Serv-Air, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 770 (N.L.R.B. 1967)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Serv-Air, Inc. and Smoke-Eaters Lodge No.
898, International Association of Machin-
ists, AFL-CIO. Cases 16-CA-2744 and
16-CA-2780.
June 22, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On April 10, 1967, Trial Examiner Herbert
Silberman 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.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Serv-Air, Inc.,
Enid, Oklahoma, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner : Upon charges
filed in July and August 1966 , by Smoke-Eaters Lodge No.
898, International Association of Machinists,
AFL-CIO,' referred to herein as the Union , the General
Counsel issued a consolidated complaint, dated
October 17, 1966, alleging that Respondent Serv-Air, Inc.,
referred to herein as the Company , has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended . Respondent's
answer generally denies the commission of any unfair
labor practices . A hearing was held before Trial Examiner
Herbert Silberman in Enid , Oklahoma, on December 7, 8,
and 9 , 1966. Subsequent to the hearing, General Counsel
and Respondent filed briefs which have been carefully
considered.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a North Carolina corporation, performs
services at Vance Air Force Base and Kegelman Auxiliary
Field in Oklahoma under contract with the United States
Air Force. During the last calendar year, a representative
period, Respondent purchased and received products and
goods valued in excess of $50,000 directly from points
outside the State of Oklahoma. Respondent admits, and I
find, that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Smoke-Eaters Lodge No. 898, International Association
of Machinists , AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Background
The issues in this proceeding are whether disciplinary
actions taken by Respondent against Jerry R. Wolfe and
R.A. Chodrick were unlawfully discriminatory, as alleged
in the complaint, or were for "good and just cause," as
contended in the answer. The discriminations occurred on
July 14, 1966, when Wolfe was suspended from his job for
the period from July 14 to 22, and on August 7, 1966, when
Chodrick was suspended for 1 day and demoted from crew
chief, a nonsupervisory position, to fireman.2
The instant controversy has its genesis in the Union's
successful drive to organize Respondent's employees and
the certification of the Union in May 1964, as the
collective-bargaining representative of the employees in
Respondent's fire and rescue department at certain Air
Force installations, including the Vance Air Force Base,
where Wolfe and Chodrick were working during the times
material hereto. The Company was opposed to the
organization of its employees. Both before and after the
certification of the Union the Respondent engaged in
conduct which the Board has found in cases reported at
161 NLRB 382 and at 162 NLRB 13693 infringed on its
employees' statutory rights. In the first reported case the
Respondent was found to have engaged in extensive unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act. From the circumstances there found, including
' As International Association of Machinists , AFL-CIO, is not
a separate party to this proceeding , its name has been omitted
from the caption
z The position of fireman is sometimes referred to as fire
crashman or fireman crashman
8 At the hearing herein General Counsel requested that official
notice be taken of the decision of Trial Examiner Davidson issued
on November 1, 1966, despite the fact that exceptions to the
decision was then pending before the Board Since the close of
the hearing , the Board has issued its Decision and Order in said
case adopting the decision of Trial Examiner Davidson
Accordingly, I take official notice of said Decision and Order
which is reported at 162 NLRB 1369
SERV-AIR, INC.
among other factors Respondent's admitted predisposition
to ignore its collective-bargaining obligations, its having
singled out union leaders for criticism and its harassment
of the Union, the Board concluded that the Company
looked upon the Union with antipathy, and that it had
discriminated against various employees in reprisal for
their union activities or protected concerted actions. In the
second reported case the Board found further violations of
Section 8(a)(1) of the Act on the part of the Respondent in
that on February 26, 1966, it discharged and suspended
various employees for having engaged in a concerted
activity within the protection of the Act.
B: The Suspension of Wolfe
On July 14, 1966, Wolfe was suspended without pay
until July 22 by Fire Chief Willis B. Moxley. According to
Moxley, he acted on an oral and a written report that he
had received from William B. Allen, another fireman.
Allen's report was to the effect that about 7 a.m. that
morning, while Allen was on duty in the alarm room, Wolfe
came into the room and engaged Allen in a conversation
during which Wolfe asked Allen to join the Union and
when Allen declined to do so, Wolfe became abusive and
profane.
At the time Wolfe was advised of the disciplinary action
taken against him, he was given an "Employee Warning
Notice" which described his offense as follows:
"Conducting union activity during working hours,
harassing a fellow employee, and personal conduct
unbecoming to a Serv-Air employee on or about 0700
hours, 14 July 1966." Moxley explained that the
solicitation of Allen by Wolfe contravened a company rule
which prohibits employees from engaging in organizing
activities on the job and that a notice setting forth the rule
is posted on the Company's bulletin boards. Moxley
further explained that he was referring to the strong
language allegedly used by Wolfe in his conversation with
Allen, by the reference in the employee warning notice to
"Harassing a fellow employee, and personal conduct
unbecoming to a Serv-Air employee."
The no-solicitation rule which Wolfe purportedly
violated has been posted and maintained by Respondent
on its bulletin boards since about November 1960. In the
case reported at 161 NLRB 382, the Board found that this
notice in various respects was unlawful and specifically
found that the ban imposed on solicitation was
"promulgated in response to Union activity rather than for
the legitimate purpose of maintaining order in the plant
and was discriminately enforced in a manner directed to
stifling union activity." The Board also found that the
discharge of two employees purportedly for having
violated said rule constituted violations of Section 8(a)(1)
and (3) of the Act.4 Accordingly, to remedy the unfair labor
practices found in said case, the Board ordered the
Company, among other things, to cease and desist from
"discouraging membership in International Association of
Machinists, AFL-CIO, Smoke-Eaters Lodge No. 898,
International Association of Machinists, AFL-CIO, or any
'The notice containing the no-solicitation rule which was
introduced in evidence in this case by Respondent is the identical
notice which was before the Board in the case reported at 161
NLRB 382 and which is there quoted in full
5 When on duty in the alarm room an employee was required to
monitor a two-way radio and to be prepared to respond to
emergencies
771
other labor organization, by discharging or otherwise
discriminating in respect to the hire or tenure of any
employee under color of enforcing a rule against
solicitation promulgated for a discriminatory purpose or
applied in a discriminatory manner or on any other
pretext."
In the instant case Wolfe was disciplined for having
violated the very same rule which the Board has enjoined
Respondent from enforcing. Wolfe's suspension for such
reason, therefore, violates Section 8(a)(1) and (3) of the
Act.
In its defense Respondent argues that Allen was on duty
in the alarm room when Wolfe engaged him in the
conversation for which Wolfe was disciplined. However,
the uncontradicted evidence shows that employees while
on duty in the alarm rooms were permitted to drink coffee,
to converse, and even to watch television. As there is no
evidence that Wolfe on the occasion in question interfered
with Allen's performance of his duties,6 the mere fact that
Wolfe engaged Allen in conversation was not a dereliction
of duty on the part of either employee or a breach of any
valid company rule. With regard to Wolfe's use of
profanity in his conversation with Allen, although such
behavior may have been viewed with disfavor by
Respondent, it is conceded that it was not the exclusive
reason for the disciplinary action taken against Wolfe nor
the dominant reason for such action. Fire Chief Moxley
testified that the profanity was only "another ground"
which motivated his decision to suspend Wolfe. The law is
well settled that an employer is not exonerated for
discriminatory action taken against an employee merely
because there may have existed a valid reason for such
action unless his action was predicated solely on such
valid reason.7 Furthermore, in this case, Respondent has
not demonstrated that Wolfe would have been subject to
the same disciplinary action had his only offense been the
use of profanity and had not included union solicitation.
Accordingly, I find no merit to Respondent's defenses in
regard to the suspension of Wolfe.
C. The Suspension and Demotion of Chodrick
R.A. Chodrick began working for the Company in
September or October 1960 as a hand lineman and then as
a truckdriver and about March 1961 was advanced to the
job of crew chief. In the case reported at 161 NLRB 382, it
was pointed out that "[n]o one questions that Chodrick
was the most active and militant union member of the
bargaining unit ," and the Board there found that
Chodrick's layoff on November 25, 1964, was a
discrimination against him in violation of Section 8(a)(3)
and (1) of the Act. In reaching this decision the Board
adopted the conclusions of the Trial Examiner to the effect
that "such shortcomings as Chodrick may have had were
not ... the true reason for his low ranking and his
selection for layoff. On the contrary they were but a
pretext to conceal Respondent's true purpose, displayed in
so many instances herein, to eliminate an active union
protagonist."
6 Allen testified that while on duty in the alarm room , "we carry
on conversations " and that he did not neglect his job when he was
talking to Wolfe
' N L R B v Symons Manufacturing Co., 328 F 2d 835, 837
(C A 7), N L R B v Great Eastern Color Lithographic Corp , 309
F 2d 352, 355 (C A 2). cert denied 373 U S 950
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 26, 1966, Chodrick and other employees,
as found by the Board in the case reported .at 162 NLRB
1369, were unlawfully suspended for 2 weeks in
violation of Section 8(a)(1) of the Act for having engaged in
protected concerted activities.
This proceeding is concerned with the suspension and
demotion of Chodrick which was effected on Sunday,
August 7, 1966. About 8 a.m. that morning some members
of Chodrick's crew asked him for permission to air the
mattresses in the bunkroom of the building called the
crash station , which he granted. (The crews work on 24-
hour shifts and are permitted to sleep in the bunkroom
when not on an active assignment .) Two of the mattresses
were removed from the room through a window and in so
doing the window screen may have been damaged. Max
Cumpston, director of base operations for the Company,
testified that the screen was then 15 to 20 years old and a
new replacement would cost no more than $8. The
remaining mattresses were taken from the room through
the outside door.
Assistant Fire Chief James F. Terrell testified that he
was on duty that morning and about 7:45 a.m. received a
call that some of the men had thrown mattresses out of the
bunkroom at the crash station. When Terrell arrived at the
station, Chodrick and his crew had already left for
breakfast. Terrell spoke with Crew Chief Sedbrook, who
was on duty at the crash station, but who could not tell
Terrell why the mattresses were being aired. Terrell
testified that "It had rained the previous night, and I knew
the ground was wet .... I was astonished that [the
mattresses ] would be out there at this time."8 There is
conflict between the testimony of witnesses for General
Counsel and for Respondent as to whether the ground was
still wet at 8 o'clock that morning . However, neither
Terrell nor anyone else on behalf of Respondent testified
that upon inspection of the mattresses he found that they
had become wet.9
Terrell further testified that "I felt like I had an incident
on my hands and being relatively new out there I
contacted the Chief (Moxley) and told him what had taken
place. I called him by phone, and he told me to contact
Security for a photographer and get pictures of the
mattresses which I did ..."10 After the photographs were
Terrell did not explain the reason for his astonishment. It may
have been because it was unusual for mattresses to be aired on
Sundays, or because the mattresses were being aired the morning
after a rainfall
" Fire Chief Moxley testified that the mattresses were damp
when they were returned to the bunkroom However, he did not
testify that he inspected the mattresses or that anyone made such
report to him Furthermore , according to Moxley 's testimony,
covers were on the mattresses during the time he was at the crash
station Although he testified that the mattress covers were
changed later that day he was not present when that was done
Thus , Moxley's opinion that the mattresses were damp was based
upon guess and not upon inspection . The impression which
various witnesses on behalf of Respondent sought to give was that
the mattresses were somehow damaged by having been placed on
the ground which allegedly was still wet from the previous night's
rain Max Cumpston, who approved Fire Chief "Moxley's
recommendation for the suspension and demotion of Chodrick,
when examined concerning the extent of damage caused the
mattresses avoided a direct and responsive answer to the question
asked him by testifying, "Now, I don't think you can tell me or
anyone in this courtroom can tell me when or how much sooner
those mattresses will have to be replaced now that they have been
soiled and wet laying in the rain than they would have been had
this not happened " No convincing evidence was adduced which
taken, Terrell went to central station (another building on
the base) where Chodrick and his crew had reported after
breakfast. Terrell questioned Chodrick as to why the
mattresses were outside and Chodrick replied that "there
were bugs in them." There was some further discussion
between Terrell and Chodrick about the matter, then
Terrell returned to the crash station. According to Terrell,
"People from Security, Air Police were there at the time. I
know one of the Security Policemen came up to me and
said he had found a couple of the men trying to move the
mattresses or do something to them and he had stopped
them." About this time, Fire Chief Moxley arrived at the
scene.
Fire Chief Willis B. Moxley testified that when he
received the telephone call from Terrell he, in turn,
telephoned his supervisor, Max Cumpston, and informed
Cumpston that there was "some difficulty at the Base,"
that he was going to the Base and would furnish Cumpston
with more information later. When Moxley arrived at the
crash station, there were present Terrell, some military
personnel, and security police and he observed the
mattresses on the ground. Moxley instructed Terrell that
as soon as the military completed their investigation, he
should have the mattresses brought back into the building.
According to Moxley, "Sunday is never a day we air
mattresses."
Moxley then began an investigation by speaking with
Chodrick, various members of his crew, and other
employees about the incident. According to Moxley, the
only thing that Chodrick would tell him about the matter
was that there were bugs in the mattresses and the men
had asked him for permission to air the mattresses. i i Jerry
L. Niles, a member of Chodrick's crew, gave Moxley a
more complete version of what had occurred. According to
Moxley, Niles told him that employees on the previous
shift had been bitten by bugs so Niles and other employees
in Chodrick's crew decided they would air the mattresses.
Niles admitted to Moxley that he threw two mattresses out
of a window and acknowledged that he heard that the
window screen was damaged. Niles offered to pay for the
damages. Moxley asked Niles if Chodrick supervised the
airing of the mattresses and Niles replied that Chodrick
was not present at the time and did not observe the
demonstrated that the mattresses were in fact damaged
10 Terrell failed to explain why he thought he "had an incident"
on his hands However , Fire Chief Moxley testified that two
employees had been suspended the night before because they had
left the base while on duty and that he believed the airing of the
mattresses constituted some expression of resentment against the
Company for suspensions As the only damage , if any , caused by
the incident was that the mattress covers may have become soiled
(it was not established that the mattress covers were clean before
the incident) and a window screen may have been broken (here
too, it has not been shown that the trivial damage to the old,
inexpensive window screen was caused by the employees who
pushed two mattresses through the window), the airing of the
mattresses , without more , was not such a forceful demonstration
of resentment on the part of the employees as to give rise to any
reasonable apprehension that "an incident " of serious
proportions was taking place or might occur Moxley further
testified that "[ t] hey were lust letting a little steam off by shoving
the mattresses out "
" Moxley testified that the mattresses had been inspected
about 2 weeks earlier and were found to have been free from
infestation and that none of the employees with whom he spoke on
August 7 had themselves noticed any bugs in the mattresses
Furthermore, according to Moxley , the mattresses had been aired
about 6 days earlier
SERV-AIR, INC. 773
operation but knew that the men were going to take the
mattresses outside for airing.
After Moxley completed the interviews, he telephoned
Max Cumpston who asked what was the cause of the
incident to which Moxley replied, "You know as well as I
know." By this answer Moxley was referring to an incident
which took place the previous night when two employees
had been suspended for leaving the base while on duty.
Cumpston asked Moxley for his opinion about the matter
and Moxley replied, "Well, I think it was the crew chief's
responsibility. I think the crew chief should have been in
charge of the operation like any other operation. Before
any mattress was moved out of that building I think the
Assistant Chief should have been contacted."12 Cumpston
then remarked, "It looks like this man is continually giving
us trouble. It looks like he's come to the final point. We are
going to have to take some action on the individual."
Moxley recommended that Chodrick should be suspended
and demoted to fireman. Cumpston accepted this
recommendation.
Moxley testified that his recommendation for the
disciplinary action against Chodrick was not based
entirely on the mattress incident. After Moxley concluded
his telephone conversation with Cumpston, he personally
prepared an employee warning notice, called Chodrick to
his office, and gave Chodrick the notice. The notice
advised Chodrick that he was relieved from his position as
crew chief, demoted to fire crashman, and suspended for
the remainder of the workday. The notice described the
reasons for the Company's actions as follows:
1. On or about 0800 7 August 1966, Mr. Chodrick did
not adequately supervise and control his crew of men
during removal of mattresses from bunkroom for
airing and sunning purposes. This resulted in damage
to government property as follows:
a. Some of the mattresses were shoved out two
windows onto the wet ground. (Rained during the
night)
b. Mattress covers were soiled.
c. Window screen frame was broken.
d. Clean linen was removed from bed and placed
on floor.
e. Mr. Chodrick attitude was very indifferent to
entire incident.
2. Mr. Chodrick attitude in supervising his crew has
been very lax in the past.
a. He has failed to comply with required scheduled
training requirements for members of his crew, even
though Fire Chief just recently counseled with him
over training reports over the telephone.
b. His laxity in supervising his crew in station
duties has been brought to his attention by Asst. Chief
numerous occasions.
c. Mr. Chodrick attitude to supervisory personnel
is arrogant, repulsive and disrespectful.
In explanation of Chodrick's demotion Moxley testified,
"He's just not qualified in my mind to be a crew chief. Mr.
Chodrick has eliminated himself as far as crew chief
material in his action and in his duties. He just didn't
produce what a chief should in this position ." Directing
himself more specifically to the items set forth in the
employee warning notice Moxley testified that Chodrick
neglected his duties with respect to training his crew and
in particular Chodrick usually failed to file the required
daily written reports of his training activities. While the
notice refers to a recent telephone conversation about the
matter, Moxley did not testify when that conversation was
held. It might have taken place months before August 7,
1966. 13 In any event, the tenor of Respondent's evidence
is that Chodrick had been delinquent in discharging his
training obligations not merely over a period of months but
consistently over a period of years. As to the item in the
employee warning notice that Chodrick was lax "in
supervising his crew in station duties," again the
testimony is very general and would appear to cover a
substantial period of time beginning long before August 7.
Similarly, the complaint that "Mr. Chodrick attitude to
supervisory personnel is arrogant , repulsive and
disrespectful" is directed to conduct on Chodrick's part
which has been continuing over a period of years.
In addition to his testimony, summarized above,
regarding Chodrick's generally poor performance of his
duties over a long period of time, Moxley testified to
several specific incidents purporting to illustrate
Chodrick's inadequacy as a crew chief. One such incident,
testified to by Moxley, occurred on February 26, 1966.
However, that incident was the subject of a proceeding
before the Board and, in the case reported at 162 NLRB
1369, the Board found that the disciplinary action taken by
Respondent against Chodrick and other employees for
their participation in the incident was an unfair labor
practice in violation of the Act. i4 Another incident
described by Moxley occurred in September 1964 when
Chodrick and other firemen engaged in a work stoppage.
With respect to this incident, the Board in the case
reported at 161 NLRB 382 found that the employees were
engaged in a protected activity and that Respondent's
later refusal to accept their offer to return to work was "for
retaliatory reasons in violation of Section 8(a)(3) and (1) of
the Act."
12 Moxley explained that while it is not necessary to obtain
permission from the assistant chief before mattresses are aired,
nevertheless, it is a custom to inform the assistant chief in
advance Moxley further testified, "Mr Chodrick was aware of
this, and I knew that Mr Chodrick's attitude in supervising the
crew wasn't what it should have been If it was, the mattresses
would never have been put out on the wet ground
13 Thus, with respect to the telephone conversation Moxley
testified
Q Did his reports improve any after you had the talk with
him 9
A He told me he would see what he could do. Yes, they
did improve They did pickup for a while
Q For a while?
A. Right
Q Drop off again?
A They did.
Respondent's further evidence shows that during the year 1966,
from January until Chodrick's demotion, Chodrick submitted
reports on the following days only: April 5, 11, 17, and 19, and
July 20 Unless Moxley was referring to the four reports filed by
Chodrick during the month of April, when Moxley testified that
Chodnck's reports had improved after their telephone
conversation, Moxley was referring to a period antedating January
1966
14 At the hearing Respondent contended, despite the litigation
in the case reported at 162 NLRB 1369, that the "incident is one
of the factors which motivated this discipline [of Chodrick] on
August the 7th "
299-352 0-70-50
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent follows a practice of issuing written
warning notices to employees who have engaged in
misconduct. It is also the practice of Respondent to keep
these warning notices in its files for a period of at least 6
months. No such warning notice for the 6-month period
preceding Chodrick's demotion on August 7, 1966, was
introduced in evidence. It therefore can be inferred that
Chodrick was not given any employee warning notice
during that period. Respondent introduced in evidence
two warning notices given to Chodrick in October 1965.
With respect to one of these notices, which is dated
October 29, 1965, and with respect to which Chodrick was
suspended for 1 day without pay, Chodrick testified
without contradiction that "we had charges (unfair labor
practice charges) filed on it and I was paid for that day."
The other charge is dated October 19, 1965, and relates to
an incident which occurred in April of that year.15
Thus, although the purport of Moxley's testimony is that
in his opinion Chodrick had been an unsatisfactory crew
chief over a long period of time, Moxley was unable to
advert to any specific misconduct or act of misfeasance on
the part of Chodrick occurring later than April 1965
(except for incidents which the Board in prior proceedings
found were within the protection of the Act) other than
matters which had been continuing for long periods of
time. Stated otherwise, the import of Moxley's testimony is
that although he considered Chodrick to have been a poor
crew chief he was unable to point to any deterioration in
Chodrick's performance of his duties during the period of
more than a year preceding Chodrick's demotion on
August 7, 1966.
Max Cumpston who approved the disciplinary action
against Chodrick testified regarding the reasons for this
approval as follows:
I agreed with the Fire Chief in the action which he
recommended in that Mr. Chodrick had long been a
thorn, a source of contention and a lackadaisical
performer in his tasks, and therefore, it was relatively
easy for me to agree to the suggestions of the Fire
Chief, that he be suspended for the remainder of the
day and demoted in that he had not been performing
his task and this last lack of interest on his part clearly
delineated that he was not interested in being a crew
chief.
The issue regarding Chodrick is not whether he was a
satisfactory or unsatisfactory crew chief or whether
Respondent had valid reasons for suspending and
demoting him, but only whether when Respondent
disciplined Chodrick on August 7, 1966, it did so for cause
or in retaliation against Chodrick for his union activities
and other concerted actions. The case in support of the
complaint is strong indeed. It was shown that Chodrick
was the most active and most militant of the Union's
supporters, Respondent was hostile to the Union,
Respondent has engaged in numerous unfair labor
practices, and by its past conduct, Respondent has
demonstrated a ready disposition to engage in
discriminatory, retaliatory disciplinary actions against
union adherents. Furthermore, twice before in the recent
The notice is as follows
NAME Bessie Allen Chodrick POSITION Sergeant-Vance
DEPT] Fire Dept Has been warned for the following
reason (s) On or about 2 Apr 1965, Mr R A Chodrick acting
as backup man for Mr. Robert L Fields did allow Air Force
owned 750 pumper fire truck, field No 103, to be backed into
the Fire Crash Station with an open hose compartment door
past, namely, in November 1964 and in February 1966,
Respondent discharged or suspended Chodrick for having
engaged in union or concerted activities under
circumstances which the Board found constituted unfair
labor practices. Moreover, the Board has specifically
found that Respondent's discrimination against Chodrick
in November 1964 was motivated by a desire " to eliminate
an active Union protagonist" and nothing before me
suggests that Respondent's attitude in this respect has
changed. In these circumstances, an inference of unlawful
discrimination may be drawn with respect to the further
discipline of Chodrick on August 7, 1966, unless
Respondent can show in its defense that its action was for
cause unrelated to Chodrick's union activities.
The incident on August 7 which precipitated
Respondent's decision to discipline Chodrick was trivial.
All Respondent has been able to show is that members of
Chodrick's crew placed mattresses outside the bunkroom
for airing on a Sunday morning when the ground might
have been wet, and in so doing may have soiled the
mattress covers and may have caused some damage to an
almost valueless window screen. Responsibility is
attributed by Respondent to Chodrick in that he failed to
supervise this relatively menial operation and failed to
inform the Assistant Fire Chief that the mattresses were
going to be aired. The Respondent's reaction to the
incident was so much out of proportion to the alleged
offense as to indicate that the misconduct itself had little
to do with Respondent's subsequent actions. Thus, when
Assistant Fire Chief Terrell came to the crash station and
saw the mattresses on the ground, instead of ordering
them returned to the bunkroom if he objected to the
mattresses being aired on a Sunday morning, he
telephoned Fire Chief Moxley and advised Moxley,
without any apparent basis for his opinion, that he had "an
incident on his hands." Moxley reacted to the call in the
same exaggerated fashion as did Terrell. For reasons
completely unexplained, Air Force Military Personnel and
security police were called to make an investigation.
Moxley himself, although he testified he had very little
sleep the previous night, came to the base and conducted
an investigation. What was being investigated is not clear
from the record. That the mattresses were aired by
Chodrick's crew with Chodrick' s permission was freely
admitted so that no particular effort was required to fix
responsibility for the incident. If the subject of
investigation was the extent of the damage then, in spite
all the time and personnel devoted to the investigation, the
investigation was seriously inadequate because nobody, at
least insofar as the testimony adduced at the hearing
shows, closely inspected the mattresses which allegedly
were damaged by the employees' misconduct. The
strenuous effort on the part of Respondent to create the
appearance of a serious dereliction by Chodrick and
members of his crew from something so trivial suggests
that Respondent was looking for an opportunity (and
judging from the incident onto which it latched-no matter
how slight or trivial) for demoting Chodrick. To the
argument that the August 7 incident was merely the last
which caused damage to the vehicle and three wall lockers
Mr Chodrick is further advised to read thoroughly the copy
of Change No 1 to SAR 30-6 dated 1 Oct. 65 (attached)
relative to future disciplinary action relative to Government
or Contractor owned property This warning was issued on
the 19th day of October 1965 at the following location Crash
Station-Bldg. No. 146
SERV-AIR, INC. 775
straw that broke the camel's back, it is noted that
Respondent was able only to point to outdated misdeeds
on the part of Chodrick to demonstrate his unfitness for
his job, and several of those matters were incidents with
respect to which the Board has found that the Respondent
had acted unlawfully. Accordingly, I find no merit to
Respondent's defense that Chodrick was disciplined on
August 7, 1966, for "good and just cause." To the contrary,
I find that the disciplinary action taken against Chodrick
on August 7, 1966, was in violation of Section 8(a)(3) of the
Act and also constitute interference with, restraint, and
coercion of employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship 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.
of reinstatement, less his net earnings during such period.
The backpay provided herein shall be computed on the
basis of calendar quarters, in accordance with the method
prescribed in F.W. Woolworth Company, 90 NLRB 289.
Interest at the rate of 6 percent per annum shall be added
to such net backpay and shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the tenure, terms, and
conditions of employment of Jerry R. Wolfe and R.A.
Chodrick to discourage membership in the Union,
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
2. By interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. The unfair
labor practices here found when related to the unfair labor
practices found by the Board in the two recent decisions
cited above reveal an underlying attitude of opposition on
Respondent's part to the purposes of the Act. The unfair
labor practices committed by the Company are potentially
related to other unfair labor practices proscribed by the
Act, and the danger of their commission in the future is to
be anticipated from the Company's conduct in the past.
The preventive purposes of the Act will be thwarted unless
the Recommended Order herein is coextensive with the
threat. Accordingly, in order to make effective the
interdependent guarantee of Section 7, and thus effectuate
the policies of the Act, an order requiring the Company to
cease and desist from in any manner infringing upon the
rights of employees guaranteed in the Act is deemed
necessary.
Having found that the Respondent unlawfully
suspended Jerry R. Wolfe on July 14, 1966, for a period of
approximately 1 week, I shall recommend that the
Respondent make him whole for any loss of earnings he
may have suffered by reason of the discrimination against
him by paying to him a sum of money equal to that which
he normally would have earned from the date of his
suspension, to wit, July 14, 1966, until the date he was
returned to duty, to wit, July 22, 1966, less his net
earnings , if any, during such period. Having found that the
Respondent unlawfully suspended and demoted R.H.
Chodrick on August 7, 1966, I shall recommend that the
Respondent offer him immediate and full reinstatement to
his former or to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
paying to him a sum of money equal to that which he
normally would have earned from the aforesaid date of his
suspension and demotion to the date of Respondent's offer
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that the Respondent, Serv-
Air, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Smoke-Eaters Lodge
No. 898, International Association of Machinists,
AFL-CIO, or any other labor organization, by suspending
or demoting any employees or in any other manner
discriminating in regard to the hire, tenure of employment,
or any term or condition of employment of any of its
employees.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form labor organizations , to join, or assist
the above-named Union, 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 or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer R.A. Chodrick immediate and full
reinstatement to his former or to a substantially equivalent
position without prejudice to his seniority or other rights
and privileges, and make R.A. Chodrick and Jerry R.
Wolfe whole in the manner set forth in the section of this
Decision entitled "The Remedy," for any loss of earnings
each may have suffered by reason of Respondent's
discrimination against them.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of business in Enid , Oklahoma,
copies of the attached notice marked "Appendix." 16
Copies of said notice , to be furnished by the Regional
Director for Region 16, after being duly signed by an
authorized representative , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
16 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."
i' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in Smoke-
Eaters Lodge No. 898 , International Association of
Machinists , AFL-CIO , or any other labor
organization , by suspending or demoting any of our
employees or in any other manner discriminating
against any of our employees in regard to their hire,
tenure of employment , or any term or condition of
their employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
the right to self-organization , to form labor
organizations , to join or assist the above-named
Union , 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 or all
such activities.
WE WILL offer R.A. Chodrick full reinstatement to
his former or to a substantially equivalent position
without prejudice to his seniority and other rights and
privileges.
WE WILL make R.A. Chodrick and Jerry R. Wolfe
whole for any loss of earnings they may have suffered
by reason of the unlawful discriminations against
them.
SERV -AIR, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, Federal Office
Building , 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 334-2921.