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United Aircraft Corp. v. National Labor Relations Board

decided: March 9, 1971.

UNITED AIRCRAFT CORPORATION, PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT. LOCAL LODGE 1746, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, ET AL., PETITIONERS V. NATIONAL LABOR RELATIONS BOARD, RESPONDENT



Clark, Associate Justice,*fn* Lumbard, Chief Judge, and Kaufman, Circuit Judge.

Author: Lumbard

LUMBARD, Ch. J.:

These are consolidated cases involving two separate proceedings before the National Labor Relations Board which culminated in unfair labor practice findings against United Aircraft Corporation. United Aircraft petitions to set aside the Board's findings that it violated section 8(a)(1) of the National Labor Relations Act by threatening and coercively interrogating employees because of their union activities, and that it violated sections 8 (a)(3) and (1) by discharging employees because of their union activities or without cause while they were engaged in protected activity. The four unions, which represent production and maintenance employees at United Aircraft's several Connecticut plants,*fn1 petition to review the Board's failure to nullify the company's "no solicitation" rule and its refusal to find a violation of section 8(a)(5) arising from the company's failure to honor employee requests for assistance of union stewards. The Board cross-petitions for enforcement of its orders entered on review of Trial Examiner Weil's decision, 179 NLRB No. 160, and on review of Trial Examiner Peterson's decision, 180 NLRB No. 49.

These cases were heard on the same day as United Aircraft Corp. v. NLRB (District 91, IAM), 2 Cir., 434 F.2d 1198, decided November 16, 1970, in which the same parties were involved. We there enforced an order of the NLRB directing United Aircraft to furnish the unions with the names and addresses of all bargaining unit employees. The background of the dispute between United Aircraft and the several locals of the International Association of Machinists, together with the prior court proceedings and contract negotiations, is fully set forth in the opinion in that case and need not be repeated.

We deny the petitions for review, and enforce the Board's orders in all respects.

I.

Trial Examiner Weil found that United Aircraft had discriminated against five of seven stewards who were discharged or disciplined allegedly because of their union activities. He found further that certain interrogations conducted by company investigators, threats directed against union stewards, and one instance of confiscation of a dues authorization card all violated section 8(a)(1) of the Act. Examiner Weil also found that United Aircraft violated section 8(a)(5) by refusing to honor employee requests that they be allowed to consult stewards during interrogations or that stewards be allowed to assist them in filing grievances.

The Board sustained Examiner Weil's findings of coercive interrogation, threats, and unlawful seizure of a dues authorization card in violation of section 8(a)(1). The Board also agreed that the discharge of stewards Menard, Nelson, Gahagan and DeMerchant, and the suspension of steward Tardiff, were motivated by anti-union animus and hence unlawful under section 8(a)(3). The Board also found, contrary to Examiner Weil, that the discharges of stewards D'Andrea and Brandt were discriminatory as well, concluding that any violations of company rules of which they may have been guilty served merely as a pretext for their dismissal. However, on the basis of an intervening decision by the United States Court of Appeals for the District of Columbia Circuit in Lodges 1746 and 743, IAM v. NLRB., 416 F.2d 809 (1969), cert. denied, 396 U.S. 1058, 90 S. Ct. 751, 24 L. Ed. 2d 752 (1970), the Board declined to find a section 8(a)(5) violation because of United Aircraft's refusal to call stewards as requested by employees. The District of Columbia Circuit had denied enforcement to an NLRB order to bargain with the unions, finding that United Aircraft had a reasonably grounded good-faith doubt of their majority status in March 1966. The Board held that since, under this decision, Lodge 1746 did not enjoy a majority during the relevant period, United Aircraft's refusal to honor requests for stewards was not an unfair labor practice.

Pursuant to these findings, the Board ordered United Aircraft to cease and desist from coercively interrogating, threatening or intimidating employees in connection with their union membership, sympathies, or activities; discouraging membership in a labor organization by discharging or otherwise discriminating against employees because they engage in concerted activity; and "in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in the Act."

The Board further ordered that the six discharged stewards be reinstated with back pay, and that steward Tardiff, who was suspended for three days, be made whole for the wages thereby lost.

The hearing before Trial Examiner Peterson involved related complaints filed after the close of the hearing before Examiner Weil. Examiner Peterson upheld the General Counsel's contention that three more stewards, Wing, Ardenski, and Wiseman, were discriminatorily disciplined. But he declined to find that the company's no-solicitation rule and the contractual provision barring union solicitation during working hours were "coercively and excessively enforced" or that interrogation of employees by United Aircraft's internal security investigators violated section 8(a)(1).

The Board adopted Examiner Peterson's findings. It ordered reinstatement with back pay to the three union stewards, and ordered that the company cease and desist from discriminatory suspensions or discharges or from otherwise discriminating in regard to any term or condition of employment. The Board also ordered United Aircraft to cease and desist from interfering with, restraining, or coercing its employees in the exercise of their section 7 rights.

II.

We need only outline some of the facts which in our view manifestly support the Board's ultimate finding that whether or not some of the disciplined union stewards violated company rules, the action taken against all was motivated in whole or in part by these stewards' union activities.

1. Termination of Kenneth Menard.

On November 2, 1966, Kenneth Menard, a shop steward at the Middletown plant, was terminated ostensibly for soliciting union membership during working hours in violation of company rules and a contract provision.*fn2 The Board and Examiner Weil concluded, with substantial support in the record, that the discharge was the end product of an extensive fishing expedition and an investigative file built largely on untruths and distortions. Menard had been elected shop steward in September, 1966, and shortly thereafter approached several employees to get their name, address, and clock number -- information that should have been furnished by United Aircraft to the union, as we held in United Aircraft Corp. v. NLRB, 434 F.2d 1198 (1970). Foreman Karlon, observing this activity, reported that Menard had solicited employee Guyette to join the union. At trial, Karlon as well as Guyette testified that the latter only said that Menard had asked for his name, clock number, and address.

When interviewed by two security investigators, Guyette stated that he noticed the name of Armand Morin in Menard's notebook. The investigators considered this good cause for questioning Morin, but Morin told them that Menard had only asked him for his name and address. With their investigation thus far fruitless, the investigators secured in writing foreman Karlon's hearsay statement which, as noted above, was false. A day or two later, Karlon informed the investigators that Menard had spoken with employee Boucher, and hence Boucher was questioned. Boucher said that Menard wanted his name and information needed by the union to send him his job card. Thus, Menard had not solicited him to join the union, but Boucher added that this was the fifth or sixth time that Menard had solicited him. Morin was reinterviewed, and "confirmed" that Menard told Boucher the union could help him, although Boucher had not said this. Boucher also told of an earlier solicitation by Menard, but Menard was not a union steward at the time. Company investigators then interviewed two other employees, who denied being solicited during working hours.

Finally, Menard was interrogated for nearly four hours and asked repeatedly to confess soliciting on company time. Menard admitted that he tried to obtain names and addresses, mainly on his lunch break. The Board credited Menard's account that after his "confession" was secured, the investigators told him that "they had heard of people who had quit the union, the company had taken it into consideration and these people were still working at Pratt and Whitney." Menard then asked foreman Karlon about this, and he replied that "it might help out" if Menard left the union. Menard then wrote a letter of resignation from the union, but subsequently changed his mind, and was fired a week after the interrogation.

Trial Examiner Weil and the Board concluded on the basis of the foregoing that the purpose of Menard's discharge was to discourage union activities, even though it appeared that on a few occasions, Menard might have solicited during working time.

2. Termination of Clifford Nelson.

On May 10, 1967, union steward*fn3 Clifford Nelson was terminated at the East Hartford plant. The investigation of Nelson was triggered by a letter from employee Lancelot, who had just quit, saying, "I feel I cannot get ahead because I did not join the Union, nor did I fit in the clique that is in our crew. I do not approve of favoritism." Lancelot was then interviewed. He repeated his favoritism charge, and also claimed that Nelson had solicited him during working hours to join the union on several occasions. As the Board noted, the charge of favoritism, which was really directed against Lancelot's foreman, was ignored completely and the ensuing investigation's sole purpose was to build a record against Nelson.

At the outset, the investigators ran into difficulty. Employee Kelley said he had been solicited during the lunch hour, after they had just washed up. Instead, the investigators drew up a statement reading that "this happened while we were working." When he objected, Kelley was told that this statement would be deleted, but it never was. Employees Hardie and Herring were interviewed because they were witnesses to Nelson's solicitations. Hardie said: "I don't recall this as having taken place before lunch." Herring said "we were putting our tools away getting ready to leave for lunch." The investigators reported that "both Herring and Hardie substantiated the allegations made by Lancelot and Kelley," although it seems clear that their statements raised a strong possibility that the incident occurred during lunch hour. The trial examiner concluded that "the investigators created ambiguous statements and relied on the ambiguity" to avoid raising the issue of whether the company's no-solicitation rule applied to Nelson's activities.

Several other employees were interrogated, but they disclaimed knowledge of Nelson's solicitations. Nelson himself was interrogated for two hours and denied Lancelot's charges; he subsequently ...


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