Basin Frozen Foods

National Labor Relations Board - Board Decisions

Jul 20, 1992

307 N.L.R.B. 1406 (N.L.R.B. 1992)

1406
307 NLRB No. 210
BASIN FROZEN FOODS
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they 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 the findings.
3 In sec. V of his decision, the judge incorrectly found that it was
Company President Kevin Weber, rather than Plant Manager Don
Vietz, who told Union Representative Harum at a July 26, 1990
meeting that he had ‘‘just terminated somebody.’’ This error does
not affect our decision in this case.
4 In agreeing with the judge’s finding that the Respondent had
knowledge of employee Earl Wheelock’s union activity prior to his
discharge on July 26, 1990, Member Oviatt does not rely on the Re-
spondent’s July 27 campaign letter to employees. In addition to the
other evidence relied on by the judge to infer knowledge, Member
Oviatt also relies on the pretextual nature of the discharge. See
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
Member Oviatt finds it unnecessary to pass on the judge’s finding
that the Respondent violated Sec. 8(a)(1) of the Act by interrogating
employee Stansbury, because the finding is cumulative of other in-
terrogations found to violate Sec. 8(a)(1).
Basin Frozen Foods, Inc. and Teamsters, Food
Processing Employees, Public Employees,
Warehousemen and Helpers Local Union No.
760, affiliated with International Brotherhood
of Teamsters, AFL–CIO.1 Case 19–CA–21029
July 20, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 17, 1991, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in response to
the exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions2 and briefs and has
decided to affirm the judge’s rulings, findings,3 and
conclusions4 and to adopt the recommended Order.
CONCLUSIONS OF LAW
1. By coercively interrogating employees about
union support or union activities; by making threats to
shut down the plant if the Union were to become the
employees’ representative for collective-bargaining
purposes; and by encouraging employees to get their
signed authorization cards back from the Union, the
Respondent, Basin Frozen Foods, Inc., interfered with,
restrained, and coerced employees in the exercise of
their rights guaranteed in Section 7 of the Act and
thereby has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2. By discharging Earl Wheelock because of his
union activities, the Respondent, Basin Frozen Foods,
Inc., has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Basin Frozen Foods, Inc.,
Warden, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Teamsters Local 760
or any other union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT encourage employees to get their
signed authorization cards back from the Union.
WE WILL NOT threaten to shut down the plant if the
employees select Teamsters Local 760 or any other
union as their collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Earl Wheelock immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
1407BASIN FROZEN FOODS
1 I grant the General Counsel’s unopposed motion to correct the
transcript.
2 Wheelock stated that it was almost immediately after his arrival
at the plant at his 2 p.m. shift start that his supervisor, Rick Ed-
wards, told him that Don Vietz wanted to see him, whereupon
Wheelock went up to Vietz’ office and was quickly told by Vietz
that he was being discharged. In a note he wrote no more than 30
minutes later (G.C. Exh. 3), Wheelock recorded ‘‘2:05 pm’’ as the
time of his having ‘‘got fired.’’ Harum stated that he arrived at the
plant ‘‘shortly after 2:00’’ and then went to the office area and asked
for Vietz, but then ‘‘waited probably ten minutes or so before
[Vietz] had time to visit with me.’’ (Harum and Vietz were pre-
viously unacquainted, according to Harum; there is no reason on this
record to suppose that Harum was known to anyone in the plant as
the Union’s agent other than to the 5–6 employees who had attended
a meeting in Harum’s office in a nearby town the day before.)
Harum then told Vietz that he was organizing the plant, and gave
Vietz a letter to that effect, whereupon Vietz ‘‘took one look at it
and jumped up and left his office’’ for a ‘‘ten to twenty minutes’’
period before returning and escorting Harum to Weber’s office. Dur-
ing the following meeting in Weber’s office, according to Harum,
Weber said that ‘‘he had just recently terminated somebody that
day.’’ (Harum said that Weber did not name Wheelock; neither did
Wheelock’s name figure in any other part of these meetings.) Even
if Harum’s initial arrival ‘‘shortly’’ after 2 p.m. means that he ar-
rived only within a matter of ‘‘minutes’’ after that point, it is likely
from Wheelock’s account that this happened only after the point
when Wheelock had already been summoned to Vietz’ office to be
Continued
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Earl Wheelock that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
BASIN FROZEN FOODS, INC.
James C. Sand, Esq., for the General Counsel.
Nels A. Hansen, Esq., of Ephrata, Washington, for the Re-
spondent.
John P. Harum, Business Agent, of Moses Lake, Wash-
ington, for the Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
this case in trial in Moses Lake, Washington, on April 24
and 25, 1991. It arose when Teamsters Local 760 (the
Union) filed an unfair labor practice charge against Basin
Frozen Foods, Inc. (the Respondent) on August 3, 1990 (all
dates below are in 1990 unless I specify otherwise). After in-
vestigating, the Regional Director for Region 19 issued a
complaint on February 22, 1991. The complaint, as amended
at the trial, alleges that the Respondent discharged Earl
Wheelock on July 26 because of his union activities, thereby
violating Section 8(a)(3) of the Act, and, on that date and on
other dates thereafter, its agents interrogated employees about
their union activities, made shutdown threats, and made other
statements tending to interfere with, restrain, or coerce em-
ployees in the exercise of their rights under Section 7, there-
by violating Section 8(a)(1). The Respondent admits that its
operations are in commerce and affect commerce, and that
the Board’s jurisdiction is properly invoked; it denies all al-
leged wrongdoing.
I have studied the whole record1 and the briefs filed by
the General Counsel and the Respondent. I have considered
the testimonial demeanor and performance of the witnesses,
and have assessed the likelihoods inhering in the undisputed
surrounding circumstances. Based on all of that, and more
particularly on the findings and reasoning below, I will find
that the Respondent violated the Act substantially as alleged
in the complaint.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. OVERVIEW; THE KNOWLEDGE ISSUE
Most of the dispositive facts are undisputed and can be
narrated simply: Plant Manager Don Vietz discharged Earl
Wheelock, a plant maintenance mechanic, within minutes
after Wheelock arrived on shift at 2 p.m. on the afternoon
of July 26. Vietz did this on instructions from the Respond-
ent’s president, Kevin Weber. The next day, Vietz furnished
Wheelock with some paperwork—a typed ‘‘reasons’’ letter,
dated July 27, purportedly signed by Weber and Vietz, and
two handwritten memos, the latter bearing dates of ‘‘June
12,’’ and ‘‘7–10,’’ respectively, the first purportedly written
by Wheelock’s immediate supervisor, the second purportedly
written by Vietz. Without more foundation (and none was
forthcoming), the paperwork was incompetent hearsay as to
any express or implicit ‘‘assertions’’ made within, but in the
aggregate, the paperwork facially suggested that Weber had
decided that the maintenance department needed
‘‘strength[ening],’’ and that Wheelock’s departure would en-
hance this goal, in the light of his long-time record as a
shirker with a bad ‘‘attitude;’’ moreover, one who had been
‘‘warned,’’ or ‘‘talked-to’’ about these problems on ‘‘numer-
ous’’ prior occasions.
Wheelock had been centrally involved in the preceding 2–
3 days in contacting the Union and in trying to organize sup-
port for the Union among the plant’s approximately 180 pro-
duction and maintenance employees. His personal organiza-
tional contacts were not shown to have been extensive; they
were apparently limited to about a dozen employees, most of
them fellow mechanics in the English-speaking maintenance
crew, in a plant where a majority of the roughly 160 workers
in production jobs spoke Spanish as a primary language.
Weber flatly denies knowing of any of these union activi-
ties before he instructed Vietz to fire Wheelock. Vietz,
though still employed by the Respondent as plant manager,
was not called to testify.
The timing of Wheelock’s dismissal was tantalizingly
close to the point when the Respondent admittedly received
knowledge of the Union’s organizational drive, apparently
within minutes of when the Union’s business agent, John
(Jack) Harum, first met at the plant with Vietz, and later with
Vietz and Weber together. But the details strongly suggest—
and the General Counsel makes no contrary claim of fact—
that Weber had already ordered Vietz to fire Wheelock, and
Vietz had fired Wheelock, before the point when Harum ar-
rived at the plant, or at least before the point when Harum’s
presence and status as the Union’s agent became known to
the Respondent’s agents.2 Thus, if knowledge of union ac-
1408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
informed of his termination. Also, Harum’s account shows that
Harum waited at least 10 more minutes after his arrival before meet-
ing with Vietz and then disclosing his identity and union purpose.
In all these circumstances it is nearly impossible that Harum’s ap-
pearance at the plant could have itself become the trigger for
Wheelock’s discharge, itself a fait accompli by ‘‘2:05pm,’’ accord-
ing to Wheelock’s contemporaneously recorded recollection.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See also NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983), affg. Wright Line tests.
4 251 NLRB at 1089.
5 Ibid. And see fn. 14, appended to the above-quoted text:
. . . in those instances where . . . the employer has been unable
to carry its burden, we will not seek to quantitatively analyze
the effect of the unlawful cause once it has been found. Whether
that ‘‘cause’’ was the straw that broke the camel’s back or a
bullet between the eyes, if it were enough to determine events,
it is enough to come within the proscription of the Act.
6 E.g., American Postal Workers (Postal Service), 278 NLRB 751,
752–753 (1986).
7 See colloquy at Tr. 161:16–162:9, pursued at Tr. 204:21–207:14,
ending with this exchange:
JUDGE NELSON: . . . This is an attempt, I think, to twist the
small plant notion by making a large plant into a small plant
by pointing out that there were two different cultures within the
plant.
MR. SAND: That is precisely true, your Honor.
8 Webster: ‘‘doctrine. . . . 1. Archaic. Teaching, instruction. 2.
That which is taught; a principle, or body of principals, in any
branch of knowledge; tenet; dogma; principle of faith.’’
9 E.g., Famet, Inc., 202 NLRB 409 (1972); enfd. in pertinent part
490 F.2d 293, 295–296 (9th Cir. 1973); NLRB v. Mid-States Sports-
wear, 412 F.2d 537, 539–540 (5th Cir. 1969); Wiese Plow Welding
Co., 123 NLRB 616, 618 (1959).
10 See, e.g., NLRB v. Mid-States Sportswear, supra, 412 F.2d at
540:
reliance upon the small plant doctrine alone is insufficient proof
of knowledge of union activity.
11 Coral Gables Convalescent Home, 234 NLRB 1198 (1978), may
suggest to the contrary: There, the Board, in obiter dicta (‘‘assuming
arguendo,’’ etc.) appeared to say that the smallness of the plant was
enough to establish knowledge. But the Board had already found as
fact that employer agents knew of union activities at critical times.
Id. Moreover, the Board’s arguendo rationale was itself not linked
solely to the ‘‘smallness’’ of the plant; rather, the Board referred to
a unique mix of facts enabling a finding that the union activities
were carried on openly, (i.e., ‘‘were carried on in such a manner,
or at times that in the normal course of events, Respondent must
have known about them.’’ Ibid., and cases cited), thereby con-
forming to the Hadley Mfg. ‘‘proviso’’ (see next fn.) to the ‘‘small
plant doctrine.’’
tivities infected Weber’s consciousness before he instructed
Vietz to fire Wheelock, that knowledge must have preceded
Harum’s arrival at the plant on the July 26, and, indeed,
must have preceded Wheelock’s own arrival at the plant that
day.
Under Wright Line,3 for the General Counsel to prevail on
the 8(a)(3) count concerning Wheelock’s discharge, he must
first make,
a prima facie showing sufficient to support the infer-
ence that protected conduct [here, union activities] was
a ‘‘motivating factor’’ in the employer’s decision [here,
to fire Wheelock].4
But,
Once this is established, the burden will shift to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct.5
As I elaborate below, the record rather clearly reveals most
of the ‘‘prima facie’’ elements of a union-motivated dis-
charge (Wheelock’s union activities were followed swiftly by
his discharge, in this case a curiously-delivered one at that,
and company agents committed near-contemporaneous
8(a)(1) violations or made other statements revealing
antiunion ‘‘animus’’). What is not so readily apparent, how-
ever, is the ‘‘company knowledge of union activities’’ ele-
ment. Thus, there is no direct evidence that any agent of the
Respondent knew of the union effort, much less of
Wheelock’s role in it, at any point before Harum’s meetings
with Vietz and Weber on July 26, after Vietz had already
fired Wheelock. And, without some basis for finding
‘‘knowledge,’’ it cannot be found, prima facie, that
Wheelock’s union activities were a ‘‘motivating factor’’ in
the Respondent’s ‘‘decision’’ to fire him, and the 8(a)(3)
count cannot survive.6
Not disputing any of this, the General Counsel relies on
a variety of circumstantial factors which, he argues, cumula-
tively support an inferential finding that the Respondent
knew of Wheelock’s union activities before it fired him. In-
cluded among many such circumstances examined during the
trial by the General Counsel, and pondered at length by him
on brief, is the ‘‘social structure of this plant and commu-
nity.’’ I treat it as necessary deadwood-clearing to dispose of
such claims at the outset.
On brief, the General Counsel makes a number of state-
ments similar to this one:
Many of these people live in [a] very small town,
where Anglo/Hispanic distinctions are presumably still
at least to a degree relevant.
And he places emphasis on a supposed,
. . . pattern, in the plant, if not the community as a
whole, whereby social communication does tend to
flow predominantly along linguistic lines as one might
expect it would.
And such claims comprise only the airy initial premises of
an argument ultimately directed at persuading us that, be-
cause of the existence of ‘‘two cultures’’ within this ‘‘large
plant,’’ the ‘‘small plant doctrine’’ somehow may properly
be brought to bear in analyzing the ‘‘company knowledge’’
issue.7
Even before I examine these premises more closely, I must
observe that the ‘‘small plant [knowledge] doctrine,’’ al-
though traditionally so labeled by the Board and the courts,
is not so much ‘‘doctrine’’8 as it is a permissible—but never
mandated—inference which may be drawn from the size of
the plant population.9 It is also apparently a disfavored ra-
tionale, standing alone.10 The General Counsel has cited no
case, and I have discovered none, in which the Board has re-
lied on the ‘‘small plant doctrine’’ as the sole basis for find-
ing knowledge.11 Moreover, the ‘‘doctrine’’ would be of du-
1409BASIN FROZEN FOODS
12 If, contrary to fact, the Respondent’s plant were truly a ‘‘small’’
one, this would not be enough to establish that the Respondent knew
of Wheelock’s union activities before it fired him. Thus, in Hadley
Mfg. Corp., 108 NLRB 1641, 1659 (1954), the Board held (my em-
phasis):
The mere fact that [the employer’s] plant is of a small size does
not permit a finding that [the employer] had knowledge of the
union activities of specific employees, absent supporting evi-
dence that the union activities were carried on in such a man-
ner, or at times that in the normal course of events, [the em-
ployer] must have known about them.
See also, e.g., NLRB v. Mid-States Sportswear, supra, 412 F.2d at
540, quoting NLRB v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir.
1966) (my emphasis):
smallness . . . may be material, but only to the extent that it
may be shown to have made it likely that the employer had ob-
served the activity in question. . . . This can have no applica-
tion to an off-hour, off-the premises meeting . . . .’’
To similar effect: W. W. Grainger, Inc., 255 NLRB 1106 fn. 4
(1981); A to Z Portion Meats, 238 NLRB 643 (1978), enf. denied
643 F.2d 390 (6th Cir. 1981). Thus, in order to vitalize the inference
of knowledge, ‘‘openness’’ of union activities seems to be required,
even in a small plant. And here, as I elaborate below, it is quite
open to question just how ‘‘open’’ Wheelock and the other handful
of union adherents were in conducting their union activities.
13 Weber acknowledged during less-than-precise examination by
the General Counsel that a ‘‘relatively high percentage’’ of the
plant’s work force are primarily Spanish-speakers, most of these in
general labor jobs on the production side. Weber likewise acknowl-
edged that a ‘‘majority’’ of the production and refrigeration mechan-
ics in the maintenance crew are primarily English-speakers, as are
all of the supervisory and managerial personnel. Other testimony is
to similar effect, but sometimes tends to confuse the issue by implic-
itly presuming, contrary to common experience, that workers of
Latino or Hispanic ethnicity are not ‘‘primarily’’ English-speakers.
(And see Stansbury, who undermined the General Counsel’s prem-
ises when he said, ‘‘Well, they’re friendly. Everybody’s friendly, but
the whites talk, and the Mexicans talk, yeah.’’) In any case, the
record does not allow a meaningful finding as to the total number
of primarily English-speakers in the plant. Evidently, the witnesses
agree that the number is less than a ‘‘majority,’’ but that is about
as far as I would go on that point. (The General Counsel character-
izes the total as ‘‘relatively small,’’ (G.C. Br. 9), immediately adding
that the number may be anywhere between ‘‘18 to 54 depending on
the estimate one uses, with most of those falling down around 27.’’
The General Counsel does not document these numerical observa-
tions with citations to the record, and I do not adopt them.) As to
ethnic/linguistic breakdowns among the 1500–2000 inhabitants of the
town of Warden, the record is even less meaningful. Weber ex-
pressed doubt that a ‘‘majority’’ of Warden’s population was
Hispanic/Latino. According to employee Gaddes, however, Latinos
comprise ‘‘about 75 percent’’ of Warden’s population. In any case,
nothing in Gaddes’ testimony would show her to be competent in
assessing how many of these are ‘‘primarily’’ Spanish-speakers.
14 It is hardly remarkable that people who don’t speak the same
language don’t tend to ‘‘communicate’’ very much. What remains
murky is how this ‘‘language barrier’’ phenomenon contributes to a
likelihood that Weber knew that Wheelock was organizing for the
Union before he instructed Vietz to fire him.
15 The precise social and cultural and behavioral assumptions un-
derlying the General Counsel’s claims in this regard are hard to de-
tect, and, to the extent he allows us any insights into his thinking
at all, his ultimate assumptions are plainly dubious. This is how he
develops the ‘‘point’’ on brief (pp. 8–9; my emphasis):
In this context, it is appropriate to consider the testimony about
the social structure of this plant and community. . . . Between
fifty and seventy-five percent of that population is Hispanic,
and, at the plant, the Hispanic population is between 70 and
90% depending upon the estimator. The point is that this leaves
a relatively small population of individuals who are Anglos, or,
as the General Counsel would have preferred to couch it, people
for whom English is the primary rather than the second [I know
what ‘‘primary’’ means] language.
I’m still not sure of the ‘‘point.’’ But the General Counsel may yet
be warming to it, for he says next:
Furthermore, it is established that there is a pattern, at least in
this plant if not in the community as a whole, whereby social
communication does tend to flow predominantly along linguistic
lines as one might expect it would.
It is self-evident that people tend to ‘‘communicat[e] . . . along lin-
guistic lines,’’ and therefore do not tend to ‘‘communicate’’ with
people whose language they can’t speak. I still haven’t gotten the
point, and neither, apparently, has the General Counsel yet truly got-
ten to it, for it is only in his next passage that he seems to reach
it. Thus (my emphasis):
While this factor [apparently the ‘‘Anglo/Hispanic distinction’’
factor], in and of itself, does not demonstrate that English-speak-
ing rank-and-file employees would necessarily converse with the
English-speaking managers, it certainly would make it more like-
ly that a union organizing drive amongst the relatively small
number of English speakers . . . would more naturally flow to
the ears of managers, particularly low-level managers.
I see: Rather than being an obstacle to the diffusion of information,
in this case, the ‘‘language barrier’’ somehow invites a presumption
that transmission of such knowledge would be accelerated—appar-
ently because English-speaking workers ‘‘certainly’’ are ‘‘more like-
ly’’ in a two-culture plant of 180 workers to transmit information
about union activities to their English-speaking bosses than those
same workers would be if the 180-person plant had been populated
entirely by English-speakers. Why is this ‘‘certainly . . . more like-
ly?’’ I’m still not sure. I think the General Counsel is trying to say
without saying so that some kind of ‘‘cultural solidarity’’ among the
Anglo workers and supervisors would somehow transcend ‘‘rank-
and-file solidarity,’’ and thus would ‘‘certainly . . . more likely’’
drive the Anglo workers to share knowledge of union activities with
those supervisors than would be the case in an all-Anglo plant. (And
never mind that the organizing activities here were confined almost
entirely within the group of Anglo mechanics) These are intriguing
sociocultural notions, but they are not part of the firmament of com-
mon knowledge. Indeed, this is pseudoscience, the rankest kind of
speculation dressed up in the language of the social and behavioral
sciences, but entirely lacking in scientifically developed evidence
sufficient to justify such speculation, much less to justify the ulti-
mate claim lurking beneath all this speculation—that the Latinos do
not ‘‘count’’ for purposes of a ‘‘small plant’’ analysis.
bious value to the General Counsel even if this were a
‘‘small plant’’ situation.12
All that aside, the record contains only a frail testimonial
basis for the sociocultural generalizations which constitute
the General Counsel’s starting premises.13 And the general-
ization about ‘‘patterns . . . [of] social communication . . .
predominantly along linguistic lines’’ is a trivial truth.14 I re-
main fundamentally unpersuaded that the existence of a sup-
posed ‘‘two-culture’’ plant makes it more likely that Weber
had pre-discharge knowledge of Wheelock’s union activities
than would have been the case if the 180 employees in the
plant, and all of Warden’s inhabitants, had been English-
speaking ‘‘Anglos.’’ The General Counsel’s efforts to treat
the majority Latino work force as if it did not exist, as if
those workers were desaparecidos, cannot seriously be coun-
tenanced.15 Simply put, the ‘‘two [supposed] cultures’’ do
not turn this large plant into a small plant; therefore, the
1410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 ‘‘Speculative scenario’’ is the General Counsel’s expression
(G.C. Br. 31), used to describe an interpretation of Wheelock’s dis-
charge in which the union drive ‘‘was an embarrassment to Vietz
since it was coming almost entirely out of his small department, and
there may well have been an element of resentment toward
Wheelock for stabbing Vietz in the back . . . .’’ (The General
Counsel’s brief is studded with ‘‘may well have[s]’’ and similar for-
mulations. See, e.g., p. 9: ‘‘Edwards was just up from the ranks in
May, and may well have continued to have close connections with
other mechanics.’’) I have in mind also the General Counsel’s at-
tempts—on a superficial testimonial record—to posit the existence of
a high-speed ‘‘rumor-mill’’ in the plant, or to claim that Wheelock’s
union activities were conducted ‘‘openly’’ (both of which points I
return to briefly elsewhere below). Neither do these circumstances
take on probative dignity by being lumped together, as the General
Counsel does in another passage (at p. 10; my emphasis):
General Counsel does not ask for any rote application of ‘‘small
shop’’ analysis, but does believe it appropriate to note the small
town atmosphere, the relatively small size of the English speak-
ing work force, its language commonality with management, and
the recognized tendency of the two language groups to remain
separate in social contact; as well as the nature of the plant’s
rumor mill in general, and the openness of the organizing cam-
paign with Wheelock identified as its leader in particular, when
evaluating the circumstantial evidence of knowledge in this case.
17 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966).
18 Other corporate officials include Weber’s father and brother-in-
law. Weber’s group formed the corporation for the purpose of ac-
quiring the plant’s assets from a former operator who had, in turn,
bought the assets from a previous owner, who had become bankrupt.
The Respondent corporation took over the plant in July 1989.
19 From Weber’s testimony at Tr. 318–319, it appears that, unlike
production workers, maintenance work was divided into three daily
shifts.
20 At relevant times, Wheelock worked a 2 p.m. to 10 p.m. shift.
21 Wheelock estimated that he ‘‘talked to’’ a ‘‘total’’ of ‘‘probably
about ten or a dozen’’ employees during his shift on July 24. What
is unclear is whether this ‘‘total’’ was in addition to, or simply in-
cluded, the group of about six mechanics whom he had met with
initially at the start of the shift.
‘‘small plant doctrine’’ is useless to an analysis of the
‘‘knowledge’’ issue in this case.
Neither will it be necessary to resort to these and similarly
‘‘speculative scenario[s]’’ advanced by the General Coun-
sel16 to find such pre-discharge knowledge. We need not be
naif,17 and, as I will elaborate in due course, such knowledge
can be found more readily by drawing reasonable inferences
from Weber’s ‘‘attorney’’ remarks to Harum on July 26,
from the independently curious circumstances associated with
Wheelock’s discharge and the paperwork which he received
from Vietz on July 27, and, to a lesser degree, from Weber’s
issuance that same date of a polished, four-page antiunion
tract, authored elsewhere, then reproduced on the Respond-
ent’s letterhead, and published in English only.
II. EMPLOYMENT SETTING; MAIN ACTORS
The Respondent, a Washington corporation, processes po-
tatoes into frozen hash-browns at its plant in Warden, a small
town (population 1500–2000) in eastern Washington. Kevin
Weber is the Respondent’s president and part-owner,18 and
is in overall charge at the plant day-to-day. The plant oper-
ates throughout the year, nearly 24 hours a day (in July, it
operated two 10-hour production shifts, with intermediate
‘‘defrost time’’ between night and morning shifts), at least
5 days a week. It uses about 160 production employees, di-
rectly supervised by shift supervisors (Angel Villa, George
Davis, Ray Bryant), who report to production manager Gary
Hoffman. A separate crew of about 20 maintenance and re-
frigeration mechanics and technicians are supervised, depend-
ing on their specific function, either by Refrigeration Super-
visor Jerry McCanlis, or by Frederick (Rick) Edwards, in
charge of maintaining and repairing production machinery.
Both McCanlis and Edwards report to ‘‘plant manager’’ Don
Vietz.
Alleged discriminatee Earl Wheelock worked on produc-
tion machinery and was nominally supervised at material
times by Edwards, although Edwards’ shift and Wheelock’s
own did not often coincide, but merely overlapped,19 and
Wheelock often took assignments from production super-
visors concerning needed work on production equipment.
III. THE UNION CAMPAIGN; THE ‘‘OPENNESS’’ OF
WHEELOCK’S ROLE
I here rely centrally on Wheelock’s credibly narrated and
uncontradicted account, as it was echoed and supplemented
by the Union’s business agent, Harum, and by other employ-
ees called as the General Counsel’s witnesses: On July 23,
spurred by a recent company discontinuance of a ‘‘bonus’’
arrangement, Wheelock and up to six other maintenance em-
ployees met commonly as their shifts overlapped in the after-
noon;20 they agreed that one of them should make contact
with the Union. Wheelock undertook the job, because ‘‘ev-
erybody [else] had something to do the next day.’’
On the morning of July 24, Wheelock drove to the
Union’s offices in Moses Lake, some 15 miles from Warden,
where he met with Harum and received a packet of author-
ization cards and informational brochures concerning rep-
resentation elections. Wheelock and Harum made arrange-
ments for a followup meeting to be held the next day at the
Union’s office, where Wheelock was to bring with him as
many other employees as he could.
Wheelock returned to the plant on the afternoon of July
24, and, again during a common shift overlap, met with the
same maintenance employees who had convened the day be-
fore, and gave each of them one or more authorization cards.
At intervals, on breaks or at other times during the balance
of the shift, Wheelock talked one-on-one with an uncertain
number of additional employees, all English-speaking pro-
duction or refrigeration mechanics.21
On July 25, Wheelock and about four other employees
traveled to the Union’s offices, meeting again with Harum.
An uncertain number of signed cards were returned to
Harum. After the meeting, some of the attendees took other
blank cards and continued, along with Wheelock, to make
contacts with fellow employees, again mostly with employ-
ees in the maintenance department. Wheelock ‘‘handed out
cards to several people’’ (apparently, from the names he
named, this totaled about), on the swing shift of July 25.
While he focused on maintenance employees, he also person-
ally made contact with three production workers, Lorna
Gaddes, a packaging machine operator, and two employees
(‘‘Victor’’ [ ], and Eddie Navarro) who worked on different
shifts in the ‘‘Hooper Room,’’ on a vacuum pack machine
called the ‘‘Hooper.’’ He furnished Victor with union bro-
chures; he gave extra cards to Navarro directly; after speak-
1411BASIN FROZEN FOODS
22 Production maintenance workers had no fixed worksite; their
jobs required them to rove the plant.
23 Here, I observe that it is not obvious how this could be so,
given the the General Counsel’s efforts to establish the existence of
‘‘linguistic’’ and ‘‘cultural’’ barriers within the plant population.
This is only one of the ways that the General Counsel’s focus on
such matters only served to undermine some of his theories and
speculations about how the employer acquired ‘‘knowledge’’ of the
organizing effort.
24 I credit Wheelock’s undenied testimony about all transactions
with Edwards and Vietz.
25 The letter is not in evidence.
26 Again, the Respondent elected not to call Vietz as a witness, but
relied on Weber for all explanations of surrounding circumstances.
I was unimpressed with Weber’s testimonial performance. He tended
to resort to generalizations where specifics were called for, and he
gave the appearance of discomfort when pressed for details, often
contradicting himself or amending or shifting the focus of his prior
testimony.
ing with Gaddes, he slipped extra cards into Gaddes’ car, in
the parking lot.
The testimony does not easily allow findings which would
support the General Counsel’s claims that Wheelock’s (or
other employees’) union activities were conducted ‘‘openly.’’
Indeed, the record made by the General Counsel is remark-
able for its ambiguity about the degree of ‘‘openness’’ (or
‘‘secretiveness’’) in which these April 24–25 organizing con-
tacts may have taken place. Wheelock is vague about the cir-
cumstances, and provides no basis for believing that his own
contacts with other employees were such as to be noticeable
by a supervisor.22 Two mechanics whom Wheelock had
originally enlisted as union supporters, Mike Keeling and
Forrest Stansbury, were equally vague about details, but said
summarily that the organizing activity was a ‘‘common’’
subject among the (English-speaking) employees they associ-
ated with on breaks or during work hours. Again, however,
their testimony would not permit a finding that any super-
visor was present during any such discussions. Moreover, as
to Wheelock’s prominence in these rank-and-file discussions,
Stansbury and Keeling paint slightly different pictures, both
of them quite indistinct. Stansbury was asked (leadingly) by
the General Counsel, ‘‘did you hear Mr. Wheelock’s name
used again as being the organizer?’’ He replied,
Yeah, because they had said if you wanted to do it,
people could . . . talk with Earl.
Keeling, however, in response to a similar question from the
General Counsel, denied that he had ‘‘mention[ed] Earl
Wheelock’s role in the organizing,’’ during his own discus-
sions with other employees (apparently all of these were with
refrigeration mechanics). And he never directly answered a
referentially vague question put to him immediately after-
ward by the General Counsel, as to whether Keeling recalled
‘‘that being discussed by other people.’’ (Keeling replied,
‘‘Well, the gossip in the plant, you know, you only had to
say it to one person and everybody knew it.’’)23
In summary, about a dozen employees at a minimum, and
perhaps an uncertain number of others, were shown to know
enough about Wheelock’s union activities to have served as
potential vectors of transmission of that knowledge to one or
more company agents. But none were shown to have done
so before Wheelock was fired. And it is less than evident
that union activities by Wheelock and others were being con-
ducted so openly that they would independently be observ-
able by company supervisors or managers. Therefore, we
must either rely on a presumed ‘‘rumor mill’’ as the source
of the needed company knowledge, or we must find evidence
of such knowledge elsewhere, or not at all.
IV. WHEELOCK’S RECENT EMPLOYMENT HISTORY AND
JULY 26 DISCHARGE
There is no dispute that Company President Weber had
virtually decided to fire Wheelock as early as on or about
July 10, nearly 2 weeks before the first whisper of any union
interest among any employees. Wheelock admits that Don
Vietz told him at about that time that Weber had wanted to
fire him, because Weber was ‘‘pissed’’ that Wheelock had
‘‘disappeared’’ while Weber himself was involved in an
awkward welding repair on a broken ‘‘piler’’ machine. But
Wheelock testified without contradiction (indeed Weber’s
testimony is harmonious) that, as a result of Wheelock’s ex-
planation for his alleged ‘‘disappearance’’ during the piler re-
pair, Vietz went to bat for Wheelock, reporting to Weber that
Wheelock showed an appropriately improved ‘‘attitude.’’
Weber admittedly followed Vietz’ recommendation to give
Wheelock ‘‘another chance,’’ and Vietz reported this back to
Wheelock. Thereafter, according to Wheelock, no further in-
cident arose as far as he was aware which might have rekin-
dled any management displeasure with his work or with his
‘‘attitude.’’
On July 26, Wheelock arrived for work at 2 p.m., and was
told by Maintenance Supervisor Rick Edwards that Don
Vietz wanted to see him.24 Wheelock immediately walked
upstairs from the plant floor to Vietz’ office, where Vietz
told Wheelock that Kevin Weber and his father had decided
to terminate Wheelock, mentioning something about a wish
to ‘‘upgrade’’ the department, and about Wheelock’s lacking
an ‘‘upbeat attitude.’’ Wheelock asked for his paycheck.
Vietz replied that the company would first have to inventory
Wheelock’s toolbox and make any necessary deductions for
missing tools, but that Wheelock could return the next day
for his paycheck.
V. WEBER’S JULY 26 MEETING WITH HARUM
A. Facts
As partly noted earlier (at fn. 2), Harum’s undenied testi-
mony shows that, apparently on the heels of discharging
Wheelock, Vietz found Harum waiting for him in the recep-
tion area, and then met with Harum long enough to read a
‘‘letter’’ which Harum presented announcing that the Union
‘‘was in the process of organizing the plant.’’25 The meeting
later adjourned to Weber’s office, where Harum spoke with
both Vietz and Weber together. I found Harum to be an ap-
parently candid witness, and I credit his account here, even
though it is not entirely harmonious with Weber’s own frag-
mentary references to the same incident.26
Harum recalled that, after relocating to Weber’s office, he
advised Weber that he ‘‘was in the process of organizing the
plant’’ and was prepared to ‘‘talk . . . about it’’ if Weber
1412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Harum elaborated,
He [Weber] never identified the individual he had terminated or
anything.
28 Weber specifically recalls this ‘‘advice’’ from Harum, a signifi-
cant admission, given that Weber otherwise claims he made only a
bland (and otherwise circumstantially inexplicable) comment to the
effect that if the plant were in financial trouble, he would shut it
down while there was still enough cash to pay currently due wages,
rather than letting it become bankrupt, and leaving the employees
with only hollow wage claims. I find that Weber specifically said
what Harum reports on the subject of a ‘‘shutdown.’’ Consistent
with my analysis of similar shutdown threats, infra, this would have
been an unlawfully coercive ‘‘threat’’ under Sec. 8(a)(1), if uttered
to an employee, and, even though no violation may be found in We-
ber’s delivering of this threat to a nonemployee union agent, this in
no way diminishes the antiunion ‘‘animus’’ implicit in such a state-
ment.
29 Weber’s only reference to an ‘‘attorney’’ in his own testimony
is in his description of events following Harum’s departure, some-
time around 3 p.m., when, he says, he called his attorney, Nels Han-
sen, and received ‘‘advice’’ similar to Harum’s about the making of
shutdown threats.
30 A more creative witness in Weber’s shoes might have tried to
claim that he had called his attorney in the ‘‘ten to twenty minutes’’
period between Harum’s meeting with Vietz and the point when
Harum was summoned to Weber’s office. Weber made no such at-
tempt. The evidence of his revealing admission stands undenied and
unexplained.
wanted to. Weber declared that this was the first he had
heard of any union organizing going on. Harum further re-
called, however, that Vietz at one point asked Harum, ‘‘Who
do you represent in the plant,’’ and that Weber, claiming that
his ‘‘attorney’’ had ‘‘asked him to get those names,’’ echoed
this, asking ‘‘who had signed bargaining cards.’’ Harum re-
plied that the names were ‘‘confidential,’’ and that he would
not disclose them to anyone other than ‘‘the people at the
NLRB.’’ At another point, Harum recalls that Weber volun-
teered that he had ‘‘just terminated somebody.’’27 At some
uncertain point, Weber also remarked that ‘‘he had started
the plant up and . . . guessed he could shut it down,’’
whereupon Harum ‘‘advised him that he shouldn’t say
that.’’28
B. Probative Significance
As just noted, Weber made a shutdown threat, revealing
antiunion ‘‘animus.’’ This is an element in the General
Counsel’s prima facie case, and the General Counsel cites it
on brief for that purpose, but does not otherwise remark on
what I find to be highly significant evidence that Weber al-
ready knew of the fledgling organizing drive—and of
Wheelock’s role in it—before Harum’s arrival. Most
blaringly revealing was Weber’s statement to Harum explain-
ing that his ‘‘attorney’’ had ‘‘asked him to get the names’’
of the people who had signed ‘‘bargaining cards.’’ Weber
never contradicted Harum’s account of this statement, al-
though he was present throughout Harum’s testimony.29 The
‘‘attorney’’ reference is alone plain evidence that, before
Harum’s arrival, Weber anticipated it, or at least had enough
prior knowledge about union organizing to have already
made a call to his lawyer for advice about it. Thus, Weber
was plainly dissembling when he told Harum on July 26 that
he had no prior knowledge of the organizing, and when he
repeated this claim at the trial.30
Separately, and, in context, suggesting Weber’s knowledge
not only of the union drive but of Wheelock’s role in it, is
Weber’s otherwise inexplicable volunteering to Harum that
he had ‘‘just terminated somebody.’’ He was clearly refer-
ring to Wheelock’s discharge only minutes earlier, but what
is not clear is what could have caused him to volunteer such
information, so apparently irrelevant to the proven subjects
of conversation—unless Weber already associated Wheelock
in his own mind with the Union drive. Similar inferences
may be drawn from Weber’s seemingly gratuitous protests to
Harum that he had been unaware of any organizing drive
until Harum’s arrival. In the absence of any explanation from
Weber, I find that Weber’s remarks to Harum strongly imply
his prior knowledge of the organizing drive and of
Wheelock’s role in it. And this would be enough evidence
of knowledge even if it were not for other circumstances, de-
tailed below, which point in the same direction.
VI. THE JULY 27 CAMPAIGN LETTER
On July 27, the Respondent published a four-page letter on
its own letterhead, addressed to ‘‘All Employees[,] Subject:
Union Authorization Cards.’’ Its contents are familiar, and
not challenged as containing any unlawful statements. It
began, ‘‘It appears that the Teamsters Union is distributing
signature cards . . . .’’ Over the course of several pages it
argued, inter alia, that, ‘‘A union is not an idealistic organi-
zation driven by moral and ethical beliefs . . . . A union is
a business [emphsis in original] . . .’’; and, ‘‘In the last
analysis, only the company pays your wages and provides
you with benefits, not the union.’’ It ended,
Basin Frozen Foods has and will continue to provide
competitive wages and benefits as long as our cus-
tomers continue to support us by placing orders. After
all, they pay our wages through their orders. As long
as we remain competitive in our industry we will grow,
prosper, and employ people. I ask that you examine the
current situation carefully and make your decision
based on logic rather than emotion. There are good rea-
sons why union membership has declined in recent
years and that they have lost most of their elections na-
tionwide.
Weber did not disclose precisely when these tracts were
ready for distribution to employees, but apparently to rebut
any implication of predischarge knowledge, Weber’s counsel
asked him to explain their background and timing. Weber
stated that he had called ‘‘a friend’’ shortly after Harum had
paid his visit on the afternoon of July 26, and that the
‘‘friend,’’
suggested that I call an attorney in the Seattle area,
which I did. And he had this letter on file which he
faxed to me. We put that on our letterhead and distrib-
uted it to the employees.
This was surprisingly fast work for what must have been a
technically complicated editing and reproduction job, particu-
larly where Weber never explained how it was that his fro-
zen hash brown plant was technically equipped for such a
job. I doubt that the letter could have been reproduced on
company letterhead, appropriately edited to include local ref-
erences, and otherwise have been ready for mass distribution
1413BASIN FROZEN FOODS
31 Compare, for example, the handwriting of Earl Wheelock’s
name in each memo; likewise, the handwriting of the name ‘‘Rick
Edwards’’ in each memo; likewise the writing of ‘‘his,’’ and
‘‘about,’’ in each memo.
32 Both memos resort to generalizations; they use similarly erratic
punctuation and inappropriate capitalizations or failures to capitalize.
on July 27, unless Weber’s knowledge of union organizing
had antedated Harum’s visit.
At least as significant is that the letter, addressed to ‘‘All
Employees,’’ was in English only. Nothing in Harum’s or
Weber’s own account of the April 26 meetings would allow
a finding that Harum had let slip that prounion sentiment had
emerged primarily in the English-speaking maintenance crew,
much less that organizing was so far being largely confined
to employees in that crew. And the plant was populated in
the majority by Spanish-speakers. Evidently, Weber had
somehow learned independently that the targets of his cau-
tionary letter about signing union cards would be English-
speakers. All of this suggests an independent source of intel-
ligence which Weber not only failed to disclose, but the ex-
istence of which he stoutly denied.
VII. JULY 27: WHEELOCK’S RETURN TRIP TO
VIETZ’ OFFICE
A. Facts
On July 27, Wheelock returned, but was told by Vietz that
his check was not ready yet. Wheelock then waited in the
lobby for 90 minutes or more until Vietz summoned him,
then gave him a final paycheck, together with a typed letter
and two handwritten memos.
The typed letter, dated July 27, and bearing both Weber’s
and Vietz’ purported signatures, stated:
TO WHOM IT MAY CONCERN:
EARL WHEELOCK HAS BEEN DISMISSED FROM BASIN
FROZEN FOODS DUE TO THE FOLLOW [SIC] REASONS.
1. HIS LACK OF INTEREST IN THE PLANT.
2. HIS ATITUDE [SIC] AND LACK OF BEING ABLE TO
GET ALONG WITH FELLOW WORKERS.
3. KEVIN WEBER, PRESIDENT HAD SAID THE
MAINTANCE [SIC] DEPARTMENT HAD TO BE
STRENGTHED [SIC] AND TO DISMISS EARL FOR EARLIER
COMPLAINTS.
One of the handwritten memos contained the purported sig-
nature of Supervisor Rick Edwards, and bore the purported
date, ‘‘June 12, 1990.’’ Written on notepad paper bearing a
‘‘Pacific Potato Corp.’’ advertising logo, this memo states in
material part:
Rick Edwards
Maintance [sic] Supervisor
Earl Wheelock has Been warned by myself [‘‘about’’
crossed out] at numerous times about his attitude and
his ability to maintain the line[,] service the line when
called for Breakdowns, not being able to work with co-
employees during jobs!
The other handwritten memo (imprinted with a ‘‘Fulton-Den-
ver Company’’ logo) bears the purported signature of Don
Vietz, and the purported date, ‘‘7–10–90.’’ It states in mate-
rial part,
I talked with Earl Wheelock, about being more in-
volved with our program[,] staying busy and about try-
ing to hide away so he would not be seen! Several
times Rick Edwards and other co [inserted above line]
workers found Earl Wheelock [‘‘Sitting’’ or ‘‘Setting’’
crossed out] Siting [sic] in Hydratic Room doing
nothing[.] Also talked to Earl Wheelock not walking
away from a job when the management was doing his
job!
B. The Probative Significance of the Paperwork
These papers were received into evidence only as writings
given by Vietz to Wheelock on July 27; they were never oth-
erwise qualified as having been written or signed by their
purported authors, much less were the handwritten memos
shown to have been prepared on or about their purported
dates. Indeed, Weber, the only one of the three purported au-
thors called to testify, does not indicate that he saw or con-
sidered the handwritten ‘‘Rick Edwards’’ and ‘‘Don Vietz’’
memos at any time before he decided to fire Wheelock. And
Wheelock himself testified without contradiction that he had
never before seen the handwritten memos; indeed, he gen-
erally expressed mystification as to what it was that the
‘‘Rick Edwards’’ memo might have been referring to in the
period before ‘‘June 12.’’ And, concerning the ‘‘Don Vietz’’
memo, Wheelock explained that the only incident or inci-
dents which matched up with the references in that note were
all matters which Vietz had spoken about to Wheelock on or
about July 10—in the immediate aftermath of the ‘‘piler’’ in-
cident. But, as previously found, after Wheelock had ex-
plained himself on or about July 10, Vietz had reported to
Weber that Wheelock’s attitude’’ seemed to show improve-
ment, and, as a consequence, Weber had admittedly backed
away from his declared wish to fire Wheelock, and had de-
cided instead to give Wheelock ‘‘another chance.’’
Thus, in the light of all this, not only the ‘‘Edwards’’
memo, but the ‘‘Vietz’’ memo, too, facially addressed them-
selves to significantly dated events. And the typed ‘‘REA-
SONS’’ letter did not otherwise clarify the picture, being
itself entirely vague as to what it was that Wheelock had
done to warrant the characterizations of him used in that let-
ter. Indeed, the most conspicuous feature of the reasons letter
is the absence of any specific charge that Wheelock had ex-
hibited any ‘‘lack of interest in the plant,’’ or bad ‘‘atti-
tude,’’ or inability to ‘‘get along with fellow workers,’’ at
any time after July 10, when Weber had decided to give
Wheelock ‘‘another chance.’’
Separately, I think the handwritten memos are almost cer-
tainly phonies—either as to their purported authors (particu-
larly ‘‘Rick Edwards’’), or, at least, as to their purported
dates of preparation. The handwriting in each memo is re-
markably similar,31 and so is the style.32 Also revealing—
and heightening the probability that either Vietz or Weber
authored all three writings—is the coincidence that the typed
reasons letter, purportedly signed by Vietz and Weber, mis-
spells ‘‘maintenance’’ (‘‘maintance’’) in precisely the same
way that the word is misspelled in the handwritten memo
purportedly written by Edwards. The memos bear many other
earmarks (perfunctory and generalized narrations concerning
prior events, leaving no sense of timing or sequence) of a
1414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 Weber was never invited to provide any authenticating testi-
mony concerning any of these writings. Thus, they were not even
shown to have been ‘‘records of a regularly conducted activity,’’
within the hearsay exception contemplated by Fed.R.Evid. 803(6).
Clearly, therefore, they are mere hearsay as to their contents, and
have no independent tendency to establish that Wheelock was guilty
of the alleged misconduct described in the memos, or that he was
‘‘talked to’’ or ‘‘warned’’ about any such misconduct. (Wheelock’s
admission that he had a conversation with Vietz around July 10
which roughly resembled the ‘‘talk’’ described in the ‘‘Vietz’’
memo is the only admissible evidence that such a ‘‘talk’’ occurred.)
And, where Weber does not even claim that he relied on these
memos (as distinguished from various face-to-face reports from these
purported authors, detailed later), their only conceivable evidentiary
value lies in the appearance they convey that they were hastily-con-
trived after the decision to fire Wheelock had already been reached.
34 Shattuck Denn Mining Co., supra, 362 F.2d at 470. See also,
e.g., Dr. Frederick Davidowitz, D.D.S., 277 NLRB 1046, 1049
(1985), where the Board said:
[W]e infer that the Respondent was aware of Slesnick’s and Lee
Porteus’ support of the Union at the time they were discharged.
The factors on which the judge relied—the timing of the dis-
charges and the pretextual character of the Respondent’s rea-
sons—serve to enhance the reasonableness of inferring the Re-
spondent’s knowledge.
35 Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel
& Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). This case teaches that mere ‘‘casual’’ questioning by a super-
visor of an ‘‘open’’ union adherent about union-related matters will
not alone violate Sec. 8(a)(1); rather, the Board will take ‘‘all the
circumstances’’ into account in deciding, ‘‘[w]hether . . . the inter-
rogation reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.’’ 269 NLRB at 1177.
hasty and improvised post facto attempt to rationalize a deci-
sion already made. Certainly, they would have little utility as
due-course business records. My suspicions are likewise
aroused by the fact that the Respondent never called either
Edwards or Vietz as witnesses, and the Respondent’s counsel
pointedly avoided questioning Weber about any foundational
details associated with these three written items given to
Wheelock on July 27.33
I thus reach a more obvious set of findings in all the
known circumstances: While Wheelock waited for more than
an hour in the reception area on July 27, Vietz and/or Weber
hastily ‘‘created’’ the paperwork which Vietz then handed to
Wheelock, along with his pay check. Alternatively, but less
probably as I view it, the handwritten memos were, indeed,
written on the dates indicated, and by the authors indicated.
But, if so, they reflected relatively ‘‘ancient history’’ (obvi-
ously pre- ‘‘June 12’’ in the case of the ‘‘Edwards’’ memo,
and no later than ‘‘7–10’’ in the case of ‘‘the ‘‘Vietz’’
memo). In either scenario, the evidence does not aid the Re-
spondent in the light of Weber’s admitted decision on or
about July 10 to give Wheelock ‘‘another chance.’’ Thus,
whether ‘‘created’’ on July 27, or merely generated in due
course at an earlier date, the memos—and the events they
purport to describe—could not alone have caused Weber to
decide to discharge Wheelock on July 27. Rather, in either
case, the memos reflected, at best, afterthoughts on the Re-
spondent’s part, seemingly calculated only to camouflage that
more recent behavior by Wheelock had actually precipitated
Weber’s decision to fire him.
Whether that ‘‘recent behavior’’ was Wheelock’s more re-
cent union activities, or was instead, as Weber insists, his
more recent displays of poor work performance or ‘‘atti-
tude,’’ is a question which might be answered now. But it
is properly seen as a question more pertinent to the Respond-
ent’s Wright Line defense, and I will therefore delay answer-
ing it until my concluding discussions. I simply note here as
relevant to a prima facie showing of discrimination the many
facially curious circumstances surrounding the Respondent’s
communication to Wheelock of its decision to fire him, and
the ‘‘reasons’’ therefor. Put simply, even before examining
the proof eventually advanced by the Respondent in the trial,
these circumstances facially reek of pretext, coverup, and ul-
terior motive. And this, coupled to the extraordinary timing
of Wheelock’s discharge, has a certain probative force of its
own in affirmatively establishing predischarge knowledge.34
VIII. AFTERMATH; INTERROGATIONS AND OTHER
EXPRESSIONS OF ‘‘ANIMUS’’
A preliminary note on credibility: The General Counsel
called four witnesses (Mike Keeling, Don Edson, Steve
Harder, William Washburn, and Forrest Stansbury) to sup-
port complaint counts charging Weber, Vietz, Production
Manager Gary Hoffman, and Production Supervisor George
Davis, with interrogations and/or shutdown threats. The Re-
spondent called only Weber, Hoffman, and Davis to respond
to this testimony; accordingly, the remarks attributed to Vietz
stand undenied. I found the employee witnesses to be appar-
ently candid and reasonably coherent. Weber, called ad-
versely by the General Counsel during the initial stages of
the trial, generally denied having made any union-related
statements to employees, allowing only that,
I had several people ask me about it [the Union]. I
didn’t call anybody to my office. I listened if people
had something to say but I had no judgment to pass.
Later, after hearing some of the testimony summarized
below, Weber was not so categorical in his denials, but of-
fered what seemed to be improvised and improbable counter-
versions of some of the transactions described by the em-
ployee-witnesses. Davis and Hoffman, to the extent they spe-
cifically contested any of the employees’ accounts, were
similarly unpersuasive. I therefore rely on the employees’ ac-
counts, summarized below, for findings about each trans-
action.
A. Davis-Keeling (July 26)
Facts: At some point in the evening of July 26, after
Wheelock’s discharge, Davis approached Keeling in the plant
and asked him (my emphasis), ‘‘Do you know who else has
been involved with the Union?’’ Kelling simply replied,
‘‘No.’’
Conclusions: Keeling was not shown to have been an
‘‘open and active’’ union adherent within the meaning of
Rossmore House.35 This is not alone dispositive under
1415BASIN FROZEN FOODS
36 Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), expanding
Rossmore House teachings even where employees being questioned
are not ‘‘open and active union supporters.’’ Ibid.
37 277 NLRB at 1217; my emphasis. And see following passages
(id. at 1217–1218), wherein the majority embraced the principles an-
nounced by the Board in Blue Flash Express, 109 NLRB 591
(1954).
38 Keeling testified that he thus interpreted Davis’ question. By all
accounts, Wheelock’s dismissal, and the near simultaneous appear-
ance of the Union’s Harum at the plant earlier that day, had created
a buzz of comment and speculation among the employees and super-
visors about these events and about the organizing events in pre-
ceding days, during which I deem it probable that Wheelock’s name
became known even to the previously uninitiated as one of the cen-
tral in-plant organizers for the Union. Thus, ‘‘Who else’’ likely
meant ‘‘Who else beside Wheelock.’’ But considering the now-pub-
lic shop gossip about all these things, Davis’ ‘‘Who else’’ question
does not, in itself, establish any predischarge knowledge on Davis’
part of Wheelock’s union activities. The same considerations apply
to Hoffman’s similar ‘‘who else’’ remark, described next.
Sunnyvale Medical Clinic,36 which applied Rossmore House
more expansively, interpreting that case as,
signal[ing] disapproval of a per se approach to alleg-
edly unlawful interrogations in general, and toreturn to
a case-by-case analysis which takes into account the
circumstances surrounding as alleged interrogation and
that does not ignore the reality of the workplace.37
Obviously, we are discouraged from summary, ‘‘per se’’
approaches. In finding this interrogation to be unlawfully co-
ercive, I have been influenced by the following consider-
ations: Davis’ question was not shown to have been a natural
outgrowth of some casual conversation, but apparently was
a perfunctory demand for the names of all employees who
supported the Union. The question also occurred in the con-
text of an apparent contemporary pattern of similar interroga-
tions by other supervisors or higher level company agents
(including ed by Vietz, and Weber, himself), all detailed
below. In addition, the ‘‘who else’’ question was an apparent
reference to Wheelcock’s termination earlier that day, and to
the now-public knowledge that Wheelock had been the key
in-house organizer.38 Thus, an employee could easily take
the ‘‘who else’’ question as not so much a question as a
message, as a thinly-veiled, ‘‘One down, how many to go?’’
threat. I thus find that Davis’ unsolicited ‘‘who else’’ interro-
gation had a natural tendency to interfere with, restrain, or
coerce Keeling in his exercise of statutory rights. The Re-
spondent, through Davis, thereby violated Section 8(a)(1).
B. Hoffman-Keeling (July 26)
Facts: The same evening, Keeling, a self-identified ‘‘pretty
good friend’’ of Production Manager Hoffman, was in Hoff-
man’s office, and, as Keeling put it,
we were just talking. And he slipped it in. He wanted
to know who else was involved with the union orga-
nizing.
Keeling quickly clarified that he and Hoffman had not been
talking initially about the union, but, rather had been ‘‘talk-
ing about other things’’ before Hoffman’s ‘‘who else’’ ques-
tion.
Conclusions: The same reasoning applies here. The Re-
spondent, through Hoffman, violated Section 8(a)(1).
C. Hoffman-Edson (July 26 or 27)
Facts: ‘‘Within a day or two after’’ Wheelock’s discharge,
mechanic Edson was alone in a break room with Hoffman.
In the midst of talking about unrelated subjects, Edson re-
ports that,
[H]e [Hoffman] asked me if I knew anything about the
union[,] and I said, no. I didn’t. And he told me that
he was upset because there was someone trying to bring
in the union.
Conclusions: Nearly the same, although here, Hoffman did
not ask ‘‘who else.’’ This is not sufficient mitigation given
the unsolicited character of the question, and that it occurred
as part of an apparent pattern of company attempts to gather
intelligence, rather than being simply an expression of Hoff-
man’s mere ‘‘casual curiosity.’’ The Respondent, through
Hoffman, violated Section 8(a)(1).
D. Vietz-Washburn (July 27)
Facts: In the lunchroom, alone with Vietz, refrigeration
mechanic Washburn asked Vietz ‘‘if Earl got fired because
of the union activity.’’ Vietz said ‘‘no,’’ but, as the con-
versation progressed, Vietz opined that, ‘‘if the union came
in there, Kevin would have to close the plant down.’’ On
cross-examination, Washburn acknowledged that Vietz had
also made some statement to the effect, ‘‘[The plant has]
been bankrupt like three times.’’ Still later on cross,
Washburn recalled that Vietz ‘‘made it seem like that the
plant would have to be shut down financially if a union came
in.’’ On redirect, Washburn elaborated that Vietz had said
something to the effect that the Company, ‘‘couldn’t afford
to pay the wages that other union members were getting and
they would just close the plant down.’’
Conclusions: An employer or its agent may not lawfully
predict a plant shutdown as a consequence of unionization
unless such predictions are ‘‘carefully phrased on the basis
of objective fact to convey an employer’s belief as to demon-
strably probable consequences beyond his control.’’ NLRB v.
Gissel Packing Co., 395 U.S. 575, 618–619 (1969). Even if
Vietz’ shutdown prediction to Washburn included a reference
to the marginal profitability of the plant and included as well
a reference to an inability on the Company’s part to pay pre-
vailing ‘‘union’’ wages, his prediction does not fall within
the ‘‘carefully phrased on the basis of objective fact’’ excep-
tion envisioned in Gissel. It is not a ‘‘demonstrably probable
consequence’’ that a union bargaining for the first time with
a marginally profitable employer will necessarily demand
‘‘the wages that other union members are getting’’; much
less is it a demonstrably probable consequence that this Re-
spondent would have to ‘‘just close the plant down’’ merely
because the Union might make such demands. Neither did
Vietz make any effort to ‘‘objectify’’ his prediction by ref-
erence to any particular ‘‘wage’’ rate, nor to any specific fig-
ures associated with the Respondent’s allegedly financially
insecure status. Even predictions ‘‘phrased’’ far more ‘‘care-
fully’’ in terms of ‘‘objective facts’’ than Vietz’ have not
passed Board muster. Compare, e.g., Harrison Steel Castings
Co., 293 NLRB 1158, 1159 (1989); Crown Cork & Seal Co.,
1416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 Similarly, I will not find it necessary to detail the evidence in-
troduced by the General Counsel to rebut any claims that Wheelock
was guilty of pre-July 10 misconduct. It does not matter to the anal-
ysis that Wheelock may have had good ‘‘excuses’’ for the actions
which had aroused Weber enough by July 10 to strongly consider
firing him, until dissuaded by Vietz.
255 NLRB 14 (1981). I thus conclude that when Vietz’ pre-
dicted a shutdown, the Respondent violated Section 8(a)(1).
E. Weber-Keeling (About July 28)
Facts: ‘‘[W]ithin two days after’’ Wheelock’s discharge,
Keeling and Weber were working together to fix a broken
freeze tunnel system called the ‘‘Cloudy.’’ Keeling, explain-
ing that he was trying to convey the impression to Weber
that he ‘‘didn’t want nothing to do with [the Union],’’ asked
Weber ‘‘what would happen if the union came in.’’ Weber
replied, ‘‘[I] would close down the plant.’’
Conclusions: This was not even a ‘‘prediction,’’ coming
from the man with the power to act, much less was it ‘‘care-
fully phrased.’’ It was an unadorned shutdown threat by the
company president. It does not matter that Keeling invited
Weber to comment, or that Keeling may have had ulterior
purposes in inviting Weber’s comment. The impact was no
less coercive. The Respondent, through Weber, violated Sec-
tion 8(a)(1).
F. Vietz-Weber-Harder (About August 2)
Facts: Refrigeration mechanic Harder was a card signer
who, with Wheelock and others, had attended the meeting in
Harum’s office in Moses Lake on July 25, and who had him-
self passed on a card to his roommate. Harder struck me as
shy and embarrassed, but truthful in what he revealed, how-
ever reluctantly: ‘‘About a week after’’ Wheelock’s dis-
charge, Harder was in Vietz’ office, talking ‘‘business.’’ For
no initially disclosed reason, Vietz eventually asked Harder
to go to ‘‘Kevin’s’’ office with him. Immediately before they
entered Weber’s office, Vietz asked Harder if he ‘‘went to
the meeting.’’ Harder said, ‘‘Yes,’’ and Vietz asked him if
he was ‘‘for or against the Union.’’ Weber replied that he
‘‘wasn’t real sure,’’ that he ‘‘went to the meeting to see what
it was about.’’ After the two joined Weber in the latter’s of-
fice, there was a similar exchange, followed by a request
from either Vietz or Weber for the names of ‘‘who went to
the meeting.’’ Harder, uncomfortable in describing these de-
tails, eventually testified, ‘‘I think I told him who had
went.’’ He also recalls that Weber then said that ‘‘if the
union came in, he would probably have to close the plant.’’
At some later point, Harder ‘‘volunteered’’ (his word) to
‘‘get his card back from the Union,’’ to which Vietz and/or
Weber responded that this was a ‘‘good idea,’’ but that they
‘‘didn’t want to push him.’’
Conclusions: Previous interrogation analyses are fully ap-
plicable, but the context was inherently more coercive in that
the questioning occurred within a locus of managerial author-
ity, and was accompanied by an unlawful shutdown threat.
In each instance the Respondent violated Section 8(a)(1). In
the coercive surrounding circumstances, moreover, I find that
Weber’s and Vietz’ encouraging of Harder to ‘‘get his card
back’’ independently violated Section 8(a)(1). The fact that
Harder initiated the subject by ‘‘volunteering’’ to do this
does not mitigate in the Respondent’s favor when its interro-
gations and shutdown threats had a plain tendency to coerce
Harder in the first instance into making such a ‘‘voluntary’’
offer.
G. Weber-Stansbury (About August 10)
Facts: ‘‘About two weeks’’ after Wheelock’s discharge,
production forklift driver Stansbury happened to be in We-
ber’s office discussing plant maintenance matters. Weber
asked Stansbury if he he had ‘‘heard about the union.’’
Stansbury replied that he had, and volunteered that he had
signed a card. There followed an exchange in which, piecing
together Stansbury’s testimony, Weber apparently got across
the message to Stansbury that Weber, too, would have signed
a card if he had been in Stansbury’s shoes, and if he had
heard from the Union only the ‘‘good things,’’ but not the
‘‘bad things’’ about unions.
Conclusions: Until questioned by Weber and volunteering
that he had signed a card, Stansbury was not shown to have
been the type of ‘‘open’’ union adherent envisioned in
Rossmore House. Weber’s unsolicited question was not cas-
ual nor isolated nor a mere conversation opener; it was part
of a surrounding pattern of coercive intelligence gathering,
and it was uttered by the company president, in the company
president’s office. The Respondent, through Weber, violated
Section 8(a)(1).
IX. CONCLUDING DISCUSSION CONCERNING
WHEELOCK’S DISCHARGE
As noted at the outset, this is a case where the striking
timing of the discharge—within days of Wheelock’s initi-
ation of the organizing effort—and the plain evidence of the
Respondent’s antiunion animus—revealed mostly in the im-
mediately preceding section—combine to establish most, but
not all, of the elements of proof needed to make a prima
facie showing that Wheelock’s discharge was union moti-
vated. I have identified the principal circumstances which I
regard as reliably establishing the additional element of
predischarge knowledge. The General Counsel has therefore
made out a prima facie case that Wheelock was discharged
for his union activities. And it thus fell to the Respondent
under Wright Line to ‘‘demonstrate’’ that it would have dis-
charged Wheelock even in the absence of his union activi-
ties.
I will not dwell on any evidence showing that Weber had
been displeased enough with Wheelock to have come close
to firing him on or about July 10.39 The fact is, Weber did
not then do so, but decided instead to give Wheelock ‘‘an-
other chance.’’ Clearly in these circumstances it fell to the
Respondent to demonstrate that, after July 10, Wheelock had
in some new way demonstrated some defect in performance
or attitude which would plausibly amount to a ‘‘last straw.’’
Admittedly, against the undisputed background evidence
that Wheelock was on thin ice with Weber even before he
approached the Union, the Respondent’s Wright Line burden
would not be especially weighty, requiring substantial evi-
dence only of at least one, post-July 10, last-straw incident.
And it is thus striking that Weber was so vague on this point
when given the chance to make just such a ‘‘demonstration.’’
1417BASIN FROZEN FOODS
40 After the Respondent rested without calling Vietz or Edwards,
the General Counsel moved that I hold the record open so that he
could call Vietz, asserting his intention to have Vietz testify to yet
a different summary of the circumstances surrounding Wheelock’s
discharge (i.e., the one he gave in an affidavit to the Board during
the investigation)—and then to show by yet additional proof that
what Vietz had said out-of-court was itself false. I denied this mo-
tion, but allowed the General Counsel to supplement the record with
Vietz’ affidavit. I do not treat anything said in that affidavit (nor in
Weber’s own, also offered for ‘‘impeachment’’ purposes by the Gen-
eral Counsel) as having substantive evidentiary value to the Re-
spondent’s case. They were clearly inadmissible hearsay for that pur-
pose. I note that these two affidavits are themselves discrepant about
details, and that neither of them is easily squared with the version
which Weber elected to advance at the trial.
41 International Automated Machines, 285 NLRB 1122, 1123
(1987), overruling Wayne Construction, 259 NLRB 571 fn. 1 (1981),
‘‘to the extent it is inconsistent.’’ 285 NLRB at 1123 fn. 5.
42 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
This is all that he said when examined by his attorney on
the point:
as the week or two went on there [after July 10] we
kept getting the same reports that he wasn’t doing his
job and trying to stay where he wasn’t . . . visible for
somebody to get him to help if something broke. And
so one day I said I think we’ve had enough, he’s get-
ting the rest of the mechanics to have this lazy attitude.
So I said it’s time to just get rid of him. So that’s what
Don did.
If this had been all that Weber had said on the point, I
would quickly find that such dubious generalities did not
amount to a ‘‘demonstration’’ sufficient to carry the Re-
spondent’s Wright Line burden. But the General Counsel
gave Weber further opportunity on cross-examination to clar-
ify the picture, and he did, somewhat. Thus,
Q. [By Mr. Sand] And . . . you had further reports
that Mr. Wheelock was not doing his job?
A. That’s right. The reason we—
Q. No, let me stop you. From whom did you have
such reports?
A. From his co-workers—
Q. No, from whom? What was the name of any indi-
vidual who spoke to you—
A. Rick Edwards, Jack Brown.
Q. Who’s Jack Brown?
A. He’s one of the fabricators.
Pressed further by the General Counsel, Weber would not
say when he talked to Brown (‘‘I can’t recall the exact
date.’’), and could not say where he might have talked to
him, except, ‘‘Most likely in my office or when I went down
to see what he was working on.’’ The General Counsel
pressed on, asking what it was that Brown had told Weber.
Weber replied: ‘‘That Mr. Wheelock has been hanging
around back there where there was nothing for Mr.
Wheelock to be doing.’’ The General Counsel further invited
details about any reports made by Rick Edwards to Weber
after July 10. Weber obliged by saying that Edwards made
such reports more than once. (Again, Weber could not recall
‘‘exact dates,’’ or locations ‘‘most likely in the shop’’), but,
invited by the General Counsel then to describe the reports,,
he said,
That [Edwards] had walked by the refrigeration room
and seen Earl sitting there with his back to the door
looking up to the ceiling. And Rick said he stood there
for several minutes before hollering at Earl that maybe
he ought to go find something to do.
The General Counsel called for yet more details, and Weber
again obliged, clarifying that these reports from Edwards
came after the ‘‘piler’’ incident, and that Weber had, in turn,
discussed these matters with Vietz. And, shortly after (pre-
cisely when remains unclear), Weber directed Vietz to fire
Wheelock.
I will not prolong this with further detailing of the General
Counsel’s efforts thereafter to ‘‘rebut’’ these will-of-the
wisps. It is clear that Vietz and Weber told quite different,
or in some cases, more elaborate, stories when they gave af-
fidavits to the Board during the investigation stage. But this
is scantly as important as the fact that I simply did not be-
lieve Weber, not even when he furnished such ‘‘details’’ as
he mustered during the General Counsel’s questioning. His
testimony seemed from his demeanor to have been entirely
improvised on-the-spot. Further, the Respondent’s failure to
call Vietz or Edwards is damning—their absence from the
witness stand40 invites an inference adverse to the Respond-
ent, that their testimony would have undermined the defense
undertaken by Weber, alone, including the few explanatory
claims that Weber did eventually advance in his testimony
concerning post-July 10 performance or attitude problems on
Wheelock’s part.41 I thus find that the Respondent failed to
demonstrate that it would have fired Wheelock even if he
had never engaged in union activities. I thus conclude that
when Respondent fired Wheelock, it violated Section 8(a)(3)
of the Act, and, derivatively Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. The violations of Section
8(a)(1) and (3) require that the Respondent be ordered to
post a remedial notice to employees. And, because the Re-
spondent discriminatorily discharged Wheelock, it must offer
him reinstatement and make him whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended42
ORDER
The Respondent, Basin Frozen Foods, Inc., Warden,
Washington, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
1418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Discharging or otherwise discriminating against any
employee for supporting the Union, Teamsters Local 760, or
any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Making threats to shut down the plant if the Union
were to become the employees’ representative for collective-
bargaining purposes.
(d) Encouraging employees to get their signed authoriza-
tion cards back from the Union.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Earl Wheelock immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against, in the manner
set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge of Earl Wheelock and notify him in writing that
this has been done and that the discharge will not be used
against in any way.
(c) Preserve and, on 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.
(d) Post at its plant in Warden, Washington, copies of the
attached notice marked ‘‘Appendix.’’43 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.