutory authority here . See, e.g.,
Morrison-Knudsen Company , Inc., 173 NLRB No. 12; The Coachman's
Inn, 147 NLRB 278, 306.
'Even if, as Respondent contends , it had a good-faith belief that the
three individuals involved had violated the contractually agreed-upon
no-solicitation rule, the Trial Examiner found they had not in fact done so
In these circumstances , Respondent's good-faith belief would be no
defense . N.L R.B. v. Burnup and Sims, Inc., 379 U S. 21. See also Marion
Manufacturing Company. 161 NLRB 55, fn. 1.
'We agree with the Trial Examiner that the Respondent 's confiscation of
Antonio Pegorer ' s union membership and dues deduction card , occurring
as it did, during working time , was not unlawful. The instant case is to be
distinguished from the seizure found violative of Section 8(a)(1) in United
Aircraft Corporation (Pratt & Whitney Division ,) 179 NLRB No. 160, for
there, unlike in the instant case , the seizure occurred during the employee's
lunch break , and, hence , on nonworking time.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IvAR H. PETERSON , Trial Examiner: On March 10,
1969, the Acting Regional Director for Region 1 issued a
consolidated amended complaint against United Aircraft
Corporation (Pratt & Whitney Division), herein called the
Respondent, based upon charges filed by Lodge 1746 and
Lodge 700, in Case I-CA-6475, on October 1, 1968, and a
charge in Case 1-CA-6602 filed on January 31, 1969, by
Lodge 1746. Briefly stated, the complaint alleged that
employee Daniel Wing was suspended for 5 days at the
Middletown, Connecticut plant, employee Theodore
Ardenski was discharged on August 24, 1968, at the East
Hartford, Connecticut, plant, and that employee Thomas
Wiseman was discharged on January 14, 1969, at the
Manchester, Connecticut, plant, for the reason that they
joined or assisted Lodge 700 and Lodge 1746 or engaged
in other concerted or protected activities, all in violation
of Section 8(a)(3) and (1) of the Act. In addition, the
complaint alleged that the Respondent independently
violated Section 8(a)(1) of the Act by the conduct of
internal security agents and a supervisor in, respectively,
interrogating an employee about his union activity and
confiscating on or about August 26, 1968, an employee
membership and a dues deduction authorization card, and
by "[D]iscriminatorily, coercively and excessively
enforcing and administering its rule and contract
prohibition barring union solicitation during working
hours" at each of the three plants.
Pursuant to notice I conducted a hearing at Hartford,
Connecticut, on March 24 through 26 and April 8 through
10, 1969, at which all parties were represented by counsel
and participated. Comprehensive and able briefs have been
filed by all counsel on June 16.
Upon the entire record in the case,' and from my
observation of the witnesses and their demeanor, I make
the following:
'Pursuant to the unopposed request of Respondent ' s counsel, the
180 NLRB No. 49
UNITED AIRCRAFT CORP. 279
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent Pratt & Whitney Division, a subsidiary of
United Aircraft Corporation, operates plants at East
Hartford, Middletown and Manchester , Connecticut, the
only plants involved in this proceeding. The Respondent is
engaged in the manufacture, sale, and distribution of
aircraft components and electronic devices. In the
operation of its enterprises the Respondent annually
receives goods and materials valued in excess of
$1,000,000 at its plants located in the State of Connecticut
which are shipped from points outside the State of
Connecticut, and ships substantial quantities of its
products in interstate commerce from its Connecticut
plants to other States of the United States. Respondent, I
find, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Lodges 700 and 1746 , International Association of
Machinists and Aerospace Workers , AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
In many respects, the instant proceeding is an updated
version of a prior consolidated proceeding involving the
same parties , now pending before the Board.' Among
other things litigated in that proceeding was the alleged
discriminatory discharge of several union stewards who
had been the subject of investigation and interrogation by
plant internal security agents concerning their alleged
violation of the Respondents ' 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." Also involved
in that case was the alleged discriminatory application of
the no solicitation rule against union-oriented activities.
The same two questions are presented here but with a
different cast of characters. It is here alleged that Wing
was suspended and Ardenski and Wiseman discharged -
all being union stewards - for their alleged violation of
the foregoing no solicitation rule and following an
investigation and interrogation by internal plant security
personnel; it is further contended by the General Counsel
that internal security investigators unlawfully interrogated
an employee concerning his union activity and sympathies
and those of other employees, that foreman Frank Bogdan
complete printed current contract between the parties is hereby substituted
for Resp . Exh. 17.
Counsel for the Union , after the hearing , moved that two documents -
the Regional Director's letter of April 22, 1969, dismissing the charges in
Case 1-CB-1474, and two transcript pages from the negotiating session of
November 13, 1968 - be received in evidence as Charging Party 's Exhs. 6
and 7, respectively. Respondent 's counsel acquiesces in the first request but
opposes the second . Having considered the matter , I conclude that both
documents ought to be received in evidence , and they are received as
Charging Party's Exhs . 6 and 7, respectively . Under date of July 17,
counsel for the Union moved that I receive in evidence the General
Counsel' s letter of July 15, affirming the Regional Director 's dismissal of
charges in Case I-CB- 1474. The motion is granted.
unlawfully confiscated from an employee, membership and
dues deduction authorization cards which were the legal
property of Lodge 700, and "discriminatorily, coercively
and excessively enforced and administered its rule and
contract prohibition barring union solicitation during
working hours." The Respondent generally contends that
the suspension and termination of the stewards was for
just cause on account of established violations of the no
solicitation rule and contract provision or, at the least, on
the basis of investigative reports conducted in the ordinary
course which led responsible agents of the Respondent to
believe in good faith that violations of plant rules had
been committed. In addition, the Respondent asserts that
the matters here involved should not be the subject of a
Board unfair labor practice proceeding but, instead,
should be disposed of under the provisions of the
collective-bargaining agreement between the parties
providing for grievance and arbitration procedures, for the
reason, primarily, that what is here involved is the
interpretation and application of a contract provision.
B. The Changes in Conditions and Status of
Employment
Daniel Wing began working for the Respondent in
April 1967 at the North Haven plant doing internal
grinding . He stayed at that plant for approximately 7
months when he was transferred to Department 4240 at
the Middletown plant, where he has continued to work
ever since. When first employed he was at labor grade 8,
below job rate. In August 1968, he was in labor grade 7 at
the premium rate, thus having progressed in the space of
slightly over a year almost two labor grades. At that time
there were three other internal grinders but Wing was the
only one at the premium rate. It is Wing's testimony,
substantially corroborated by his foreman, Frank Bogdan,
that Wing was assigned difficult work and was an
excellent worker. Wing testified without contradiction that
his foreman had remarked many times that he was the
best grinder on the three shifts. His output was
consistently above 100 percent, and in August 1968 he
received a favorable employee report for having perfect
attendance and not having been late or absent a single
day.
In May 1968' Wing became a union steward, a position
which involved liaison with employees particularly in
regard to soliciting membership, explaining various
problems and generally promoting the Union, in contrast
to shop stewards who handle grievances. As a union
steward, Wing wore a badge and a distinctive shirt with
the Union emblem on the back. After becoming a union
steward Wing solicited 15 or 20 employees and signed up
approximately 4. It is Wing's testimony, vigorously
adhered to, that none of his solicitation activity took place
during working hours.
On August 23 Antonio Pegorer spoke to Wing about
membership in the Union as they were in the main aisle of
the department going towards the men's room
approximately 5 minutes before the end of their lunch
hour.' Pegorer said that he would like to join the Union
and Wing, who said he had some cards with him, gave
Pegorer a membership card and a dues checkoff card.
Wing explained to Pegorer that the cards had to be filled
'United Aircraft Corporation (Pratt A Whitney Division ). Cases
I-CA-5681 et at, in which Trial Examiner Paul Weil issued his Decisions
on August 12 and 20, 1968.
'Unless otherwise indicated all dates refer to the year 1968.
'At about 9 : 30 a.m . Pegorer first spoke to Wing about wanting to join.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out in ink with his name appearing as it was on the
timecard. Pegorer took the cards and said he would fill
them out at home.
The following Monday as Wing was at his machine at
about 10:30 or I1 o'clock, Pegorer, whose work location
was across the aisle about 20 or 30 feet away from Wing,
came over and said to Wing that he had "your union
cards" and asked whether they were all right Wing, who
was engaged in running his machine processing a part at
very close tolerance, glanced over and saw that Pegorer
had not signed the bottom of the dues checkoff card; he
then answered Pegorer and said that the dues checkoff
had not been signed at the bottom. Wing then shut off his
machine and when he turned back toward Pegorer the
latter had a pen with which he was beginning to write on
the card Wing then, so he testified, told Pegorer "don't
sign now " Pegorer stopped what he was doing and at that
point Foreman Bogdan came over, asked for the cards
and took them. Wing, as a witness, explained that he
stopped his machine because he "figured that I could not
talk to him [Pegorer] and knew I had to explain that I
shouldn't be talking to him, and he is a person that you
can not say one thing [to] without explaining to him, and
I knew it would take time, so I wanted to make sure I
didn't hurt the part, and you cannot run the part and talk
at the same time." From my observation of Pegorer on
the witness stand, and listening to his attempts to answer
questions, I am thoroughly in agreement with Wing's
observation that it takes time and considerable explaining
to make clear to Pegorer the simplest matter. The
foreman's desk is located between the work stations of
Wing and Pegorer and there is nothing to obstruct his
view from the desk to Wing's machine.
On August 29 Wing was ordered by his foreman to go
to the security office in the personnel department where he
was questioned by two internal security investigators.
When advised by his foreman to go there, Wing stated
that he did not want to go without a shop steward, to
which Foreman Bogdan answered, "I can't give you a
shop steward because I don't know what they want "
Wing "argued a bit" in a polite fashion and was then
ordered to proceed to the security office, the foreman
stating "You go up and find out what they want and then
you can ask for a shop steward." Between the time that
Bogdan took the cards away from Pegorer and the time
he ordered Wing to proceed to the security office, neither
Bogdan nor any other supervisor discussed the card
signing incident with him.
When Wing arrived at the security office he was met by
two investigators, one named Varden and the other a man
whose name he did not recall. Varden did most of the
interrogating, which began with his asking Wing, "You
know why you are here, don't you, Mr. Wing?" When
Wing answered that he did not know why he was there,
Varden "seemed surprised" and stated that he was there
"because we understand you have been conducting Union
business on Company time." Varden asked whether Wing
had been so conducting himself. At that point, Wing
answered, "well, I want to see a shop steward" if that was
the situation. Varden stated that he did not need one, that
it was "dust a friendly question," that they wanted to "get
things straighten [ed] out" and that it was "nothing
serious." Varden was "firmly polite about" telling Wing
that he did not need a shop steward and then again asked,
Although Wing had cards in his pocket he did not give any to Pegorer then
but said he would see him later on.
"Have you been conducting Union business on Company
time?" Wing answered "No; but I would like to have a
shop steward." Wing was then asked whether he had
solicited Pegorer on Company time and answered in the
negative , whereupon Varden said, "Did you give him
some union cards and checkoff cards on company time?"
To this Wing answered in the affirmative and Varden then
asked, "Did you give him those cards at 12:15," a
question which Wing considered an attempt to trap him
Thereupon Wing insisted on having a shop steward and
Varden said he could not give him a shop steward and
asked whether he wanted to go to the personnel office.
Wing answered that he did not but that he wanted to go
back to his department and stay there until he was given a
shop steward before he went anywhere else Thereupon
Varden said "Well, we can't keep you against your will,"
and Wing left.
Following his interrogation by internal security
personnel, no one from management discussed the matter
with Wing.' On September 3, about 3 or 4 minutes before
quitting time, Foreman Bogdan motioned for Wing to
come over to his desk, which he did. Bogdan showed
Wing an employee report and asked him to read it; the
report stated that Wing was suspended but at the time he
did not realize whether it was for 3 or 5 days 6 Bogdan
asked Wing to sign it but he declined saying he did not
know what violation he had committed. He asked Bogdan
what he was supposed to have done and Bogdan indicated
that the report stated he had violated company rules.
Actually Wing was suspended for 5 days
On cross-examination, Wing insisted that he did tell
Pegorer to go away and that he was not supposed to sign
the dues deduction card at that particular time but that
Pegorer said "what do you mean? I got to find this out."
Bogdan at that point was about 10 feet away and came to
Pegorer and took the cards saying "give me that."
Questioned why he did not tell the investigator that
Pegorer had come over to his machine uninvited and that
he had tried to send him away, Wing said that his only
reason was that he did not want to get Pegorer into
trouble. With respect to the day he was notified of his
suspension , Wing testified that he attempted to explain to
Foreman Bogdan the actual circumstances of Pegorer's
visit to his machine, but Bogdan brushed him off by
stating that he had had his chance to clarify matters in the
course of the investigation by the internal security agents
but that he had in effect refused to talk to them. Present
with Bogdan was Foreman Elmore Johnson. When Wing
refused to sign the employee report Bogdan asked
Johnson to read it out loud. He did so in the presence of 7
or 8 employees, it being shift change time, who listened
Pegorer, called as a witness by Respondent, had a
limited and quite hazy recollection of the entire series of
events that led to his and Wing' s suspension . At the outset
he was asked to identify a 2-page statement which he gave
to the plant security investigators on August 26 and which
is part of the Respondent' s investigative file on the Wing
incident . He affirmed that the statement was true but then
he was interrogated by Counsel for the Respondent (at my
suggestion ) about the specific events and what he told the
investigators . The following then ensued:
'On September 6, payday, Wing came to the plant to get his check
While there a Mr Deag in the personnel department told him he was to
return to work the following Wednesday and that he was lucky he still had
a job
'Wing testified that he actually lost 7 days' pay, as there was overtime
work on Saturday and Sunday
UNITED AIRCRAFT CORP. 281
TRIAL EXAMINER: Well, I'd like to hear it, I'd like to
hear the witness relate the events in which he was
involved.
MR. WELLS: All right. I'll be happy to interrogate
him.
Q. (By Mr. Wells) All right, Mr. Pegorer, do you
recall this event in which you and Mr. Wing were
involved?
A. Well, no. In a way, yes. Seven or eight months
went by anyway. I can't recall exactly what happened.
Q. It happened dust two or three days before you
gave the investigators this statement'?
A. No, the same day if I don't make mistake.
Q. Well, your statement is dated August 26th and in
that statement you stated it occurred on August 23rd, is
that correct'?
A. I don't know. I don't remember no more. Maybe
it's correct, but I don't know.
He then testified that it was on a Monday at about 10 or
10:30, that he brought two cards over to Wing's machine
and showed them to him; that one card was not signed
and that Wing "told me to sign . . . I started to sign the
card and I saw my foreman come over. He took the card
away from me." According to Pegorer, Foreman Bogdan
said something that he did not understand and walked
away and Wing said nothing. He further testified that
Wing had given him the cards on Thursday or Friday of
the previous week. In his statement to the security
investigators Pegorer related that he went over to Wing's
machine "during the afternoon and on working time" a
Friday, August 23, to get the cards. However, he testified
that he could not remember exactly how he came to get
the cards. Pegorer acknowledged that on Monday, August
26, he went over to Wing's machine and showed him the
two cards, one of which had two blank spaces and the
other of which was unsigned at the bottom, and testified
that Wing said he would take care of filling in the spaces
and then asked Pegorer to sign the card that was not
signed.
It is Pegorer's further testimony, on direct examination,
that about 3 o'clock on August 26 Foreman Bogdan
handed him a pass to go to the security office. There he
stayed for about an hour and a quarter and was asked a
great many questions. He was not, however, asked to
relate what the investigators talked to him about.
On cross-examination, Pegorer testified that he went to
Wing at the latter's machine and asked him for the cards
saying that he would like to join the Union, and that this
was about 9:30 in the morning. Wing, however, did not
give him the cards at that time, but said he would give
him the cards later on . However , Pegorer was unable to
remember just when Wing actually gave him the cards.
Nor could he remember what he had told the security
investigators as to the time Wing gave him the cards.
In the statement given to the investigators, as originally
written up , Pegorer stated "On Friday, August 23, 1968,
during my lunch time which is from 11 : 15 a.m., to 11:45
a.m., I got in touch with the union steward in my
department." The typed words beginning with "my lunch
time" and ending with " 11:45 a.m ." are then lined out
and printed above them are the words "the afternoon and
on working time I left my machine and went over to the
union steward ' s machine ." Pegorer testified that the
change was made by the investigator in the following
circumstances:
Q. . . . Now, why did the investigator change it?
A. Because I told them I wasn't sure. First I say one
thing, then I say another thing. Really I wasn't sure,
you know. I couldn't remember. I was nervous that
day, and I don't know, this thing was something new to
me.
In his pretrial statement to the Board agent, Pegoer
stated that, when asked the first time by the investigators
when Wing had given him the cards, he said, "I said he
gave them to me at lunch time." Later, according to his
testimony, "When the information had been typed up and
Varden read it to me, I said I wasn't sure when Wing had
given me the cards, that it might have been 2 p.m., or
even in the morning." Pegorer testified that Varden then
crossed out "lunch time" on the statement and "wrote in
that Wing had given them to me in the afternoon."
Ernest Smith, a leadman under the supervision of
Bogdan, testified that on his way to Bogdan's desk he had
a conversation with Wing during which Wing "got talking
to me" about the bloodmobile which was then going
around, and said that if the Company could solicit he did
not understand why the Union could not, and added that
the NLRB "passed a law to the effect that they can solicit
members on Company time." When Smith got to
Bogdan's desk a few moments later he mentioned this
conversation to the foreman, who was unable to make any
clarifying comment. At about this point Smith noted that
Wing and Pegorer were together and stated to Bogdan
that he thought they might be talking union business.
Foreman Bogdan testified that he saw Pegorer at
Wing's machine, that he went over and asked Pegorer
what the problem was and then noticed a card on the
work bench and asked that Pegorer give it to him.
According to Bogdan, immediately after he asked for the
card, which he believes Wing handed to him, Wing said
that there was a new law or ruling to the effect that if the
Company can solicit for bonds or other projects "We [the
Union] can solicit, too." Bogdan testified that he said to
Wing that he knew nothing about the matter but would
check into it. After being given the card Bogdan told his
general foreman about the incident and also consulted
with the personnel advisor. Bogdan testified that he did
not question either Wing or Pegorer but concluded from
what he had observed that Wing was the solicitor and the
moving party in the incident. He further testified that it
was on this basis that he concluded, and the general
foreman concurred, to suspend Wing for 5 days but
Pegorer for only 3. He acknowledged that he had
consulted the personnel records before determining upon
the measure of discipline, and was aware that Wing had
an unblemished record whereas in Pegorer's file there was
an employee report that he had been warned about being
away from his machine unnecessarily.
The security investigators were not called as witnesses.
Theodore Ardenski started working for the Respondent
in July 1966 and was terminated on August 24, 1968. He
worked at the East Hartford plant. He started as an
in-process inspector in Department 968-1018 at Labor
Grade 9 and 85 percent of grade. Within 6 to 9 months he
was at the job rate in that grade and continued in that job
classification for approximately 9 or 10 months. He was
then moved to Department 968-323 as a bench inspector
at labor grade 9. He remained on that job 4 or 5 months
when he was transferred to X-ray department 968-9795,
and was moved to job grade 8. When he was terminated
he was an operator taking photostatic copies of parts and
had moved to job grade in Department 978-1225. This last
assignment was a more advanced type of bench inspection
and entails some layout work. During his period of
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment he had gone to a number of schools
conducted by the Company, about eight in number, for
which he was paid at the rate of time and one half.
Ardenski is a college graduate, having attended Catholic
University and also Georgetown University; at the time of
the hearing he was going to Central Connecticut State
Teachers College, taking both graduate and undergraduate
work. At Catholic University he studied in the seminary
intending at that time to be a priest. In about January
1968 he became a union steward and in July was made
senior union steward , a position which entailed his having
some control over union stewards to see that they did
their proper jobs within their respective areas. Ardenski
solicited everyone in his department, consisting of 15 to 25
employees; he signed up 8. It is Ardenski's testimony that
he did not engage in solicitation activities during working
hours.
Ardenski was allegedly terminated because he solicited
two employees, Thomas Gonye and Wendol Winchell,
during working hours. These two employees customarily
worked in X-ray Department 979/V, a department to
which Ardenski was occasionally transferred or loaned
out. It is the Respondent's contention that its investigation
established to its satisfaction that Ardenski engaged in his
solicitation activities on working time, whereas the
General Counsel asserts that the activity occurred during
nonworking or nonpaid time. Ardenski testified that he
solicited these two employees on February 9 while he was
on loan to Department 979/V. He testified that he
solicited them during the lunch period which was from
3:45 to 4:15. For different reasons he put the date of
execution as May 9 on each card. With respect to Gonye,
the reason for so dating the card was, according to
Ardenski, that Gonye was somewhat uncertain whether he
wanted to join the Union at that time and, accordingly,
Ardenski postdated the card on the understanding that if
prior to May 9 Gonye should decide that he did not wish
to join the Union he could so inform Ardenski and avoid
the embarrassment of going to the union hall to retrieve
or cancel his card. As to Winchell, Ardenski testified that
he postdated his card because Winchell explained that he
was in financial difficulties and therefore Ardenski
postdated the card 3 months so that Winchell would have
time in which to straighten out his financial problems. It
is Ardenski's uncontradicted testimony (neither Gonye nor
Winchell was called as a witness) that neither of them said
anything to him between February and May regarding the
status of their membership and dues checkoff cards,
although they frequently ate together.
On July 23 Ardenski came to the plant at
approximately 11:30 a.m., 30 minutes before the beginning
of his shift. During that half hour he was outside the plant
distributing union leaflets . About a minute or two after he
had punched his card, but prior to the ringing of the bell
announcing that work was to begin , his foreman , Bernard
Nieczeczwski, came over and stated, "You're wanted in
plant security, plant investigation." Ardenski asked the
reason for this and the foreman said he did not know.
Ardenski proceeded to the internal security office where
he was greeted by a Mr. Clifford and a Mr. Driscoll.
Driscoll asked if he knew the reason why he had been
called to the plant security office and Ardenski said that
he did not. Thereupon Driscoll said that he understood
that Ardenski had signed up two people on company time.
Ardenski said that that was news to him, for he
understood from steward classes that soliciting before and
after shifts and during lunch periods was not a violation of
any company rule. The three then had a general
conversation in which Driscoll said that one individual had
told him that he had become a union member " in name
only," and Driscoll asked Ardenski what this meant.
Ardenski explained that, if a person was not intending to
join immediately, perhaps due to financial difficulties or
some other reason , Ardenski would advance the date on
the card and hold it, turning it in to the Union later if the
individual had not expressed a desire to withdraw and not
become a member . It is Ardenski's uncontradicted
testimony that the security agents repeatedly asked him
what was meant by "member in name only." After the
conversation had proceeded for some time, Ardenski
noticed a folder on the table with a marking that he said
appeared to be "Gonye versus Ardenski," and he then
asked if Gonye was the person involved. Driscoll opened
the folder and showed it to Ardenski and it appeared that
Gonye had gone to the personnel office and that that was
the reason Ardenski was being investigated in order to
permit him to present his side of the story, to explain
where the solicitation had occurred and at what time and
any other relevant information. Driscoll then took down a
statement in longhand . After the statement had been
typed Ardenski readily signed it , stating that he had not
violated any company policy or any company rules.
After Ardenski had signed the statement Driscoll
stepped out of the office for a few moments during which
Clifford again asked Ardenski what he meant by "in
name only." Ardenski explained the matter to Clifford
again . Driscoll then returned, sat down and showed
Ardenski a union flyer which was the same as the one
Ardenski had distributed July 23 prior to going to work.
Driscoll asked Ardenski if he recognized it and the latter
answered in the affirmative; Driscoll then opened the flyer
and requested that Ardenski read a paragraph which dealt
generally with union rights and in substance stated that
solicitation on company time was a violation of company
rules . Driscoll asked Ardenski if he understood that. In
referring to the language in the flyer, Driscoll said to
Ardenski, "I hope you don't do a stupid thing like this
again and you'd be lucky if you survive this." The
interrogation lasted approximately three-quarters of an
hour.
About a week after the session with the security agents,
Ardenski' s foreman approached him during working hours
and asked Ardenski's views with respect to the Union,
"what the Union was doing , how we were doing in our
membership application drive" and further conversation in
general . Ardenski answered him, giving him "a general
outlook of what was happening ." Ardenski credibly
testified that this conversation lasted about 30 to 45
minutes . No foreman or other supervisor or anyone from
the personnel department talked to him regarding the
accusations levied against him by the security agents.
About 6:40 on August 24, at a time when it was
customary to turn in any gauges that had been loaned out
from Department 2522, the general foreman, Campria,
sent word by the acting foreman that he wished to see
Ardenski at his desk. After turning in the gauges Ardenski
went to see Campria, who informed him "that as of that
day it would be my last day effective immediately"; that
he was terminated . Ardenski asked for a reason and
Campria replied that he was being terminated "due to
violation of company policy." Ardenski asked whether it
was for allegedly soliciting on company time, and
Campria answered in the affirmative.
On cross-examination Ardenski continued to adhere to
his prior testimony that on February 9, when he solicited
Gonye and Winchell, he was on loan to their home
UNITED AIRCRAFT CORP.
department , 979/V. He said that he had frequently been
loaned to that department and that it might be for
weekends or days or, on one occasion , for as much as 8
weeks. When so loaned out, Ardenski would punch the
timeclock in the department to which he was loaned
although on occasion he punched in and out in his home
department . Ardenski testified that he frequently had
lunch with Gonye and Winchell , who were good personal
friends , and that during the period between February and
May neither of them said anything to him about the union
cards . After the session with the plant investigators,
Ardenski did not have occasion to talk with either Gonye
or Winchell , explaining that his department was a
considerable distance from theirs and the lunch periods of
the two departments did not coincide.
Ardenski gave a statement to the Union on July 24.
This statement , rather lengthy , contains substantially the
same information as is recounted above . In it he stated
that he "solicited their [Goyne' s and Winchell's]
application between the hours of 3:30 and 4 a. m. which is
the normal lunch period for the X-ray Dept . in Area V
and the location was at a small desk in front of two X-ray
machines facing the aisle. These machines being adjacent
to the dark room." In a statement given to a Board agent,
Ardenski stated that he had been in Department 979/V
"about eight consecutive weeks between December, 1967
and February , 1968 and had signed them up at the end of
this time ." He there stated that the signing occurred on
February 9, and that date was "fresh in my mind as I
always entered such dates in a diary I kept ." Ardenski
explained that by "eight consecutive weeks " he did not
mean that he had worked eight full weeks in Department
979/V, but that he meant he had worked in there off and
on, during Saturdays and Sundays and on weekends. He
could not be sure whether he at all times punched the
timeclock in the department to which he was loaned.
Upon being recalled as a witness later on during the
hearing , Ardenski testified that he, as a union steward,
kept a diary concerning union activities . He further
testified that at the time he spoke to Board Agent
Weintraub , he did not have his diary with him nor did he
have it with him when he gave the statement to the
Union . Following his first appearance on the witness stand
he went home and got his diary which contains the
following entry : "Tuesday , February 6, 1968 attended a
meeting , signed up Wendell Winchell and Thomas Gonye.
Note: 975/V does not have representation in that area.
No stewards . In my capacity as steward I signed up these
men while being loaned to the department ." Ardenski's
name and the title "steward" then appears. Later on in his
diary appears this entry "On Thursday , 9 May 1969
Duffy' s card Wendell Winchell ' s and Thomas Gonye's
card turned in."
The Respondent introduced into evidence the timecards
of Ardenski , Gonye and Winchell for the weeks ending
Feburary 1l and May 12 . Ardenski' s card for the week
ending February Il shows that he punched out for lunch
at either 3 or 3:01 p.m. and back in following lunch from
3:17 p.m. to 3:28 p . m. each of the 6 days he worked
during that week . Gonye 's timecard for that week shows
that he punched out for lunch at 3:45 on five days and at
3:47 on Monday, and punched in following lunch at times
varying from 4 to 4: 12 p.m. Winchell ' s timecard for that
week shows that he punched out for lunch at 3:45 p.m.
each of the 4 days he worked and punched in following
lunch at times varying from 4:10 to 4:15 p.m. The
timecards of Gonye and Winchell further show that the
clock on which they punched had the identifying numeral
283
"93" immediately over the initials for the day of the
week; Ardenski's card for the week ending February 11
does not contain such an identifying numeral. Wilfred
Hall, one of the Respondent's personnel officials, testified
that the timeclock in Department 979/V has the small
number "93" whereas there is no such identification on
the timeclock used in Department 978-1225, Ardenski's
home department. Hall further testified that the distance
between the two departments, in terms of time, is about 9
minutes and in terms of distance about four-tenths of a
mile. From the timecard markings Hall testified that he
concluded Ardenski was not working in Department
979/V during the week ending February 11. Moreover, he
testified, the fact that Ardenski's lunch hour was from 3
to 3:30 whereas the lunch hour of Gonye and Winchell
was from 3:45 to 4:15 indicated to him that neither on
February 6 or 9 could Ardenski have been having lunch
with the other two employees.
Ardenski's timecard for the week ending May 12 shows
that he punched out for lunch at 3:45 and back in at 4.15.
Gonye's timecard for the same week shows that he
punched out for lunch at times varying from 3:30 to 3:45
and back in at times varying from 3:45 to 4 p.m.
Similarly, Winchell's timecard for the same week shows
that he punched out for lunch at times varying from 3:30
to 3:45 and back in at times varying from 3:45 to 4 p.m.
The cards of all three employees for this week bear the
identifying numeral "93" above the initial for the day of
the week. On Thursday, May 9 Ardenski punched out at
3:45 and back in at 4 o'clock; Gonye on the same day
punched out at 3:31 and back in at 3:47, whereas Winchell
punched out at 3:31 and back in at 3:46.
After the timecards were introduced into evidence,
Ardenski was recalled for further examination. He
continued to maintain firmly that it was his belief that he
was on loan to Department 979/V on February 6 and that
the card signing occurred during the lunch period. He
further explained that the punch-in time following lunch
does not necessarily indicate that he resumed working at
that time, since employees are allowed to punch in before
the expiration of the 30-minute lunch period. His attention
was called to the fact that he had earlier testified that
during the week ending February 11 his lunch period was
from 3:45 to 4:15 whereas in fact his timecard showed
that during that week he was off for lunch between 3 and
3:30. Upon being shown Winchell's timecard for the week
ending February 11, which showed that he was in
Department 979/V and that he was on lunch period
between 3:45 and Ardenski nonetheless insisted that
he signed Winchell up on February 6 during the lunch
hour. Similarly, Ardenski maintained that he signed up
Gonye during the lunch period which for Gonye also
indicated that it occurred between 3:45 and 4:15. Ardenski
further testified that, so far as he knew, all employees in
Department 979/V took their lunch period at the same
time.
Gloria Feltrin, a time keeper in Department 978-1225
on the third shift during February, charged with
maintaining certain records, was called as a witness by the
Union. She testified that the department maintains daily
records showing loan out of employees to other
departments. According to her, customarily the loan out is
for a whole shift; however, if it is for less than a whole
shift the records will show within a range of 6 minutes
when the employee clocked out of his own department and
when he returned. In addition to the loan-out records,
Feltrin testified that the Respondent also maintains what
are called weekly timesheets , which show the names of all
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in any given department and notations
indicating the department to which employees are loaned.
At the end of the week this report of loaned employees is
made up and lists the clock number, name, original
department, where they were loaned to, and for how many
hours and on what days. This report is then turned in to
the timekeeping office Upon close examination of
Ardenski's card for the week ending May 12, Feltrin
testified that on the 4 days he worked during that week he
punched in on the same clock, which she identified as the
clock in his regular department, 978-1225, and that he
punched out and in for lunch on the clock in Department
979/V, but punched out at the conclusion of the day in his
home department, 978-1225. In answer to the question
whether if it were desired to ascertain the days during
which Ardenski had been loaned to Department 979/V
from the period beginning February 1 and ending May 31,
all that would be necessary would be to look at the weekly
report of loans of employees to that department, she
answered, "Yes, if they're still in existence." She was
unable to say how long such weekly reports are kept. So
far as appears, no effort was made to produce them.
Foreman Nieczeczwski testified that he had been
foreman on the third shift in Department 978-1225 for 3
years. He confirmed that Ardenski had been loaned out to
other departments, and that this occurred quite frequently
throughout Ardenski's employment. He also confirmed
Feltrin's testimony regarding the records kept of
employees being loaned out.
Both Gonye and Winchell gave statements to the plant
security agents. Gonye's statement, dated July 9, states
that "during that time" he was approached by Ardenski
"during working hours, to join the union." Ardenski
purportedly stated that he wanted "to use your name only
as backing for the Union," and stated that if at a later
date Gonye wanted to join the Union that could be
arranged. According to this statement Gonye specifically
told him that "I did not want to join the Union at this
time" and did not want any money deducted from his
salary check. Ardenski agreed to this and said that Gonye
could sign a card during the lunch period that day. A few
minutes after lunch, Ardenski handed him a card and he
signed it, remarking, however, that he "was not joining
the Union at this time." The statement continues that
when Gonye received his pay check on June 28 he found
that $5 had been deducted for union dues and he
immediately informed his foreman of this; the foreman
referred him to the Personnel Department. According to
Gonye' s statement , Winchell was present during his
discussion with Ardenski concerning the Union, and the
discussion and signing occurred in the work area of
Department 979/V.
Winchell's statement to the plant security investigators,
also dated July 9, reports that during the middle of May,
during working hours, and while in the company of
Gonye, he was approached by Ardenski to join the Union.
Ardenski explained "that we would join the Union `in
name only,' " and that if they would sign the union cards
he would hold them until such time as they told him to
proceed with processing them. Winchell allegedly told
Ardenski that this would be all right but he "definitely did
not want to join the Union at that time & did not want
dues deducted from my pay." Later during the shift,
during lunch, Ardenski gave Winchell a union card and he
signed it, again stating that he was not ready to join at
that time. Ardenski, so the statement continues , said he
would hold the card until Winchell "gave him the word to
submit to the Union." On June 28 Winchell found that
union dues were being deducted from his pay and he
reported this to his foreman.
Ardenski was interviewed July 24. His statement recites
that some time during February, while he was temporarily
working in Department 979/V, he approached Gonye and
Winchell during the lunch period and asked them if they
would be interested in joining the Union. According to
this statement, Gonye stated he was not sure if he wanted
to join at that time whereupon Ardenski told him "I
would dated the Union application for membership 3
months from then so that he could have time to decide if
he wanted to join." On this basis Gonye signed the card.
Ardenski had the further understanding with Gonye to the
effect that if Gonye did not contact him "before May 9,
1968, to say that he didn't want to join, he would
automatically be processed into the Union from that
date." Gonye agreed to this arrangement, all of which was
conducted during the lunch period in Department 979/V.
The statement continues that Winchell expressed a desire
to join the Union but said that he was somewhat short of
funds at the time, and Ardenski agreed to extend the time
for him the same way that he had for Gonye. Winchell
agreed to this and signed the card. All this union business
was conducted during the lunch period in Department
979/V. Both of them also signed dues checkoff cards
which were also dated May 9. The summary sheet
attached to the investigative file, in addition to
summarizing Ardenski's statement, states that a check of
the foreman's records "indicates that Ardenski was
assigned to Department 979/V From February 15 to
February 24 and from May 7 to May 11."
Thomas Wiseman began working for the Respondent at
the Manchester plant in Department 5958 on October 14,
1964; he was terminated on January 14, 1969. He began
work as a wax injector operator; in July 1968 he became
the leadman in that department, with nine employees in
his crew. His foreman was Eddie Kakowski. In April,
1968 Wiseman was made a union steward and as such
solicited about 14 employees and signed up four. He
testified that he did not solicit during working hours nor
did he distribute union leaflets or pass our merit rating
cards during such periods.
Early in December 1968 Wiseman was questioned by
the plant internal security investigators at the East
Hartford plant, having been sent there by his foreman.
Robert Crawford, one of the investigators, stated at the
outset that Wiseman had been soliciting union
membership on company time as well as passing out
union flyers, merit rating cards and union authorization
and dues deduction cards on company time. Another
complaint was that he was assigning "dirty work" to
nonunion members, and thirdly, that he used foul
language in assigning employees work. Wiseman denied
that he had done any of these things of which he was
accused. During the investigation he was not advised of
the names of his accusers, but admitted that he did not
ask who had complained. A statement of three paragraphs
was written for him and he signed it. Upon returning to
his department he had a conversation with his foreman
during lunch hour and asked him whether he knew
anything about his allegedly having used foul language or
assigning dirty work to employees. The foreman answered
that he knew nothing about it and that Wiseman should
not worry as he did not think anything would come out of
the investigation.
A few minutes before the end of the shift at midnight
on January 14, Foreman Kakowski called Wiseman over
to the office and in the presence of another foreman stated
UNITED AIRCRAFT CORP.
that he would have to let Wiseman go. Kakowski
suggested that Wiseman resign rather than be discharged
but Wiseman refused to accept this suggestion. Between
the time Wiseman was questioned by plant security and
the time he was terminated he was not questioned or
talked to by anyone in supervision or from the Personnel
Department regarding the investigation.
On cross-examination Wiseman testified that before he
was questioned by the internal security agents he had a
conversation with a fellow worker, Ruben Mitchell, who
told him that about 3 weeks earlier he (Mitchell) had been
called in and questioned about Wiseman's union activities,
and Mitchell added that he should "watch out" for Joe
Berube and some of the ladies in the department.
Wiseman had several conversations with Mitchell
regarding the investigation, both before and after, and he
asked Mitchell what he had told the investigators;
Mitchell said that he did not tell them anything
(presumably derogatory). Another employee, George
Daisy, told Wiseman that he had been interrogated and
asked whether he had ever seen Wiseman solicit for union
membership on company time. Daisy reported to
Wiseman that he told the investigators he had not.
As a leadman, Wiseman had had some "problems"
with Leslie Albert, an employee in his crew. These
particularly concerned objections Albert had to accepting
work assignments. Wiseman admitted that he asked
Albert several times during lunch time to join the Union,
but Albert had responded that he did not want to join or
at least was undecided. Eventually Albert was transferred
off his crew to the day shift. Wiseman also had problems
with employee Berube, who made mistakes in performing
his duties. At one point Wiseman, as a union steward,
gave Berube a merit rating card which among other things
showed Berube's pay rate; this caused Berube to become
angry. Merit rating cards were made available to
Wiseman as a union steward by the Union and, so he
testified, it was the duty of the stewards to give these
cards to fellow employees. Berube was not a member of
the Union. Daisy Bisi, an employee on Wiseman's crew,
also complained about her work assignments. Wiseman
testified that he told the Board agent of these complaints
because he suspected that Albert, Berube or Bisi may have
complained about his solicitation for membership in the
Union. According to Wiseman, four of the members of
his crew were members of the Union, while five were not.
The four had joined the Union before he became a
leadman. Wiseman testified that he informed the foreman
of his difficulties with Albert. During the month of
November Albert made a threat that he would cause
Wiseman to be fired if Wiseman continued to bother him
about the Union.
Ruben Mitchell, who had worked for the Respondent
about 6 years and had been a fellow employee of
Wiseman's, testified that on several occasions Wiseman,
during working hours, solicited him to join the Union. He
testified that sometimes the solicitation would occur as
they were at the water fountain or when they happened to
meet. He also testified that he heard Wiseman solicit
other employees during working hours to join the Union,
and particularly recalls in this regard Albert who worked
under Wiseman. Mitchell added that Wiseman's continued
solicitation annoyed him but he made no complaint about
it. Eventually Mitchell joined the Union, having signed a
card he obtained from his wife who works at the East
Hartford plant.
Lee Simpson, who began working at the Manchester
plant in August in Department 5958 as a machine
285
operator under Wiseman, testified that he did not at any
time hear Wiseman ask Albert, who also operated a wax
machine approximately 2 or 3 feet away from him, to join
the Union on company time. Simpson joined the union in
October or November having been asked by Wiseman
while they were at lunch. About 2 months before testifying
he went over to the union hall, at the request of Wiseman,
and related his having seen Wiseman and Albert involved
in an argument, and that he overheard Albert tell
Wiseman that he (Albert) could get Wiseman fired.
Another employee who worked under Wiseman as a
machine operator, William Ross, testified that he never
heard Wiseman solicit Albert to join the Union on
company time. Ross, a member of the Union who was
solicited by Wiseman after they had punched out at the
timeclock before going to eat lunch, admitted on
cross-examination that during working time Wiseman
mentioned the Union but never asked him to join at that
time. All Wiseman said was that there was a union in the
plant but that he could not talk on company time and
stated that he would see Ross at lunch if Ross cared to
join. Ross also testified that from his observation
Wiseman and Albert did not get along very well, the
disagreement seeming to be that Albert thought Wiseman
was not giving him the right work but assigning him dirty
work. At one point Ross heard Wiseman tell Albert that
if Albert weren't so "damn stupid" Wiseman would not
have to write so many things down for him. Ross further
testified that he heard Wiseman speak to Albert about
j oining the Union during lunch.
Carl Thomas, who began his employment in December
1966 and had worked continuously in Department 5958,
also worked in Wiseman's crew. He testified he never
heard Wiseman solicit any employee to join the Union on
company time. Thomas further testified that on one
occasion he heard Albert threaten Wiseman with
discharge. This occurred while contract negotiations were
going on and there was considerable talk about the Union
and related matters. Thomas related that as the employees
were assembled Albert made some mention about the
flood lights that were being put up outside the building, as
well as a fence. Albert told Thomas that the flood lights
were being put up and cameras would be mounted as at
East Hartford, and stated that the fence was designed to
protect people coming to work, apparently in the event of
a strike. At about this point Wiseman joined them and
Albert, upon seeing Wiseman "just turned angry" and
said that if Wiseman said anything to him "I'll get both
of you fired." Thomas testified that Albert included
himself in the threat because of Thomas, in a teasing way,
had shortly before that said that if people came into work
he knew where everybody lived and would visit their house
and "beat you up." Toward the last of the conversation
Wiseman likened nonunion people to welfare recipients, a
remark which made Albert angry and, as he was walking
away, said "if you guys don't stop bothering me ... I'm
gonna have both of you fired."
At one time, according to Thomas, Wiseman asked him
about Albert as he had given the latter some work to do
and had gotten into an argument with him. Thomas, who
knew Albert better than Wiseman, told Wiseman that
Albert was a nervous man and that he would speak to
him, which he did. When he spoke to Albert the latter
complained that he "was tired" of Wiseman telling him
various things and that he wanted Wiseman "to get off his
back." Albert did not tell Thomas that Wiseman was
bothering him about the Union. Thomas also related that
he had quite a few problems with Berube , who worked
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with him . Berube was out frequently on account of illness
and the foreman told Thomas that Berube could not lift
anything over 30 pounds in weight and therefore could not
help Thomas dip the molds . The foreman told Thomas
that if there was something light for Berube to do the
latter would do it . However , Thomas testified that Berube
would not do the light work requested by Thomas and
therefore Thomas went to Wiseman and asked that he
speak to Berube . Nothing happened and, according to
Thomas, Wiseman had to go to the foreman and inform
him that he should tell Berube to assist Thomas . After the
foreman had spoken to Berube the latter came to Thomas
and stated "You know, Tommy's getting too big for his
britches."
Foreman Kokoszka was called as a witness by the
Respondent but was not questioned about any of
Wiseman 's activities.
The investigative report concerning Wiseman states that
on November 13 a personnel advisor requested an
investigation regarding union solicitation Albert was
interviewed by the plant security investigators on
November 14. His statement recites that on approximately
November 1 while he was working at his machine he was
approached by Wiseman who asked him to join the
Union . This occurred on company time . Wiseman told
him that the Union needed as many members as it could
get and that they would be at a disadvantage when they
started negotiating for the new contract if people did not
join. Albert told him that he was not interested. The
conversation , according to Albert, lasted about 3 minutes.
The next week , on November 4 or 5, Wiseman again
solicited him and Albert " told him that I didn ' t want any
part of it , to just leave me alone ." The statement
continues that during the next few days Wiseman began to
"be critical of my work" using swear words , which caused
Albert to feel that Wiseman was harassing him so that he
would join the Union. On two other occasions in the later
part of the week ending November 10 and on November
12 Wiseman again solicited him on company property
during working hours . On November 8 Albert complained
to the foreman regarding Wiseman 's solicitations and the
foreman transferred him to another area under another
leadman ' s supervision.
In a supplemental statement dated November 20 given
to internal security agent Clifford , Albert stated that that
morning as he was working overtime with employee
William Miller and "a fellow named Ed," Miller came
over and pinned a large round badge with a blue
background on him and as he did so said "sign up."
Albert took the badge off and tried to give it back to
Miller who refused to take it, and told Miller that he did
not wish to sign up and was not interested in joining the
U n ion.
Under date of November 14 Joseph Berube gave a
statement to the plant investigators saying that the first
time he was solicited by Wiseman to join the Union was
during working hours sometime during June as Wiseman
was working beside him. Since Wiseman became a
leadman in the department , according to Berube, he
continued to ask Berube to join the Union , and each time
Berube refused . According to Berube each solicitation
occurred on company property during working hours.
Berube further related that one day Wiseman gave him a
card showing his name , department , and clock number, as
well as his pay rate and other information he (Berube) did
not want other employees to know. Apparently this
occurred during lunch period as Berube 's statement relates
that Wiseman distributed similar cards to other
employees . Berube further stated in his statement that
when Wiseman gave him the merit rating card he (Berube)
"became a little angry when I found out he knew what I
was earning ." His statement concluded with the comment
that since the merit rating card incident , which apparently
occurred during the summer , "Wiseman has not bothered
me." Since that time Berube has heard Wiseman ask
Albert to join the Union on company time on several
occasions . Each time Albert would respond by telling
Wiseman to leave him alone and stop bothering him.
Berube further stated that he had heard Wiseman several
times ask Mitchell to join the Union , but that Mitchell
said he would join when he got ready . In an addendum to
his statement , dated November 18, Berube stated that to
the best of his recollection it was sometime in the spring
or summer of 1968 that Wiseman gave him union
application cards and asked him to join the Union, "But
where or when , that is, in a work area or parking lot at
the Manchester plant , I cannot remember ." As to whether
it was during working hours or during lunch period,
Berube stated " I cannot say either."
In his statement dated November 18 Mitchell reported
that for "the past six months at least three times a week
while working at my machine" or at other locations in the
work areas he had been approached by Wiseman to join
the Union . The solicitations lasted about 5 minutes and
Mitchell estimated that Wiseman "wasted about six hours
of my working time ." The last time Wiseman asked him
to join was November 12 during working hours. Mitchell
also reported that he had heard Wiseman soliciting Albert
to join and that Albert refused . Additionally , Mitchell's
statement reports that "on approximately 40 occasions"
Albert complained that Wiseman had bothered him about
joining the Union, all during working hours. During the
last part of August, Mitchell heard Wiseman ask Daisy
Bisi to join the Union , but she told him that she was not
interested . In an addendum dated December 2 Mitchell
added that during the middle part of November he was in
the locker room washing up with coworkers Berube and
Les Knox. Knox asked Mitchell when he was "gonna
come in with us, join up?", which Mitchell resisted.
In a statement dated November 25 Daisy Bisi, an
employee in Department 5958, stated that during the past
2 years "I have not been solicited to join the Union on
company property during working hours, nor have I heard
or seen anyone else being solicited."
In a statement dated December 22 George Daisy, who
worked in Wiseman ' s department, stated that at no time
since he had been working there "has any employee
solicited me for union membership during working hours
on company property" including Wiseman . The only thing
Wiseman ever gave Daisy was a 1969 calendar advertising
the Union . Daisy further stated that at no time had he
heard or seen Wiseman solicit any employee during
working hours and that the only time he had heard
anyone discuss the Union was during lunch periods. He
had heard no one complain about Wiseman "bugging"
anyone to join during working hours either before or after
the announcement of the new contract between the
Company and the Union.
The statement taken from Wiseman , dated December
26, stated that since going to work in Department 5958
approximately 4 years earlier, he has "never solicited
anyone to join the Union during working hours on
company property ." He further denied that he had sworn
at or otherwise harassed any individuals under his
supervision . He affirmed that when soliciting people to
join the Union , or when handing out rate cards, union
UNITED AIRCRAFT CORP.
application cards or union flyers, he had always done that
outside working hours. He did not know of any other
employee who had solicited others to join the Union on
company property during working hours.
The investigative report further continued that J. B.
Regan, of the Personnel Department, requested internal
security to reinterview Berube , Mitchell and Albert "to
determine the exact number of times and the actual dates
on which they were solicited for Union membership by
Wiseman during working hours on company property."
As indicated above, Mitchell reported that he did not
know the exact number of times or the actual dates
Wiseman solicited him except the last occasion, which was
on November 12; however, he stated that on all these
occasions Wiseman solicited him on company property
during working hours. Albert's statement is that Wiseman
solicited him at least 30 times and that he complained to
Mitchell at least 20 times about such solicitation. These
solicitations were on company time and property. Berube's
supplemental statement dated January 9, states that
Wiseman solicited him on company time and property but
he could not recall the number of times or the exact dates.
Neither of the security investigators who conducted the
inquiry into Wiseman's alleged activities regarding union
solicitation was called as a witness . Neither was Berube,
Albert, or Daisy. As noted above, Foreman Kokoszka was
not questioned about any complaints that may have been
made to him by any of the employees in his department
regarding Wiseman's solicitations.
Wing, Ardenski and Wiseman all testified that there
were various forms of solicitation during working hours
while they were employed. These involved such matters as
death in the family, a lengthy illness, a wedding and gifts
for departing employees and the foreman, as well as
company sponsored solicitations for the United Fund,
blood banks and savings bonds. Employees have no
established break period other than their 30-minute lunch
break. However, employees are not restricted from going
to the water fountain, the candy machine, or the
washroom, and before lunch and the end of the shift it is
customary for them to cease working about 5 to 10 or 15
minutes before the actual end of the working time. Thus,
Wing testified that in connection with all such solicitations
he was approached at his machine in each instance.
Assistant Personnel Manager Hall testified that 10 percent
of the workday is allowed for personal and shop practices,
namely, activities that are not work-related or production.
However, he stated that if an employee 5 minutes before
lunch time stopped his machine and asked a fellow worker
to join the Union, such he would regard as solicitation
during working hours and would treat it as a case
meriting discipline . General Foreman Wilson Dorn
testified that he granted permission in the department over
which he had jurisdiction (Department 4240) for a
collection to be taken up in the case of the death of an
employee's husband. He described the procedure that
must be complied with as involving a request for
permission of the foreman who signs a form in the event
permission is granted . He testified that aside from
solicitation such as for the Red Cross and the United
Fund no type of collection or solicitation of funds is
permitted on company property without permission. He
stated that "the only thing we have given permission for is
a death in the family, the immediate family," and added
that if an employee requested permission to take up a
collection for someone's birthday he would deny the
request. Johanna Kokoszka, who worked in Wing's
department, testified that she took up the collection on the
287
occasion of the death of an employee's husband and
received written permission to do so. She testified that she
conducted her solicitation during nonworking hours at
lunch and before and after work and that she has never
taken up any collections during working hours. Anita
Hansen admitted that she had taken up collections at the
Manchester plant. She related that she worked on a bench
with three other girls and they talked among themselves
and "that's more or less where a collection, you know, is
started " She admitted that she had taken up the
collections at lunch time and also "dust before leaving."
On one occasion she asked the foreman if it was all right
for her to take up a collection on the occasion of a death,
but other than that she conducted such activity on her
own and did not know whether the foreman was aware of
her activity. On cross-examination Hansen recalled that
the prior Christmas there had been a collection made for
a gift for her foreman. Foreman Kokoszka testified that
on rare occasions employees have come to him and ask
for permission to take up a collection; he recalled one
occasion when he had granted permission because there
had been a death in a family, but told employees that the
solicitation had to be conducted during nonworking hours.
He acknowledged that employees normally give him a
Christmas gift. He testified that he was unaware of any
rule prohibiting employees from soliciting during
nonworking hours such as lunch periods. He then,
somewhat contradictorily, stated that the requests for
permission were to engage in solicitation during
nonworking hours and that he had never seen solicitation
going on during nonworking hours without his permission.
A notice relating to "solicitation and misuse of working
time" dated March 26, 1968, and signed by the president
of the Pratt-Whitney Division, stated in pertinent part as
follows.
The attention of all employees is again called to the
following notice pertaining to gambling and soliciting
on company premises. Recent violations of this rule
make it necessary to advise all employees that anyone
who violates this rule in the future, whether as a
gambler, solicitor, purchaser, or contributor, will be
subject to severe disciplinary measures up to and
including discharge.
s t * * *
With the exception of company-approved charitable
solicitations of a plantwide nature , there shall be no
solicitation of money or any other type of solicitation
during working hours on company premises without
specific prior approval for each solicitation by the
Department Manager concerned. Employees should
understand that the authorization by a Department
Manager does not in any way constitute the
endorsement of the solicitation and that employees are
completely free to participate or not as they see fit,
whether the solicitation is occasioned by the marriage,
illness, anniversary or death of a fellow employee.
With rare exceptions, it is intended that all such
solicitation be carried on in non-work areas such as
cafeterias and locker rooms during the employees' own
time . It is mandatory in every instance that the
solicitation be so carried out that it does not in any way
interfere with the orderly and efficient operations of the
section involved or the employees working therein.
Similar rules have been posted and were produced by the
company going as far back as 1956.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Respondent 's Efforts to Channel Discipline Cases
into Grievance-Arbitration Procedure
At all times here material the collective-bargaining
agreement between the parties has provided as follows
(Article IV, 1968 contract)
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 Respondent's rule book, "You and Your Company,"
provides in Rule 5 that among the "strictly forbidden"
practices are:
Gambling, taking orders, selling tickets, or soliciting
money or any other type of solicitation.
Over the years the Respondent has posted notices
admonishing against solicitation activities. Thus, by notice
dated March 26, 1968, employees were advised:
With the exception of Company-approved charitable
solicitations of a plant-wide nature, there should be no
solicitation of money or any other type of solicitation
during working hours on Company premises without the
specific prior approval for each such solicitation ....
Other plant bulletins deal solely with solicitation for union
membership and emphasize that employees are expected
"to adhere strictly" to the contractual provision and
Company rule set forth above.
Following the suspension of Wing and Pegorer the
Respondent wrote to Lodge 700 of the Union on
September 19, 1968, noting that no grievance had been
filed regarding their suspension and pointing out that the
then current contract obligated the parties to make "an
earnest effort" to resolve differences through the grievance
procedure, including arbitration if necessary. The
Respondent requested the Union to state "whether in fact
a difference" existed concerning the suspensions and asked
if the Union would comply with the Respondent's request
"to resolve such differences by bargaining through the
procedures established by the contract - including, if
necessary, arbitration." The Union replied under date of
October 1, refusing the Respondent's request , stating that
it would shortly file unfair labor practices covering Wing's
case , and contending that his suspension was "no mere
contract dispute" but rather was "part and parcel of the
Company' s continuing program of unfair labor practices,
designed to decimate, degrade, disparage and disable the
Union, to prevent it from functioning effectively as
statutory bargaining agent ."' Unfair labor practice
charges were filed as to Wing and Ardenski, and the
Regional Director issued a complaint thereon on
December 30.
In the meantime , the contract expired on November 30,
1968, and negotiations for a new agreement had been
entered into by the parties. During these negotiations the
Respondent, on November 26, proposed an amendment to
the contract grievance provision which would allow the
Respondent the right at the fourth step to file a grievance
concerning the discharge or suspension of an employee "in
the event that either an employee or the union filed a
charge" with the Board " alleging that his discharge or
suspension was a violation" of the Act, which "grievance"
'Also by letter dated September 19 to Lodge 1746, the Respondent made
a similar inquiry regarding Ardenski 's discharge and under date of October
I received a substantially similar reply
could be processed through arbitration, if necessary. The
Union rejected this proposal. At the November 29
negotiation session the Respondent proposed that such a
grievance could be filed at the third step, explaining that it
was not dependent upon the employee or the Union
having first filed a charge with the Board, "simply to
provide a vehicle for the company to determine whether in
fact there is any dispute concerning" the discharge or
suspension "and if so, to resolve it by bargaining . . . or in
arbitration." The Respondent made clear that its proposal
did not preclude the Union or the employee from filing
charges with the Board.
In final negotiations on November 30 the Union
accepted the Respondent's proposal, but then read a
prepared statement stating that by entering into the
agreement it "does not intend to waive, and has not
waived, any statutory rights" and contending that certain
provisions including the one allowing the Company "to
process a grievance under the `just cause' provision,"
"violate our statutory rights" and were accepted "under
coercion" and the Union intended "to challenge their
legality."
On January 21, 1969, a week after having discharged
Wiseman, the Respondent filed its "grievance concerning
the discharge" of Wiseman, placing the grievance at the
third step agenda for discussion at the Committee of
Management meeting scheduled for January 23,
explaining that it was Respondent's position that "Mr.
Wiseman was discharged for just cause." At the third step
meeting on January 23, the Union refused to discuss this
"grievance"; its representative read a prepared statement
that, upon advice of counsel, "the Union considers this
discharge a violation of statutory rights and an unfair
labor practice" and, accordingly, "refuse[d] to subject this
discharge to the grievance procedure and will file an
unfair labor practice charge with the Board "
In the fourth step meeting held on January 31 the
Respondent again stated its position was that Wiseman
"was discharged for just cause because he solicited for
Union membership during working hours on Company
premises." The Union's representative reiterated that the
Union considered the discharge a violation of statutory
rights and had filed unfair labor practice charges.
Alluding to an earlier indication from a union
representative that the Union could provide witnesses who
would establish "that Wiseman had been threatened by
other employees who said they were out to `get' him,"
Respondent's representative urged that the Union was
under obligation to inform the Company if they had any
information that Wiseman "was not guilty," and stated
that the Respondent would thereupon check into the
situation and take corrective action if that were indicated.
Under date of February 4, 1969, the Respondent wrote
the Union on the Wiseman case, stating it was appealing
the case to arbitration and proposing that the matter be
heard by Arbitrator I. Robert Feinberg, one of the
arbitrators agreed upon in the contract. The Union replied
under date of February 11, stating that in its view "the
provision of the contract for submission to arbitration of
specified disputes . . . has no relevance or application to
this case." Accordingly, the Union declined to join in
designating Mr. Feinberg to hear the case.'
'The Union also alluded to a prior charge (I-CS-1429 ) filed by the
Respondent stemming , apparently, from the Wing and Ardenski cases,
which the Regional Director dismissed The Union stated that it considered
"your invocation of the grievance and arbitration provisions of the contract
in this case an attempt to circumvent the decision of the Regional Director
UNITED AIRCRAFT CORP. 289
D. Contentions and Discussion
The General Counsel cogently argues that the
Respondent disparately, "excessively," and "coercively"
enforced its no-solicitation rule and contract provision as
to each of the three alleged discriminatees. The Union
echoes this argument. In addition, the General Counsel
urges that the statutory rights of the employees must here
be vindicated by appropriate remedial action. On this
facet, the Union underscores and elaborates on the legal
points made by General Counsel, contending not only that
this is not a proper case in which the Board should refer
the parties to use of their grievance-arbitration
procedures, but that to do so would be destructive of
well-recognized statutory rights. Moreover, argues counsel
for the Union, the Respondent, in urging that the alleged
discrimination against the individuals here involved should
have been submitted to the grievance procedure prdvided
by the collective-bargaining agreement, is attempting to
assert a right to have its statutory breaches settled outside
the Board's exclusive jurisdiction and is seeking to invoke
against the Union a waiver of access to the Board's
processes which plainly has, at best, been agreed to under
protest. Briefly stated, the Respondent contends that the
"common law" of the shop, as interpreted and applied in
arbitrations over the years, clearly requires a strict
construction of the "no-solicitation" rule and that the
individuals alleged to have been discriminated against in
fact did violate the rule or, at the least, were believed by
the Respondent, in good faith, to have done so.
First to be considered is the evidence as to whether any
of the three alleged discriminatees in fact engaged in
union membership solicitation on working time. For
present purposes I construe the term "working time" as
"paid time," thus including all time from the beginning to
the end of a shift, exclusive of the 30-minute lunch period.
I do so in view of the fact that such a construction
appears to have been given the term by arbitrators who
have had occasion to interpret and apply the contractual
provision.' The record establishes that employees are not
disciplined for trips to the washroom, going to the water
fountain or the candy machine, stopping work a few
minutes before the lunch break or the end of the shift, or
pausing briefly to engage in idle conversation. Time so
spent is, however, regarded by the Respondent as working
time. In its costing procedures an allowance of 10 percent
is made for personal and shop practices - in other words,
for activities that are not work-related or are
unproductive. I am aware of decisions, such as Olin
Industries v. N.L.R.B.,10 where the Board has, with court
approval, held that free time, such as for lunch or rest
periods, even though paid for, is properly to be regarded
and treated as nonworking time, during which union
solicitation activities may be undertaken. As the court
said in Olin Industries, "the Board has properly
approached this problem of solicitation on company
property on the basis of the distinction between actual
working and nonworking time, rather than on the basis of
the immaterial distinction between paid and unpaid time."
However, in the instant case the term "working hours"
in Case I-CB-1429 , and defeat the statutory right and immunity there
recognized and vindicated . We cannot and will not acquiesce." The
Respondent did not appeal to the General Counsel . On February 20, 1969,
the Respondent filed another charge ( I-CB-1474) alleging that the Union's
action in refusing to handle the Wiseman case through the
grievance-arbitration procedure was a violation of the Union's obligation
to bargain . The Regional Director refused to issue a complaint and on July
15, 1969 , the General Counsel affirmed such disposition of that case.
appears to have been equated with "paid time."
With respect to Wing, it is clear that the incident
between himself and Pegorer occurred on working time.
What is far from clear, however, is whether Wing engaged
in an act of solicitation. When Pegorer came to Wing's
work station he displayed the cards,in his hand and said,
"Here's your union cards, are they all right?" Wing
glanced over his shoulder and saw that the dues deduction
card had not been signed at the bottom; he then said to
Pegorer that he was supposed to sign it. Wing shut off his
machine, testifying he did so for the purpose of explaining
to Pegorer that they should not then be conversing about
the subject. Pegorer, however, apparently took Wing's
statement that the card was supposed to be signed as a
direction or suggestion to do so, and proceeded to sign.
When Wing turned back to Pegorer, after shutting off his
machine, Pegorer was in the act of signing his name.
Wing immediately said, "Don't sign now." At that point
Foreman Bogdan came up, demanded the cards and took
them.
I credit Wing's testimony that he did not ask Pegorer
to sign the card at the time Pegorer did and, to the extent
that Pegorer's account would suggest a different
conclusion, do not accept it, since Pegorer was vague, had
difficulty recalling what happened, and on occasion
contradicted himself. Wing was fully aware of the
no-solicitation rule and, on the previous Friday, had
refrained from giving Pegorer cards which he had when
Pegorer during work time indicated his desire to join the
Union. Wing also refrained from attempting to sign up
Pegorer when he gave him the cards 5 minutes before the
end of the lunch period on Friday. In view of such
conduct, it does not appear reasonable that Wing would,
in plain view of the foreman, request that Pegorer
complete the card. Rather, it seems more plausible that
Wing intended to explain to Pegorer that they should not
be talking and attempted to stop Pegorer from signing. I
conclude that Wing did not violate the rule or contract
prohibition against solicitation on working time.
In the case of Ardenski, we have on the one hand his
uncontradicted testimony that he signed up Gonye and
Winchell at a lunch period on February 6 or 9, while
working on a loan-out basis in their home department,
and that he post-dated the cards to May 9. His testimony
is borne out by the entries in his diary and is consistent
with the statements he gave the Union, the Board agent,
and the plant investigators. On the other hand, the time
cards for the three employees for the week ending
February 11 and May 12 indicate that Ardenski was not
working in department 979/V during the week of
'Thus in an arbitration award rendered in 1953, involving the
Respondent and Lodge 1746, Arbitrator Horovitz held that an employee
was guilty of "conducting Union activities during working hours when he
gave an employee a large [union ] button to replace a small one which the
latter already had " The incident occurred at the working desk of the
recipient of the button . In a 1958 award , involving Respondent and Lodge
1746-A (Southington , Connecticut), Arbitrator Horovitz held a grievant
was guilty of soliciting "during working hours" despite the fact that the
incident occurred "on a Friday afternoon approximately 15 minutes before
quitting time , when it is alleged that there were no tasks then available for
further work ." In a 1969 award involving Lodge 971 at the Respondent's
Florida plant, Arbitrator Roberts rejected the Union's contention that in
construing the term "working time" a distinction should be made between
productive and non -productive time and that the latter should be excluded
from the concept of Company time.
1'191 F 2d 613 (C. A. 5), enfg . 86 NLRB 203. See also Maremont Corp .
Saco Lowell Shops Division , 169 NLRB No 151, enfd. per curium 405
F.2d 175 (C.A 4); Mid-West Metallic Products, Inc, 121 NLRB 1317,
1351; Sanford Finishing Corp, 175 NLRB No 60
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 11 but was in his own department and had a
lunch hour different from Gonye and Winchell ; however,
during the week of May 12 the three were apparently
working in department 979/V and punched the same
timeclock . The Respondent maintains IBM records and
weekly timesheets showing in detail when and where
employees are loaned out, and for what length of time;
however , these were not produced nor does it appear that
they were no longer available . Had they been produced
they might well have cleared up the seeming conflict
between Ardenski 's testimony and the contrary inferences
derived from the timecards.
If the timecards correctly reflect the actual situation,
then it would be necessary to conclude either that
Ardenski signed up Gonye and Winchell in February at
some time other than during the lunch period , or that he
signed them up early in May while working in
Department 979/V. However, if the latter were the case
then it would seem that the February entry in Ardenski's
diary had been made at some time much later than
February in an attempt to buttress a fabrication. I had a
very favorable impression of Ardenski as a witness and I
am reluctant to attribute to him such a deliberate and
elaborate attempt to perpetrate a falsehood . The accounts
the three employees gave the plant investigators agree to
the extent that the understanding was that the cards were
not to be turned in right away . If the card signing took
place in May , then we would have to attribute to
Ardenski an intent to deceive Gonye and Winchell. The
explanation given by Ardenski for the delay appears
plausible enough and I very much doubt that he would
have invented it. Certainly he consistently adhered to it in
the several statements he gave. Considering the entire
record , including the failure of •Gonye and Winchell to
testify, I am persuaded that Ardensk i' s account should be
credited . I accordingly conclude that he signed up Gonye
and Winchell on February 6 during nonworking time.
Wiseman's testimony that he did not engage in any
solicitation activities during working hours was
corroborated by several of his fellow employees. On the
other hand, Mitchell testified that Wiseman solicited him
many times during working hours and also that he
overheard Wiseman solicit employee Albert in the locker
room. In some respects Mitchell's testimony is at variance
with the statement he gave the plant investigators. Thus in
his statement he alleged that he overheard Wiseman solicit
Daisy Bisi, but on the stand he testified that Albert was
the only employee he overheard Wiseman solicit. In her
statement to the investigators, Bisi , who was called as a
witness but not questioned about any solicitation by
Wiseman, stated that she had not been solicited during
working hours on company property. George Daisy also
furnished a statement to the plant investigators in which
he said he had not been solicited during working hours
and he had not heard or seen Wiseman engage in any
solicitation during working hours.
Wiseman impressed me favorably as an honest and
straightforward witness. He had an exemplary work
record , including a commendation for punctuality. Two of
his accusers, Albert and Berube, were not called as
witnesses. Both of them had expressed annoyance at
Wiseman's work assignments and directions, Albert going
so far as to say he could get Wiseman fired. On balance, I
believe Wiseman as against Mitchell, who appeared to me
to be prone to exaggerate and testify in conclusionary
terms. Accordingly, I find that Wiseman did not engage in
union membership solicitation during working hours.
E. Concluding Findings
I have found above that Wing, Ardenski and Wiseman
were not guilty as accused of soliciting union membership
during working hours. Each of them was a superior
worker, having advanced rapidly in earnings. None had
received any adverse criticism during the course of his
employment. Each was an active union steward, known as
such by management , and each had signed up a number of
employees, a fact which also was known to management.
The Respondent has previously been found, by the Board
and Trial Examiner Weil, to have engaged in various
unfair labor practices. Since they had committed no
infraction of the work rules and were considerably better
than average employees, I infer and find, from the record
considered as a whole, that the discipline inflicted upon
them was based upon the Respondent's hostility to their
active support of the Union. Accordingly, I find that by
suspending Daniel Wing and discharging Theodore
Ardenski and Thomas Wiseman, the Respondent violated
Section 8(a)(3) and (1) of the Act.
The complaint separately alleged that the interrogation
of Ardenski on July 23 was violative of Section 8(a)(1).
Considering Ardenski's testimony concerning this episode,
I cannot conclude that the questioning by the security
investigators went beyond inquiring into the circumstances
under which Ardenski signed up Gonye and Winchell. I
find that the interrogation of Ardenski was not violative
of the Act.
The complaint further alleged that Section 8(a)(1) was
violated when Foreman Bogdan confiscated employee
Pegorer's membership card and dues deduction card,
which Pegorer was in the process of turning over to Wing.
Pegorer was on working time when he undertook to hand
the cards to Wing, and such activity on working time was
contrary to the rules and the contract provision. Perhaps
the foreman should have told Pegorer to put the cards
away, rather than take them. However, I do not regard
his action as interfering with protected activity or coercive
in nature . I shall recommend that this allegation be
dismissed.
Finally, the complaint alleged that the Respondent
"discriminatorily, coercively and excessively" enforced
and administered its rule and contract provision barring
union solicitation during working hours. It is clear from
the record that a variety of solicitations for objects not
connected with the Union took place on working time
without supervisory interference, whereas solicitation for
the Union on working time was strictly curbed. Were that
all that is necessary to be considered, it would seem plain
that the Respondent 's no-solicitation rule was maintained
and enforced in a discriminatory manner. Stoddard-Quirk
Manufacturing Co., 138 NLRB 615. Here, however, we
have the added circumstance that the Union and the
Respondent have agreed to a contract provision barring
solicitation of union membership or conducting union
business on working time. That provision cannot be
ignored.
However, the General Counsel and the Union argue
that the rule is invalid because union -connected activities
during working time are restricted whereas
nonunion-oriented activities are permitted . Thus the
Union urges that the Respondent's equation of "working
time" with "paid time" is simply a flagrant rejection of
the law; and it further contends that the disparity in the
treatment of solicitations other than for the Union and
union solicitation makes the rule invalid , as "an employer
cannot permit solicitations of the kind proved here, but
UNITED AIRCRAFT CORP.
prohibit and punish union solicitation." Additionally, the
Union urges that the Respondent is foreclosed from
arguing that the Union contractually waived the right of
employees to engage in union solicitation on nonworking
or free time by reason of the further provision in the
agreement guaranteeing that there shall be no
discrimination because employees "engage in activities
which are protected" by the Act.
As stated earlier, the concept that "working time" is
the equivalent of "paid time" appears to have been
established as the "common law" of the shop, both by the
Respondent's action and by arbitration decisions. Despite
the long-continuing practice in the Respondent's plants of
tolerating or permitting nonunion-oriented solicitations
during working time, the parties have several times
executed contracts barring solicitation of union
membership during working time. I do not perceive that
this concession or waiver constitutes an "interference with
the employees' statutory rights . . . so great as to override
any legitimate reasons for upholding the waiver, or would
unduly hamper the employees in exercising their basic
rights under the Act." JAM Lodge 743 v. United Aircraft
Corp., 337 F.2d 5, 9 (C.A. 2), cert. denied 380 U.S. 908.
The Union has agreed that union solicitation is to be
treated differently from other types of solicitations. I
cannot say, in the circumstances of this case , that it lacks
capacity to make such an agreement.
As to the contention that the no-solicitation rule and
contract provision were "coercively and excessively"
enforced, I am persuaded that the General Counsel has
not established this to be the fact. The investigations,
judging from the reports prepared by the investigators and
the testimony of those employees interviewed, do not
appear to me to have exceeded legitimate bounds or to
have illegally encroached upon employee rights.
For the foregoing reasons, I find that the Respondent
has not violated the Act in the enforcement and
administration of the rule and contract provision barring
union solicitation during working hours, and accordingly I
shall recommend that this allegation of the complaint be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(3) and (1)
of the Act, I shall recommend that the Respondent cease
and desist therefrom and take certain affirmative action in
order to effectuate the policies of the Act.
Since I have found that the Respondent discriminatorily
suspended Daniel Wing and terminated Theodore
Ardenski and Thomas Wiseman, I shall recommend that
the Respondent offer each of them immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make them whole for any loss of
291
earnings they may have suffered from the dates of the
discriminatory suspension and termination to the date of
the Respondent's offer of reinstatement. The backpay
shall be computed in accordance with the formula
approved in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB
716. 1 shall also recommend that the Respondent preserve
and upon request, make available to the Board, payroll
and other records to facilitate the computation of backpay
due.
As the unfair labor practices committed by the
Respondent are of a character striking at the root of
employee rights safeguarded by the Act, I shall
recommend that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. United Aircraft Corporation (Pratt & Whitney
Division) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Lodge 1746 and Canel Lodge 700, International
Association of Machinists and Aerospace Workers,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by suspending Daniel Wing on September 3, 1968,
and by discharging Theodore Ardenski on August 24,
1968, and Thomas Wiseman on January 14, 1969
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of
Section 2(6) and (7) of the Act.
5. In other respects alleged in the complaint the
Respondent has not violated the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that the Respondent, United Aircraft
Corporation (Pratt & Whitney Division), Hartford,
Connecticut, and its agents, officers, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of Lodge 1746 and Canel Lodge 700, International
Association of Aerospace Workers, AFL-CIO, or any
other labor organization, by discriminatorily suspending
or discharging any of its employees or otherwise
discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-mentioned Unions or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer to Daniel Wing, Theodore Ardenski, and
Thomas Wiseman immediate and full reinstatement to
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make them whole in the manner set forth above in
the section entitled "The Remedy" for any loss of
earnings suffered by reason of the discrimination against
them.
(b) Notify the said 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
(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 and pertinent to compute the amount of
backpay due.
(d) Post at its places of business in Middletown, East
Hartford and Manchester, Connecticut, copies of the
attached notice marked "Appendix."" Copies of said
notice , on forms to be provided by the Regional Director
for Region 1, after being duly signed by an authorized
representative of the Respondent , shall be posted
immediately upon receipt thereof, and be maintained 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 ensure 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 Respondent has taken to comply herewith.':
"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 the Regional Director for
Region 1 , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
This notice is posted pursuant to a Recommended
Order of the Trial Examiner, issued after a trial in which
both sides had the opportunity to present evidence. The
Trial Examiner found that we violated the National Labor
Relations Act and has ordered us to inform our employees
of their rights.
The Act gives all employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection; and
To refuse to do any and all of these things.
We assure all of our employees that:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT suspend or discharge employees
because they selected the Union as their
collective-bargaining representative or acted on its
behalf.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights under the Act.
WE WILL offer Daniel Wing, Theodore Ardenski,
and Thomas Wiseman immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges.
WE WILL make whole Daniel Wing, Theodore
Ardenski, and Thomas Wiseman for any loss of
earnings they may have suffered by reason of their
discriminatory suspension and discharge.
WE WILL notify the said 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 Servie Act, as
amended, after discharge from the Armed Forces.
Dated By
UNITED AIRCRAFT
CORPORATION (PRATT &
WHITNEY 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.
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 & New
Sudbury Streets, Boston , 'Massachusetts, Telephone
617-223-3353.