Hayes International Corporation

HAYES INTERNATIONAL CORP. Hayes International Corporation and Communica- tion Workers of America, AFL-CIO. Case 10- CA-17131

1 July 1983

DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS

ZIMMERMAN AND HUNTER On 8 November 1982 Administrative Law Judge Leonard N. Cohen issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the attached Decision in light of the exceptions and briefs and has decid- ed to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.

ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Hayes Interna- tional Corporation, Birmingham, Alabama, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

I The General Counsel and the Charging Party have excepted to cer- tain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We adopt the Administrative Law Judge's conclusion that Respondent did not violate Sec. 8(aX(1) of the Act through Supervisor Boatright's al- leged promise to promote employee Taylor to a supervisory position if she abandoned the strike. In so doing, however, we rely on the Adminis- trative Law Judge's finding that Boatright's denials that he made such a promise were more credible than Taylor's testimony and we do not rely on his additional findings set forth in fn. 37 of his Decision. Throughout his Decision, the Administrative Law Judge inadvertently referred to employee Pauline C. Taylor as Paula C. Taylor. s In the absence of exceptions we adopt the Administrative Law Judge's conclusion that Respondent violated Sec. 8(aXl) of the Act by Boatright's threat to discharge Taylor if she did not return to work and by his telling her that she was "crucifying" him and his immediate super- visor by refusing to return to work.

266 NLRB No. 178

DECISION STATEMENT OF THE CASE

LEONARD N. COHEN, Administrative Law Judge: This matter was heard before me on May 24 and 25, 1982, in Birmingham, Alabama. On September 16, 1981,1 the Acting Regional Director for Region 10 of the National Labor Relations Board issued a complaint and notice of hearing based on unfair labor practice charges filed on June 29, by Communication Workers of America, AFL- CIO, hereinafter called either the CWA or simply the Union. The complaint, as amended at the hearing, al- leges, inter alia, that Hayes International Corporation hereinafter called Respondent discharged its employees David Merrida, Jr., and Paula C. Taylor because of their activities in joining and supporting the Union's economic strike. 2 Respondent filed a timely answer in which it denied the commission of any unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs which were filed by both the General Counsel and Re- spondent have been carefully considered. Upon the entire record and from my observation of the witnesses and their demeanor, I make the following:

FINDINGS OF FACT I. BUSINESS OF THE EMPLOYER Respondent is, and has been at all times material herein, a Delaware corporation with an office and plant located in Birmingham, Alabama, where it is engaged in the manufacture and repair of aircraft. Respondent, during the past calendar year, which period is represent- ative of all times material herein, purchased and received at its Birmingham, Alabama, facility supplies valued in excess of $50,000 directly from its suppliers located out- side the State of Alabama. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION STATUS Respondent admits and I find that CWA is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background s Respondent employs approximately 2,000 employees at its Birmingham, Alabama, facility where it is engaged ' Unless otherwise stated hearing dates occurred in 1981. · After the opening of the hearing Respondent and the CWA reached a non-Board settlement agreement disposing of allegations that Respond- ent also violated the Act by failing to properly reinstate some 34 other economic strikers. Pursuant to this agreement all parties moved for sever- ance and dismissal of the complaints relating to these allegations as raised in Cases 10-CA-17716 and 10-CA-17520. Upon satisfactory compliance with the terms of the settlement agreement I granted such motions.

I Unless specifically noted, the material facts are not in dispute. 1023

DECISIONS OF NATIONAL LABOR RELATIONS BOARD primarily in the modification, repair, and testing of mili- tary aircraft. For some unspecified period of time a large number of these employees have been represented in sep- arate bargaining uits by International Association of Ma- chinists, a carpenters' union, a plant protection union, the United Automobile Workers and the CWA itself.

4 In late 1980 the CWA was certified as the collective- bargaining agent for a residual unit of Respondent's plant clerical and technical employees and, in early 1981, Re- spondent and the CWA entered into contract negotia- tions. When no contract had been reached by March 9,

CWA struck." On May 11, the CWA rejected a contract proposal by Respondent and, shortly thereafter, Respondent com- menced the hiring of strike replacements. At some later point during the end of that same week the CWA rati- fied the proposal and on Monday morning, May 18, a large majority of the striking employees reported to Re- spondent's facility to sign up in order to return to work. Of the approximately 125 striking employees, about half were returned to their former jobs within a week. Addi- tionally, during the year following ratification of the contract, all but approximately 15 employees had re- turned to work for Respondent.

6 B. David Merrida On February 16, David Merrida, a former air traffic controller with the United States Air Force from 1971 to 1975, was hired by Respondent as a control tower opera- tor.7 Although he was initially assigned to work on the first shift alongside William Smith, an experienced con- trol tower operator, it was anticipated that within a week's time spent familiarizing himself with Respond- ent's particular operation Merrida would be assigned to work by himself on the second shift.

8 After 3 full weeks In 1979 the CWA was certified as the collective-bargaining agent for Respondent's office clerical employees.

5 Although the record is far from clear, it appears that the overwhelm- ing majority, if not virtually all, of the bargaining unit employees en- gaged in the strike.

6 William Sulzby, Respondent's director of industrial relations for the Birmingham division, testified over the General Counsel's objections that in only one prior instance has the Board found Respondent guilty of committing an unfair labor practice. On that occasion, the date of which was not established, Respondent was found to have an invalid no-solicita- tion rule. I reject as overstatement the General Counsel's contention, as raised in his post-hearing brief, that this incident establishes that Respond- ent "has a demonstrated history of infringing on Section 7 rights of its employees."

I The control tower operator, as distinct from an air traffic controller, does not actually control the takeoffs and landings of aircraft. That func- tion is performed by the Federal Aviation Administration (FAA) control- lers working at the Birmingham, Alabama, center located adjacent to Re- spondent's airfield. Respondent's tower operator's duties include: commu- nicating ground directions and flight information by radio to the military flight crew while both on the ground and in the air, keeping the required logs regarding aircraft tests and aircraft movement, notifying the fire de- partment and others in the event an emergency should arise, and filing with the FAA aircraft flight plans. This latter duty merely requires that the tower operator determine which type of aircraft will be flying and then submit a prepared or "canned" flight plan for that type aircraft. a The first shift was from 6:30 a.m. to 2:30 p.m. The second shift start- ed at II a.m. and ran to 7 p.m. There is only one operator's desk or posi- tion in the tower. During the periods the shift overlap, the second opera- tor, in essence, assists the operator occupying the seat at the desk. of employment on the first shift, Merrida, on Monday, March 9, joined his fellow plant clericals and technical employees, including William Smith, in striking Respond- ent. Despite several discussions between himself and the officials of Respondent regarding his possible return to work, Merrida did not in fact return to sign up for work until the end of the strike on May 18.9 Later that week, Merrida was notified by mail that he was being terminat- ed while on probation for not being qualified. William Smith, the other tower operator, was reinstat- ed to his former position and Rod Bell, a technical em- ployee and striker, was hired to replace Merrida. Al- though Bell had not worked as a control tower operator for some time, he was able, after spending 2 days in the tower on the first shift with Smith, to be assigned to work by himself on the second shift. Respondent presented compelling evidence that Mer- rida, in his 3 weeks of employment, demonstrated a total inability to meet the minimum requirements of a control tower operator. This conclusion is not only based on the testimony of Robert Herbert, Merrida's immediate super- visor, but also on the accounts of both William Smith, the senior control tower operator and like Merrida an economic striker, and Major Robert Isbell, the United States Air Force's chief of KC-135 Flight Test Section. Neither Smith nor Isbell had any direct stake in the liti- gation and neither appeared to possess any bias against Merrida. Moreover, their testimony, as well as the mutu- ally corroborative testimony of Herbert, is, as will be noted below, entirely consistent with the inescapable conclusions one draws from a reading of Merrida's own testimony. I will not here burden this Decision with a chapter and verse recitation of each and every failure and inadequacy displayed by Merrida during his employ-

9 Merrida testified that on Tuesday, March 10, he crossed the picket line and went to the personnel officer where he talked with Holzenback, the personnel director. At that time he indicated that he feared he would lose the job if he did not come back to work. Holzenback assured him that he would not lose his job simply because he went out on strike. Im- mediately following this conversation, Merrida spoke with Robert Her- bert, supervisor of tower operations. Merrida explained that he did not know what was going on with the Union since he had only been there a short time and he did not want to put his job in jeopardy by going out on strike. Herbert told him that whether or not he came back to work was his own choice. Merrida then told Herbert that he was going to come back to work the following day. Merrida did not do so and did not contact Herbert on March II. About a week or so later, he called Her- bert and, during the course of the conversation, Herbert stated that he thought Merrida was coming back to work. Merrida answered that he had planned to but that the union people had talked to him and con- vinced him to stay out on strike. Initially, Merrida testified that Herbert responded that he could get fired for doing that. On cross-examination, Merrida eventually indicated that what Herbert in fact said was that Mer- rida could lose his job by remaining out on strike. Merrida further testi- fied that he had another conversation with Herbert, a few days before the end of the strike. On this occasion he called Herbert and told him he wanted to come back to work, and that he was going to quit the Union. Herbert answered that if that was what he wanted to do his job was there and he was needed. Except for denying that he ever told Merrida that Merrida could be fired or lose his job because he did not report for work during the strike, Herbert's testimony is basically in agreement with Merrida's. In view of Merrida's acknowledgment that Herbert repeatedly told him that his job was still there if he wished to return to work, as well as Merrida's some- what confused and uncertain accounts regarding this alleged threat, I credit Herbert's denial that he made such a threat. Accordingly, I recom- mend that the 8(aXI) allegation based on this statement be dismissed. 1024

HAYES INTERNATIONAL CORP. ment. Several examples of the more critical errors and lapses in performance will suffice. In so doing, I do not disparage either Merrida's effort or intelligence. I am quite confident that he put forth a good-faith effort to quickly and diligently learn the job. Notwithstanding this effort and his prior military service, Merrida, even after 3 weeks on the job, simply lacked the experience to safely function without continued and extremely close supervision. I o

1. Failure to give accurate flight information Prior to takeoffs and landings, pilots would regularly call the control tower for flight information supplied to the tower by the United States Weather Service. On sev- eral occasions when he was occupying the operator's po- sition, Merrida would give the pilots incorrect readings. On one such occasion, Major Isbell called the tower for an altimeter setting prior to takeoff so that he could check the calibration of his instruments. Initially, Mer- rida gave him a set of numbers which was barometrically impossible. When Isbell asked Merrida to try again, Mer- rida then read him numbers which Isbell recognized as the temperature and dew point readings. Isbell asked Merrida to try again and this time Merrida read him the correct figures. "

2. Fire aboard a KC-135 On February 27, one of the engines on Major Isbell's KC-135, a large four engine tanker, caught fire during startup. Isbell immediately radioed the control tower with the information that they were abandoning ship. Merrida, who was the operator at the time, responded with a "what" rather than the formal response of "say again" if the transmission was not clear. At this point, Smith, who was standing nearby the operator's desk, picked up the emergency phone, and informed the crash station of the critical situation.

3. Flame out of an F-4 Phantom According to Herbert, on March 5, the pilot of an F-4 Phantom Fighter plane radioed the tower from the air that he had an engine flame out and was declaring an emergency. Merrida responded that the pilot did not have the "MOA."' 2 The pilot then repeated the trans- mission regarding the flameout and stated, "I don't care about the MOA, we're declaring an emergency. We've lost an engine." Merrida again responded with the state- ment that the pilot did not have the MOA. The fighter pilot then excitedly stated: "I don't give a damn about the MOA. We've got an emergency." At this point Her-

10 Unless specified, the evidence regarding the following incidents are based on an amalgam of the mutually corroborative accounts of Herbert, Smith, and Isbell.

I Herbert also testified that, on February 22, he overheard a pilot call in and request the temperature. Merrida merely responded, "You are loud and clear." Herbert further testified that, on March 3, a pilot called in and wanted to know the pressure altitude. On this occasion, Merrida gave the pilot the altitude setting. iL The anagram MOA stands for military operational area and is simply an area reserved exclusively to the military for maneuvering and high speed performance testings. bert took control of the control tower's microphone, ac- knowledged the emergency, and made the required calls. Despite admitting making an entry in the log for March 5 in which an engine problem was indicated, Merrida denied any knowledge of the above incident. Merrida was questioned on cross-examination with regard to his understanding of the MOA. Q. (By Mr. Lowry) Do you know what MORE [sic] is? A. Yes. Q. What is it? A. MORE is a place where certain pilots go where they can fly those ranges, that's what they told me. Q. That's what who told you? A. That's what Mr. Herbert and them told me that it was a certain pattern which we have to con- tact the MORE in order for them to open that pat- tern up. You cannot contact the MORE they cannot open that particular pattern up, so aircraft have to fly in. Q. What is MORE? A. Okay, the MORE is what you call a certain pattern. Just like, for instance, if you are going to file flight plan and fly in Fairfield, the you cannot go out to Fairfield unless you contact an MORE to go into the MORE. You can only utilize the

MORE for about an hour or one hour or maybe 45 minutes whatever time they have open at the MORE. And you have to get that verified through the MORE operator in order to get the time that you are going to send an aircraft up in there. Without belaboring the obvious, other statements made in his own testimony further establish Merrida's lack of expertise in this area. On several occasions, Mer- rida used the phrase "wind temperature." No such mete- orological phenomenon exists. On several other occa- sions, Merrida referred to runways by three digit desig- nations, such as "203." As Smith noted, runways have a maximum of two digit designations. Finally, Merrida at- tributed some of his communication difficulties to the fact that differences existed between Hayes' radio proce- dures and the procedures he utilized with the Air Force. Both Isbell and Smith credibly testified that radio termi- nology is standardized in the aviation industry, both mili- tary and civilian. Approximately I week after Merrida was hired, Robert Herbert, acting both on negative reports given him by Isbell and other pilots, as well as on his own ob- servations, recommended to his immediate supervisor, Edward Galloway, that Merrida be discharged as a safety hazard. Galloway, the project manager for flight- line operations, in turn talked to Ray Price, manager of personnel, and endorsed Herbert's recommendations. After first determining that Herbert and Galloway had not documented any of Merrida's problems, Pike indicat- ed that he felt that they might encounter some EEO problems if they let Merrida go at that point due to the fact that Merrida is a black male. Pike suggested that 1025

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Merrida be given every opportunity to prove himself ca- pable of performing the job. Following this meeting, Galloway instructed Herbert to keep a log of Merrida's problems. Additionally, Gallo- way instructed him to prepare a detailed list of the con- trol tower operator's duties that Merrida would be ex- pected to perform and that when that list was completed he, Galloway, would go over it personally with Merrida. On or about Friday, February 27, the end of Merrida's second full week of employment, Herbert took the list of the duties he had prepared to Galloway. Galloway in- formed him that he was too busy to talk to Merrida that day and instructed Herbert to handle the matter. Later that day, Herbert met with Merrida and indicated that he was not satisfied with the work Merrida had been per- forming. Merrida responded that he was not satisfied either. Herbert then indicated that they were going to have to do something since normally after a week at the most they had been able to put a new man on the second shift by himself. Herbert then went over in some depth the specific duties that Respondent expected Merrida to be able to perform.'s By all credible accounts, Merrida's work did not im- prove during the third and final week of his employ- ment. Further, Galloway credibly testified that, some- time during that week, Major Isbell complained directly to him that the problems in the tower were serious and that they were not getting any better. On Monday, March 9, 5 days before the end of the trial period, Galloway had, in his own mind, allotted to Merrida, the union struck. No further action was taken against Merrida at that time.14 Sometime around the middle of May, Galloway met again with Pike to discuss the situation with Merrida. By this time, Pike had had an opportunity to review the documentation prepared by Herbert regarding Merrida's inability to perform the job. Pike then gave Galloway the necessary permission to terminate Merrida, which was done shortly after he made application to return to work. 5 Conclusions The General Counsel, relying on Smith's admission that, during the course of his 13 years as a control tower operator, he occasionally confused radio signals, filed in- correct flight plans, and had difficulty understanding transmissions, argues that "the sum total of all of Merri- da's supposed job performance problems amount to noth- ing more than the types of errors committed by more ex- perienced and seasoned control tower operators." The General Counsel continues that "obviously Respondent seized upon Merrida's performance in order to obfuscate its real reason for discharging him." While this may Ia Merrida recalls this meeting in slightly different terms. He testified that he, and not Herbert, asked to be given something in writing to let him know exactly what he was supposed to do at a particular time. While Merrida may have welcomed receiving written instructions re- garding his duties, the credible evidence suggests that it was Respond- ent's idea rather than his own.

14 Galloway stated that he was under the impression than an employee could not be discharged while on strike.

15 Although Galloway was vague and uncertain of the exact date, it appears that this decision was reached sometime during the week prior to May 18. merely represent an alternative theory of his case, it is, in my opinion, based on such a totally distorted and biased view of the record evidence as to constitute utter non- sense. A fair reading of the record convinces me that, in discharging Merrida upon his return from the strike, Re- spondent was motivated exclusively by a reasonably formed and honestly held belief that Merrida lacked the experience to safely perform the functions required of a control tower operator. Merrida's joining the strike and remaining on strike until May 18 were simply not factors in Respondent's decision.

A much more substantial and serious argument in sup- port of this allegation was made on brief by the General Counsel. The General Counsel, citing Waveline, Inc., 258

NLRB 652 (1981), a case in which an employer was found to have violated Section 8(a)(3) and (1) by refus- ing to reinstate two striking probationary employees at the conclusion of a strike, contends that Respondent's failure to follow through on its plan to give Merrida an- other week before making the final decision about retain- ing him unlawfully penalized Merrida for participating in a lawful strike. Despite a certain facial appeal, I find that the facts before me are distinguishable from those in Waveline, supra, in several critical features. First, unlike the em- ployer in Waveline which specifically admitted that it had not made any decision before the strike concerning the retention of the two probationary employees, Re- spondent herein had, some 10 days prior to the com- mencement of the strike, concluded that Merrida would be discharged after completing his fourth week on the job. In this regard, by the end of Merrida's second week in the tower it was abundantly clear to all but perhaps Merrida himself that he was not then nor would be in the immediate future capable of handling the job for which he was hired, to wit; working by himself in the tower on the second shift. In this regard, Galloway read- ily endorsed Herbert's recommendation that Merrida be let go at that time. That Respondent's manager of per- sonnel, Pike, did not authorize that action was not the result of any disagreement on his part regarding Merri- da's abilities but was instead the direct result of fear that if they acted too quickly without documentation they could face a claim of racial discrimination. The 2 addi- tional weeks to be granted Merrida beyond February 27 were not part of a normal probationary period given to a new employee for the purpose of allowing him to dem- onstrate his capabilities but were, in fact, a period Re- spondent required for its own purposes to document a case against an employee that would withstand govern- mental scrutiny. ' This brings us to the second distinguishing factor from the case relied on by the General Counsel. Again, unlike the situation in Waveline, here the decision to discharge Merrida at the end of the strike was not made contrary I' Galloway testified under cross-examination that, if there had been no strike and if Merrida's performance had proven satisfactory during the fourth week, he (Galloway) would have considered reversing his decision and keeping Merrida on. In view of the fact that Merrida had shown no improvement in his work by the end of his third week, this highly specu- lative statement does not, in these circumstances, alter the fact that the decision to discharge Merrida was reached prior to the strike. 1026

HAYES INTERNATIONAL CORP. to any well-established past practice of waiting the full probationary period before making a final decision as to whether to retain or reject a probationary employee.' 7 First, the record is silent with regard to the normal, usual, or customary probationary period in any job clas- sification within the plant. Second, and most importantly, the uncontroverted evidence indicates that Merrida was the only employee hired as a control tower operator not to be considered by Respondent to be fully qualified shortly after his hire. The record establishes that both Merrida's predecessor and his successor in the job were within I week's time sufficiently qualified to be left alone for the second shift. For these reasons, I do not find the Waveline rationale as controlling here. In view of the importance of the job as a control tower operator and the dire consequences that would result from an error by the operator, I find and conclude that Respondent, in the case before me, has established a legitimate and substantial business consider- ation to justify its actions in discharging David Merrida upon his return from a strike. Accordingly, I recommend that the complaint allegations relating to Merrida be dis- missed. 18 C. Paula C. Taylor Paula Taylor, a longtime employee, was employed by Respondent as a technical librarian in the technical publi- cations department under the direct supervision of Carl Boatright. Near the end of the first week in March, Taylor requested that she be granted an advance of 2 weeks' vacation time starting on Monday, March 9, so that she could care for her brother who was dying of cancer. Boatright spoke to his immediate supervisor, Frederick Ritenour, on Taylor's behalf. Ritenour, the manager of the technical publications department, ap- proved Taylor's request. Sometime near the end of that 2-week period Taylor's brother died. Shortly thereafter, Taylor informed Boatright that she would need addition- al time to attend to her brother's estate.' 9 Boatright again went to Ritenour and, on March 23, Taylor's status was changed to leave of absence which was due to expire as of the completion of her normal shift on Friday, May 1.20 Taylor returned to the plant on Monday, May 18, where she was required to sign up for work. Later that week she was notified by mail that she had been permanently replaced while on strike. From the last week of April to the third week of May the facts concerning communications between Taylor and Boatright are in dispute. The General Counsel con- tends that the credible evidence establishes that Taylor

17 Waveline, supra. 'a In view of the conclusion, regarding the legality of Merrida's dis- charge, I need not and specifically do not pass on Respondent's alterna- tive argument that Merrida's presence in the tower as a control tower operator is so potentially dangerous to life and property as to bar his re- instatement as a matter of Board policy. 1" Taylor and her husband rented Boatright an apartment located adja- cent to their house. All the conversations between Taylor and Boatright took place at either her house or his apartment.

20 The letter granting the leave states: "If you are unable to return at the expiration of this leave, it is your responsibility to get an extension to your leave from your department or to report your absence every third day by phoning." informed Boatright shortly before her leave was due to expire that she was joining the strike and that, despite such knowledge, Boatright subsequently threatened her with discharge for engaging in such activities. Addition- ally, the General Counsel contends that Boatright unlaw- fully attempted to induce her into refraining from strik- ing by promising to promote her to supervision if she would return to work with him. Lastly, the General Counsel contends that, when these threats and promises failed and she still refused to abandon the strike, Re- spondent discharged her. Respondent, on the other hand, not surprisingly, sees the evidence in a totally different light. According to its scenario, Taylor, during the end of April and the begin- ning of May, refused to either admit that she was joining in the strike or to apply, as requested to do so by Boatright, for an extension for her leave of absence. Not- withstanding her reluctance to clarify her status, Re- spondent, without committing any independent violation of Section 8(a)(1), chose to give her the benefit of the doubt and treat her as a striker who was subsequently and lawfully replaced in the week prior to the end of the strike. In order to attempt to resolve the conflicting testimo- ny regarding exactly what was said to Taylor by Boatright and how her status as an employee was affect- ed by or changed during the strike, it is necessary to review in some detail the testimony of all the partici- pants to the conversations in question.

1. Respondent's casea2 Sometime in late April, Boatright encountered Taylor while on his way to do his laundry. Taylor told him that she did not know what to do since her leave was almost up and the strike was still going on. Boatright answered that it was a good possibility that Ritenour would give her an extension of her leave of absence if she called him.

A few days later, Boatright approached Ritenour and explained the situation to him. According to both Boatright and Ritenour, the latter indicated that he would try to grant an extension for Taylor if she would just call him with the necessary details. On Saturday, May 2, Boatright again encountered Taylor upon leaving his apartment. On this occasion he asked her if she had called to request the extension of her leave. Taylor said that she had not, but added that she knew that she would not cross the picket line. Taylor added that she had received threatening phone calls. Boatright told her that she had nothing to worry about and noted that other people were coming back to work. This conversation ended with Boatright again strongly advising her to call in and get her leave ex- tended if she were not going to come back to work. On May 6, Boatright checked with Ritenour's secre- tary and was told that she had not yet called the office. That evening Boatright stopped by Taylor's house on his way home from work. Present were Taylor, her hus- 2' Except where specifically noted, this recitation is baaed exclusively on Boatright's testimony. 1027

DECISIONS OF NATIONAL LABOR RELATIONS BOARD band, Vaughn Taylor, and a friend, Jeanette Goodman. During the course of their discussion Boatright noted that Taylor had not yet called in for the extension and he again suggested that she do so since it was the compa- ny policy that an employee could be terminated for being absent for 5 days after a leave of absence had ex- pired. Boatright added that Taylor could not straddle the fence any longer and that she should either call in or return to work since she had not supported the Union and, therefore, the Union would not support her.2 2 At some point during the conversation, Taylor accused Ri- tenour of having something against her personally. Boatright denied this accusation and again repeated that it was merely company policy. Near the end of the con- versation, Taylor, who by that time was quite angry, threatened to call Boatright's estranged wife and tell her that he was drinking again. At this point, Boatright was asked by Vaughn Taylor to leave the house. On Saturday following this meeting, Boatright had an- other conversation with Taylor. Taylor told him that he had better find him another place to live because things were "going to get ugly." Boatright responded that he would move if that is what she wanted. On Monday, May 11, Boatright, along with the other supervisors in his department, attended a weekly depart- mental production meeting with Ritenour. According to both Boatright and Ritenour, Ritenour announced that he had been given permission by Sulzby, the director of industrial relations, to permanently replace striking em- ployees. Boatright subsequently submitted a suggestion for replacing Taylor with Jean Young, a part-time em- ployee who had been employed since before the strike. 2 3 On Sunday morning, May 17, the day before the strike was to officially end, Taylor had a final discussion with Boatright. When Taylor asked him if she still had a job, he replied that he did not think so. Boatright explained that the Company had the past week started replacing strikers with qualified employees in the department and that she had been replaced by Jean Young. Taylor an- swered that no one else at Hayes could do her job and that she would have her job back "one way or the other." In explaining his concern that Taylor either secure an additional leave of absence or return to work, Boatright stated that he was merely trying to help a friend who had loaned him money. 24 Boatright stated that even though he felt that he had "gone out on a limb" with the Company by helping her secure vacation time and leave of absence to coincide with the commencement of the strike, he was not concerned with Taylor's returning to work to assist with the backlog. Instead, he stated that his only concern was that Taylor, who he knew wanted to take part in the strike, would not be discharged for a2 Boatright testified that prior to the strike Taylor made it quite clear at work to other employees and to himself that she wanted nothing to do with the Union.

23 Although the record is somewhat unclear, it appears that Vic McShane, the only other unit employee under Boatright's supervision, was also replaced. No evidence was offered relating to what other em- ployees, if any, were replaced in the department. '4 Prior to the strike, Taylor cosigned at a bank a note for Boatright which she paid off after the events in question. failing to comply with company procedures and policies relating to leaves of absence.

2. The General Counsel's case2 5 On Wednesday evening, May 6, Boatright stopped by Taylor's house and discussed her status. Boatright, in the presence of her husband and a friend, told her that she had one more chance to come back to work and if she did not cross the picket line she would be fired. Boatright added that she had crucified him, Ritenour, and Ritenour's secretary because they gave her a leave of absence and now she would not return to work. Boa- tright then offered to take her across the picket line in his own car. Taylor answered that she was not going to cross the picket line because she was a union member. At this point, Boatright stated that he was not going to have anyone working for him who was a union member. When Taylor pointed out that only she and Vic McShane were union members under his supervision, Boatright stated that neither she nor McShane would ever come back to work unless she crossed the picket line.2 6 At some point during this conversation, apparent- ly after Boatright threatened her with discharge, Boatright also urged her to call Ritenour and get an in- definite leave. She refused saying she was out on strike. At this point Boatright was asked to leave the house.27 Both Vaughn Taylor and Jeanette Goodman testified regarding the same meeting. Vaughn Taylor testified that Boatright told his wife that he was going to give her one more chance to come back to work and if she were not back by the following Monday she would never work for him again. When Taylor answered that she would not cross the picket line Boatright told her that she was fired. Vaughn Taylor further testified that Boatright told his wife that the work was stacked up, that he needed her, and that by her failing to return to work she was crucifying Ritenour and himself. At some point during the conversation, Boatright offered to take her across the picket line in his own car. Vaughn Taylor did not cor- roborate those portions of his wife's testimony in which Boatright allegedly told her to call Ritenour for an ex- "2 Except where specifically noted, this recitation is based on Taylor's testimony. 2a Taylor testified that she had had several conversations with Boatright prior to May I in which he told her that some of the striking employees were returning to work. During these same conversations, Boatright allegedly also explained that some of the striking employees were going to be permanently replaced. The record does not indicate that any striking employees were replaced prior to the second week in May. 2? By way of explaining certain of her remarks to Boatright during the May 6 meeting, Taylor testified that on several occasions in April she had told Boatright that she would not be returning to work at the end of her leave of absence if the strike were still going on. When pressed for details on cross-examination regarding these conversations, her testimony became confusing and conclusionary. At one point she testified that, during April, Boatright stopped by her house and mentioned the fact that he had not seen her on the picket line. She answered that that was so but that she was nonetheless still on strike. In attempting to explain this re- sponse to Boatright, Taylor stated that she had been on strike since March 9, the day the strike commenced. Taylor could not explain why she requested vacation time and leave of absence if, as she now claimsn she had already been on strike. Still later on cross-examination, Taylor testified that on several occasions during April she specifically informed Boatright that she was then on strike. 1028

HAYES INTERNATIONAL CORP. tension or in which he uttered the threat about McShane's discharge. According to Goodman's account, Boatright told Taylor that he wanted her to return to work and that he would personally take her across the picket line. When Taylor said she could not because she belonged to the Union, Boatright replied that the Union would not stand behind her. Boatright added that she had crucified him because her desk was stacked with paperwork and no one else could do it. When Taylor persisted in refusing to return, Boatright stated, "Well, then you're just going to have to be fired. You're fired if you don't come back because we can't have this." Goodman, who admitted not being present for the entire conversation, did not recall any mention of a company policy about leaves of absence or the alleged threat to McShane. According to Taylor's testimony on direct examina- tion, Boatright paid her another visit on Friday, May 8, 2 days after the visit described above. On this occasion, Boatright told her that he was giving her one more chance to come back and that, if she were not back by Monday, May 11, she would be fired. When she re- sponded that she was a union member and would not cross the picket line, Boatright stated that she was "fired, fired, fired." Boatright also told her that the Company would support her but that the Union would not since she had not been working with it. Boatright then sug- gested that she call Ritenour and get an indefinite leave. This conversation apparently ended when Taylor an- swered, "Carl, I don't want leave, I am on strike and I have told you I am on strike and I belong to the Union and I thought it was necessary to just to tell you that I was on strike." Further, at the very end of her cross-ex- amination, Taylor, for the first time, stated that Boatright in this May 8 conversation also told her that he would make her a supervisor if she would cross the picket line. 28 Vaughn Taylor also testified that Boatright had a second conversation with his wife in his presence on May 8. According to his version, Boatright asked Taylor to come back to work and even offered to carry her across the picket line. Boatright then added that he had a girl coming in the following Monday and if Taylor did not return to work on that day she would be replaced. Vaughn Taylor also testified that in this conversation Boatright offered his wife a promotion if she would cross the picket line. On Sunday, May 17, she and Boatright had a final conversation in Boatright's apartment. No one else was present. According to her account, she indicated to Boatright that she was ready to go back to work the fol- lowing day. Boatright answered that she was fired and had no job. Boatright further stated that neither she nor Vic McShane would ever work for him again because they would not cross the picket line. Boatright then added that he had no work for her. Taylor said that she '8 That Taylor was in fact testifying to a second and distinct conversa- tion apart from the one which clearly took place on May 6 is in real doubt. On cross-examination, Respondent's counsel read from a portion of her investigative affidavit in which she described these statements as having in fact occurred in the first conversation of May 6. This inconsist- ency was not explained. did not understand since that prior Friday he had indi- cated that her work was all backed up. Boatright simply answered that she had been fired and he had someone coming in to replace her on Monday morning. When she then asked if other individuals were also going to get fired, Boatright answered yes there were a lot of other people who were also going to get fired. Boatright then noted that he had seen her on the picket line the prior Thursday afternoon. When she admitted that she had been down there, Boatright responded, "That was a big mistake, you standing on the picket line." At this point the witness was interrupted by counsel from finishing her testimony regarding what, if anything else, may have been said in this conversation. Conclusions

I closely observed each witness as he or she testified. I was not particularly impressed with either the demeanor of the two principal actors or the content of their respec- tive testimony. Paula Taylor testified in an extremely agitated state. Her testimony throughout was confused, rambling, evasive, and nonresponsive. Additionally, she appeared to possess such a deep-seated antagonism against Respondent generally and Boatright specifically as to impair her ability to accurately recall entire conver- sations in their correct context. She simply chose to forget, ignore, or misinterpret statements harmful to her cause. I do not find her to be a reliable and trustworthy witness and I do not credit her testimony, if controvert- ed, unless corroborated by either Vaughn Taylor or Jea- nette Goodman. Boatright, on the other hand, testified in a clear, con- cise, and detailed fashion regarding his conversation with Taylor. Unfortunately for Respondent's case, his testimo- ny at times appeared contrived, self-serving, and re- hearsed. Moreover it is in direct conflict on certain mate- rial points with the testimony of Vaughn Taylor and Jea- nette Goodman, who despite having an obvious bias toward Taylor, impressed me as forthright individuals who were doing their best to recall conversations and re- marks as they actually occurred. 2 9 Despite those best ef- forts, neither one's testimony is totally reliable. In this regard, neither one's version is complete nor entirely consistent with each other or with Paula Taylor's. Applying these observations to the facts, I am con- vinced that the truth of what really transpired lies some- where in between the versions proffered by each side.3 0 Based on a careful review of the entire record, including the probabilities inherent in the respective testimony, I find and conclude that, notwithstanding any remarks be- tween Taylor and Boatright on May 6 or thereafter, Re- spondent, at all times material, treated Taylor as an eco- nomic striker who was permanently replaced prior to May 18. As of the time Boatright had a brief conversa- g9 In so doing, I recognize that Goodman may not have been entirely candid in that portion of her testimony relating to both the circumstances and the nature of the oral surgery she had performed upon her on May 6. Her denials in this area are understandable and do not detract from her credibility. so "Nothing is more common than to believe some and not all of what a witness says." Edwards Transponation Ca, 187 NLRB 3 (1970), enfd.

437 F.2d 502 (5th Cir. 1971). 1029

DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with Taylor on May 2 and subsequently paid his May 6 visit to her house, Taylor had never indicated to him that she then or for that matter at any earlier time considered herself a striker.3 1 Moreover, the record dis- closes no conduct on her part which would have led Boatright or any other management official to believe that her status had changed to that of a striker.3 2 Taylor had not up until that time engaged in any activities on behalf of the Union nor had she taken any steps to notify Respondent of her intentions at the expiration of her leave of absence. When Boatright approached Taylor on May 6, he had one main purpose in mind, to wit: either get Taylor to follow his earlier suggestions and request an additional leave of absence or, if she chose not to do so, then to suggest, persuade, or convince her to return to work. Why Taylor did not avail herself of the opportunity of- fered by Boatright to obtain an additional leave of ab- sence was not explained. When Taylor expressed no en- thusiasm for requesting an additional leave of absence and indicated that because of some threats she had re- ceived she would not cross the picket line, Boatright re- acted badly. First, he explained how desperately he needed her and even offered to personally take her across the picket line if she was afraid of violence. 33 When she again indicated that she would not cross the picket line, Boatright accused her of crucifying him and Supervisor Fred Ritenour. Boatright then pointed out to Taylor during this same conversation that she had al- ready violated company policies regarding reporting for work at the end of the leave of absence and, unless she did something, she ran the risk of being fired.34

I specifically do not find that Boatright at any time on May 6 or thereafter told Taylor that she was fired. In this regard I do not credit those portions of Vaughn Taylor's and Goodman's testimony. The credible evi- dence supports the conclusion that in the context of dis- cussing the leave of absence he threatened that she would be fired in the future. It is highly implausible that Boat- s' While good reasons no doubt existed for her staying at home during parts of March, all of April, and the beginning of May, Taylor no doubt took this opportunity to obtain a leave of absence as a way to avoid ap- pearing to choose sides in the labor dispute. '2 Up until her leave of absence expired several days prior to May 6, Respondent would have had and Boatright did have every reason to be- lieve that Taylor was not in fact a striker. The point that seemed to elude Taylor on cross-examination was that, if she had been a striker as she claimed since March 9, there would have been no need for her to have obtained vacation time and then a leave of absence covering the first 7 weeks of the strike. 3s Even though neither Vaughn Taylor nor Jeanette Goodman specifi- cally testified about Taylor mentioning phone threats to Boatright, 1, nonetheless, credit Boatright's testimony that Taylor in fact used this as an excuse. In this regard both Vaughn Taylor and Goodman testified that Boatright offered to transport Taylor across the picket line in his own car. Absent Taylor's claim of fear, there would have been no need for Boatright to make this offer. a4 It seems clear, based on Boatright's conduct on May 6, that he did not consider Taylor's remarks first made on May 2 that because of threats she knew that she would not cross the picket line as a declaration that she was a striker. Boatright, correctly or not, took the May 2 re- marks as apparent agreement with him that she should seek an additional leave of absence. In any event, in view of my subsequent findings regard- ing the coercive nature of Boatright's conduct as the May 6 meeting, it makes no substantive difference with regard to any complaint allegation whether Taylor declared her intentions of joining the strike on May 2 or

6. right, after first discharging Taylor, would in the same conversation then request that she apply for an addition- al leave of absence. It is impossible to determine with ex- actitude whether this threat was made before or after Taylor, in essence, declared that she was a striker. None- theless, it is abundantly clear that even if the threats were made first, Boatright made no attempt to amend or explain his earlier warning in view of her declaration that she was a striker. According to the credible account of Vaughn Taylor, at the second meeting of that same week Boatright, still in an attempt to get Taylor to request a new leave of ab- sence, for the first time mentioned that unless she did so she faced the possibility that as an economic striker she could be replaced in the future.3 5 This attempt by Boat- right also failed when Taylor continued to adhere to her previously stated intention of not crossing the picket line. There was no further communication between the two until the Sunday prior to Taylor's making her uncondi- tional offer to return to work.

I credit the testimony of both Ritenour and Boatright that, sometime during the week of May II 1, Jean Young was promoted to a full-time permanent position as a re- placement for Taylor. In making this decision, Respond- ent considered Taylor only as an economic striker. Taylor was not treated any differently from any other striking employees who were also replaced during the strike.3 6 It is a quantum leap to go from a situation where Boatright, because of his personal friendship and debtor status, was attempting, albeit with a strong arm, to help Taylor to a situation where I week later Boa- tright retaliated against Taylor for her going out on strike. The credible evidence does not support such a leap. Finally, I specifically do not credit Taylor's testi- mony that Boatright during their conversation on May 17 admitted that she was fired or replaced because she refused to cross the picket line. Instead, I credit Boatright's testimony that he simply informed her of what actually happened, to wit; that she, as an economic striker, had been permanently replaced during that prior week. Therefore, in view of the entire record, I find that the General Counsel has not met his burden of establish- ing by a preponderance of the evidence that Taylor was in fact discharged, no less discharged because of her ac- tivities on behalf of the Union. Accordingly, I recom- mend that that portion of the complaint alleging her un- lawful discharge be dismissed. Likewise, I find insufficient evidence with regard to the complaint allegations involving Boatright's alleged promise to promote Taylor to a supervisor if she aban- doned the strike and his alleged threat not to reemploy Taylor and McShane because they went on or remained s5 Whether Boatright had by this time already discussed the possibility of Respondent hiring strike replacements with Ritenour or whether he was merely speculating is not known. I specifically do not credit Boa- tright's testimony that he never mentioned the hiring of strike replace- ments to Taylor prior to May 17. According to Taylor's questionable ac- count, he had made mention of strike replacements as early as late April.

36 See above. While the record is not entirely clear it appears that ap- proximately half of the 125 striking employees were either initially re- placed or had their jobs eliminated as of May 18. 1030

HAYES INTERNATIONAL CORP. on strike. Boatright's denials are simply more credible than Taylor's accusations. 3 7 As set forth, Boatright, May 6, did threaten that Taylor could or would be discharged if she did not return to work. This threat was initially made in connec- tion with Taylor's failure to comply with company poli- cies on what steps must be taken upon the conclusion of a leave of absence. Taylor, in this same conversation, in- formed Boatright that she was on strike. Boatright made no attempt to rescind his earlier threat or to explain what rights she had as an economic striker. In these circum- stances and in the entire context of this conversation, I conclude that the threat amounted to an unlawful intru- sion on her Section 7 rights in violation of Section 8(a)(l). Additionally, I find that in accusing Taylor of crucify- ing himself and Ritenour by refusing to return to work Boatright unlawfully interfered with, coerced, and re- strained Taylor in the exercise of her Section 7 rights. This statement is similar in nature to an employer's con- veying a message to its employees equating their union activity with disloyalty. Metropolitan Life Insurance Co.,

256 NLRB 626, 633 (1981). Accordingly, I find that this statement is violative of Section 8(a)(1). 38 D. Erskine Elkins' Alleged Threat Billy Kizziah, a senior electronic data processing ma- chine operator, testified that shortly before the strike he was approached one day in the hall by his supervisor, Erksine Elkins. Elkins told him that Bob Herron, his own supervisor, had come to him and asked him to check on the union membership status of Dee Hovies, an employee in Elkins' department. Herron wanted to know if Hovies was a unit employee and, therefore, eligible to strike. Herron then asked Kizziah to find out what was Hovies' union status. A few days later, Kizziah and Elkins had a second conversation regarding Hovies. Kiz- ziah testified that on this occasion Elkins stated that he had already discussed the matter with Hovies and had in- formed her that if she struck she would be fired. While Elkins admitted telling Hovies that she was not eligible to join the Union and that she would be termi- nated if she went out on strike, he denied ever talking to Kizziah about Hovies' status. Neither Hovies nor Herron testified. At no time was Respondent's interest in the membership status of 1 employee out of approximately 125 explained. s3 In so doing I also note that it is implausible that Boatright, a low- level supervisor in charge of a mere handful of employees, would make such a promise. Moreover, Taylor, an employee of many years' experi- ence, would clearly be in a position to know that such a promise would be empty and meaningless. In corroborating his wife on this point, I find it quite probable that Vaughn Taylor's recitation of the facts may have been subconsciously and adversely affected by prior discussions with her about her recollec- tion of events. 3s While the complaint does not allege this conduct as an independent violation of the Act, the incident was fully litigated at the hearing and is sufficiently related to the subject matter of the complaint to justify a spe- cific finding of violation of Sec. 8(aXI). Alexander's Restaurant & Lounge,

228 NLRB 165 (1977). Conclusions While Elkins appeared to be a frank and candid wit- ness it appears that he is mistaken when he denied talk- ing to Kizziah on two separate occasions about Hovies. That Elkins' statements to Hovies and as repeated to Kizziah amount to unlawful threats to discharge an em- ployee for engaging in protected concerted activity is not open to dispute. In view of the seriousness of these threats, as well as my previous findings and conclusions relating to the unlawfulness of certain of Boatright's re- marks to Taylor, Elkins' conduct is neither isolated nor minimal. Accordingly, I find that Respondent has in this instance violated Section 8(a)(1) of the Act as alleged. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and that it take cer- tain remedial actions to effectuate the policies of the Act, including posting of a remedial notice to employees and compliance with its provisions.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act.

3. Respondent violated Section 8(a)(1) of the Act by threatening to discharge employees if they engaged in an economic strike.

4. Respondent violated Section 8(a)(l) of the Act by unlawfully coercing employees to abandon their partici- pation in a strike.

5. Respondent did not commit any other violations of Section 8(a)(1) as alleged in the complaint.

6. Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging David Merrida or Paula Taylor as alleged.

7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record of this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

ORDER 3 9 The Respondent, Hayes International Corporation, Birmingham, Alabama, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Threatening employees that they will be discharged if they engage in a protected strike.

(b) Coercing employees into abandoning their partici- pation in a protected strike.

39 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1031

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

(c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act.

2. Take the following affirmative action designed to ef- fectuate the policies of the Act:

(a) Post at its Birmingham, Alabama, facility copies of the attached notice marked "Appendix." 40 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material.

(b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

40 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."

APPENDIX NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or assist unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other aid or protection To refrain from any and all of these things.

WE WILL NOT threaten our employees that they will be discharged if they engage in a strike.

WE WILL NOT coerce our employees into aban- doning their participation in a strike.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act.

HAYES INTERNATIONAL CORPORATION 1032