Robinson Aviation, Inc., 196 (1952)

Docket Number:02-CA-01872
 
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excluding all auto mechanics, body men, painters, apprentices and helpers, salesmen, clerical employees, parts department employees, guards, professional employees, service managers, assistant service managers, shop superintendents, foremen, and supervisors as defined in the Act.

Case No. 8-RC-1571

All lubrication men and garagemen of Michaels, Inc., in Cleveland,

Ohio, but excluding all auto mechanics, body men, painters, apprentices and helpers, salesmen, clerical employees, parts department employees, guards, professional employees, service managers, assistant service managers, shop superintendents, foremen, and supervisors as defined in the Act.

[Text of Direction of Elections omitted from publication in this volume.] ROBINSON AVIATION, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL. Case No. 2-CA-18792. May 00, 1962

Decision and Order On November 9, 1951, Trial Examiner Stephen S. Bean issued his Intermediate Report 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 copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that those allegations of the complaint be dismissed. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.

The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendaI Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers In connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson].

99 NLRB No. 46.

ROBINSON AVIATION, INC. 197 tions of the Trial Examiner, except insofar as they are inconsistent with this Decision and Order.2

  1. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) and (1) of the Act, by discharging Dressler and LeForestier because of their activities in behalf of the Union. In addition to the circumstantial evidence detailed in the Intermediate Report, this finding is directly supported by the credited testimony of Dressler and LeForestier that at the time of their discharge on November 10, 1951, they were told by Ranslow, the Respondent's plant manager, that they were being discharged because he would not tolerate their union activities. Regarding this statement by Ranslow, the Trial Examiner considered it a derivative rather than an independent violation of Section 8 (a) (1). As no exception has been filed to the failure to find this statement to be an independent violation, we hereby adopt the Trial Examiner's finding.

  2. The Respondent contends that the i'§sues with respect to LeForestier's discharge have been rendered moot, because he does not desire reinstatement and the amount of his back pay was fixed in a settlement agreement made at the hearing. It therefore argues that no finding, conclusions, or recommendations should be made concerning LeForestier. We do not agree with the Respondent's contention, as the Board is not precluded from determining, in it own discretion, what effect, if any, should be given to a settlement of unfair labor practice charges by the parties .3 Under the circumstances of this case, we do not think that it would effectuate the purposes and policies of the Act to dismiss the complaint as to LeForestier. Accordingly, we shall order that he be reimbursed for any loss of pay he may have suffered from the date of the Respondent's discrimination against him, to the date of his other employment, as recommended by the Trial Examiner. To prevent any prejudice to the Respondent, any money paid to LeForestier under the settlement agreement shall be credited against the amount of back pay to which he would otherwise be entitled.4 As LeForestier does not desire reinstatement, we shall make no provision therefor.

    'The Intermediate Report contains certain inadvertencies, which do not affect the Trial Examiner's ultimate conclusions or our concurrence therein. Accordingly , we note the following corrections :, (1) The record shows that the Respondent did not refer to Henry Dressler as one who appeared to be an excellent workman, in its memorandum of August 1, 1950; and ( 2) in the portion of the Intermediate Report entitled 'The Remedy,' the Trial Examiner's reference to back-pay computation on the basis of 'each separate calendar month' should read, 'each separate calendar quarter.' IN. L. R. B. v. Walt Disney Products, 146 F. 2d 44, 48 (C. A. 9), certiorari denied 324 U. S. 877; N. L. R. B. v. Revlon Products Corp , 144 F. 2d 88, 90 (C. A. 2).

    4 See Federal Stores Division of Spiegel, Inc , 91 NLRB 647, 671.

    2152:13-5:1-14

    Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Robinson Aviation, Inc.,

    Teterboro, New Jersey, and its officers, agents, successors, and assigns, shall :

  3. Cease and desist from:

    (

    1. Discouraging membership in International Association of Machinists, AFL, or any other labor organization of its employees, by discharging its employees or in any manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment.

    (b) In any other manner interfering with, -restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act.

  4. Take the following affirmative action, which the Board finds will effectuate the policies of the Act:

    (

    1. Offer to Henry A. Dressler immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Henry A.

    Dressler and Michael E. LeForestier whole in the manner set forth herein and in the section of the Intermediate Report entitled 'The Remedy.' (b) Upon request, make available to the National Labor- Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records, and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order.

    (c) Post at its plant at Teterboro, New Jersey, copies of the notice attached to the Intermediate Report, marked 'Appendix A.' 5 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's repre5 This notice, however, shall be, and it hereby is amended by striking from line 3 thereof the words 'The Recommendations of a Trial Examiner' and substituting in lieu thereof the words 'A Decision and Order.' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words 'Pursuant to a Decision and Order' the words 'Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order ' ROBINSON AVIATION, INC. 199 sentative, be posted by the Respondent upon receipt thereof and maintained by 'it for a period of sixty (60) consecutive days thereafter in conspicuous places, including ;,all , places 'here notices to employees are customarily posted. Reasonable steps shall betaken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material.

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

    IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent interfered with, restrained, and coerced its employees by threats and warnings, in violatiomof Section 8 (a) (1) of, the Act.

    Intermediate Report STATEMENT OF THE CASE

    Upon a charge duly filed on March 23, 1951, by International Association of Machinists, herein called the Union, the General Counsel of the National Labor Relations Board, respectively herein called the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued his complaint dated August 14, 1951, against Robinson Aviation, Inc., herein called the Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section S (a) (1) and (3)' and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, the complaint, and notice of hearing were duly served upon the Respondent and the Union.

    With respect to unfair labor practices, the complaint alleges, in substance, that: (1) Respondent on or about November 10, 1950, discharged Michael E.

    LeForestier and Henry A. Dressler, and has since continually failed and refused to reinstate them to their former or substantially equivalent positions or employment for the reason that they joined or assisted the Union or engaged in other concerted activities for the purpose of collective...

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