Cascade Coach Co., Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1973

206 N.L.R.B. 874 (N.L.R.B. 1973)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cascade Coach Co., Inc . and Local Union No. 45 , affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Independent . Case 19-CA-6011
November 1, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 23, 1973, Administrative Law Judge Irving
Rogosin issued the attached Decision in this proceed-
ing.' Thereafter, Respondent filed exceptions and a
supporting brief, and the Union and General Counsel
each filed briefs in opposition to Respondent's excep-
tions.
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 record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Cascade Coach Co., Inc.,
Great Falls, Montana, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
' This case was consolidated with Case 19-RC-6227 until June 15, 1973,
when the Board severed Case 19-RC-6227 and remanded it to the Regional
Director for further proceedings pursuant to the consent -election agreement.
DECISION
STATEMENT OF THE CASE
IRVING RocosIN, Administrative Law Judge: The com-
plaint, together with order modifying report on challenged
ballots in Case 19-RC-6227, and consolidating hearing on
said challenged ballots with hearing on the complaint in
Case 19-CA-6011, was issued on October 31, 1972. The
Regional Director's Order directed a hearing to resolve the
issues raised by challenges to the ballots of Steve McNeese
and Larry J. Shearin (the alleged discriminatees) which had
been sustained in the Regional Director's Report, dated
August 14, 1972.
The complaint alleges that Respondent has engaged in
unfair labor practices within the meaning of Sections 8(a)(1)
and (3) and 2(6) and (7) of the Act, by discharging Larry J.
Shearin, about July 6, 1972, and Steve McNeese, about July
12, 1972, and refusing to reinstate them because of their
union organizational activities and sympathies.'
Respondent's answer, dated November 10, 1972, admits
the procedural and jurisdictional allegations of the com-
plaint, and the discharge of the named employees on or
about the dates alleged, but denies the remaining allegations
of the complaint. Affirmatively, Respondent challenges the
authority or jurisdiction of the Regional Director to modify
his report on challenged ballots, alleges that the Order is in
violation of the agreement for consent election approved by
the Regional Director, and that he has "improperly or un-
lawfully abidicat[ed] his responsibility." Further answering,
Respondent alleges that both the Regional Director and the
Union are estopped and barred by laches from resorting to
the unfair labor practice case (19-CA-6011) as a ground for
modifying the Regional Director's report on challenged bal-
lots in the representation proceeding with regard to Shearin
and McNeese, and that the Regional Director and the
Union have "waived any right in that regard they might
have had." Finally, Respondent alleges that the Regional
Director and the Union cannot relitigate in the unfair labor
practice proceeding the "rulings and determinations" con-
tained in his initial Report. Simultaneously with the filing
of its answer, Respondent filed objections and exceptions to
the Regional Director's order modifying report on chal-
lenged ballots of Shearin and McNeese on substantially all
the same grounds.
Hearing on the complaint and challenged ballots was
held on January 23, 24, 25, February 13, 14, and 15, 1973,
at Great Falls, Montana. All parties, including the Charging
Party-Petitioner, were represented by counsel, were afford-
ed full opportunity to be heard, to examine and cross-exam-
ine witnesses, to introduce oral and documentary evidence
relevant and material to the issues, to argue orally, and to
file briefs and proposed findings of fact and conclusions of
law. The parties declined the opportunity to argue orally,
reserving the right to file briefs. Pursuant to the General
Counsel's request, the time for filing briefs was extended to
all parties until March 30, 1973. Timely briefs were filed by
the General Counsel and Respondent.2 Respondent also
filed proposed findings of fact and conclusions of law,
which are disposed of by the findings and conclusions here-
in.
At the outset of the hearing, Respondent moved to dis-
miss the proceedings, renewing the motion at various stages
' Designations herein are as follows: The General Counsel, unless other-
wise noted or required by the context, his representative at the hearing;
Cascade Coach Co., Inc., Respondent, the Company, or the Employer; Local
Union No. 45, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Independent, the Union,
the Charging Party, or the Petitioner ; the National Labor Relations Act, as
amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec 151, et seq. ), the Act; the
National Labor Relations Board, the Board , The charge was filed and served
on August 24, 1972.
2 By letter dated March 21, 1973, counsel for the Union advised that he
did not intend to file a brief, adopting , in effect , the General Counsel's
position in his brief.
206 NLRB No. 136
CASCADE COACH CO. 875
of the hearing, and at the conclusion thereof. In addition,
Respondent moved to strike the testimony of various wit-
nesses on divers grounds. Where not denied at the hearing,
ruling thereon was reserved for disposition in this decision.
To the extent they have not previously been ruled on, each
of said motions is hereby denied.
Upon the entire record in the case,3 and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein, Cascade
Coach Co., Inc., Respondent herein, has been a Montana
corporation, engaged at Great Falls, Montana, in the manu-
facture and sale of pickup campers and travel trailers. Dur-
ing the calendar year preceding issuance of the complaint,
a representative period, Respondent sold products valued in
excess of $500,000, of which sales in excess of $50,000 were
made directly to customers located outside the State of
Montana. The complaint further alleges, Respondent's an-
swer admits, and it is hereby found that, at all times material
herein, Respondent has been an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 45, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Independent, the Union herein , is, and at
all times material herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Regional Director possessed authority or
jurisdiction to issue the order modifying report on chal-
lenged ballots, dated October 31, 1972.
2. Whether Respondent discharged, and thereafter re-
fused to reinstate, Larry J. Shearm and Steve McNeese
because of their union organizational activities and sympa-
thies to discourage membership in the Union.
B. The Representation Proceeding and Respondent's Objec-
tions and Exceptions to the Regional Director's Order Mo-
difying his Report on Challenged Ballots
The representation petition in Case 19-RC-6227 was
filed by the Union (Petitioner) on May 26, 1972. Thereafter,
3 Including portions of the official transcript of the proceedings in the
representation case, designated by the General Counsel (Case 19-RC-6227),
and offered-under the authority of the Board's ruling in Stanley Air Tools,
171 NLRB 388
Respondent and the Union entered into an agreement for
consent election, signed on June 14 and 16, respectively,
approved by the Regional Director on June 20, 1972. The
election was held at Respondent's premises on July 19, 1972.
According to the official tally of ballots, of 36 eligible vot-
ers, 16 cast ballots for the Petitioner, 14 against, and 6,
including Shearin and McNeese, cast challenged ballots.
The challenged ballots were sufficient to affect the results
of the election. No objections to the conduct of the election
were filed by either party.
On August 14, following an investigation, the Regional
Director issued a report on challenged ballots and direction
of hearing. So far as the instant proceedings are concerned,
the Regional Director ruled that Shearin and McNeese were
ineligible to vote because "neither man was employed on
the date he cast his ballot." Shearin had been discharged on
July 6, and McNeese, on July 12, 1972, both before the
election. Whether these employees then believed that they
had been discriminatorily discharged, notified the Union to
that effect, or were aware of the consequences of such dis-
charge, or of the effect upon their right to vote in the elec-
tion, it does not appear that this issue was raised at the time
they were challenged. So far as the record discloses, this
information was developed during the investigation of the
unfair labor practice charge subsequently filed by the
Union, on August 24, 1972.
Although no exceptions were filed to the Regional
Director's report on challenged ballots and direction of
hearing, the Union, on August 24, 10 days after the issuance
of the Regional Director's report, filed the unfair labor prac-
tice charge, underlying the issuance of the complaint in
these proceedings. Consequently, further proceedings in the
representation case were withheld. The Union, however,
filed a request to proceed with the representation case.
On August 31, pursuant to the Regional Director's report,
a hearing was held to determine the eligibility of Eva Han-
son and Wes Grilley, whose alleged supervisory status was
in issue. On September 22, the Hearing Officer issued a
report on challenged ballots, recommending that the chal-
lenge to Hanson's ballot be sustained, and the challenge to
Grilley's ballot be overruled.4 The Employer filed timely
exceptions to the Hearing Officer's report, on September 29.
The Petitioner also filed exceptions but the Regional Direc-
tor ruled that they had been tardily filed.
On October 31, the Regional Director issued the order
modifying report on challenged ballots.5
4 In the absence of timely exceptions, the Regional Director adopted pro
forma the Hearing Officer's conclusion that Wesley Grilley was at all times
material a nonsupervisory employee, and his recommendation that the chal-
lenge to his ballot be overruled and the ballot opened and counted.
The order reads , in part , "As a result of an investigation conducted on
the charge filed in Case 19-CA-6011, substantial and material questions of
fact have arisen regarding the legality under the Act of said discharges.
Accordingly, inasmuch as final disposition is yet to be reached in Case
I9-RC-6227 in any event, said report on challenged ballots, which is at-
tached hereto, is hereby modified insofar as it sustained the challenges to the
ballots of Steve McNeese and Larry J Sheann to instead direct a hearing on
those challenges as provided below " Consolidating hearing on the challenges
with the hearing in the complaint case, the Regional Director requested the
Administrative Law Judge to "resolve the issues raised by the challenges,"
and to "include in his Decision a report thereon , containing resolutions of
the credibility of witnesses , findings of fact, and recommendations to the
Regional Director as to the disposition of said challenges."
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 7, 1972, the Regional Director issued his
second report on challenged ballots and direction , adopting,
with modifications , the Hearing Officer 's findings , conclu-
sions, and recommendations.
The Regional Director ordered the ballots of Lawrence P.
Wise and Wesley Grilley opened and counted . In view of his
order modifying report on challenged ballots , dated Octo-
ber 31, 1972, and directing a hearing on the challenges to
the ballots of Shearin and McNeese , and noting that their
ballots may or may not be determinative after the ballots of
Grilley and Wise are counted , the Regional Director re-
served jurisdiction to make such further orders as might be
required after the ballots of Wise and Grilley are counted.
Contentions Regarding Order Modifying Report on
Challenged Ballots
At the outset, Respondent contends that the Regional
Director's report on challenged ballots, dated August 14,
1972, was "final and binding, and cannot be modified, re-
voked, vacated or in any way changed," and that neither the
Regional Director nor the Board has "jurisdiction" to modi-
fy or vacate the rulings and determinations of the Regional
Director sustaining the challenges to the ballots of Shearin
and McNeese. Furthermore, Respondent maintains, the or-
der modifying the report constitutes a breach of the agree-
ment for consent election approved by the Regional'
Director. Respondent relies principally on the following
provisions of the consent election agreement:
1. SECRET BALLOT. . . . the determination of the
Regional Director shall be final and binding upon any
question, including questions as to the eligibility of
voters, raised by any party hereto relating. in any man-
ner to the election, and . . . rulings or determinations
by the Regional Director in respect of any amendment
of any certification resulting therefrom shall also be
final. (Rules and Regulations, Sec. 102.62)
2. ELIGIBLE VOTERS.-The eligible voters shall be
those employees included within the Unit described
below, . . . been discharged for cause... .
6. OBJECTIONS, CHALLENGES, REPORTS
THEREON.- ... If the challenges are determinative
of the results of the election, the Regional Director
shall investigate the challenges and issue a report there=
on. The method of investigation of objections and chal-
lenges, including the question whether a hearing should
be held in connection therewith, shall be determined by
the Regional Director, whose decision shall be final
and binding. (Sec. 102.69(c) )
Respondent, in its brief, concedes, in effect, that the legal
issue involved is "when a ruling and determination by the
Regional Director in consent election proceedings becomes
final and binding." He maintains , however , that, since "it
can only be concluded that [Shearin and McNeese] were
discharged for cause ," the legal issue as to the Regional
Director's authority to modify his Report on Challenged
Ballots will be rendered moot. Presumably, Respondent
does not concede that, if it should be found that both men
or either of them were discriminatorily discharged, the Re-
gional Director would be authorized to modify or reform
the initial report on challenged ballots to conform to the
findings in the unfair labor practice case. The issue of the
Regional Director's authority to modify his rulings and de-
terminations in a consent election must, therefore, be re-
solved.
The Rules and Regulations of the Board do not appear
to provide the Regional Director with express authority to
modify a report on challenged ballots after it has issued.
Nevertheless, it is implicit in the authority vested in him by
the Board in representation proceedings, at least, particular-
ly in those involving consent-election agreements, that until
he has certified the results of the election, and, in fact, under
certain circumstances, even afterward, no finality attaches
to his findings and determinations.
Moreover, "Every tribunal, judicial or administrative, has
some power to correct its own errors or otherwise appropri-
ately to modify its judgment, decree or order."' "The power
to reconsider is inherent in the power to decide."'
The argument that the Union's [Petitioner's] failure to file
objections to the conduct of the election or to the Regional
Director's report on challenged ballots, precludes a redeter-
mination of the eligibility to vote of the two alleged discri-
minatees , does not sufficiently take into account the effect
of the filing of unfair labor practice charge 10 days after the
issuance of the report on challenged ballots. There is some
suggestion in the record that the employees involved may
have apprised the Union within the 10-day period after the
election of their claim to have been discriminatorily dis-
charged. Assuming this to be a fact, the Union's failure to
file formal objections to the election did not, of course,
deprive the Union or the individuals of the right to file an
unfair labor practice charge which would determine, not
only the legality of the discharges but ultimately the eligibil-
ity to cast an unchallenged ballot.
It is clear that the Regional Director's determination that
Shearin and McNeese were ineligible to vote was made
without consideration on the merits or, for that matter,
without investigation, if, indeed, he had the right to author-
ize such investigation. When, after the filing of the unfair
labor practice charge, the Regional Director determined
that there was a basis for the issuance of a complaint, he
immediately issued the order modifying report on chat-
6 Sec. 102.62 of the Rules and Regulations provides, in pertinent part, that
in consent-election agreements , the "rulings and determinations by the re-
gional director of the results [of the election] shall he final, and the regional
director shall issue to the parties a certification of the results of the election,
including certification of representatives where appropriate, with the same
force and effect as if issued by the Board, provided further that rulings or
determinations by the regional director in respect to any amendment of such'
certification shall also he final." (Emphasis added.) The implicit authority to
amend a certification , even after it has issued, certainly encompasses similar
authority to modify a report on challenged ballots, especially where the
circumstances revealed by the investigation of an unfair labor practice
charge, having a direct bearing on the issue of eligibility to vote in an election,
justify such action.
7 Swift Service Stores, Inc., 169 NLRB 359, 361, citing 2 Davis, Administra-
tive Law Treatise, p. 606.
s Albertson v. F.C.C., 182 F.2d 397, 399 (C.A.D.C.), also cited by the Board
in Swift Service Stores, Inc., supra.
CASCADE COACH CO. 877
lenged ballots and directing a hearing.
Failure to have done this would have resulted, not only
in a miscarriage of the election procedures, but, of justice
and equity as well. As the Trial Examiner aptly stated in his
decision, affirmed in this respect by the Board, "While it is
true that in some circumstances the Board precludes the
parties from relitigating by way of challenges issues previ-
ously disposed of in the representation hearing, (citation
omitted), its practice is not invariable. (Citing Cruis Along
Boats, Inc., 128 NLRB 1019). Here the surrounding circum-
stances support consideration of the challenge on its merits
.... Failure to consider this challenge on its merits would
result in conflicting Tesults in the representation and unfair
labor practice proceedings."9
Respondent has failed to domonstrate that it has been
prejudiced by its reliance on the Regional Director's initial
report. The circumstances giving rise to the discharge of
these employees were peculiarly within Respondent's
knowledge. In any case, Respondent could not have pre-
vented the filing of the unfair labor practice charge, and
would have been required to litigate the issues raised by the
complaint. Resolution of these issues could serve to decide
the challenges to the ballots of the two employees. The
Regional Director was, therefore, wholly justified in modi-
fying his report on the challenged ballots and consolidating
hearing on the challenges with the hearing on the complaint.
Indeed, failure to have taken this action could have led to
the incongruous result that employees who had been discri-
minatorily discharged would, though otherwise eligible to
vote, be denied that right on the ground that they had been
discharged before the election.1°
With regard to Respondent's contention that both the
Regional Director and the Union are estopped and barred
by lathes from obtaining a modification of, or relitigating
in the unfair labor practice proceeding, the Regional
Director's rulings and determinations in the report, dated
August 14, 1972, it should be noted that the Regional Direc-
tor and the Union do not stand in the same position. The
Regional Director, acting by delegation of authority from
the Board, is the agency's representative, and it had been
held:
An administrative agency, charged with the protec-
tion of the public interest, is certainly not precluded
from taking appropriate action to that end because of
mistaken action on its part in the past. . . . Nor can
the principles of equitable estoppel be applied to de-
9 Collins Mining Company, 177 NLRB 221, 249. In this respect, the com-
ments of Professor Davis are particularly, apropos.
When statutes are silent and legislative intent unclear, agencies and
reviewing courts must work out the practices and the limits on reopening
Usually the search for a basic principle to guide reopening is
futile; the results usually must reflect the needs that are unique to each
administrative task. Factors to be weighed are the advantages of repose,
the desire for stability, the importance of administrative freedom to
reformulate policy, the extent of party reliance upon the first decision,
the degree of care or haste in making the earlier decision , the general
equities of each problem. 2 Davis,Administrative Law Treatise, p. 607,
cited with approval in Swift Service Stores, supra.
10 Under the consent-election agreement, approved June 20, 1972, the
period for eligibility was the "Last completed payroll period prior to approval
of this Agreement by the Regional Director." Shearin was discharged on July
6, and McNeese, on July. 12, 1972. The election was held on July 19, 1972.
prive the public of the protection of a statute because
of mistaken action or lack of action on the part of
public officials."
In view of the Regional Director's investigation resulting
in the report and direction of hearing, it can hardly be
contended that he acted arbitrarily or capriciously or that
he "improperly or unlawfully abidicat[ed] his responsibili-
ty" in issuing the order modifying report on challenged
ballots.
The failure of the Union to file timely objections to the
conduct of the election can have no bearing on its right to
file an unfair labor practice charge even though a decision
in that case might resolve issues that could have been raised
by objections to the conduct of the election. Nor does this
create an estoppel to raise these issues in the unfair labor
practice case. As for any possible claim of lathes agamstthe
'Union, it is sufficient to note that the charge was filed within
10 days of the issuance of the Regional Director's report,
dated August 14.
For all the foregoing reasons, it is found that, in issuing
the order modifying the report on challenged ballots, and
consolidatingfor hearing the issues raised by the challenges
to the ballots of Shearin and McNeese with the hearing on
the complaint, the Regional Director was acting within his
authority and in conformity with the terms of the agreement
for consent election and the Rules and Regulations of the
Board.
C. Discrimination in Regard to Hire and Tenure of Em-
ployment
1. Introduction
Prior to November 1971, the business of the Company
was owned and operated by Howard H. Tunnicliff, as a sole
proprietor, under the firm name of Cascade Coach Compa-
ny. In November, Tunnicliff entered into an agreement of
sale with Glenn A. Gordon, a resident, of Great Falls, and
president of Gordon RealtyCorporation, covering the busi-
ness and assets of the Company, which was in the process
of being incorporated. According to Gordon, the trans-
action was closed for accounting purposes as of March 27,
1972, with the taking of inventory. The bill of sale, however,
was not executed until April 19, 1972, when Gordon as-
sumed complete ownership and control of the business. The
enterprise was subsequently incorporated under its present
name, with Gordon as president, managing officer, and
principal stockholder. During the fall of 1971, while Gordon
was considering acquisition of the Company, he discussed
with Floyd Harsh, comptroller of the predecessor company,
the prospect of Harsh's becoming general manager of the
new organization. As soon as Gordon regarded the sale
consummated, he instructed Harsh to maintain an accurate
accounting of moneys received and accounts payable.
ti NLRB v. Baltimore Transit Company, 140 F.2d 51, 55 (C.A. 4), cited
in Silver Bakery, Inc. of Newton, Massachusetts, 150 NLRB 421, 426, enforce-
ment denied on other grounds 351 F 2d 37 (C A. 1, 1965); see also Maxwell
Company v. N.L RB., 414 F.2d477, 479, (C.A. 6, 1969), and cases cited, enfg.
in part 164 NLRB 713, motion to clarify opinion granted 71 LRRN 3232
(C.A. 6, 1969); see also W C. Nabors, W.C. Nabors Co. v. N.LR B, 323 F.2d
686 (C.A. 5, 1963), cert. denied 376 U.S 911; Collins Mining Company, 177
NLRB 221, 249.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harsh subsequently became general manager of the busi-
ness.
Before acquiring the business, Gordon investigated work-
ing conditions at the plant and considered instituting some
changes. He discussed some of these changes with Harsh
and, to a lesser extent, Tunnicliff.
Gordon noted the lack of a group health and accident
plan and paid vacations, and discussed general working
conditions in the plant.'
In the discussions with Harsh, Gordon mentioned that if,
after operating the plant for perhaps a year, he could realize
a reasonable return on his investment, he might consider
"sharing his profits" with the employees ' in the form of
health and accident insurance and vacation benefits. Of
paramount importance, however, as he explained to both
Tunnicliff and Harsh, was the fact that the Company was
a nonunion plant, Gordon remarking that if there were a
union in the plant, the overhead might be prohibitive. Gor-
don expressed grave concern lest the plant become union-
ized, and stated that the increased cost of unionization
could result in bankruptcy or necessitate "clos[ing] the
doors and try[ing] to find a buyer for the physical plant."
Gordon made it clear that unless he could purchase the
business at a reasonable price, he would not be interested.
There is little doubt that Gordon regarded the fact that the
plant was nonunion one of the most appealing features of
the transaction.
2. The union organizational activities
Around May 22, about a month after Gordon formally
assumed operation of the business , Larry J. Shearin, a car-
penter shop employee , and Steven (Steve) McNeese, who
performed the plumbing on the campers and trailers, called
on Cliff Hueth , a union business agent , regarding represen-
tation of the employees . Hueth supplied them with books of
membership applications , which they brought to work the
next day . During nonworking hours, both men solicited
their fellow employees and distributed application cards.
General Foreman Clyde Hanson , whose supervisory status
is not in dispute , admitted that he became aware of their
activities "the first day they started passing around the
cards," and that he notified General Manager Harsh to that
effect.
3. The May 23 meeting
On May 23, about 4:15 p.m., Harsh held a meeting of the
employees in the main assembly shop below General Fore-
man Hanson's office.12 Between 40 and 50 employees at-
tended this meeting. Both Harsh and Hanson were present,
Harsh taking a position on the "porch" or landing in front
of Hanson's office. ,
12 According to Shearin's uncontradicted testimony , the meeting was
called almost immediately after he had solicited James DeFrancisco at quit-
ting time to sign an authorization card . DeFrancisco refused and beckoned
to Dan Spurgin, leadman in the carpenter shop. After a momentary conversa-
bon with DeFrancisco, Spurgin left the building and headed for the center
shop and office . Returning in a few minutes , he announced that Harsh was
calling a meeting . Hanson directed the employees to shut down their ma-
chines, and they assembled for the meeting
After announcing that he had been appointed general
manager, he told the employees that he was aware that
individual efforts were being made to organize them, and
that he had heard that application cards were being distri-
buted. He said that he wanted the employees to know that
the Company could not have a union in the plant, and
explained that the only way it could stay in business was by
underselling its competitors. He informed them that any
surplus the Company might acquire would be invested in
new machinery, insulation of the building, installation of
more heaters, and construction of a patio with meal facili-
ties for the employees.
On the subject of production, Harsh pointed out that it
amounted to no more than five or six campers a day; that
in order to afford a union, it would be necessary to increase
production to 10 or 12 campers a day, an impossible quota,
and that if the Union came in, the Company would just
close the doors.
Foreman Hanson related that he had worked in a union
shop in California, and "all the union had ever done was just
take his money." Eva Hanson, his wife, seconded his re-
mark.13 Several leadmen joined in the general discussion.
During the meeting, Harsh inquired about possible dis-
content among the employees. Someone broached the sub-
ject of vacations. Harsh responded that he had discussed'the
matter with Gordon, and indicated that the Company was
considering granting a week's paid vacation after a year's
employment. At a later meeting, however, as will presently
be seen, Harsh told the employees that such a vacation plan
would be contingent on whether they chose to be repre-
sented by the Union.
Regarding the matter of plant closure, Roland Sparling,
one of the employees, testified that Harsh "just mentioned
that the cost [of having a Union in the plant] would be too
high and they could not afford it and ... would have to
shut their doors." According to McNeese, Harsh "went on
to say that a union in Cascade Coach would kill it, that it
could not afford to go union, they would have to shut the
doors and that it was up to us if we wanted to work or not "
"Harsh did not categorically deny telling employees that
the Company would close its doors if the Union succeeded
in organizing the plant. Moreover, he conceded that he told
the employees, at this or a later meeting, that if the Compa-
ny were organized by the Union, the stability of the
Company's future operation would be in doubt. Viewed
13 Eva Hanson was employed in the drapery department, designing the
interior decor of the campers , and sewing curtains . In addition, she inspected
campers, directing employees on the finish line to correct defects before
approving the campers for shipment to distributors She also distributed
payroll checks until her husband later assumed this chore. In his second
report on challenged ballots, dated November 7, 1972, the Regional Director
affirmed the Hearing Officer's determination that Eva Hanson was a supervi-
sor, and sustained the challenge to her ballot Although afforded an opportu-
nity in' the present hearing to relitigate the issue of her supervisory status,
Respondent elected not to do so It may also be noted that several days after
the May 25 meeting, presently described, Eva Hanson polled the employees
regarding their desires for group insurance coverage and, instructed employ-
ees who wanted coverage to write the vital information on sheets attached
to a clipboard which she carried. Based on the foregoing , including excerpts
from the official transcript of the proceedings in the representation case,
Stanley Air Tools, 171 NLRB 388, and 179 NLRB 553, enfd. 434 F.2d 358
(C.A. 6, 1970); Amalgamated Clothing Workers [Sagamore Shirt Co I v. N L
R B, 365 F.2d 898 (C.A.D.C, 1966), it is found that, at all times material,
Eva Hanson was a supervisor within the meaning of the Act.
CASCADE COACH CO. 879
against the background of Gordon's discussions with Harsh
and the previous owner on the subject, it is obvious that
Harsh's admitted remark was merely a circumlocution de-
signed to convey the same impression, and that the employ-
ees reasonably construed Harsh's remarks as a threat of
plant closure. Harsh also admitted telling employees at this
meeting that management was interested in establishing a
program under which employees could make recommenda-
tions for improvement in the operation, including recom-
mendations regarding wages and working conditions, and
stressing that this method of resolving differences would be
preferable to having a union represent them. Harsh then
asked the employees whether "everybody was for him."
When this met with no response, he put the question differ-
ently, and asked whether "everybody was against him."
Again, there was no response.
After the meeting, which lasted about 20 minutes, some
25 employees, including Shearin, McNeese, Jim Hathaway,
and Steve Garrity went to the union office to obtain some
answers to questions which had been disturbing them. Next
day, while Shearin was on an errand in the shop in connec-
tion with his work, he saw Harsh enter a camper in which
Garrity was working. According to Shearin, Garrity, who
had signed an authorization card for McNeese, and had
indicated that he was in favor of the Union, later told Shea-
rin, that he, Garrity, "didn't think the union would work,"
that Harsh had told him that there "couldn't be a union,
that they would close their doors, that Glenn Gordon had
[merely] paid $500,000 for [the business], that the land was
worth more than that."
On the morning of May 24, about 8, Eva Hanson asked
Garrity to come to her sewing room. There Hanson asked
Garrity whether Shearin and McNeese were the "instiga-
tors" of the union movement. Garrity declined to say.
Thereupon, Hanson said, "You know what's going to hap-
pen to them, don't you?" When Garrity pleaded ignorance,
Hanson told him that Shearin and McNeese would "end up
losing their jobs." The same morning, while Garrity and
Foreman Hanson were on the unloading ramp in front of
the shop, Hanson told Garrity that Gordon had told him
that he would close down the plant if the Union were suc-
cessful. Garrity expressed concern about losing his job.
Later that afternoon, while Garrity and Grilley, then
leadman on the finish line, were working in a camper, Gril-
ley invited Harsh, who was passing by, into the camper.
Garrity told Harsh that he was afraid of losing his job, that
he had a wife and children to consider, and that he could
not afford to be without a job. Harsh said that he could
understand Garrity's concern, but said nothing to allay his
apprehension. Garrity testified that "there had been rumors
that Hathaway was one of the leaders [in the organizational
activities] and . . . wanted to clarify it to Mr. Harsh that
[Hathaway] wasn't, so Jim [Hathaway] would not end up
losing his job either." As Hathaway was passing the camper,
Garrity volunteered to Harsh that Hathaway had not been
one of the instigators. Hathaway confirmed to Harsh that
he was opposed to the Union.14 Garrity repeated that he,
too, was against the Union if it meant losing his job. Garrity
14 Hathaway later succeeded Grilley as leadman on the finish line.
suggested to Harsh that a few of the employees meet with
Harsh and Gordon in an effort to resolve their differences.
Harsh approved of the idea and promptly arranged a meet-
ing in his office for 8:30 the following morning, leaving it
to Garrity and Hathaway to select the employees who
would attend, and arranging for Gordon's attendance him-
self.
4. The meeting of May 25
Shortly before the start of the workday, on May 25, a
group consisting of Garrity, Foreman Hanson, his wife,
Vickey Barrett, and possibly Leadman Grilley were in the
sewing room having coffee. According to Garrity, the group
was discussing the "negative aspect" of unionization. It is
undenied that during this occasion, Foreman Hanson re-
marked, "You wouldn't have to worry about that because
Mr. Gordon will close the place down, so you don't have to
worry about any union."
At or about 8:30 that morning, the meeting was held in
Harsh's office. Gordon and Harsh were present on behalf
of the Company; Garrity, Hathaway, Shearin, and three
others, on behalf of the employees. Harsh announced that
he had called the meeting to "clarify some matters on this
union that you guys started." Harsh discussed the
Company's operational costs, pointing out that Gordon had
only recently acquired the business and had not yet had an
opportunity to reorganize the operation.
Announcing his intention of establishing a line of com-
munication between the production employees and man-
agement, Gordon invited comments or questions from those
present. When Shearin inquired whether anything said
might be held against them, Gordon assured him that it
would not. Among subjects raised by Shearin, whom Gor-
don recognized as spokesman for the employees, and other
employees in the group, were group health and accident
insurance, paid holidays and vacations, the possibility of
layoffs, and the prospect of employees buying stock in the
Company.
Gordon discussed the possibility of future expansion, in-
cluding acquisition of land adjacent to the existing facility
or the purchase of land in Cascade, Montana, which would
entail relocation of the Company's business. He also dis-
cussed the feasibility of changes in the operation of the
production line. Gordon asked the men whether they would
rather have profits applied toward renovating plant facili-
ties instead of wage increases, paid vacations and holidays,
emphasizing that profits would be determined by the
amount of production. Garrity suggested that the employ-
ees attending the meeting be constituted a committee to
deal with management. Gordon expressed approval of the
plan.
During this meeting, Gordon repeated, according to
Shearin's credited testimony, that he had paid $500,000 for
the business, that the land on which the plant buildings were
located was worth more than that, that he had only recently
acquired the business enterprise, and that the advent of a
union would render the cost of operation prohibitive. Final-
ly, Gordon stated that if the Union prevailed, the Company
would just close its doors. Gordon acknowledged that he
had made substantially the same remarks to the previous
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owner, as well as to Harsh. Gordon testified:
I think I did make the same statement at the meeting
in regards to the expense and the overhead of the oper-
ation itself and that . . . if the plant had to go union
that it might be that I would have to shut its doors, but
that I had purchased the operation, purchased the busi-
ness and the operation at a . . . figure that was reason-
able enough that I could dispose of the physical plant
and salvage my investment.
5. The next general meeting with employees-between
about June 2 and 6
About 10 days or 2 weeks after the May 23 meeting of
Harsh with the employees-the exact date of which is not
established, but it is undisputed that the meeting occurred
during this interval-Harsh, in the company of Gordon,
met with the employees. Harsh announced at this meeting,
according to Shearin, who was substantially corroborated
by employee Gary Berg, that paid vacations would not be
granted until the issue of union representation was resolved.
In Shearin's words, Harsh said, "The vacation I promised
to you, we're not going to have that until this union deal is
settled once and for all. There'll be no vacations." Harsh
conceded that he told the employees that whether they re-
ceived a paid vacation would depend on whether they were
represented by the Union.
It is uncontroverted that at this meeting Foreman Han-
son stated:
There are plenty of union shops in town; and any of
you fellows that want to work for a union shop, go
down there and work for them. This union talk and
B.S. has got to quit; and if you want a union, then
you're going to act like a union.15
6. June 22-23
Shortly after 8 on the morning of June 22 or 23, Eva
Hanson went to Shearin's work station and asked him,
"Larry, is this a union shop yet?" When Shearin replied in
the negative, Hanson asked him how many employees had
attended the union meeting the night before. "Not very
many," Shearin replied. Asked whether he had attended,
Shearin acknowledged that he had. When Hanson asked
him whether McNeese had been there, Shearin said he
could not recall. At that, Hanson remarked, "I guess you
know if we get a union in here there's going to be a lot of
people going down the road, and you're going to be one of
the first ones ." Proceeding to McNeese's work station, Han-
son asked him whether he had attended the union meeting
the night before. McNeese asked, "What union meeeting?"
Hanson persisted, "You know what union meeting I am
talking about." When McNeese protested that he did not,
Hanson called him a "damn liar."16
15 This cryptic remark was not explained. Although Sparling could not
recall which management representative made the remark , he was in no
doubt as to the substance of the remarks.
16 Despite the opportunity afforded Respondent to call her as a witness on
On Friday afternoon, June 23, Gordon brought some
beer to the plant as a token of appreciation for the produc-
tion of nine campers a day that week. Gordon congratulated
the employees on their production. He also reiterated what
he had said about closing the plant if the men selected the
Union, and reminded them that the land alone was worth
more than what he had invested in the venture.17
7. The discharge of Shearin
Larry J. Shearin was hired on about January 7, 1972, and
worked in the carpenter shop, building camper and trailer
sidewalls, until his discharge on July 6, 1972.
Saturday was not a regular working day at Respondent's
plant. To afford the employees a long July 4 holiday week-
end, however, it was agreed that the employees would work
on Saturday, July 1, thereby granting them days off on
Monday and Tuesday, July 3 and 4.
On Friday, June 30, Shearin reported to work suffering
from some intestinal disorder, apparently some form of flu.
Shearin notified Leadman Dan Spurgin of his condition and
received permission to leave. Spurgin, apparently satisfied
that Shearin was ill , reported to Foreman Hanson that
Shearin had left because of illness. Shearin himself also
notified Hanson of his condition and obtained his permis-
sion to leave. Later that afternoon, Shearin returned to the
plant for his paycheck. Prior to that time, and until some
time in July 1972, Eva Hanson had distributed the pay-
checks. Hanson gave Shearin his paycheck, and asked him
if he expected to work the next day, Saturday, July 1. Shea-
rin told her that he was quite certain that he would not be
able to work because of his condition, adding that even if
it improved, he would be "too weak to work." Hanson
replied, "O.K."
According to Shearin, he had not recovered sufficiently
to go to work Saturday, and did not report for work or
telephone that he would not be in. By Saturday afternoon,
however, he had recovered sufficiently to undertake a week-
end trip to Monarch, Montana.
The plant did not reopen for operation until Wednesday,
July 5. Shearin did not report for work that day nor did he
telephone or otherwise notify anyone at the plant that he
would not be in. That morning, Foreman Hanson notified
General Manager Harsh that Shearin had not reported for
work. Although it is not altogether clear whether Hanson
"pulled" Shearin's timecard before or after reporting to
Harsh that Shearin had not come to work, Harsh agreed
with Hanson that Shearin should be discharged for failing
to call in. Hanson took Shearin's card to the office to have
his paycheck made out. The decision to discharge Shearin
the issue of her supervisory status, as well as on other matters, Eva Hanson
was not called to testify. The statements attributed to her, corroborated by
Berg (insofar as they related to McNeese), stand uncontradicted, and, in view
of her supervisory status, as previously found, are imputed to Respondent.
17 It should be noted that the General Counsel does not rely on any of the
events related in this section as evidence of independent violation of Section
8(a)(I) of the Act. None of these incidents were alleged in the complaint, and
the General Counsel expressly disavowed any.intention of relying on them
as evidence of independent violations of Section 8(a)(1). The evidence was
offered, and received , for the purpose of establishing discriminatory motiva-
tion in regard to the discharges of Shearin and McNeese . No finding of
independent violation of Section 8(a)(1) has, therefore, been made , based on
any of the events previously related.
CASCADE COACH CO.
was made, according to President Gordon, without his prior
knowledge or consultation with him, although he acknowl-
edges that he learned of the decision within 24 hours after
it was made, and concurred in the decision without further
investigation. 18
Next day, July 6, when Shearin reported for work, lead-
man.Spurgin notified him that he had been discharged, and
hold him that if" he wanted to talk to Foreman Hanson he
would find him in Eva Hanson's office. Shearin went there
and found General Manager Harsh, Hanson and his wife,
and leadman Grilley present. Shearin told Hanson that
Spurgin said that he had been fired. Hanson confirmed this,
and asked Shearin where he had been the day before. When
Shearin said that he had been in Monarch, Hanson asked
him why he had not telephoned to report that he would be
absent. Shearin replied (depending on whose version is ac-
cepted) that he did not call in because "the party extended
a little longer than he had planned it" (Hanson's version);
because he was "out on an occasion and had gotten hung
over . . . " (Harsh's version); or because he "just didn't,"
that he- had overslept, and besides, he was unable to call
from Monarch because there was no phone where Shearin
was staying. (Shearin's version). Harsh admitted that Shea-
rin had stated during this interview that he had been out of
town and that there was no "phone handy or something to
that effect." Harsh also concedes that Shearin tried to ex-
plain his absence on Saturday, July 1, and that, after listen-
ing to Shearin's explanation, Hanson countered, "That's no
excuse, you are fired." In any, event, the discussion conclud-
ed with Hanson reiterating that Shearin was discharged,
and the latter left.
Respondent's Contentions Regarding Shearin's Discharge
Although Respondent contends that Shearin was dis-
charged for failing to notify his employer that he would be
absent, it may be assumed that the employer was equally
concerned with his actual absences on those days.19
Respondent contends that at the time of Shearin's dis-
charge. there was in force a company rule requiring employ-
ees to call in and report absence from work. Respondent
maintains that such a written rule had been in existence
prior to the acquisition of the business by Gordon. A pur-
ported copy of the rule, dated January 1, 1971, bearing the
typed signature, "Howard Tunnicliff," the former owner,
18 Leadman Hathaway testified, without contradiction:
Early in the morning I seen him [Hanson ] over fooling with the time
clock and hft the card out, and out of curiosity I went over and he said,
he pulled Larry Shearin's card and he said, "I might not get away with
this, but that's one."
19 Asked the reason for pulling Shearin 's timecard , Hanson testified
A. He failed to call in on the 5th and also on the Saturday, I think
it was probably the 1st or something like that of July.
Q. Maybe you stated this and I missed it, but I believe you stated that
you pulled his time card because he missed work's
A He failed to call in.
On July 25, General Manager Harsh wrote Shearin,
You were recently discharged from employment with this organization-
by reason of unnecessary absence.
881
received in evidence, provides for discharge for violation of
the rule.20
There is a conflict in the testimony as to whether this rule
remained posted on the bulletin board before and after the
change in ownership. It is conceded that the notice was
removed, at least temporarily, after, Gordon assumed own-
ership of the business, when Hanson installed a new bulletin
board in May or June. Since the only written rule which
Respondent claims was ever posted was the one bearing the
name of the former owner, one is left to wonder why the
notice, assertedly posted after the change in ownership, bore
the name of Tunnicliff rather than that of Gordon or the
successor corporation.
Shearin, who was employed between January 7 and July
6, 1972, denied ever seeing a copy of the notice on the
bulletin board during that entire period, though he claimed
to have looked at the bulletin board-occasionally. Garrity,
in the Company's employ since April 1972, claims he did
not see the notice posted until after Shearon was terminated.
Gary Berg, employed continuously since April 1972, was
under the impression that he never saw such a notice posted.
All three disclaimed any knowledge of a company rule re-
quiring employees to call in. Harsh himself conceded that
the copy of the existing notice was posted after the unfair
labor practice charge was filed, and testified that the copy
which had been posted before the change in ownership was
removed when the new bulletin board was put up. In fact,
Harsh conceded that the notice was not on the bulletin
board on the date of Shearin's discharge. Moreover, Harsh
acknowledged that he had no specific recollection of having
seen the notice posted after 30 days from the date it bore.
Other witnesses for Respondent testified either that the no-
tice was removed during the fall of 1971 or that it did not
appear until September 1972 (2 months after Shearin's dis-
charge). Significantly, leadman Hathaway testified categor-
ically that the first time he saw a copy of the notice posted
on the bulletin board was late in September 1972, when it
was posted in consequence of his complaints to Foreman
Hanson regarding the persistent absences of employee Per-
ry Davis.
Gordon's own testimony indicates the vagueness and un-
certainty of any alleged rule regarding failure to report ab-
sences prior to his acquisition of the business. He was asked:
Q. (By Mr. McLeod) . . . you stated, I believe, on
direct examination that you advised Mr. Harsh shortly
after April 19th, 1972, when you became official owner
that some action might have to be taken as a result of
continued absences or something to this effect, is that
correct?
A. (By Mr. Gordon) I think I probably stated that
we should have a policy in connection with our plant
that had never previously been imparted to the men, and
20 The actual notice reads
TO ALL EMPLOYEES-
Effective this date all employees failing to call in
and report sick leave or other reason for absence
shall be terminated immediately.
January 1, 1971.
No mention was made of his failure to call in as a ground for the discharge . Howard Tunnicliff
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of them would be that unexcused absences would
prompt the firing of these people. In other words, they
would have to be dealt with in a consistent manner.
[Emphasis supplied]
Asked whether he ever notified the employees, orally or in
writing, regarding the policy to be applied with respect to
unexcused absences, Gordon testified that he did not. Other
witnesses for Respondent testified variously that they were
aware of the existence of such a policy or that they took it
for granted that they were obliged to notify their employer
if they expected to be absent.
That the policy, if it, in fact, existed, was not rigidly
enforced, is evident from General Manager Harsh's own
testimony. Thus, he testified that if an employee leaves work
due to illness; it is company policy that, once he has ap-
prised the Company of his illness, the employee will be
presumed to be ill, unless the Company is otherwise in-
formed, for a reasonable length of time-"possibly three or
four" consecutive days. On the expiration of that period, the
Company would "normally investigate to determine if there
was something else [it] could . . . or should do, or must
know about the situation." Harsh testified:
Q. (By Mr. McLeod) If a person was sick and went
home, with permission to do so, and if he missed work
say a second, and third or fourth day, this reasonable
period that you're talking about, would it be your pre-
sumption that on the second and fourth days that he
was, in fact, sick?
A. Yes, I would say so, generally.
It is undisputed that Shearin received permission to leave
work on Friday, June 30, because of his illness . Although
Shearin returned for his paycheck Friday afternoon, he did
not work on Saturday or call in, relying, presumably, on his
conversation with Eva Hanson, in which he told her that he
would probably be in no condition to work. Under Harsh's
application of the policy regarding absences due to illness,
the presumption was that Shearin continued to be ill for 3
or 4 consecutive days. Counting Saturday and Sunday,
Tuesday, July 4, the actual day of the holiday, would have
been the 4th day.
While Shearin may not actually have been ill on those
days, at least , not so ill as to interfere with his holiday trip,
obviously Hanson was not aware of this. Hanson himself
admitted that if Shearin had reported for work on Wednes-
day, July 5, he would not have been discharged, despite his
testimony that he pulled Shearin's timecard merely because
he "failed to call in." As soon as Hanson discovered that
Shearin had not reported for work on Wednesday and real-
ized that he had not called in, Hanson immediately pulled
his card, without making any further inquiry as to the cir-
cumstances surrounding Shearin's absence. For aught Han-
son knew, Shearin could still have been out ill, and,
according to Harsh's interpretation, the presumption would
still have applied. The fact that, as Shearin, in effect, con-
ceded when he reported for work on Thursday, July 6, he
had not actually been ill the entire weekend, and had not
called in, either because he had been , in his own words,
"hung over" or because he could not get to a phone, were
not known to Hanson at the time he decided on his dis-
charge, and could not have been factors in Hanson 's deci-
sion . Nor can Respondent now justify its decision by relying
retroactively on circumstances of which it was not aware
when it reached its decision.
In contrast to the treatment accorded Shearin, the record
establishes that in September 1972, some 2 months after
Shearin was discharged, employee Michael Shookman was
permitted to report late for work, as much as 3 hours, on
occasion, without being disciplined, despite the fact that he
had not called in. The following day, Shookman reported
for work an hour late. Shookman gave as an excuse that he
had had trouble with his clock. Hanson overlooked the
lapse and told him to go to work.
More glaring is the manner in which Respondent dealt
with employee Perry Davis. On or about September 1, 1972,
Davis was absent from work about a day and a half, without
calling in. When he returned to work and found that his
timecard had been pulled, he went to Hanson and told him
that he had missed work because he had been in jail, and
had been unable to call in. Hanson referred him to Harsh.
Davis repeated what he had told Hanson. Harsh said,
"Well, you're supposed to call in." According to Davis, he
agreed and Harsh remarked, "Well, if that happens again,
we'll have to fire you." Davis received a written reprimand
for this infraction.21
On September 14 and 15, Davis was again absent from
work. On the second day, his father called in to report that
Davis would be absent due to illness. Davis was not actually
ill but had taken time off to go elk hunting, a fact which
Hanson later discovered. Despite this, Hanson did not ques-
tion Davis at any time after he returned to work. Davis
continued to work until September 21, when he was again
absent from work, without calling in. Next day, when he
reported for work, he was terminated.
It is interesting to note that on the occasion when Davis
failed to call in because he had been incarcerated, Harsh let
him off with a simple warning without even inquiring as to
the reason for his having been jailed, later following this
with a written reprimand. The next time Davis was absent,
despite the fact that Foreman Hanson later discovered that
Davis had falsely reported that he was absent due to illness,
when, in fact, he had taken 2 days off to go elk hunting,
Hanson took no action to discipline him until he again
missed work on September 21, without calling in.
The disparate treatment accorded Shearin is patent. Al-
though, like Davis, he had failed to call in, for reasons which
were no more reprehensible than those offered by Davis;
unlike Davis, he was summarily fired. In Davis' case, the
second infraction, involving a false report, went completely
unpunished.
Respondent seems to made much of the fact that Shearin
was not duly contrite, did not apologize for being absent
21 The text of the reprimand, dated September 7, 1972, signed by Harsh
and Hanson in their official capacities , and by Davis, on September 19,
reads:
SUBJECT: Failure to report absence from work September 1, 1972.
DECISION: Employee interviewed by General Manager and Fore-
man and returned to work status, subject to his agreement to comply
with company policies regarding reporting for work.
It is obvious that following the discharge of Shearin, Respondent was more
circumspect in documenting its policy regarding unreported absences.
CASCADE COACH CO. 883
from work without calling in, and did not seek reinstate-
ment.22
Hanson did not give Shearin the slightest indication that
if he apologized, the discharge might be rescinded, and there
is nothing to suggest that Hanson even considered that pos-
sibility at the time. Hanson simply seized on Shearin's state-
ment of the circumstances of his failure to report to
reinforce his decision, previously made even before he knew
of the circumstances.
Further evidence of disparate treatment is revealed in the
case of Leonard J. (Frenchy) Forgette, a custodial employee
of the Company and its predecessor. Forgette was absent
from May 13, 1969, to June 16, 1972, and again, on March
20, April 3 to 6, and from April 17 through May 30. On none
of these occasions did he call in or have anyone do so on
his behalf. On May 31, Forgette was called into Harsh's
office, while Foreman Hanson and Bill Fontaine, "boss in
the metal shop," were present. After a discussion of
Forgette's drinking problem and chronic absenteeism,
Harsh permitted him to return to work. Between that date
and June 16, Forgette worked in the metal shop performing
production work. He failed to return to work at any time
after June 16. During his entire employment, Forgette was
regarded as a regular full-time employee. Although he had
been discharged several times while employed by the former
management, he was again hired when Gordon acquired the
Company, assertedly after apologizing and asking for his
job. Harsh warned him, however, that if he was absent again
without calling in, he would be discharged.
On June 17, a payday, after receiving his check, Forgette
went out, "had a few beers," and missed his shift. He con-
cluded, on the basis of what he had been told the last time
he was hired, that there would be no point in his coming
back, and never returned to the plant. Although Respon-
dent maintained that most of Forgette's derelictions oc-
curred under the former management, it is obvious that
Harsh rehired Forgette with full knowledge of his aggravat-
ed record of absenteeism, with the understanding that he
would be terminated the first time he missed work without
calling in. It is obvious, however, that management had
been willing to overlook his shortcomings until he himself
realized that it would be futile for him to return. None of
these factors are sufficient to negate a finding of disparate
treatment in Shearin' s case.
It is significant that at the election, held on July 19, at
which Shearin acted as official observer for the Union (with
Garrity acting in the same capacity for the Company),
Harsh challenged Shearin's ballot on the ground that Shea-
rin was "prejudiced against this company" and was "organ-
izing the union." Garrity corroborated this testimony to the
extent of quoting Harsh as saying that he challenged
Shearin's ballot because he was "prejudiced for the union."
According to Garrity, Eva Hanson, referring derisively to
22 In its proposed Findings of Fact, Respondent requests the following
finding:
24. Mr. Shearin did not apologize for missing work or failing to call
in, and he did not seek reinstatement (Transcript references omitted)
Even now, if Mr. Sheann went to Clyde Hanson and humbly apologized
for having missed work and asked for work, Hanson would give Shearin
a job if there was an opening . (Transcript references omitted )
It is obvious that Respondent had no intention of rescinding the discharge
and reinstating Sheann in any case
Shearin, questioned his right to be present during the count-
ing of the ballots. It is also undisputed that Eva Hanson
accused the Board agent of being on the Union's payroll.
Further evidence of Respondent's motivation in disc-
harging Shearin is provided by an incident which occurred
over the Labor Day weekend, some 2 months after his dis-
charge. Shearin went to Monarch, Montana, for the holi-
day, where he encountered Harsh, accompanied by the
latter's wife and daughter. During the encounter, Harsh
admittedly referred to Shearin as a "sneaky bastard" for
going to the Union behind his back, and reproached him for
not first affording Harsh a chance to settle matters. Harsh
admittedly also told Shearin that he was at a loss to under-
stand Shearin's zealousness in regard to the Union unless he
had something personal to gain, and said that Shearin must
be in the employ of the Union. Shearin retorted, "You're
right, I am working for the union."23
Despite conflicting testimony regarding the presence of a
notice on the bulletin board prior to Shearin's discharge, the
record fairly establishes that it was generally understood
among the employees that they were expected to call in if
they intended to be absent. It will be assumed in favor of
Respondent that Shearin was aware of this understanding,
and that he did not have a satisfactory excuse for failing to
notify his employer.
It may well be, therefore, that Shearin had provided Re-
spondent with sufficient cause for discharge. Cause or lack
of cause, or the reasonableness of the employer's action,
however, are factors to be considered only in determining
whether the employer acted solely on those grounds or out
of motives proscribed by the Act. For it is well settled that
an employer may discharge an employee for cause, or in-
deed, for none whatever, provided only that he is not moti-
vated by reasons violative of the Act, i.e., by a purpose to
encourage or discourage membership in a labor organiza-
tion.
It is equally well established that the burden of proving
discrimination is on the General Counsel, and Respondent
is not required to justify the discharge. Once the General
Counsel establishes a prima facie case of discrimination,
however, the burden shifts to Respondent to establish that
the discharge was not based on discriminatory motives. It
is, of course, also true that membership in or militancy in
espousing a union does not insulate an employee against
discharge for legitimate reasons. On the other hand, it is,
likewise, true that valid grounds for discharge will not pre-
clude a finding of discrimination if the employer was actual-
ly motivated, in whole or substantial part, by a purpose to
discourage membership in a labor organization, and the
employer merely relies on the asserted reason as a pretext
for ridding itself of a union activitist.24
There is also, to be sure, a line of cases, exemplified by
23 It is not clear whether Shearm meant that he was actually in the Union's
employ or merely intended the remark as an indication of his efforts to see
the plant unionized It is more probable that he intended the latter, though
it is unnecessary to resolve this uncertainty.
24 See Liberty Sportswear Corp, 201 NLRB 590, Branthaven, Inc., d/b/a
Hospitality Home, 192 NLRB 1062, (which is especially apposite). See also
Santa Fe Drilling Company, 171 NLRB 161, 176, enfd. in part and remanding
in part, 416 F.2d 725, (C A. 9, 1969), on remand 180 NLRB 1049, reconsider-
ation denied, 183 NLRB 361. See also American Building Maintenance Com-
pany of California, 166 NLRB 142.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P.G. Berland Paint City, Inc., 199 NLRB 927, which hold
that, where an employee is actually discharged or otherwise
disciplined for valid and legitimate reasons, untainted by
motives proscribed by the Act, an.employer does not violate
the Act merely because the employee was engaged in pro-
tected concerted activities, and the "employer sheds no
tears at his loss."25
The record here establishes that in negotiating for the
acquisition of the business enterprise with the previous own-
er,Gordonconsidered as one of the most favorable features
the fact that the plant was nonunion. He told Tunnicliff that
unless he could acquire the business at a reasonable price,
and operate without a union, he might be faced with ban-
kruptcy, and find it necessary to "close the doors" and
attempt to sell the physical plant. Not only did Gordon
discuss this with the previous owner, as well as with Harsh,
who later became general manager, but he repeated this
theme frequently to the employees after the change in own-
ership. It is against this background of determined and un-
remitting opposition toward unionization, coupled with the
,repeated references to plant closure that the discharges of
the two chief union protagonists must be considered.
The record leaves no doubt that Shearin was, with Mc-
Neese, one of the two most active union protagonists. To-
gether they initiated the organizational activity, distributed
authorization cards, and secured the signatures of employ-
ees. That Respondent became aware of these activities al-
most at their inception is undisputed. The events which
followed, previously detailed, presaged the punishment
eventually meted out to Shearin. Thus, after questioning
Garrity as to whether Shearin (and McNeese) were the insti-
gators of the union movement, Eva Hanson predicted that
they would "end up losing their jobs." Later, the same per-
son, after questioning both men about their attendance at
a union meeting, threatened that if the plant were union-
ized, "a lot of people [would be] going down the road," and
they would be among the first. General Manager Harsh also
advised employees desiring a union to seek employment
elsewhere.
Respondent's hostility to Shearin because of his efforts in
organizing the employees persisted even after his discharge,
as has been seen from the account of his encounter with
Harsh over the Labor Day weekend, in Monarch, when
Harsh called him a "sneaky bastard" and accused him of
being in the pay of the Union. Harsh' s reasons for challeng-
ing Shearin's ballot, as stated to the Board agent following
the election, and Eva Hanson's sarcastic reference to Shea-
rin, in questioning his right to be present during the count-
ing of the ballots, are further manifestations of
Respondent's hostility toward Shearin.
As has already been stated, even assuming that Shearin
had furnished Respondent with a plausible reason for his
discharge, Respondent's unrelenting opposition to the
Union; Shearin's prominence in the organizational cam-
paign, of which Respondent was admittedly aware;
Respondent's repeated threats of plant closure; the interro-
gation by responsible management representatives of em-
25 American Building Maintenance Company of California, supra. Electro
Controls, Inc., -161 NLRB 307, 317, citing N.L.R.B. v. Park Edge Sheridan
Meats, Inc., 341 F.2d 725, 728 (C.A. 2, 1965), and cases cited.
ployees, including Shearin and McNeese, regarding their
roles as "instigators" of the union movement, and their
attendance at union meetings; the blatant threats of dis-
charge; the advice to employees desiring a union to seek
employment at union shops; the disparate treatment ac-
corded Shearin for his violation of company rules or policy,
including the failure to warn him for this first offense, in
contrast to the treatment accorded employees guilty of-simi-
lar derelictions; and the record as a whole, warrant a finding
that Respondent discharged Shearin on July 6, 1972, and
thereafter failed and refused to reinstate him, not because
he had failed to notify his employer of his intended absence,
or because of his unexcused absence, but in whole or sub-
stantial part, because he had engaged in protected concert-
ed union activities in furtherance of the employees right to
self-organization, to which Respondent was unalterably op-
posed, and that Respondent seized upon Shearin's dere-
liction as a pretext to eliminate a staunch union advocate.
It is, therefore, found that, by discharging Shearin on July
6, 1972, because of his union activities, Respondent has
discriminated in regard to the hire and tenure of his employ-
ment to discourage membership in a labor organization,
thereby violating Section 8(a)(3) and (1) of the Act.
2. The discharge of Steven McNeese
Steven McNeese was hired in February 1971, working
initially on the finish line, and during the last 6 months of
his employment, installing plumbing parts and fixtures in
campers and trailers. He was discharged on July 12, 1972,
allegedly for unsatisfactory production. As has already been
shown, he was, together with Shearin, one of the two most
active union protagonists, as Respondent was admittedly
aware.
On the morning of July 12, McNeese was working with
a group of employees on the finish line outside the plant to
provide space for other campers which were proceeding
along the line inside. McNeese had admittedly fallen behind
in his work by three campers, and completed work on only
five,campers until the time of his discharge. Normal daily
production of completed campers amounted to six or seven.
McNeese concedes, moreover, that under ordinary circum-
stances, as many as eight campers could be completed in a
day. His lag in production on the day in question, according
to him, resulted from the need to make frequent trips-as
many as 12-to the parts department to obtain parts miss-
ing from the plumbing kits. McNeese requested Hathaway,
who had succeeded Grilley as leadman, to assign another
employee to assist him by installing sinks in campers on the
production line inside the shop, to expedite completion of
those campers. Hathaway complied by assigning Bruce Bor-
deau, who was caught up on his regular assignment , to assist
McNeese. According to McNeese, he did not ordinarily
require assistance in installing the sinks, but whenever he
fell behind-in his work, Hathaway assigned another employ-
ee to assist him.
On the afternoon of July 12, Hathaway reported to Han-
son that McNeese was not "keeping up," and suggested that
Hanson verify this himself. After inspecting McNeese's
work, Hanson told Hathaway, "It doesn't look like he's
holding up his job very good. This is probably-what's this,
CASCADE COACH CO:
his third warning?" Hathaway confirmed that it was. There-
upon, Hanson instructed him to pull McNeese' timecard
and bring it to him. Hathaway did S0.26
At or about 4:15 that afternoon, while McNeese was at
the parts counter, Hathaway went to him and told him that
his check would be ready that night. McNeese asked Hatha-
way, "Does that mean I am fired?" Hathaway confirmed
that he was discharged without further explanation.
Early in June 1972, Hathaway who had been working on
the finish line, was promoted to the job of leadman, replac-
ing Grilley. Grilley had previously told Hathaway-that he,
Grilley, would probably have difficulty getting Hathaway
the job of leadman because management had believed him
to be a union agitator. Hathaway protested to Grilley that
he had had nothing to do with the union organizational
effort. (It will be recalled that Garrity had, in effect,
vouched for this to Grilley in a discussion in the trailer.)
Hathaway acknowledged that, while he was operating as
leadman on a "dry run," he believed that McNeese was
performing his job satisfactorily, though, because Hatha-
way was new to the job, he could not determine whether an
employee was actually falling behind .21 Grilley however,
told Hathaway on several occasions that McNeese was fall-
ing behind in his work. Hathaway conceded that Grilley
made no similar reports or comments regarding the work of
other employees.
Some time after Hathaway officially assumed his duties
as leadman, Spurgin, another leadman, reported to Hatha-
way that McNeese was at the water cooler talking to anoth-
er employee. Spurgin advised Hathaway, "You better break
them boys up over there, I think they're talking about the
Union." Hathaway went to the water cooler and talked to
McNeese, presumably by way of reprimand. Later the same
day Hathaway asked Grilley, the former leadman, to speak
to McNeese about his production,, and Grilley did so. Mc-
Neese concedes that Grilley told him that he was behind in
his work. Grilley further testified that McNeese admitted
that he had been "slow," "goofing off," and "dragging his
butt." This testimony is in decided contrast to the statement
in a pretrial affidavit, given by Grilley in September 1972,
in which he stated, "McNeese was not one to sit around on
the job and do much talking." His only explanation for the
apparent discrepancy was that he had probably been "too
easy" on McNeese when he gave the affidavit.
It should also be noted that Grilley conceded that during
his tenure as leadman, McNeese was basically a good work-
er, ,though heaed a tendency to become slack on occasion.
On such occasions, Grilley testified, he would reprimand
him. Since McNeese was apparently not further repri-
manded or disciplined thereafter, at least, until a day or two
26 At another point, Hathaway testified that, in his discussion with Han-
son, he told him that he felt McNeese "wasn't doing his fob , ... that we
should get somebody who would do it."
27 It is significant that Hathaway, in effect, conceded that he changed his
opinion, as to whether McNeese had been doing his job during Hathaway's
"dry run," after Hanson instructed him to report employees discovered talk-
ing about the Union so that he could fire them on the spot. Hathaway's
testimony on this point, though somewhat equivocal, warrants this conclu-
sion
Q. (By Mr. McLeod) Was it after Mr. Hanson came to you that you
changed your opinion about Steve McNeese 's work?
A. I believe it would have a lot to do with it, yes.
885
before,his eventual discharge, it must be assumed that Re-
spondent had no further fault to find with his work perfor-
mance during the intervening period.
It is no coincidence that Hathaway's request to Grilley to
talk to McNeese regarding his lack of production occurred
on the same day Hathaway reprimanded McNeese for talk-
ing to employees at the water cooler. Moreover, it is quite
evident that Hathaway was concerned not so much with loss
of production time as with his concern that they were dis-
cussing the Union. Thus, Hathaway conceded that that very
day Foreman Hanson had told him, "If you see anybody in
the shop talking union let me know and IT fire him on the
spot,"adding, "We're not going to have union troubles in
here. If they want to talk union, they can do it off duty, but
not in here during working hours." Despite Hathaway's
attempt to qualify Hanson's statement by limiting union
discussion to nonworking time, it is evident that Hanson
was concerned primarily about union discussions in gener-
al, irrespective of whether they occurred on working time.
At the close of work that day, McNeese engaged Hatha-
way in a heated discussion over Hathaway's statement to
Grilley that McNeese had been talking and not getting his
work done. When McNeese asked Hathaway when he was
supposed to have been talking, Hathaway brought up the
water cooler incident. McNeese asked him if it was a "sin"
to get a drink of water. Hathaway agreed it was not but
remarked that that did not give him the right to talk all day.
During the altercation, Hathaway accused McNeese of
talking to Shearin all day. McNeese told'Hathaway that, if
he talked to Shearin it was probably in connection with the
job. McNeese conceded that he may have told Hathaway to
"go to hell."
Soon afterward, Hathaway and Grilley discussed Mc-
Neese with Foreman Hanson. Hathaway testified that be-
cause he was still new at the job of leadman, he sought
Hanson's opinion about how to handle McNeese. Hanson
told him, "Well, just keep after him and see that he holds
up his end of the job. If he doesn't, let me know. I will check
it out. Grilley interjected, "We got to do something, some-
thing to get him encouraged to do better," and, as Hatha-
way put it, "Just reprimand" him.
On the night of June 23, the day of the "beer bust" at the
plant, a group of employees, including Shearin, McNeese,
Hathaway, and Gary Berg, went to a local tavern. Accord-
ing to Shearm's undenied testimony, Hathaway told Mc-
Neese that he had "better watch" himself, that the
Company knew that he was in favor of and promoting the
Union.28 According to the same source, Hathaway also re-
marked that he and Hanson had seen McNeese talking to
another employee that day, and that Hanson had told Hath-
away to go over and break up the conversation as they were
talking union shop. In this same discussion, according to
Shearin, Hathaway told the men that when he was promot-
ed to the job of leadman he was told to report all union
activities and the persons involved. Hathaway did not deny
making this statement, and Shearin's testimony is corrobo-
rated by Gary Berg.29
28 Hathaway did not expressly deny making this statement and, in fact,
conceded, "I probably could have, yes."
29 Upon his promotion to the job of leadman, early in June, Hathaway was
Continued
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hathaway testified that between the time he asked Gril-
ley to talk to McNeese about his production and the day of
the discharge, he recalled "a couple of occasions" when he
had criticized McNeese's production. Basically, however,
Hathaway focused on the water cooler episode and com-
plaints that McNeese had been talking to employees.30
Hathaway cited another instance, in which, in an apparent
effort to spur McNeese's production, Hathaway wagered
him a beer that he could not achieve his quota of six or seven
campers by the end of the day. It does not appear whether
McNeese won the wager but there is no evidence that he did
not reach his quota. According toHathaway, he also spoke
to McNeese on a number of occasions in which he might
have urged him to "speed up" because of the necessity of
getting out production.
Hathaway admitted however, that during his tenure as
leadman, on I out of every 4 days-25 percent of the time-
the finish department fell behind in production. This, ac-
cording to him, could have resulted from some mishap in
the plant, lack of essential parts, problems in the carpentry
or sheetmetal department or the finish line itself. Hathaway
also conceded that frequently when these problems arose,
he found it necessary to assign employees on the finish line
to assist others in fulfilling the quota, while at the same time
contending that McNeese was the only employee who re-
quired assistance.
Respondent offered no records to establish the number of
campers completed on a day-to-day basis during the period
in question. Despite the fact that McNeese completed only
three to five campers on July 12, Hathaway conceded that
with the assistance given McNeese that day, the number of
campers completed the following day would probably have
exceeded the Company's quota. Thus, it is all too evident
that Respondent's decision to discharge McNeese on July
granted a 75 cent an hour raise . Thereafter , he performed no production work
on the finish line. Although he had no authority to hire and fire, he effectively
recommended discharge on four occasions , and wage increases on at least
a half dozen occasions . In addition, he assigned employees to specific tasks
on the finish line on a regular basis, granted time off, without prior consulta-
tion with his superior, assigned employees to assist other employees (as in
McNeese 's case), assigned and trained employees for specific jobs (as in the
case of Berg , who succeeded McNeese ), and warned employees of possible
discharge when their work was unsatisfactory (as Respondent contends he
did in regard to McNeese ). In short, the record supports the conclusion that
Hathaway had authority , at the very least , responsibly to direct employees
in more than a merely routine or clerical manner . It is, therefore , found that
effective upon his promotion to the job of leadman , Hathaway became a
supervisor within the meaning of the Act, and that his statements and con-
duct are attributable to Respondent. This conclusion is not affected by the
Hearing Examiner 's determination in the representation proceeding that
Grilley, Hathaway 's predecessor, was not a supervisor . Apart from the fact
that the Regional Director merely adopted these findings pro forma, in the
absence of exceptions , it is evident that Grilley had ceased to be a leadman
before the date of the election , having been succeeded by Hathaway.
30 Q. (By Mr. Lewis) " Bearing in mind the day on which Mr. McNeese was
fired , do you recall as to whether or not during the two-or-three -day period
prior thereto that you had occasion to talk to Mr. McNeese regarding the
manner in which he was performing his job?"
A. "Yes; I refreshed my mind now , and I remember a few days before there
was a congregation of people standing around . As far as what they were
saying , I don't know , but they were taking up company time , and somebody
came into the camper and I think I remember it as being Dan Spurgin .. .
and said, `You've got some guys over there at the water cooler B.S.'ing.' He
said , `You better get on it.' So I went over there, and I told them that they
had to break it up , so that was the first time that I can remember [saying]
anything to them before [ McNeese] was fired."
12 for lack of production, is based primarily on his work
output for a single day. There is no evidence that McNeese
consistently failed to meet company standards of produc-
tion with regard to the tasks he was required to perform.
Nor did the Company offer any production records which
would afford a basis for comparison of McNeese's produc-
tion with that of employees performing similar tasks. In-
stead, it relied on the conclusionary testimony that
McNeese's production was below standard and that he had
been warned on "several occasions." Moreover, according
to the uncontroverted testimony of Berg, who succeeded
McNeese on the finish line, on at least two or three occa-
sions during the first few months of his employment, he
completed no more than five standard campers a day.
It is significant that McNeese had been working at the
same job for at least 6 months before his discharge, appar-
ently without criticism, until he manifested his interest in
obtaining union representation. Respondent does not con-
tend, nor does the record support a finding, that McNeese's
production had steadily declined during this period. In-
stead, it sought to justify its decision to terminate him pri-
marily on his production for a single day. The criticism,
reprimand, or warning had taken place over a 2-day period
immediately preceding the discharge, suggesting that Re-
spondent was laying a predicate for this action.
Moreover, although Respondent maintained that the pro-
duction quota for campers at or about the time of Mc-
Neese's discharge amounted to between six and eight a day,
there was no showing that the quota was consistently
achieved by all of the employees. Nor was there any show-
ing that employees who failed to achieve their quota, were
reprimanded, disciplined, or discharged.
Nothing which has been said, however, alters the princi-
ple, previously stated, that an employer may discharge an
employee, with or without cause, provided only that he is
not motivated by purposes proscribed by the Act. The ratio-
nale has been more fully articulated in the discussion of
Shearin's discharge. As stated there, Respondent's opposi-
tion, if not outright hostility, to the self-organizational rights
of its employees; the interrogation by responsible manage-
ment representatives of various employees, including the
dischargees, concerning their union sympathies and activi-
ties, and attendance at union meetings; and the thinly veiled
threats of a plant closure are amply demonstrated by the
record. The record leaves no doubt of management knowl-
edge of the union activities of Shearin and McNeese.
Hanson's instructions to Hathaway to report to him union
activities of any of the employees, with the statement that
he would fire such employees on the spot, and the overt
threats of discharge of Shearin and McNeese, together with
the pretextuous nature of Shearin's discharge, carried out
less than a week earlier, thereby eliminating the two most
active union protagonists, furnish convincing proof that, in
discharging McNeese on July 12, ostensibly for failing to
meet his quota, or because of his general lack of production,
Respondent was motivated, in whole or substantial part, by
McNeese's union activity31
31 The record discloses that on Friday, July 14, pursuant to recommenda-
tions of efficiency experts retained a month earlier, Respondent laid off
between 17 and 19 production line employees. Respondent argues that, had
it been discriminatorily motivated in regard to the discharges of Shearin and
CASCADE COACH CO. 887
It is, therefore , found that Respondent discharged Mc-
Neese on July 12, 1972, and thereafter failed and refused to
reinstate him because he had engaged in union activities, to
which Respondent was unalterably opposed, to discourage
membership in the Union, thereby engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act 32
be computed at 6 percent per annum, in accordance with
Isis Plumbing & Heating Co., 138 NLRB 716, Respondent
shall make available to the Board, upon request, payroll and
all other records necessary to facilitate the determination of
backpay.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of Re-
spondent, described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the several states, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent discharged Larry J.
Shearin, on July 6, 1972, and Steven McNeese, on July 12,
1972, and thereafter failed and refused to reinstate them,
because they had engaged in protected, union activity to
discourage membership in a labor organization, thereby vi-
olating Section 8(a)(3) and (1) of the Act. It will, therefore,
be recommended that Respondent cease and desist from
such unfair labor practices, and offer each of said employ-
ees immediate and full reinstatement to his former position
or if that position is no longer available, to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges, and make each of said employ-
ees whole for any loss of pay he may have suffered as a
result of the discrimination against him from the date of the
discrimination to the date of offer of reinstatement. Loss of
pay shall be computed as described in F. W. Woolworth
Company, 90 NLRB 289, and interest on such backpay shall
McNeese, it had merely to include them in the layoffs and thereby avoid any
possible charge of discrimination . On the other hand, it may also be argued
that Respondent's precipitous haste in discharging these two union protago-
nists is a measure of its union animus and hostility. Moreover, assuming, as
Respondent asserts, the recommendations were made on July 10 or 11, the
fact remains that Shearin had already been discharged on July 6, and Me_
Neese, on July 12, presumably before Respondent had had an opportunity
to decide which employees would be laid off. Respondent 's argument is to
tenuous to overcome the findings of discriminatory motivation previously
made.
32 In view of the foregoing findings of fact , and conclusions of law, herein-
after made, Respondent's proposed findings of fact Nos . I to 12, inclusive,
14, 16 (except as to Gordon's knowledge of union activity), 17 to 23, inclusive,
24 (only with respect to the first sentence), 25, 26, 27, 29, 30, 32, 33, 36, 38,
40, 41, 42, 43, 44, 45, and proposed conclusions of law 1, 2, 3, 4, 5, 6, 7 are
granted; all the remaining proposed findings of fact and conclusions of law
are denied.
CONCLUSIONS OF LAW
1. Cascade Coach Co.,_ Inc., Respondent herein, is, and
at all times material herein has been, engaged in commerce
and in an industry affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local Union No. 45, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, Independent , the Union herein, is, and
at all times material herein has been a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Larry J. Shearin , on July 6, 1972, and
Steven McNeese , on July 12, 1972, and thereafter failing
and refusing to reinstate them because of their protected
union activities , to discourage membership in a labor orga-
nization , thereby interfering with , restraining, and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire recore, and pursuant to
Section 10(c) of the Act, the undersigned issues the follow-
ing recommended:
ORDER33
Cascade Coach Co., Inc., Respondent herein, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local Union No. 45,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Inde-
pendent, or in any other labor organization, by discriminat-
ing in regard to the hire or tenure or terms and conditions
of employment of employees because of their union affilia-
tion or activities.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-orga-
nization, to form, join, or assist Local Union No. 45, affiliat-
ed with International Brotherhood of Teamsters,
33 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
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Warehousemen & Helpers of America, Inde-
pendent, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other protected concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the Act, or to refrain from
any or all of such activities, except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as modified by
the Labor Management Reporting and Disclosure Act of
1959.34
2. Take the following action, which it is found, will effec-
tuate the policies of the Act:
(a) Offer Larry J. Shearin and Steven McNeese immedi-
ate and full reinstatement to their former positions, or if
those positions are no longer available, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, and make each of them
whole for any loss of earnings he may have suffered by
reason of the discrimination against him in the manner set
forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and to determine the amount of backpay due these
employees under the terms of this recommended Order.
(c) Post at its place of business in Great Falls, Montana,
copies of the attached notice marked "Appendix."35 Copies
of this notice on forms to be furnished by the Regional
Director for Region 19, shall, after being duly signed by
Respondent's duly authorized representative, be posted by
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered, de-
faced, or covered by other material.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply therewith.
Pursuant to the Regional Director's order modifying re-
port on challenged ballots, consolidating hearing on the
challenged ballots of these employees with the hearing in
the unfair labor practice case, and referring to the Adminis-
trative Judge the issues raised by the challenges to said
ballots, it is further recommended that the Regional Direc-
tor overrule the challenges, open the ballots, and make ap-
propriate disposition of the representation proceeding.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local Union
No. 45, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Independent, or any other labor organiza-
tion, by discriminating in regard to the hire or tenure
or terms and conditions of employment of our employ-
ees because of their union affiliation or other protected,
concerted activities, except as authorized in Section
8(a)(3) of the Act.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the right to self-
organization, to form, join, or assist Local Union No.
45, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Independent, or any labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of mutual aid or protection, or to refrain from
any and all such activities, except to the extent that said
right may be affected by an agreement requiring mem-
bership in the labor organization as a condition of em-
ployment, in conformity with Section 8(a)(3) of the
Act.
WE WILL offer Larry J. Shearin and Steven McNeese
immediate and full reinstatement to their respective
former positions, or if those positions are no longer
available to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges, and make each of them whole for any loss of pay
he may have suffered by reason of the discrimination
against him, in the manner provided in the section of
the Decision entitled, "The Remedy."
All employees are free to become and remain or
refrain from becoming or remaining, members of the
above-named labor organization or any other labor
organization.
CASCADE COACH CO., INC.
(Employer)
Dated By
34 Since it has been found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act , it is found that
a broad cease and desist order is warranted . N.L.R.B. v. Entwistle Manufac-
turing Company, 120 F.2d 532 (C.A. 4); May Department Stores v . N.L.R.B.,
326 U.S. 376; Bethlehem Steel Co. v. N.L.R. B., 120 F.2d 641 (C.A.D.C.).
35 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 10th Floor-Republic Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-7472.