Cascade General

National Labor Relations Board - Board Decisions

Jul 5, 1991

303 N.L.R.B. 656 (N.L.R.B. 1991)

656
303 NLRB No. 101
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 The Respondent excepts to the judge’s ruling on the first day of the hear-
ing, allowing the General Counsel to amend the complaint to add an allegation
that the card check relied on by the Respondent in granting recognition to
OCAW Local 1-369 was invalid because of the involvement and participation
of the Respondent’s supervisors in the card check. The Respondent also
excepts to the judge’s finding that the card check was tainted, as alleged. Be-
cause of our disposition of the case on other grounds, we need not pass on
the merits of either of these exceptions.
The judge concluded that the Respondent’s recognition of OCAW was un-
lawful for the additional reason that the Respondent did not authenticate the
signatures on the cards. We disavow that conclusion. An employer’s recogni-
tion of a majority union is not rendered unlawful simply because the employer
does not authenticate the cards. Windsor Place Corp., 276 NLRB 445 fn. 1
(1985). In the instant case, 7 of the 10 card signers testified at the hearing
and verified their signatures.
3 Unless otherwise noted, all dates are in 1987.
4 The estimated date apparently is based on the testimony of the Respond-
ent’s vice president for finance, Ernest Brawley. Loy Kahler, the Respondent’s
president, testified that the bid was accepted in mid-July.
5 On July 31, the Respondent wrote to the U.S. Navy’s Pacific Military Sea-
lift Command, in an effort to be placed on the latter’s list of bidders. In that
letter, the Respondent represented that it had purchased the Dillingham assets
and that ‘‘Our operations department will be located at the Dillingham facility
at Swan Island.’’
6 Kahler stated that Dillingham’s employment level varied from as low as
10 to 15 to as many as 1700 employees.
Kahler also testified that the Respondent had the ability to employ 600 peo-
ple with the equipment it had before the purchase of the Dillingham assets,
plus what it could have rented and leased. The Respondent’s employment
records establish, however, that at no time between July 1986 and September
1987 did it ever employ anything even approaching 600 people; the employ-
ment level during that period reached a maximum of 118 in May 1987, and
did not otherwise exceed 100.
7 Ten individuals signed OCAW authorization cards.
8 Kahler stated that the only other option was to liquidate, but that that was
not the Respondent’s intention when it bought the assets.
Cascade General and Metal Trades Council of Port-
land & Vicinity and Pacific Coast Metal
Trades District Council, AFL–CIO and Oil,
Chemical and Atomic Workers Local 1-369,
AFL–CIO, Party to the Contract. Case 36–CA–
5660
July 5, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On November 28, 1990, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
General Counsel, the Respondent, and the Charging
Party filed exceptions and supporting briefs, and the
Respondent filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified and to adopt the recommended
Order as modified.
The judge found that the Respondent violated Sec-
tion 8(a)(2) of the Act, as alleged in the original com-
plaint, by recognizing Oil, Chemical, and Atomic
Workers Local 1-369, AFL–CIO (OCAW) as the ex-
clusive bargaining representative of its employees, and
by entering into a collective-bargaining agreement with
OCAW, at a time when it did not employ a representa-
tive segment of its ultimate employee complement. We
affirm the judge’s finding for the following reasons, in
addition to those discussed by the judge.
The Respondent extended recognition to OCAW on
July 31, 1987,3 during a pay period when only 16 indi-
viduals (including 2 stipulated supervisors) were on the
payroll. The judge found that, in mid-to-late July, the
Respondent had been informed that its bid for the as-
sets of Dillingham Ship Repair had been accepted.4
The amount of the bid was $1.6 million, of which ap-
proximately $1 million was for inventory and $600,000
was for tools and equipment. The Dillingham assets to-
gether were approximately four times the size of the
assets previously owned by the Respondent.
Upon learning that it had achieved success in bid-
ding for the Dillingham assets, the Respondent began
negotiating with the Port of Portland to take over the
facilities on Swan Island that previously had been oc-
cupied by Dillingham.5 Although incorrect in its initial
belief that it could assume the leases on those facilities
on the same terms as those enjoyed by Dillingham, the
Respondent nevertheless quickly secured permission to
begin to operate out of the Swan Island facilities. In
mid-August the Respondent received a proposal from
the Port for a month-to-month lease on those facilities,
and began leasing the facilities on that basis in Sep-
tember. The Swan Island facilities, which comprised
some 90 percent of Dillingham’s former leasehold,
were several times larger than those originally occu-
pied by the Respondent.
The Respondent’s president, Kahler, who had pre-
viously been employed by Dillingham, testified that
Dillingham’s normal employment level had been
roughly 600 employees, including 350 to 400 rep-
resented by the Metal Trades Council (the Charging
Party).6 Kahler also conceded that the Respondent
could not even have paid the rent on its original,
smaller facility—let alone at Swan Island—if it had
continued to employ only 10 employees.7 He further
admitted that the Respondent projected hiring from
600 to 800 employees after it purchased the
Dillingham assets, in order to pay the mortgage on the
purchase.8
Against this backdrop, we agree with the judge that,
when the Respondent recognized OCAW on July 31,
it did not employ a representative complement of the
work force it anticipated employing in its soon-to-be-
expanded facilities. Thus, on that date, the Respondent
knew that its bid for the Dillingham assets had been
657CASCADE GENERAL
9 Indeed, the Respondent on that date affirmatively represented to the Navy
that its operations would be at Swan Island. Moreover, as the judge observed,
although final agreement on lease terms was not reached until later, there is
no indication that the port, as lessor, would have benefited by allowing its fa-
cilities to remain unoccupied.
10 As the judge noted, the departure of Dillingham from the Port of Portland
would logically have foretold increased opportunities for the remaining em-
ployers in the local ship repair industry, including the Respondent.
11 See Hayes Coal Co., 197 NLRB 1162, 1163 (1972).
12 However, employers who are faced with a demand for initial recognition,
such as the Respondent, with significantly fluctuating levels of employment,
need not face the difficult task of discerning whether any relatively small num-
ber of employees will be found to be a representative complement. Any em-
ployer, even one faced with clear evidence of a card majority, has the right
to invoke Board processes to determine whether an election should be held
and, if so, whether its employees desire union representation, provided it has
not engaged in unfair labor practices that impair the election process. Linden
Lumber v. NLRB, 419 U.S. 301, 310 (1974). Such an employer, if faced with
a demand for recognition, may lawfully refuse recognition; if the employer or
union then petitions for an election, the Board will determine whether a rep-
resentative complement exists, without risk to the employer.
13 Nor do we rely on the mere possibility, in late July, that future conditions
might warrant a hiring increase, or on the fact, standing alone, that employ-
ment levels did greatly increase after the move to Swan Island. See Hayes
Coal Co., supra at 1163.
14 We find no merit to any of the exceptions to the judge’s recommended
Order, which we find consistent with orders issued in similar cases. We shall,
however, delete from the Order and notice the statement that nothing therein
authorizes the Respondent to withdraw terms or conditions of employment that
may have been established pursuant to its collective-bargaining agreement with
OCAW. See R.J.E. Leasing Corp., 262 NLRB 373 (1982).
In affirming the judge’s order requiring the Respondent to reimburse em-
ployees for union dues, fees, assessments, and other payments that may have
been exacted from them pursuant to the union security provisions of the col-
lective-bargaining agreement, we emphasize that the Respondent need not re-
imburse any employees who voluntarily joined OCAW before September 24,
1987, the date the contract became effective. See A.M.A. Leasing, 283 NLRB
1017, 1025 (1987).
accepted, and had reason to believe that it would reach
a satisfactory lease arrangement with the Port for the
Swan Island facilities previously occupied by
Dillingham.9 The new assets, deployed in the Swan Is-
land facilities, had by Kahler’s admission supported a
‘‘normal’’ employment level in the hundreds. More-
over—again by Kahler’s admission—it was necessary,
and the Respondent planned, to expand its level of
work and employment many times in order to pay off
the loan for the newly purchased assets.10 By contrast,
the amount of work justifying the low level of employ-
ment in late July would not even have generated
enough revenue to pay the rent on the Respondent’s
then-existing facility, much less on the larger facilities
on Swan Island which the Respondent planned to oc-
cupy. In these circumstances, even if the few individ-
uals employed in late July represented many or even
most of the crafts involved in ship repair, the level of
employment at that time is incompatible with a finding
that the Respondent was in substantially normal pro-
duction, as that term would apply to its expanding op-
erations.11
In so finding, we fully appreciate the fact that the
Respondent’s employment level fluctuates considerably
overtime, rising and falling significantly even from
week to week as the amount of work it is able to se-
cure increases or decreases. We also are aware that,
because of the inherent uncertainty regarding the num-
ber and magnitude of future contracts, it is virtually
impossible for the Respondent to make accurate pre-
dictions of its actual future levels of employment.12
Our decision, however, is based not on the Respond-
ent’s ability to predict accurately its future hiring lev-
els, but on its plan—in existence at the time it recog-
nized OCAW—to expand its operations to require, in
normal times, levels of employment many times great-
er than the size of its work force at the time of rec-
ognition.13
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below14 and orders that the Respondent, Cas-
cade General, Portland, Oregon, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Maintaining or giving any force and effect to
the collective-bargaining agreement between Respond-
ent and OCAW dated September 24, 1987, or any re-
newal, extension, modification or supplement thereof;
provided, however, that nothing in this Order shall re-
quire the withdrawal or elimination of any wage in-
crease or other benefits, terms, or conditions of em-
ployment which may have been established pursuant to
those agreements.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT assist or contribute support to
OCAW, by recognizing or contracting with that labor
organization as the exclusive collective-bargaining rep-
resentative of our employees unless and until it has
been certified as such representative by the National
Labor Relations Board.
WE WILL NOT give effect to our September 24, 1987
contract with OCAW, or to any renewal, extension,
modification or supplement thereof, but we are not re-
quired to withdraw or eliminate any wage rates or
other benefits, terms or conditions of employment
which we have given to our employees under such
contract.
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The background facts set forth in Longshoremen ILWU Locals 40 & 8
(STC Submarine), 299 NLRB 293 (1990), a Board decision rendered under
Sec. 10(k) of the Act, illustrate one instance of the Port’s functional scope and
nature.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
WE WILL reimburse all our employees, former and
present, for initiation fees, dues, assessments and other
moneys unlawfully exacted from them under the con-
tract with OCAW.
CASCADE GENERAL
Eduardo Escamilla, for the General Counsel.
Wayne D. Landsverk, of Portland, Oregon, for the Respond-
ent.
Stephen (Steve) Cuddy, of Seattle, Washington, for the
Charging Party.
John W. McKendree, of Denver, Colorado, for Party to the
Contract.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was heard at Portland, Oregon, over a course of 16 trial days
spanning February 7 to July 26, 1989, inclusive. The charge
was filed September 9, 1987, by Metal Trades Council of
Portland & Vicinity and Pacific Coast Metal Trades District
Council, AFL–CIO (Charging Party or MTC (Portland entity
only)). The complaint issued November 30, 1987.
This case comprises three principal issues; one procedural
and two substantive. The procedural issue is whether General
Counsel’s motion to amend the complaint, as made on the
first day of hearing, was providently granted. The original
substantive issue of the case is whether Cascade General
(Respondent or Cascade General) validly granted recognition
and entered into a collective-bargaining agreement with Oil,
Chemical and Atomic Workers Local 1-369, AFL–CIO,
called Party to the Contract or OCAW where convenient for
brevity, at a time when it did not yet employ a representative
segment of its ultimate employee complement, in violation of
Section 8(a)(1) and (2) of the National Labor Relations Act.
The second and later substantive issue, as topic of the
amendment, is whether any of 10 individuals are supervisors
within the meaning of Section 2(11) of the Act, and if so,
whether individually or in any combination, they participated
in, or themselves constituted, a showing of interest among
persons employed by Respondent, so as to nullify the valid-
ity of recognition for collective-bargaining purposes being
extended in this context and on this basis.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by General Counsel, Respondent and Party to the Contract,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Oregon corporation with an office and
place of business in Portland, Oregon, where it engages in
ship repair. In the course and conduct of its business oper-
ations Respondent annually has gross sales in excess of
$500,000, while purchasing and receiving goods and mate-
rials valued in excess of $50,000 directly from sources out-
side Oregon, or from suppliers within the State which in turn
obtained such goods and materials directly from sources out-
side Oregon. On these admitted facts I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and, as also admitted, that
MTC and OCAW are each a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Background
1. Port of Portland
At a point off the Columbia River about 100 miles inland
from the Pacific Ocean, the Port of Portland maintains a
principal facility on the northward-flowing Willamette River
as an integral part of the business and industry existing in
metropolitan Portland, Oregon. The Port is a public entity
comprised of a nine-member commission. It actually has
three major operating areas, one of which is the Portland
Ship Repair Yard located on Swan Island in the Willamette
River. Swan Island is considered an industrial park where,
along with the shipyard itself, module construction and gen-
eral marine activities, there is even unrelated manufacturing
taking place. The Ship Repair Yard operates as a uniquely
combined public-private facility. There are dry docks, berth-
ing areas, yards, and general equipment on Swan Island, con-
stituting it a major West Coast ship repair location. Other
Port of Portland functions, none of which are involved in this
proceeding but stated for context, are the separately situated
and operated Marine Terminals, and the Portland Inter-
national Airport, plus real estate held for future riverfront
property development.1
Private companies, large and small, operated on Swan Is-
land either as major long-term businesses, or by sporadic ap-
pearance for purposes of occasional or specialty work. For
many years leading into 1987 the two principal competitors
on Swan Island, for major ship repair and related work, were
Dillingham Ship Repair (DSR) and Northwest Marine Iron-
works (NMI). As typically so in the industry both companies
experienced cyclical operations, and in this sense could em-
ploy a work force fluctuating from several dozen hourly per-
sonnel to several hundred, or perhaps in excess of 1000.
2. Dillingham ship repair
DSR had been the more prominent of Swan Island oper-
ating companies, with an estimate of its hourly work force
running to 1700 persons at the highest peak ever reached.
However the last collective-bargaining negotiations looking
toward renewal of a labor contract with MTC resulted in im-
passe by the fall of 1986, and with this DSR implemented
objectionable changes to terms and conditions of employ-
ment for its unionized work force. A rancorous period of
labor-management relations followed for approximately 8
months. MTC did not however engage in strike action
against DSR, and its members as represented in this bar-
659CASCADE GENERAL
2 A preexisting unfair labor practice complaint of NLRB Region 19 against
DSR remained extant. In late 1987 a settlement of this proceeding was
achieved, with monetary amounts to be distributed among 750 former shipyard
employees of DSR. The settlement was referred to repeatedly in this record.
A fuller description of this newsworthy resolution appeared at 133 LRR 251,
as published by the Bureau of National Affairs in its weekly service for Feb-
ruary 26, 1990.
3 This labor organization was totally distinct from OCAW; only a principal
word being shared in their respective names. See BASF Wyandotte Corp., 278
NLRB 173 (1986).
gaining unit continued to work under normal patterns of uti-
lization.
The situation did not satisfactorily resolve itself, in con-
sequence of which DSR gradually phased out and, except for
final winding up, ceased operations on or about June 30,
1987. An entity called Dill Trust was created to liquidate the
affairs of DSR and sell off its assets. For purposes of this
case, it is known that Dill Trust operated for much of re-
maining 1987 in fulfillment of this winding up process.2
3. Traditional trade union representation
The Charging Party in this case comprises MTC (Metal
Trades Council of Portland & Vicinity) and Pacific Coast
Metal Trades Council, the superior entity located in Oakland,
California with which MTC is affiliated. By the mid-1980s
these two entities had developed a practice of negotiating
jointly with employers headquartered at, or operating in con-
junction with, the Port of Portland’s ship repair facility at
Swan Island. This practice yielded a joint contract with such
employers, to which an applicable number of AFL–CIO af-
filiated local unions, plus the Teamsters, were parties. The
major established employers at Swan Island with which such
a joint contract existed were DSI and NMI. Other employers
so organized were the relatively small L & S Marine that op-
erated briefly on Swan Island, plus an unspecified few sub-
contractors.
Of the 16 International Unions whose Portland area locals
were constituent in MTC, the joint contract at DSI pertained
to 10 such affiliates while that at NMI pertained to only 9.
The implication of this record would identify the Inter-
national Unions from which these contracted party locals
came as the Machinists, Boilermakers, Carpenters, Pipefitters
(UA), Electricians, Sheet Metal Workers, Painters, Operating
Engineers, Laborers, International Chemical Workers,3 and
again the Teamsters whose readmission to the AFL–CIO was
not effective until late 1987.
4. Community considerations
Festering labor difficulties between DSR and MTC
reached the attention of Oregon’s governor, and he appointed
Tom Brumm to be a labor liaison person with the Port of
Portland effective about May 1, 1987. Brumm was charged
with responsibility for generally working toward image-
boosting labor tranquility at that facility. He had extensive
background in the labor movement of the Pacific Northwest
and from this, coupled with his political connections, sought
to sophisticatedly mediate the DSR problem. Brumm also
worked directly with key Port of Portland commissioners to-
ward the matter of image, and to generally acquaint both
new and existing enterprises about the favorable objectives
he was expected to achieve.
Brumm remained in his position for approximately 18
months, during which time he monitored the arrival and
growth of Cascade General as a private enterprise largely
filling the gap left by DSR’s departure. A former official of
DSR had organized another separate enterprise named West
State Inc. (WSI),and commenced its operations as a smaller,
nonunion ship repair company at Swan Island in early 1987.
WSI was another private employer that received Brumm’s
specific attention as it grew in significance at the Swan Is-
land operations. It ultimately became unionized, and by 1988
reached a collective-bargaining agreement with MTC for its
hourly paid work force.
5. Cascade general
Respondent originated as an operating division of a family
owned, retail clothing store located in Goldendale, Wash-
ington, and doing business there under the name Ledbetters,
Incorporated. In September 1985 Stephen (Steve) Anderson,
a part owner of Ledbetters, began Cascade General as a ship,
tug and barge repair business located in Vancouver, Wash-
ington, a city directly across the Columbia River from metro-
politan Portland. Anderson established necessary shop, stor-
age and trailer office facilities of about 16,000 square feet
spread over 2 acres at the Columbia Industrial Park in Van-
couver.
In connection with the startup Andersen employed William
(Bill) Lundmark, a person with about 20 years’ experience
in ship repair and a former ship superintendent at DSR. After
2 years of general marine repair servicing Cascade General
split from Ledbetters, and incorporated separately after first
acquiring leases, tools and equipment of DSR. Roughly coin-
ciding with these changes of late summer 1987, Cascade
General relocated to the considerably larger premises at
Swan Island formerly occupied by DSR for operations that
continue to the present time.
B. Case Outline
By 1986 and extending into 1987 Cascade General was in-
creasingly performing ship repair and related work over at
Swan Island. This was accomplished by transporting employ-
ees, tools and equipment necessary to jobs in progress from
the Vancouver facility to Swan Island for the actual perform-
ance of work there.
When DSR ceased operations Cascade General accelerated
its presence at Swan Island and acquired new key executive
personnel. As this unfolded Michael Fahey, MTC’s executive
secretary-treasurer at the time, became increasingly aware of
Cascade General’s presence and its possible significance to
his members. Fahey had been a prime organizer of daily pro-
test demonstrations against DSR during the 1986–1987 bar-
gaining dispute, and held a position constituting the chief
area coordinator for various unions within MTC. Consistent
with his purposes Fahey obtained, or encouraged the obtain-
ing of, authorization cards from any persons employed by
Cascade General who he did not recognize as union members
formerly working with and among the traditional and estab-
lished Swan Island ship repair firms. Additionally, an MTC
organizing committee was active on Swan Island during the
late spring and summer months of 1987.
Fahey attended a casual, exploratory meeting early that
summer at Cascade General’s Vancouver headquarters, ac-
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 All dates and named months hereafter are in 1987, unless otherwise indi-
cated.
companying leaders of the organizing committee and where
Andersen and Lundmark were present to speak for Respond-
ent. Before anything of consequence could be achieved
through MTC’s interest in the situation, OCAW obtained
voluntary recognition from Respondent and these parties
reached a labor contract about 2 months later.4
C. Procedural History
1. The instant case
After its filing in September this case resulted in early
issuance of a complaint. However further proceedings on it
were held in abeyance, along with certain contemporaneous
representation petitions. This was done pending possible res-
olution of jurisdictional dispute contentions between MTC
and OCAW within the AFL–CIO, by use of its traditional
proceedings under article XX of the organization’s constitu-
tion. Accordingly no action was undertaken on the complaint
from early 1988, when first scheduled for hearing, until ap-
proximately 1 year later when article XX proceedings had
not achieved a definitive resolution. During this hiatus fur-
ther investigative attention was given the case within NLRB
Region 19, resulting in presentation by motion to amend the
‘‘supervisory’’ issue when the case formally commenced.
2. Article XX proceedings
Based on such competing representational interests of
MTC and OCAW, a proceeding was initiated by the Metal
Trades Department of the AFL–CIO to resolve their claims.
A presentation was made to Impartial Umpire Howard
Lesnick, who ruled in favor of MTC through the issuance of
a written ‘‘Determination’’ dated March 17, 1988. Lesnick’s
rationale was largely based on distinguishing
‘‘successorship’’ doctrine under settled Federal labor law
from the AFL–CIO’s internal policy of fundamentally seek-
ing to preserve ‘‘established relationships.’’ The umpire’s
award was formally reviewed, and by letter dated October
28, 1988, AFL–CIO President Lane Kirkland advised Joseph
M. Misbrener, OCAW president, as follows:
In accordance with Section 14 of Article XX of the
AFL–CIO Constitution, please be advised that the sub-
committee of the AFL–CIO Executive Council, con-
sisting of Secretary-Treasurer Donahue and Vice Presi-
dents Sweeney and Hutchinson, has found the Oil,
Chemical and Atomic Workers to be in non-compliance
with the determination of the Impartial Umpire in the
above-captioned cases.
This finding of the subcommittee follows from the
decision of the impartial umpire that OCAW’s ongoing
participation as the exclusive bargaining representative
of the employees at the former Dillingham Ship Repair
Co. facility, Swan Island, Oregon violates Article XX,
and from OCAW’s refusal to withdraw from that rep-
resentation.
Effective this date, therefore, OCAW will be subject
to the following provisions of Section 15 of Article
XX: [Sanctions deleted from quotation.]
Posthearing developments in connection with certain un-
successful Motions to Reopen the Record revealed that by
letter dated February 14, 1990 Misbrener had written to Cas-
cade General as follows:
This letter will confirm General Counsel John W.
McKendree’s telephone conversation with Wayne
Landsverk, counsel for your company, of this afternoon
concerning OCAW and Local 1-369’s intent to not act
as the exclusive collective bargaining representative of
the employees of Cascade General, or of any other suc-
cessor employer to the Dillingham Ship Repair Com-
pany, doing ship repair work at the former Dillingham
Ship Repair Company facility, Swan Island, Oregon, or
any other facility where the employer is doing ship re-
pair work as Dillingham’s successor. In addition,
OCAW and its Local 1-369 forthwith shall cease and
desist from acting in any way as the bargaining rep-
resentative of those employees. Be advised that we are
in the process of notifying your employees that OCAW
is not now and does not seek to be, the employees’ bar-
gaining representative at the facility described above.
You will recall that at our February 8, 1990, meet-
ing, I informed you of my intention to disengage in ac-
cordance with the determinations of the AFL–CIO
under Article XX of the AFL–CIO Constitution.
Any inquiries you may have concerning this matter
should be addressed to our General Counsel.
D. Amendment to Complaint
When counsel for the General Counsel moved to amend
the complaint at the opening of hearing on February 7, 1989,
he advised that other parties had been notified of such inten-
tion 4 days earlier. General Counsel enlarged on this in a
specific regard by representing, as the motion recited, that
Respondent’s counsel had been informed of ‘‘a pending in-
vestigation on this matter’’ as early as January 20, 1989. The
motion alleged that on or about July 31 Respondent had
granted recognition to OCAW based on ‘‘a third party au-
thorization card check.’’ Continuing, it alleged further, and
in part, as follows:
cardsigners of the authorization cards used for granting
voluntary recognition were statutory supervisors and
that the card check was an invalid determination of the
employees union desires because of the statutory super-
visors participation and involvement in the card check.
The attempted amendment was opposed by Respondent
and Party to the Contract on collective grounds that it was
beyond the limitations period of Section 10(b) of the Act,
unrelated to original allegations of the complaint, and inex-
cusably tardy. After extended colloquy, during which both
General Counsel and the Charging Party expressed willing-
ness to accord a substantial continuance for opposing parties
to deal with new issues, the proposed amendment was grant-
ed. In briefing the case now, these adversely affected parties
argue that granting of the amendment was ‘‘clear, serious
error’’ and an ‘‘abuse of discretion.’’
661CASCADE GENERAL
5 In a later application of Redd-I, Inc., the Board overruled past precedent
tending to exempt 8(a)(1) complaint allegations from the traditionally ‘‘closely
related’’ test, stating in part that it did so ‘‘in light of’’ the court’s Galloway
decision. Nickles Bakery of Indiana, 296 NLRB 927 (1989).
1. Intrinsic validity
In NLRB v. Fant Milling Co., 360 U.S. 301, 308 (1959),
the Supreme Court discussed the Board’s authority to dis-
charge its duty of protecting public rights, holding that the
agency’s broad investigatory powers of inquiry are not con-
fined to ‘‘precise particularizations of a charge.’’ Consistent
with Fant Milling, the Board has long required a sufficient
factual relationship between specific allegations in the charge
and resultant complaint allegations. See Red Food Store, 252
NLRB 116 (1980), and cases cited therein.
Redd-I, Inc., 290 NLRB 1115 (1988), held that in deciding
whether complaint amendments are closely related to charge
allegations, the Board would apply a closely related test
comprised of the following factors. First, the Board would
examine whether otherwise untimely allegations involve the
same ‘‘class,’’ or legal theory, as allegations in the timely
filed charge. Second, the Board would look at whether other-
wise untimely allegations arise from the same factual situa-
tion or sequence of events as advanced in the pending timely
charge. Finally, the Board may consider whether a respond-
ent would raise the same or similar defenses to both allega-
tions. This third criterion was explained as meaning that a
reasonable respondent would preserve similar evidence and
prepare a similar case in defending against the otherwise un-
timely allegations as would have been prepared and pre-
served in resisting basic and timely allegations of the pend-
ing charge.
Both Respondent and Party to the Contract contend here
that none of the applicable factors defined in Redd-I, Inc.
have been satisfied with General Counsel’s motion to amend.
Further, both these adverse parties cite G. W. Galloway Co.
v. NLRB, 856 F.2d 275 (D.C. Cir. 1988), to support their po-
sitions. This recent court of appeals decision denied enforce-
ment to G. W. Galloway Co., 281 NLRB 262 (1986), and
in doing so involved two essential notions as law of the case.
One was reiteration of the fundamental premise that Section
10(b) of the Act provides how an unfair labor practice charge
defines and limits the scope of litigation brought by the
Board. More specifically, Galloway also barred freewheeling
expansion of 8(a)(1) grounded allegations in a complaint,
stemming only from the catch-all, boilerplate ‘‘other acts’’
language of the Board’s preprinted charge form.5
The amendment at issue here arises as an enlargement of
theory under Section 8(a)(2), and although Section 8(a)(1) is
invoked in the complaint, both originally and as amended,
this is done derivatively and not as to impose a Galloway-
type analysis on the situation. Thus the tests of Redd-I, Inc.
are to be looked at directly, for they are plainly now control-
ling on the point. As to the class of violation or theory in-
volved, the amended paragraph 6(d) alleges that the card
check on which recognition of OCAW hinged was legally
flawed by a bargaining unit populated only with statutory su-
pervisors. In the larger context of ‘‘representative com-
plement’’ theory, there must be some basic showing of a
work force; that is persons being utilized and to be utilized
in the business function involved. As contrarily argued, it is
true that a representative complement case turns critically on
business considerations, both current and those realistically
projected. However this does not eliminate an equally com-
pelling requirement that persons within the statutory defini-
tion of an ‘‘employee,’’ as set forth in Section 2(3) of the
Act, are at work in the operation, and constitute the group
against which other and future changes are to be judged. For
this reason the claim that such a group was largely or exclu-
sively composed of statutory supervisors is an allegation that
closely relates to the representative complement theory as a
matter of how to reasonably view the issue.
The second prong of Redd-I, Inc.’s test is more readily sat-
isfied. Under that it need merely be observed that all dynam-
ics of eventful mid-to-late summer of 1987 were a resource-
ful capitalizing on enterprise opportunity, and the managerial,
financing, logistical and human deployment efforts at step-
ping into the void created by DSR’s exit stand as one con-
glomerated factual situation in a single sequence of events.
Finally, I observe that regardless of whether the complaint
originally suggested that Section 2(11) of the Act would be-
come a major focus of the case’s main issue, this is not nec-
essarily to say that it must have been so couched. Board pro-
ceedings are typically, if not notoriously, devoid of discovery
and advance disclosure that is routine in most other litiga-
tion; hence Respondent could have been equally chagrined
had the basis of a representative complement assertion been
the effectiveness of customer procurement efforts as com-
pared to this actual claim of a tainted core to the bargaining
unit. The point may be compared to cases of alleged dis-
criminatory discharge allegations under the Act, in which in-
stances a respondent employer is not informed of undisclosed
rationale until a government case-in-chief has been presented.
Only at that point does such respondent draw on its retained
evidence, but without having known in advance whether dis-
parate treatment, pretext, overt animus accompanying the ter-
mination, or some other rationale was to be faced. By anal-
ogy, therefore, an amendment that generates no more uncer-
tainty than is present with the instances of unamended allega-
tions is not defective pleading under the Redd-I, Inc. test.
The actual context of this case lessens the preservation of
evidence factor that the Board repeatedly emphasized in
Redd-I, Inc. This concern is best viewed as pertaining to spe-
cific episodal happenings, as when simple production records
or informal supervisory notations would be germane to a de-
fense. The preservation of evidence factor, is not, however,
significant when the amendment in question does no more
than create a predicate for retracing ongoing and highly visi-
ble business operations in terms of how particular people
contributed to the process. Further, the Fair Labor Standards
Act requires a minimum 2-year retention period for basic
records of employees. 29 U.S.C.A. § 211(c); 29 CFR 516.6.
Much of this data as to pay and hours worked would be nec-
essary to analyze the representative complement issue, rel-
ative to the always present distinction needed to be drawn
between supervisory and nonsupervisory personnel.
Most importantly here is the separate fact that when filing
its answer to the complaint as originally framed, Respondent
saw fit to respond to paragraph 6(a) as follows:
Answering sub-paragraph 6(a), [Respondent] alleges
that Cascade General recognized OCAW after OCAW
demanded recognition and after a card count supervised
by a retired NLRB attorney and arbitrator established
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The Kellwood, Roure-Dupont, Douds, and Soule cases cited in Party to the
Contract’s brief have been noted, however, whether considered singly or inter-
relatedly these authorities have inconsequential bearing on the point. Their full
citations are Kellwood Co. v. NLRB, 411 F.2d 493 (8th Cir. 1969); NLRB v.
Roure-Dupont Mfg., 199 F.2d 631 (2d Cir. 1952); Douds v. Longshoremen
ILA, 241 F.2d 278 (2d Cir. 1957); and Soule Glass & Glazing Co. v. NLRB,
652 F.2d 1055 (1st Cir. 1981), respectively.
that a majority of Cascade General employees wanted
OCAW to be their collective bargaining representative.
This answer, served on other parties December 11,
1987, including dispatch to a now-disavowed address
for OCAW, showed that the ‘‘card count’’ was under-
stood early on by Respondent itself as an important
component of its position that recognition of OCAW
had been validly extended. By its very nature a card
count reference relative to rank-and-file, or more tech-
nically termed statutory employees, demonstrated an
awareness present well over a year before trial com-
menced that general circumstances of a card count by
the outside arbitrator would be at issue. Thus, on the
third prong of the Redd-I, Inc. ‘‘closely related’’ test,
it became a matter reasonably to compose in prepara-
tion for defense. Accord: Roslyn Gardens Tenants
Corp., 294 NLRB 506 (1989).
2. Due process
As stated above, General Counsel’s motion to amend was
granted over objections. The hearing was adjourned at that
point and did not resume until March 28, 1989. This was to
permit Respondent and Party to the Contract an opportunity
to prepare for the continued hearing in terms of expanded al-
legations being faced. The passage of this approximately 7-
week period of time is reasonably sufficient for such prepara-
tion, given the close familiarity of the objecting parties to the
job functions, work classifications and individuals holding
positions allegedly supervisory in nature.
In Vandalia Air Freight, 297 NLRB 1012 (1990), it was
expressly observed that when new matter is presented ‘‘well
prior to the hearing,’’ there can be no successful claim that
respondents have ‘‘insufficient time to prepare a defense and
present their case.’’ The same assessment about sufficiency
of the time to prepare would obtain when a substantial recess
precedes taking up the newly amended matters. For this rea-
son I consider that fundamental due process rights have been
accorded in the situation, and reaffirm granting of this mo-
tion to amend.6
E. Evidence
1. Ship repair process
In general terms the ship repair industry is characterized
by urgency of operations because of economic loss to the
vessel’s owner when it is unavailable to transport cargo. In
this sense a vessel to be repaired is rapidly entered by crews
of the various crafts necessary to the process. Illustrative op-
erations by Cascade General have been repair of boilers,
pumps, piping, propellers, rudders and shell plate, as well as
structural renewal, inspections, electrical work and painting.
The magnitude of a ship repair job can vary both in terms
of the vessel size itself and the particular repairs that are
needed. Thus some jobs are brief, and require little in terms
of hours worked by the necessary crafts. Other jobs, because
of either vessel size or the scope of necessary work, may in-
volve hundreds of employees working many weeks until
completion. The first phase is safety clearance of tanks and
holds by a marine chemist, following which deck setup, inte-
rior lighting, and necessary staging equipment functions
occur. Ideally the various crafts coordinate timing and se-
quence of their particular contribution to the overall ship re-
pair process underway.
2. Respondent’s operational evolution
a. Vancouver facility
Respondent had begun with a small nucleus of people; An-
derson and Lundmark in charge, using Rich Rohde and Ste-
phen (Steve) Van Domelen as experienced ship repair and
marine workers. By the end of 1986 Ed Bittner had been
added as an occasional management type, and the craft nu-
cleus enlarged by the hiring of Richard Lightfoot, Monte
Canucci, Robert Lindsay, James (Jim) DeSerrano, and Law-
rence (Lanny) Mathieu. This well experienced craft group
expanded again in January, when Terry Gardner, Mark
Bolton, and Dennis Eubanks appeared on the payroll for the
first time.
The location at Vancouver was a relatively crude assembly
of loosely adjoining industrial buildings, with even some un-
protected openness and trailers that had been spotted nearby
for office and administrative purposes. From the beginning
Respondent possessed numerous tools and industrial equip-
ment, including wheeled compressors, sandblasting gear and
pickup trucks. It was not uncommon during the first years
of operations from the Vancouver base for Respondent’s em-
ployees to travel onto Swan Island, performing ship repair
and related work on vessels that had been brought there.
Frequently this work was taking place in the midst of
demonstrations and general disruption attendant on the DSR
labor dispute, leaving Respondent’s executives well ac-
quainted with changing circumstances at Swan Island. An
opportunity for dramatic action presented itself most tangibly
when DSR abruptly ceased operations, and the possibility of
essentially replacing it became apparent.
In early-to-mid July the assets of DSR were offered for
sale by bid. Cascade General and WSI both sought the as-
sets, competing with two auctioneers who also had submitted
bids. In mid-to-late July the director of Dill Trust declared
Cascade General’s $1.6 million offer as the winning bid.
After some dispute with the Port of Portland regarding own-
ership of permanent fixtures, Cascade General was allowed
to use the former DSR assets on the premises of Swan Is-
land. The next step in this process was to acquire its own
separate foothold on Swan Island, and to this end Respond-
ent undertook a course of dealings with the Port of Portland.
By July Lundmark had been elevated to corporate presi-
dent of the enterprise, while Andersen as part-owner occu-
pied the position of secretary-treasurer. The corporate entity
at this time was still Ledbetters. Loy Kahler was employed
by Respondent in mid-July as its executive vice president.
He was a former long-service employee of DSR (and its
predecessor), in a career culminating as production manager
over the entire yard for 6 years, and latterly its estimator for
the bidding of jobs. By July a management structure had ma-
terialized within Cascade General. Dale Krug was in charge
of production, and Surendra Menon its manager for contracts
663CASCADE GENERAL
administration and estimating. A stipulation of record be-
tween the parties establishes that Rohde, Bittner, and Jerry
Way, a person possibly titled ship superintendent, were all
statutory supervisors at times material to the case.
b. Port of Portland accessing
One of the early actions was done by Menon as an admin-
istrator for Respondent. He wrote to the Pacific Military Sea-
lift Command of the United States Navy in Oakland, Cali-
fornia, by letter dated July 31, as follows:
Per our telecon of this A.M., Cascade General re-
quests a copy of the Master Ship Repair Contract in an
effort to be on the list of bidders.
Cascade General is a full service ship repair yard
that commenced operations in 1985 and is located at
2000 E. Columbia Way, Bldg. 52, Vancouver, WA
98661. Our mailing address is P.O. Box 129, Van-
couver, WA 98660, and the telephone number is (206)
699-4934. We have recently purchased all the assets of
Dillingham Ship Repair, including material inventory,
machinery and equipment, lease-held improvements,
rolling stock, office inventory, and hand tools. Our op-
erations department will be located at the Dillingham
facility at Swan Island.
If you need further information, please contact me at
your convenience.
This letter was answered on August 11 by Department of
the Navy Contracting Officer Betty E. Crawford, who ad-
vised Cascade General as follows:
Re: Application for Master Agreement for Repair and
Alteration of Vessels
Encl: (1) Insurance Requirements
(2) Facility Survey Report (3 copies)
(3) Master Ship Repair Agreement (5 copies)
1. Your letter of 31 July 1987 requested that you be
sent the necessary forms to apply for a Master Agree-
ment for the Repair and Alteration of Vessels. Please
complete the enclosed forms and provide the following
information for our review.
a. Description of plant facilities, (two copies, please).
b. List of officials and the qualification of each for
ship repairs, (two copies).
c. A general statement as to the quantity and scope
of ship repair work that you have accomplished, (two
copies).
d. Financial statement consisting of a current balance
sheet or statement on MA Form 151 (minimum finan-
cial information), certified by a certified public account-
ant or by a responsible official of your firm, (two cop-
ies).
e. Insurance coverage in accordance with enclosure
(1), (two copies).
f. Ship Repair Facility Survey Report per enclosure
(2), Items A through I, (two copies). After receipt of
this report you will be contacted to arrange an on-site
inspection of your facilities and interview with your of-
ficers and supervisory staff by a representative of this
Command.
g. Five copies of the Master Ship Repair Agreement,
enclosure (3), executed by your appropriate official on
Page 1, except for date, and the last page where appro-
priate. Please read this document carefully, because all
work you perform for us will be subject to its provi-
sions.
Meanwhile Respondent’s officials had been in contact with
the Port of Portland relative to leasing what DSR had va-
cated. On August 14 Portland Ship Repair Yard Manager
Guy J. Alvis wrote to Anderson as follows:
We are pleased to inform you that the Portland Ship
Repair yard can make selected properties previously
leased by Dillingham Ship Repair available to your
firm on a month-to-month basis. The square footages
available are based on our recent walk-through. The
rates quoted are based on the package outlined below
and are from the schedule dated July 28, 1987.
Rental Sq. Ft. Rate Monthly Rent
Bldg. 9 (64) 13,670 $0.3583 $4,898.50
Bldg. 4, Bays 8-10 96,041 0.2355 22,618.78
Bldg. 50, Bay 3 3,000 0.30 900.00
Bldg. 63 12,667 0.3181 4,030.00
Bldg. 63A 8,290 0.1461 1,210.94
Open Yard Space 115,400 0.06 6,924.00
Security & Nursing Fee 10,000.00
Totals 249,068 $50,582.22
Naturally, this offer is subject to the execution of a
lease mutually acceptable to both parties. I would ap-
preciate hearing from you at your earliest convenience.
Please feel free to call if you have any questions.
Negotiations ensued between the parties based on this letter
and the cost quotes it contained, with the result that a tem-
porary agreement was reached permitting Respondent to
begin a move of its chief business operations to Swan Island
itself.
The form and timing of such temporary agreement was
embodied in two leases of ‘‘Improved Spaces,’’ both effec-
tive from September 1 through November 30, as formally
and legally agreed to by Respondent’s chief official and the
Port’s executive director. The first agreement listed and fully
identified various buildings comprising office, warehouse,
and shop space, plus those with small crane-served shops,
large crane bays, fenced yard space, shed, and a vehicle
shop. Here the approximate total leased space of these build-
ings was 135,000 square feet, predominantly as building 4 in
which bays 8, 9, and 10 were located with a total area of
96,000 square feet itself. The second temporary lease cov-
ered nine specific yard space areas, ranging in size from
6000 to 31,375 square feet and roundly totaling 115,000
square feet in the aggregate.
Both leases permitted either party to terminate the contrac-
tual arrangement up to 30 days’ notice, or it could otherwise
terminate by the lessee’s default. These leases were ulti-
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Military Sealift Command Ship Repair Facility Survey that had been
supplied as an enclosure to Crawford’s letter was, to all that is known, first
completed by Kahler on December 30. After details on the berthing, dry dock,
handling and shop facilities possessed by Respondent, that document con-
cluded with a current (and ‘‘normal’’) showing of 200 skilled with 100 un-
skilled employees, and a ‘‘potential maximum’’ of 800 and 200, respectively.
mately extended on their original ‘‘month-to-month’’ char-
acter until spring of 1988, when nontemporary leasing of the
premises was fully settled on.
c. Transitional phase
With the temporary leases as a foothold, and DSR no
longer present to compete, Respondent increased its activities
at Swan Island. Progressively more and more tools and
equipment were transported for placement among the former
DSR assets in preliminary facilities used by Respondent on
Swan Island. Furthermore, key personnel who had more typi-
cally worked at the Vancouver facility relocated to Swan Is-
land, and began working there as a normal work station. The
transitional phase also included more sophisticated manage-
ment controls as provided by Ernest Brawley, DSR’s former
vice president of finance and administration. During the sum-
mer months of 1987 Brawley was simultaneously a func-
tionary of the Dill Trust liquidating entity and, with a part-
ner, engaging in the business of providing computerized pay-
roll services to Respondent and other clients with hardware
that Brawley’s subchapter S corporation had acquired from
DSR. Finally, Respondent’s principals Andersen and
Lundmark had undertaken major financing negotiations with
area banks, and were anticipating business loans necessary to
the potentially expanding enterprise.
d. September (1987) and beyond
On September 1 Cascade General was formed as an Or-
egon corporation, and its preceding form of business was dis-
solved. The actual date of September 1 was also significant
in that new payroll and record keeping systems started up
then. Some employees received pay increases from that point
onward, including those who were officially retitled and
given explicit responsibility and authority.
After September 1 Kahler’s presence and authority was
progressively more prominent, and in May 1988 he was pro-
moted to be Respondent’s president. By this time formal ti-
tles of vice president were held by Krug, Menon, and Braw-
ley, the latter having been officially employed to head fi-
nance effective in the preceding October.
One or more persons had been formally designated to head
each craft as general foreman or foreman, and hourly pay
raises were made effective for those so promoted effective
September 1. The fall of 1987 brought a pronounced increase
in Respondent’s hourly employment level, and after a late
year return to less than 100 persons the time after that from
1988 onward has been generally reflective of the industry’s
cyclical nature.
3. Management testimony
Kahler testified that he was closely involved in early dis-
cussion with Port of Portland representatives relative to Re-
spondent’s desired lease. He originally faced a ‘‘phe-
nomenal’’ increase in cost as compared to what DSR was
charged, and this factor, coupled with separately proposed re-
quirements that would impose a significant flat expense to
the lessee for security and nurse service, are what kept the
lease in a temporary mode for nearly a year. Ultimately,
though, Respondent did acquire approximately 90 percent of
the facilities formerly used by DSR. Kahler estimated that
the related purchase of assets gave Respondent a business ca-
pacity potentially warranting the hire of 600–800 hourly em-
ployees.7 Kahler superimposed further testimony on all this
by asserting that reliable work force projections were ‘‘im-
possible,’’ because of uncertainty in the bidding, awarding,
and workload scheduling process.
Kahler also testified about financing for the purchase of
DSR assets. As successful bidder Respondent had made a
nonrefundable earnest money deposit of $50,000, with 45
days to complete the balance due on $1.6 million. For most
of this period a bank loan had looked probable, however sev-
eral days before an August 31 deadline the bank committed
only $250,000. Kahler testified that urgent, last-minute deal-
ings with a financial broker provided the balance due to con-
firm this purchase.
Anderson testified that he could not have predicted as of
July what Respondent’s number of employees might be at a
future time. He recalled also participating in the lease nego-
tiations, and denied that the Port of Portland had at any time
expressed concern about Cascade General being ‘‘a non-
union company working on Swan Island.’’
4. Question concerning representation
a. Other than OCAW
Fahey testified that he had been generally aware of the
presence of an enterprise named Cascade General during the
waning days of DSR operations. He was principally occupied
during this time, namely the approximately first 6 months of
1987, with the DSR situation, coupled with an organizing
drive at newly formed WSI. As Fahey spent his considerable
time at Swan Island dealing with the matters requiring his at-
tention, he was aware that various individuals who he knew
well as MTC members, and former coworkers of his own,
were employed by Respondent. A person more noticeable
than most was Terry Gardner, who Fahey was well ac-
quainted with as an experienced machinist and former em-
ployee of major ship repair firms traditionally operating at
Swan Island. Fahey viewed the newcomer Cascade General
as another potential organizing target, however it was not a
priority matter with him both because of other distractions
and because he considered that its employees seemed already
to be established union members.
The meeting that Fahey did attend at Respondent’s Van-
couver office had been arranged by Greg Deblock and Stan-
ley Deuel, both union officials. Its purpose was to acquaint
persons running Respondent with MTC’s traditional role at
the shipyard. This meeting occurred in approximately late
June, and was an amicable discussion of respective labor and
business objectives. It resulted in Andersen requesting that
the unions provide him a letter, to be useful in presenting to
ship owners from whom he hoped to acquire work. Fahey
undertook followup to this request, and by letter dated July
9, which he hand-delivered because of its delay in prepara-
tion, wrote Andersen as follows:
665CASCADE GENERAL
The Metal Trades Council of Portland and Vicinity
Organizing Committee has met with the Principals of
Cascade General to explore areas of mutual concern.
1. Give the customers the best service and quality of
workmanship possible.
2. Work out methods jointly to keep the cost of re-
pairs and overhauls competitive.
3. Supply Cascade General with the best qualified
workman available to meet their Company’s goals an
objectives.
4. Stress the importance of a safe, working environ-
ment.
We will continue to meet with Cascade General to
pursue a mutual acceptable labor agreement between
both parties.
Mr. Lundmark and Mr. Anderson have stated to us
they do not have any problems working with the Metal
Trades Council in the future to achieve their goal to
meet and satisfy their customers needs.
Please feel free to call me at your convenience if you
have any additional questions. I can be reached at (503)
283-6039.
Fahey then attempted to maintain communications with
Anderson. He did so until a point in late July, when Ander-
son suddenly and surprisingly informed him in a telephone
conversation that he could no longer continue normal discus-
sions on advice of counsel. Anderson did explain this was
because OCAW had been recognized as collective-bargaining
representative for hourly employees. Shortly after this Robert
Plympton, business manager/secretary-treasurer of Boiler-
makers Local 72 in Portland, elected to file a representation
petition as a tactical step countering the reported OCAW rec-
ognition. As soon as he could conveniently do so, Fahey fol-
lowed this with a representation petition through the NLRB’s
Portland Subregion for the same hourly bargaining unit of all
ship repair crafts. These petitions were filed August 28 and
September 1, respectively. Fahey followed his action with a
letter dated September 9, written jointly to Respondent’s
three highest officials. It stated:
The Pacific Coast Metal Trades District Council and
the Metal Trades Council of Portland & Vicinity de-
mand recognition of Cascade General, the successor to
Dillingham Ship Repair as the bargaining unit for all
production, repair and maintenance employees within
the bargaining unit in the employ of the Employer sig-
natory hereto, and shall apply to all work and activities
of the Employer in connection with the construction,
conversion, repair or scrapping of any vessel on the Pa-
cific Coast, Columbia and Willamette River and their
tributaries, including but not limited to, dredges, float-
ing drydocks, offshore drilling vessels, barges, mobile
drilling platforms, platforms and all component parts,
plant equipment, and all auxiliary equipment used in
conjunction therewith.
The Pacific Coast District Council Executive Board
and the Portland Metal Trades Council representative
will be glad to meet with you at your earliest possible
date to discuss the above matter.
Mr. Clarence Briggs, Secretary of the Pacific Coast
Metal Trades District Council can be reached at area
code: 415-636-0500, mailing address is: 8150 Baldwin
Street, Oakland, Calif 94621, Mr. Michael T. Fahey Sr.
Executive Secretary of Metal Trades Council of Port-
land and Vicinity, 503-283-6039, P.O. Box 17358, Port-
land, Oregon 97217.
These petitions, one of the Boilermakers and one of MTC,
are the cases blocked, and remaining blocked, by litigation
in this proceeding.
b. OCAW
James Watts testified that he has been president of the
labor organization which is here Party to the Contract since
1978. The organization has been known since 1957, and for
many years following that date was an affiliate of the Inter-
national Chemical Workers Union. That affiliation ended in
1974 and for several years the organization remained inde-
pendent. In 1978 it affiliated with the Oil, Chemical and
Atomic Workers International Union, a constituent of the
AFL–CIO. Watts has been an official with the organization
since 1962, beginning as vice president and progressing from
that to secretary-treasurer until his elevation as president in
1978.
He testified that in the period prior to June (1987), Party
to the Contract was an amalgamated local union of approxi-
mately 1600 members. These were spread from Alaska’s
North Slope through the general Pacific Northwest area, but
in numerical terms principally those members at the Hanford,
Washington nuclear facility. A particular component of its
employee representation included waterways operations on
barges and tugs, particularly as to subsidiaries of the large
West Coast Crowley Maritime enterprise.
Watts conducted a meeting with Respondent’s employees
at the Vancouver worksite on July 27. Watts testified that
after he asked any supervisory persons present to excuse
themselves, authorization cards for OCAW were signed by
all the 10 individuals remaining present. Based on this acqui-
sition Watts wrote to Respondent by letter dated July 29,
specifying the attention of Anderson ‘‘and/or’’ Lundmark, as
follows:
Please be advised that a substantial majority of your
workers, excluding clerical, have indicated that they
would like to be represented by the Oil, Chemical and
Atomic Workers International Union and its Local 1-
369. At this time we would respectfully request that
you recognize us as the legal bargaining representative
for your employees. We have arranged for Richard
Stratton, an arbitrator referred by the Federal Mediation
and Conciliation Service, to conduct a card check to as-
sure you that an overwhelming majority of your em-
ployees desire representation by OCAW Local 1-369.
Mr. Stratton and Local Representative Jerry Cramer are
prepared to make themselves available at your offices,
Friday, July 31, 1987, to make the check. If you are
agreeable to making such a check please notify me im-
mediately. I see no sense in going through a costly Na-
tional Labor Relation election procedure when we have
such obvious support amongst your employees.
5. Card check
The proposed card check took place on July 31, with
OCAW compensating Richard V. Stratton, retired NLRB
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The tabulations immediately following are not exact, nor do they account
for the minor effect of persons like Bittner and Rohde, who were stipulated
to be statutory supervisors.
staff member and privately practicing arbitrator of the vicin-
ity, to carry out this impartial function. It was done at the
Vancouver premises, with Anderson providing Stratton a list
of employees and William A. (Jerry) Cramer having pre-
viously provided him all of the signed cards. The employer’s
list was typed and contained eleven names as ‘‘regular em-
ployees’’ of Cascade General. Stratton retired briefly to con-
sider this material, and returned to advise the parties that a
majority of employees, in his view, had designated OCAW
as their collective-bargaining representative. On this basis
Stratton signed a document prepared on his letterhead read-
ing as follows:
Pursuant to a card check by the undersigned, it is here-
by certified that a majority of the employees of Cascade
General have selected Oil Chemical and Atomic Work-
ers, Local 1-369 a labor organization, as its exclusive
collective-bargaining representative in the following
unit: All employees excluding office clerical employees,
guards, professional employees and supervisors, as de-
fined in the National Labor Relations Act.
On this basis Anderson also signed an addition to the doc-
ument typed below Stratton’s signature which read:
With the certification of the card check by Richard V.
Stratton on July 31, 1987, Cascade General agrees to
recognize the Oil, Chemical and Atomic Workers Local
1-369 as the exclusive bargaining agent for all employ-
ees of Cascade General—or any joint ventures that Cas-
cade General has or acquires in the future.
6. Profiles of employment at Respondent
a. Fluctuation and payroll totals
The case record does not pinpoint levels or extent of uti-
lizing craft employees during Respondent’s startup year 1985
at all. From mid-1986 through calendar year 1987 this infor-
mation appears as summary listings backed by handwritten
weekly payroll sheets. Beginning for September (1987), and
allowing slight transitional overlap, the employment data
thereafter appears as computer-generated payroll pages with
detailed breakouts as to hours worked, gross earnings, and
total deductions from the individual’s net pay. As to the year
1986, one in which several individuals under scrutiny as
claimed supervisors were first employed, a span of near-con-
stant fluctuation in weekly employment levels is shown.
Midyear showed the highest weekly totals, twice in the 50’s
and after two pronounced slumps in early September and
again in late October the year was finished with an
uncharacteristic stability during November and December
averaging about thirty employees (Christmas week excluded
from the calculation) in the narrow range of 22–34.
Following this half-year background, the first 8 months in
1987, with particular attention to mid-summer, are most sig-
nificant to the several issues of the case.8 Late 1986 momen-
tum continued once the second holiday week was past, and
for 1st qtr. 1987 a weekly average of 46.5 was shown in the
range of 21–74 employees. In 2d qtr. 1987 the average for
a full 13-week period increased to about 51 employees. Here
quite a markedly wider range existed; 4 workweeks having
only 25 or less employees, while back-to-back totals of 118
and 87 appeared in mid-May and the single upsurged week
of April 17 with 82 on the payroll.
From all this the case focuses on July, as the eventful
month of OCAW organizing and the card check-based grant-
ing of exclusive bargaining recognition by Anderson. July
began with the same modest total of about 25 which had
ended the second quarter, followed by workweeks ending
July 10 and July 17 when for both of them only 18 persons
were employed. The pay period ending July 24 was the low-
est as among the 2-1/2 years in evidence, with only 11 em-
ployees even including Bittner and Rohde. This increased in
week ending July 31 to 16, however the total number of
hours worked by the 11 employees of July 24 exceeded the
16 of July 31 as 373 and 352, respectively, or averages per
person of 34 and 22 hours shown as worked. Of course, each
of the 10 card signers for OCAW were on the July 31 pay-
roll, allowing for an informal entry that Bolton took vaca-
tion. Neither Bolton nor DeSerrano were among the minimal
11 persons employed during the preceding workweek of July
24, however the handwritten payroll sheet for that week
shows the starting of Bolton’s name but then being crossed
out.
August showed a relatively stable employment level, with
the four weekly pay periods of that month being 22, 30, 25,
and 24 in sequence. The significant fact that Cascade Gen-
eral reincorporated effective September 1, and Brawley’s
business service enterprise commenced computerized payroll
service to Respondent, clouded an accurate reconstruction of
employment until matters settled down by mid-September.
What shows from the records in evidence is that 193 persons
were employed for a weekly pay period established as ending
September 6, and the following week was otherwise still the
highest total ever shown for Respondent at 134. The final 2
weeks of September dropped to 113 and 63, respectively,
however 4th qtr. 1987 started with high numbers and, as
shown below, remained there even through the yearend holi-
day period. By late October 285 persons were employed, and
during the final 2 months of the year Respondent employed
from 326 to 471 persons in 5 of the included workweeks.
b. Occupations utilized
As a prelude to application of law in a ‘‘representative
complement’’ case, the type of jobs in use must be known
with certainty. Here the summary can be shaded in meaning
when trade union organizations are the reference. At another
extreme a certain amount of ‘‘cross-crafting’’ was engaged
in as Respondent deployed its personnel, in addition to which
particular individuals were experienced in more than one oc-
cupational field.
Given these factors a fundamental listing of occupations is
still apparent, as being those utilized by Respondent in its
basic ship repair business. This is so whether viewed while
exclusively at Vancouver, during its transitional and stretched
out relocation to Swan Island, or after it had matured into
the ‘‘major player’’ among the Port of Portland Ship Repair
Yard’s permanently based companies as it had given promise
of being by early to mid-1987. The occupations are those
which were necessary to the overall cycle of marshalling
tools and equipment, preparation, undertaking and reliable
667CASCADE GENERAL
9 This occupation was identified as being at a shop location producing tools
and steel product for use by those employees actually boarding or working ad-
jacent to the vessel under repair.
completion of needed vessel repairs. In these fundamental
terms, and referring to late 1987 by which time job classi-
fications were computer-generated (numbers shown par-
enthetically) the occupations were:
Job Group
1. Inside (shop) Machinist9 (07)
2. Boilermakers (01)
3. Carpenters (Shipwrights) (02)
4. Electricians (04)
5. Laborers (05)
6. Machinists (07)
7. Painters (08)
8. Pipefitters (09)
9. Riggers (15)
10. Warehouse (16)
11. Sheetmetal (20)
12. All other (indirect) (22)
These rather precisely recorded classifications differed lit-
tle from what the industry considered normal and necessary.
Using DSR’s busy, if not peak, periods as point of reference,
Kahler testified that the classification listing would be Boil-
ermaker, Shipwright, Pipefitter, Operating Engineer, Elec-
trician, Sheet Metal (Worker), Painter, Laborer and Rigger,
plus the Teamsters occupations. Comparably, Anderson testi-
fied that his hourly employees in July were the painter, weld-
er, machinist, mechanic, electrician, and rigger crafts, plus a
truckdriver.
7. Projects performed
The facts of employment utilization by Respondent re-
flected actual vessel repair projects obtained during its ongo-
ing operations. As to key year 1987, and early into 1988,
these are summarized in General Counsel Exhibit 15-B, in
which two specific jobs of a bid amount exceeding $50,000
were shown for the February-March and May-June (1987)
timespan as the vessels ‘‘Trinidad Glacier Bay’’ and ‘‘Trini-
dad Aspen.’’ In addition to these projects, with estimated
man-hours running into the thousands, Respondent was oth-
erwise commonly involved in small maritime and waterways
repair work in and around the metropolitan area. Additionally
it had maintenance work at its own Vancouver premises, or
when later set up over the extended time of actually com-
pleting a full-fledged relocation of operations to Swan Island.
Other ships also show as being worked on during the last
half of 1987 and into early 1988. According to the tabulation
there was vessel repair work of some kind during each
month of late 1987, the two earliest of these being based on
bids submitted August 25 and September 4. Of these the ear-
lier bid was in the rounded amount of $1.2 million, easily
Respondent’s largest job of the year (Arco Prudhoe Bay),
having estimated manhours for October alone in excess of
30,000.
8. Supervisory issues
a. General facts
The essential nature of this industry meant that a diffused
sort of authority was present during the performance of avail-
able work. This arose from both geographical dispersal of
employees, and, on vessels sometimes running 600–800 feet
in length, the scattering of employees onto, into, and near to
the ship being tended. Additionally, small work groups
would often form, if not spontaneously then by accepted
practice among these mostly experienced ship repair per-
sonnel.
One emblematic factor was extensively covered in testi-
mony by numerous witnesses. This was the point of whether
at ship repair companies operating previously and tradition-
ally on Swan Island, plus as to Respondent’s personnel both
before and after the summer 1987 relocation, the wearing of
an all-white hard hat by a person meant this was a des-
ignated craft supervisor. While some variations to this prac-
tice occurred, the predominant and persuasive evidence is
that the functioning presence of a ‘‘white hat’’ indicated that
person was at least viewed, and to a further extent serving,
as one authoritatively directing the work of others in the
craft.
b. Evidentiary outline on individuals in question
(1) Richard Lightfoot
Lightfoot was not called as a witness during the trial. This
individual was first hired by Respondent in December 1986
as the specialist for industrial painting. He remained in fairly
constant employment throughout 1987, and coextensive with
formalization after Cascade General’s reincorporation was
designated general foreman for painting by Lundmark effec-
tive in September. Lightfoot had considerable background in
this occupation of the ship repair industry, by reason of pre-
vious employment at both DSR and NMI.
Robin Ramage has been employed by Respondent since
April (1987). He is a boilermaker by trade and at the time
of hearing a foreman, as then recently promoted from
leadman. Ramage and Lightfoot both formerly worked at
DSR, where Lightfoot was the paint general foreman.
Ramage testified that Lightfoot had arranged for him to be
employed with Respondent by clearing it with Lundmark. At
the time Lightfoot described himself as, and Ramage ob-
served him in the performance of, being Respondent’s paint-
er foreman. Ramage elaborated with testimony that Lightfoot
directed subordinate foreman or leadmen in the assignments
of journeymen painters to particular vessel hull or tank work.
For the period April through August, Lightfoot had the
highest hourly pay rate of any person among Respondent’s
listed main core of 11 employees. In this group he was at
$14 per hour, with most others at $13 per hour, and only
Terry Gardner at the intermediate $13.50 rate. By September,
Lightfoot was coded as a level 1 foreman at $14.50 per hour.
(2) Stephen Van Domelen
In this individual’s first employment with Respondent in
late 1985, he viewed himself as a foreman. He is a boiler-
maker by trade, and was demoted in late 1986 to continue
with Respondent as a craft journeyman. Van Domelen testi-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fied that subsequently in late spring 1987 he was promoted
back to a foreman position. During the formalized changes
of September 1987 he was designated sheet metal senior
foreman, with express authority to at least hire employees
needed for his function. Van Domelen has approximately 20
years’ experience in the industry, having previously worked
for both DSR and NMI.
Van Domelen testified that during the period from ap-
proximately May (1987) through July he fulfilled his status
as a foreman by directing other employees in repairing struc-
tural members of ships. This was a welding function to bead
and weld metal cracks, and Van Domelen exercised the au-
thority to establish actual work procedures and meet sched-
uling deadlines.
Ramage also testified regarding his observations of Van
Domelen, recalling that this apparent foreman supplied job
material, adjusted tasks as special work problems might re-
quire, and obtained persons to serve as the mandatory ‘‘fire
watch’’ of work in progress.
During the April through August period, Van Domelen
was one of the persons paid at a $13 hourly rate. With the
September changes he was coded as a level 2 foreman at $14
per hour.
(3) Monte Canucci
This individual’s original employment by Respondent in
August 1986 was as a boilermaker. Effective around October
(1987) he was named by Lundmark to be general boiler-
maker foreman with express authority to hire and fire em-
ployees in running Respondent’s plate shop. He has worked
on Swan Island since the early 1970s, both for general indus-
trial companies and, as periodically with DSR, in ship repair
work. His experience background is that of steel fabricator
and boilermaker. Van Domelen testified that on his own de-
motion in late 1986, Canucci was the person who took his
place.
Canucci testified that during the period prior to July 31,
he was not officially a foreman, but insofar as work matters
were concerned would only speak to other employees about
what was not right or being done unsafely. He added that the
employees so spoken to would ordinarily correct the work in
progress according to his observation and instructions.
Canucci relayed timecards of others to Respondent’s office,
and occasionally distributed paychecks. He denied habitually
wearing a white hat in performance of his work, recalling in-
stead that when he did wear a hard hat it was green in color.
During this timespan Canucci was paid at the $13 hourly
rate.
Ramage testified that his first 3 days working for Re-
spondent were to run a boilermaker crew on the second shift
by a ‘‘turnover’’ from Canucci. The turnover was a proce-
dure of Canucci and Ramage conversing sufficiently long at
the shift change to set up a productive and efficient basis for
the arriving crew to continue the work in progress. Ramage
testified that after the third day he found that Canucci was
countermanding his assignments, and for this reason he re-
quested and obtained a drop back to journeyman status.
Ramage’s observation from that point onward included see-
ing Canucci handle paycheck problems and issue work in-
structions. Ramage also testified that for informal short-term
layoffs, Canucci would effectuate this by telling the involved
employee to stay home pending a telephone call back from
himself or Bittner. Ramage contradicted Canucci by recalling
that he usually did wear a white hard hat in the performance
of his job.
(4) Robert Lindsay
Lindsay did not testify. Respondent’s payroll records show
him employed by late 1986, and continuing with much regu-
larity through 1987. During the month of July 1987 he was
on the payroll for week endings July 3, 7, 10, and 17, and
while not showing on week ending July 24 is noted as being
on vacation during week ending July 31. Lindsay continued
showing on the payroll during early August workweeks. He
appeared on the computerized payrolls in September with a
coding showing his skill craft to be boilermaker.
(5) Terry Gardner
Gardner also did not testify. Respondent’s payroll records
show him employed by January 1987, and he continued in
substantial and regular employment with Respondent for the
balance of that year. He is on Respondent’s payroll with full
hours of employment for each workweek in the significant
months of July and August. On the computerized payroll for
early September, Gardner is shown as a coded level 1 fore-
man for the machinist craft.
Bruce Morace testified that he was hired as a machinist by
Gardner in the spring of 1987. Thereafter he was assigned
work by Gardner, and others, such as exact tasks on the dis-
charge valve or pump of an engine room. Additionally,
Morace testified that Gardner had asked him to perform
overtime work on occasion.
Robert Enzenbach and Melvin Johnson were other machin-
ists who testified to being hired by Gardner in early 1987.
According to the journeymen employees, Gardner later cor-
rected a paycheck problem for each of them.
(6) Mark Bolton
While it is not verified in payroll records for the particular
month, Bolton testified that he was actually hired in Decem-
ber 1986 by Rohde, and performed mechanical work within
his craft of machinist for a total of 12 hours spread over 2
days at Respondent’s Vancouver facility. After another short
4-day stint of employment in January, he was hired for a
third time by DeSerrano. This occurred in February, and
Bolton testified that after a short time he was elevated by
Gardner from a leadman to running jobs as a foreman. For
this he was paid 50 cents an hour more, and had greater re-
sponsibility for job accomplishment by other employees,
while regularly wearing an identifying white hat. Bolton had
approximately 9-1/2 years previous experience in ship repair
at the Port of Portland facilities, working for DSR and NMI
in the machinist classification.
Bolton testified that by early 1987 the machinist craft
function at Respondent had become in charge of Gardner,
with DeSerrano as his first assistant. Bolton himself was the
third in line of authority after his promotion and pay increase
while the Glacier Bay job was underway. He recalled that
the total complement of machinists went as high as 20 for
the repair work to this vessel.
Bolton also testified that he quit any employment status at
NMI when it appeared the work with Respondent was rea-
sonably steady. While he did experience brief layoffs as the
669CASCADE GENERAL
year 1987 passed, he remained in fairly continuous employ-
ment there. Notwithstanding these interruptions, Bolton testi-
fied specifically that the supervisory configuration of Gard-
ner, DeSerrano and himself, as ‘‘number three’’ foreman in
charge of machinists on night shift, continued in effect at
least through the month of July.
Morace testified that no several occasions Bolton gave him
short-term layoff notices as a ‘‘pink slip,’’ and that on one
particular confrontation with Bolton as to work processes he
complied with instructions given.
Respondent’s records show that Bolton’s pay rate was
$12.75 per hour until early May, and then increased to $13
equaling that being paid to Van Domelen, Canucci, and oth-
ers. After the changes in September, Bolton was coded as a
level 2 foreman at $14 per hour.
(7) James DeSerrano
DeSerrano testified that he was hired by Bittner on No-
vember 5, 1986 as a machinist. After Respondent moved its
chief operating headquarters to Swan Island DeSerrano began
to run jobs, and had the authority to select persons actually
to perform authorized overtime. DeSerrano testified that
while never expressly told he was a foreman, he ‘‘possibly’’
chewed out employees in the process of guiding their work.
DeSerrano denied that during the period January to July any
of the experienced machinists working for Respondent were
titled as either superintendent or foreman. He did add that
when crew size warranted it, Gardner, Bolton and himself di-
rected the work of machinists. DeSerrano has nearly 10 years
experience working in the Port of Portland shipyard, mostly
with NMI as a journeyman and leadman, plus lesser time
with DSR.
Morace testified that on his first day of reporting for work
it was DeSerrano who had him fill out hiring papers, and
then gave him a specific job on a ship to be boarded. There
were 10 to 20 other machinists already lined up for work that
day, and DeSerrano dispersed them throughout the ship to
work on specific pieces of machinery, pairing up employees
of the group as necessary. Morace also recalled DeSerrano
wearing the distinctive white hard hat then, and whenever he
subsequently saw him at the worksite.
William (Jim) Blake testified that early in January,
DeSerrano had recruited him for possible work with Re-
spondent. He was quite familiar with DeSerrano as a
leadman of the wheel gang when both were NMI employees.
When Blake was later laid off from his machinist position
at NMI, he sought out DeSerrano and found him running a
machinist crew on the Trinidad Aspen job (correcting him-
self for having first named the vessel Glacier Bay).
DeSerrano confirmed work was available for Blake, and he
was immediately hired for duties on a rudder job which en-
tailed pulling components, reworking staves and reassembly.
Blake also testified that DeSerrano had told how Lundmark
first placed him in control of the machinists department until
being supplanted by Gardner, and that he regularly saw both
Gardner and DeSerrano park their cars inside the shipyard
security gate where a pass was required.
DeSerrano was receiving the $13 hourly pay rate from
April through August. After payroll changeover in Sep-
tember, DeSerrano appears as a coded level 2 foreman at
$14.
(8) Lawrence Mathieu
Mathieu testified that he was hired by Respondent on De-
cember 6, 1986, for miscellaneous duties of an electrical,
plumbing, and parts chasing nature. His most recent change
of employment was in September 1987, when appointed su-
pervisor of maintenance electricians and support services.
For the ship repair function that Respondent later became
more fully involved with as 1987 progressed, Mathieu per-
formed the actual work of dropping illumination into tanks
of vessels, hooking up transformers, and regulating the elec-
trical controller of air compressors. On the occasions prior to
July when Mathieu performed electrical work along with oth-
ers, he testified that Rohde seemingly put him in charge to
be sure that work was completed within general instructional
guidelines. He described the colleagues in such a situation as
mostly people who ‘‘knew what had to be done,’’ but he was
free to correct their work as he saw fit. However, he ex-
pressly denied ever wearing a white hat during that portion
of his employment with Respondent which preceded Sep-
tember. Mathieu has a general background with a variety of
industrial supply companies of the area.
Ramage testified that he had often seen Mathieu working
along with a crew of electricians, and being the one telling
others what needed to be done. Ramage also recalled that it
was true Mathieu was not the wearer of a white hat during
the pre-September period, and in fact followed the unusual
practice of not wearing any hat at all.
At the time of being hired by Respondent, Mathieu had
been working as a carpenter out of the hiring hall maintained
by Local 611. Gerald Krahn, a business representative for the
Oregon State District Council of Carpenters, testified that in
February he had contacted Mathieu for a job dispatch.
Mathieu declined the opening, and in the conversation that
followed stated he was dropping out of carpenter work be-
cause of having been hired as a foreman by Respondent for
shipyard-type work.
Mathieu’s hourly pay rate during the April through August
period was $13. After the changeover in September he was
coded as a level 1 foreman, but for reasons not known was
set at an initial pay rate of only $14.
(9) Dennis Eubanks
Eubanks testified that he first started with Respondent in
December 1986, and although telling Lundmark at the time
that he was an experienced rigger he was actually employed
as a machinist to then work with his friend DeSerrano.
Eubanks continued with Respondent, and effective September
1987 was appointed supervisor in charge of the rigging de-
partment. This entailed the authority to discipline employees,
and the assumed authority to hire and fire when necessary
as a designated general foreman.
Eubanks described the rigger craft as one involving move-
ment of heavy equipment by use of cranes, fasteners and lift-
ing gear. The riggers do necessary hook up and sling ar-
rangement, while the cranes are operated by another craft
that riggers coordinate with by use of hand signals.
As 1987 progressed Eubanks gravitated more into a com-
bination job as machinist and rigger. He named Lundmark,
Rohde, and Bittner as the persons in charge of all riggers,
adding only that he would make minor assignments to others
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and fill out work hours on timecards for some of the other
riggers.
Ramage testified that during the general time of spring
1987, Eubanks was in charge of all riggers, and had at least
two foremen, one named Parsons, under him in the hier-
archy. Ramage added that he had actually observed Eubanks
instructing those subordinate foremen in what needed to be
done.
For the April through August period Eubanks was paid the
hourly rate of $13. After September he was coded as the
level 1 foreman, with a corresponding $14.50 hourly rate.
(10) Robert Routley Routley testified that he was hired by
Respondent about July 1 as a truckdriver to do ‘‘a little bit
of everything,’’ including certain warehousing tasks and cus-
todial duties as necessary. In September 1987 Kahler ap-
pointed him general foreman over the warehouse and related
operations with express authority to hire and fire as nec-
essary. Routley had last been a truck driver at DSR, and was
holding that job when it ceased operations. He had main-
tained Teamster Union membership up to the end, but took
a withdrawal card from this labor organization when the final
layoff came.
Routley has experience as a warehouseman going back to
1965 with DSR and its predecessor. He described his work
after first being employed by Respondent as driving a truck,
running the overhead crane, hauling material to jobs, and
even sweeping the floors if necessary. One of his first spe-
cific assignments, as made by Lundmark, was to canvass the
local automobile dealer for a good running company truck.
In the process of doing so Routley test drove a flat bed truck
which Lundmark then purchased. Later in his employment
Routley was instrumental in the transport of tools, materials
and equipment to Swan Island operations from the Van-
couver base. In doing so he pulled a 20-foot trailer stocked
with drop cords, welding lead, torches, ladders, and the like.
This trailer could then be spotted near the Swan Island job
in progress for as long as its contents were needed by the
various craft employess.
Routley was the person typically dispatched by Bittner to
pick up miscellaneous supplies such as light bulbs, welding
rod, steel plate and hardware. In this process he either fur-
nished a purchase order to the vendor, or paid with his own
cash subject to reimbursement. Routley participated in Re-
spondent’s relocation to Swan Island, which he viewed as a
closing of the main Vancouver site. He recalled the transfer
of equipment as requiring 4 or 5 loads on the flat bed truck.
For the period from his employment through August,
Routley’s hourly rate of pay was $13. After changeover to
a computer-based payroll system in September, he was coded
as level 1 foreman at $14.50 per hour.
c. Other relevant evidence
According to Anderson there were periodic meetings held
by himself and Lundmark with the individuals in charge of
work projects. Anderson identified those he meant as regu-
larly being in attendance to be generally the 10 card signers,
plus Richard Deegan, who was utilized in the painting of
vessels more exceptionally than other journeymen. The meet-
ings occurred just prior to the start of the day shift, and in-
volved Respondent’s executives explaining to those present
what they wanted to have done, plus occasionally specifying
just who as among the work force should be assigned to par-
ticular tasks. Of the group Anderson described as assembling
in these instances, Canucci most vividly denied a recollection
of ever having attended any ‘‘production meeting’’ of this
kind.
Respondent provided life and medical insurance to its var-
ious officials and to key employees beginning in 1986.
Mathieu was an exception to this coverage, and Routley does
not show on the summary of participants because of just
being newly added when a listing current for August was
generated. Otherwise all the other card signers are shown as
being covered by July with Farwest Insurance Co., and hav-
ing their monthly premiums paid by Respondent. These pro-
grams were handled by office secretary Diana Santas, the
person believed by employees also to be the payroll clerk in
the time prior to relocation onto Swan Island. For reasons
not disclosed both Lightfoot and Eubanks were discontinued
from such coverage effective in August.
F. Analysis
1. Threshold conclusion
The principle of valid authorization cards being used to
support a lawful grant of recognition by an employer to the
labor organization so designated as a desired collective-bar-
gaining representative is found in Snow & Sons, 134 NLRB
709 (1961), enfd. sub nom. Snow v. NLRB, 308 F.2d 687
(9th Cir. 1962). This case involved several issues in the con-
text of loosely unfolding circumstances that led to a check
of authorization cards claimed to be held by the union in-
volved. The disinterested, impartial person performing this
card check was a minister, who recorded for the parties that
a majority of listed employees had designated the Union as
claimed.
Holding that this process was sufficient to support an
order to bargain, the Board noted that the card check rep-
resented a binding agreement expressly made by the em-
ployer and the later attempted repudiation was not chal-
lenging ‘‘the accuracy or the propriety’’ of what had been
found. In further detailing events surrounding the card check
this decision termed the process a ‘‘signature’’ check while
the court’s opinion expressly noted that the minister had
‘‘compared the two sets of signatures’’ using signed W-2 in-
come tax forms in his undertaking.
The facts in Waikiki Plaza Hotel, 284 NLRB 23 (1987)
are generally comparable to what occurred here. The Waikiki
Plaza case involved parallel contract negotiations by two em-
ployers, in the midst of which a question concerning rep-
resentation arose with regard to an independent union. In this
context a hurriedly arranged card check took place as to each
separate group of employees, and was carried out on one of
the premises by an ordained minister. He considered em-
ployee lists furnished separately by each of the employers,
and the independent union’s authorization cards. After a brief
hitch requiring the independent union to provide certain addi-
tional authorization cards for one of the bargaining units, the
minister ‘‘concluded that a majority was shown’’ for both of
them and signed a certification to that effect.
In a decision adopted by the Board, the view taken of
these activities was stated as follows:
The card check conducted by [the minister] was not
of a character to establish majority representation being
671CASCADE GENERAL
enjoyed by the [union] for the fundamental reason that
no assurances were present of signatures to authoriza-
tion cards being those of the individuals listed as being
employed within the respective units.
In Contemporary Guidance Services, 291 NLRB 50
(1988), ‘‘an impartial card check’’ was desired between par-
ties as to whom recognition of a union was at stake. Here
another cleric was suggested but rejected, and a New York
City attorney became the designated person ‘‘to check the
signatures.’’ After establishing ‘‘a method of verifying signa-
tures’’ [emphasis added], the impartial concluded that a ma-
jority of employees listed by the management had authorized
the involved union to bargain for them.
Other cases in which the authentication of authorization
cards was the issue, involved the precise activity of com-
paring known signatures to an exemplar. See Heck’s Inc.,
166 NLRB 186 (1967); Teamsters Local 707, 196 NLRB
613 (1972); Drackett Co., 207 NLRB 447, 451 (1973); and
Allied Products Corp., 220 NLRB 732, 734 fn. 4 (1975).
The foregoing array of authority convincingly establishes
that the Board expects a determined effort in card check situ-
ations to assure that signatures on union authorization cards
were in fact placed by the individual appearing with that
name on a listing of employees. Were this not done the card
check procedure would be illusory, because of regardless of
how impartial, or dedicated, the third party might be, they
simply have no basis to be satisfied that a cursive name-writ-
ing was necessarily done by the same actual person as is list-
ed by an employer among its employees. In Waikiki Plaza
this failing is what caused the controlling rationale to state
that recognition ‘‘was tainted from the outset,’’ and I reach
the same conclusion here. What Stratton actually certified to
was a simple ability to read the English language and affirm
that a typed list of names represented, almost in their total
number, the same names as appearing in handwritten form.
This is not a reliable basis on which to grant recognition, and
by doing so Respondent has violated Section 8(a)(2) of the
Act and derivatively Section 8(a)(1).
Should it subsequently be determined that the foregoing is
not a valid basis of decision, I have for such a reason contin-
ued with the following analyses. These result in alternative
and supplementary holdings to the effect that Respondent is
also viewed as having violated Section 8(a)(2) on separate
and independent grounds.
2. Substantial and representative complement issue
a. Contentions
The General Counsel and the Charging Party contend that
Respondent knew full well it would expand dramatically in
terms of its operations from after late July 1987, and the en-
tire recognition dynamics involving Richard Stratton was
merely an ‘‘orchestrating’’ of unlawfully granted recognition.
Respondent contends that several grounds exist for con-
cluding that its work force in the last week of July was truly
representative in terms of company history and business ob-
jectives at the time. First, Respondent notes that its level of
employment had fluctuated considerably over the approxi-
mately 2 years of operations, as would be expected given the
unpredictability of the ship repair business. Second, Re-
spondent argues that any hopes for growth and prosperity
that its officials harbored were simply uncertain of fulfill-
ment. Here it is noted that little future work was assured, and
the employees on the payroll in late July were actually work-
ing on repair jobs as a regular core of employees. It is also
noted that the lease arrangement at Swan Island was tenuous,
leaving Respondent no assurance that it could remain there.
Respondent contends further that it had no reason to favor
any bargaining relationship with OCAW. Contrarily it asserts
that given the unsettled business changes of that summer,
and uncommitted bank financing of its major equipment pur-
chase, the recognition demand from Watts ‘‘could not have
come at a worse time.’’
OCAW contends chiefly that this issue is controlled by
Fall River Dyeing Corp., 482 U.S. 27 (1987). Arguing gen-
erally from the holding in Fall River, OCAW points to the
basic fluctuation of operations present in the ship repair in-
dustry, and that the retention of key employees during lull
periods is both sensible and necessary. OCAW argues that
only jobs actually secured should be relevant, and that even
an aggressive bidding policy is without significance because
it deals only with what is possible, not actual.
b. Authorities
The most appropriately stated test for premature recogni-
tion is whether, at the time of recognition, the jobs or job
classifications designated for the operation involved are filled
or substantially filled and the operation is in normal or sub-
stantially normal production. Hayes Coal Co., 197 NLRB
1162 (1972). The Board specifically added in Hayes Coal
Co. that a determination of premature recognition cannot be
predicated on ‘‘a possibility that future conditions may war-
rant an increase in personnel, or on the basis of an increase
in personnel subsequent to the granting of recognition.’’
In Allied Products, supra, an unlawful recognition of a
union was prematurely extended when only 11 out of an ulti-
mately anticipated 75 employees were employed, and these
were engaged in preparatory work not in the nature of nor-
mal production.
In R.J.E. Leasing Corp., 262 NLRB 373 (1982) a similarly
unlawful recognition was extended when done on the basis
of five employees, following which the work force imme-
diately increased to 35, 93, and 150 within about a month.
The opinion quoted from Cowles Communications, 170
NLRB 1596, 1610–1611 (1968), as follows:
. . . where an employer recognizes a union as the ex-
clusive bargaining representative of its employees on
the basis of a majority demonstrated by cards or a peti-
tion, as here, such recognition is inappropriate and un-
lawful if it is granted before the employer has recruited
a work force that can be considered substantially rep-
resentative of his anticipated complement of employees.
See also Bootlegger Trail, 242 NLRB 1255 (1979).
In Herman Bros., 264 NLRB 439 (1982), the Board found
no violation in the granting of recognition where a prompt
increase in the work force was ‘‘unforeseen’’ at the time.
Anaconda Co., 225 NLRB 953 (1976), also resulted in dis-
missal of a complaint alleging the Section 8(a)(2) violation
of recognizing a union and signing a contract before there
may exist ‘‘a representative complement of job classifica-
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions and/or employees . . . because of the expanding na-
ture’’ of operations.
Fall River Dyeing, supra, relied on by Party to the Con-
tract, was a successorship case, a category not well suited to
determination of the narrower issue here, nor a theory
claimed to be applicable by General Counsel. Premium
Foods v. NLRB, 709 F.2d 623 (9th Cir. 1983), and Aircraft
Magnesium, 265 NLRB 1344 (1982), also cited by OCAW,
are again successorship issue cases not of sufficient materi-
ality to the necessary resolution here. Daniel Construction
Co., 133 NLRB 264 (1961), extensively discussed in the
OCAW brief, was a proceeding under Section 9(c) of the
Act, and similarly neither relevant here nor relied on by Gen-
eral Counsel.
c. Discussion
Here there was not only substantial upward movement in
the number of employees utilized for ship repair operations
during 1987, but also a formalization from after September
1 of what had been so casually managed before. While no
vessels were berthed for major repair during mid-to-late sum-
mer 1987, a definite business undercurrent was underway. As
General Counsel correctly notes, the hiring of Kahler was a
significant act in connection with the leasing, equipment auc-
tion, and financing dynamics going on simultaneously. Al-
though it is true that mere possibilities are not to be given
unjustified weight, the situation at the Portland Ship Repair
Yard held every potential beyond mere speculation. The void
created by DSR’s elimination was bound to be filled in some
appreciable way at this major maritime facility of the upper
West Coast. Even allowing that WSI was also newly on the
scene, and founded by a former chief executive of DSR, the
business momentum was with Respondent. This arose both
from their more established presence at the facility, and the
fact that they attracted a more motivated group of experi-
enced craft workers because of little or no association with
the controversial memory of DSR’s last years.
Respondent argues that the original lease was only tem-
porary, however there is no indication that the Port, as lessor
and a public entity, was interested in anything less than a full
utilization of its premises, with Cascade General as the lead
prospect. It is also conjectural that just as the $1.6 million
worth of DSR assets were purchased; so too could they be
resold if the level of business did not justify their retention.
While this argument has a logic to it, the more realistic view
is to say that such an audacious step would only be under-
taken with a serious intent at business growth. Finally the
necessary bank loan to permit this integrated positioning of
business capacity was comfortably anticipated, until only the
last-minute crisis led to a resourceful alternative.
In more direct relation to the legal doctrine involved, the
representative jobs existing would militate in favor of the le-
gitimacy of OCAW’s recognition. While there are certain
fringe functions such as the internal machinist who can
produce for general industrial customers, and operating engi-
neers, about which little was developed in the record, the
work force during the retrenched pay periods of late July
were still practically a total cross-section of trade skills need-
ed for ship repair work. What is dramatically different is the
increase in personnel that occurred so swiftly after the key
date of September 1 had passed. Noting that this was the
time of formal reincorporation, and that Brawley had astutely
shadowed the evolving circumstances all summer long to ul-
timately become Respondent’s consultant and then primary
financial officer, I believe that operations were neither nor-
mal nor substantially so when OCAW was recognized
promptly and unquestioningly after the Stratton card check.
Given these circumstances, I do not believe the facet of
Hayes Coal stating that purely an increase in personnel does
not denote unrepresentiveness is a controlling point.
It is also notable that Anderson, contrary to his attempt to
depict things otherwise, practically embraced Watts’ pur-
poses. Respondent had known long in advance of MTC-ori-
ented representational interests as to its employees, both from
Fahey’s dealings and from a much earlier letter of Plympton
dated in 1986, alluding to ‘‘the possibility of Cascade Gen-
eral obtaining a Union Contract.’’ With this background, and
given Anderson’s matured, and diverse business experience,
he could not have failed to understand that his company was
a temptation to those in the labor movement. When these
factors are weighed against his testimony that he did not un-
derstand the card check proceedings, and that he executed a
recognition statement to OCAW without having any par-
ticular reason to do so, it seems even more plain that Ander-
son was looking ahead to burgeoning operations, and pos-
sessed of an intention not to have dealings with MTC as had
contributed so traumatically to the closure of DSR.
D. Holding
Accordingly, I find the increase of employees, particularly
when the 16 employed in the workweek of July 31 are com-
pared with the 400 on Respondent’s payroll in November,
makes it sufficiently plain that a representative complement
was not in Respondent’s employ at the time of the recogni-
tion based on a card check. On this basis I find there is the
separate and independent reason to hold that Respondent vio-
lated Section 8(a)(2) as basically alleged in this case.
3. Conclusions regarding alleged statutory supervisors
a. Contentions
General Counsel originally contended that all 10 card sign-
ers were statutory supervisors, however a concession appears
in the brief to the effect that ‘‘the record is insufficient to
establish that Robert Lindsay is a statutory supervisor.’’
Other than this General Counsel, with the Charging Party’s
concurrence, contends that the remaining nine individuals all
exercised at least one of the disjunctive functions of a statu-
tory supervisor as defined in Section 2(11) of the Act, and
exhibited other secondary indicia of such authority.
In its contrary view on the issue, Respondent argued that
supervisory status had not been established for any of the in-
dividuals at the particular time when they signed the OCAW
authorization card. Respondent observed only that even with
all doubts resolved in favor of General Counsel’s allegation,
the most shown was indistinct and minor examples of a su-
pervisory function. The testimony of Bolton was cited to ex-
emplify this, insofar as he described the machinist function
as one where 90 percent of the time all those in the craft,
meaning to include Gardner and DeSerrano, were simply an
indistinguishable team working with the tools.
OCAW contended that for certain limited periods of time
a leadman capacity was established for some of those at
issue, but this did not meet statutory criteria to show super-
673CASCADE GENERAL
visory status. In further development of its arguments,
OCAW only briefed the supervisory status issues relative to
Routley, Canucci, Van Domelen, Mathieu, Bolton, and
DeSerrano.
b. Credibility
The evidence concerning this branch of the case is exten-
sive and often contradictory. Thus as to episodes and the true
nature of workplace happenings it is vital to assess the credi-
bility of those offering testimony on the issues.
I am generally persuaded to believe General Counsel’s
early witnesses, for Morace, Enzenbach, Blake, Johnson, and
Ramage all exhibited a convincing demeanor. In each case,
and to a sufficient extent, they each appeared earnest in re-
counting what they had experienced, and the true nature of
how operations were achieved in this dispersed setting.
As among the remaining rank-and-file witnesses for this
issue, actually those whose status was at issue, I credit Van
Domelen and Bolton in particular as to their actual roles in
the process and that of their colleagues. The witnesses I spe-
cifically discredit, where their testimony gives rise to a con-
flict, are Canucci and Eubanks, both of whom impressed me
as vague, evasive, and lacking in conviction as to what they
described.
Anderson is also a witness I discredit, and here the rejec-
tion of his testimony on this and other issues of the case is
quite emphatic. Anderson exhibited almost a studied uncon-
cern for the accuracy of what he was saying, and I find little
of value in his testimony, other than as background, chro-
nology, and superficial recounting of events.
c. Guiding case authority
In Spring Valley Farms, 272 NLRB 1323 (1984), the
Board closely analyzed the duties of a feed delivery man-
ager, holding that a broad, nonroutine and responsible discre-
tion was possessed by her as to the hours worked and earn-
ings realized by a group of drivers. The Board specifically
explained its holding as based on the principle that posses-
sion of any disjunctively stated type of statutory authority
listed in Section 2(11) of the Act was sufficient to confer the
status of a statutory supervisor on such a person. As appro-
priate to this case Rose Metal Products, 289 NLRB 1153
(1988), holds that where a senior metal working employee
assigns work order tasks among six to eight others, consid-
ering their skill and availability in the process, transfers work
between them, and corrects their flaws, he is a statutory su-
pervisor even though spending a minimum of 80 percent of
his own time performing unit work.
Respondent cites case authority for seasonal industries in
which a 50 percent rule, determined by the facts of a com-
plete 1 year period, establishes the inclusion or exclusion of
persons within a bargaining unit. Great Western Sugar Co.,
137 NLRB 551 (1962). Respondent’s other citation on this
issue, Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151
(7th Cir. 1970), is uniquely limited to a highly structured
work setting of salaried employees possessing a mechanical
engineering degree, or its equivalent, for which the Board
fashioned a special ‘‘50% formula’’ as to supervisory issues
arising from facts of the case.
In Security Guard Services v. NLRB, 384 F.2d 143 (5th
Cir. 1967), enfg. 154 NLRB 8 (1965), the court closely ana-
lyzed the true meaning of ‘‘independent judgment’’ in the
course of one person in a work force directing the efforts of
others. The court emphasized that to reach the level of an ac-
tivity contemplated by Section 2(11) of the Act, there must
be an assured vigor and substance to directives given, not a
mere acting as intermediary or serving in a role where the
authority to command is more illusory than real.
d. Discussion
1. Functional significance
For the most part the individuals at issue were the hands-
on cadre for this ship repair enterprise. Except for Routley,
all others persevered with Respondent through the eventful
first half of 1987, and in apparent recognition of their efforts
were propelled into formal positions of authority when Re-
spondent underwent its extensive upsurge in business later
that year. By then Lightfoot and Mathieu were both well-en-
trenched in their respective roles, and the shake-out of au-
thority as between the Canucci–Van Domelen and Gardner–
DeSerrano duos was a settled reality.
The roles of Krug, Rohde, Bittner, and Way, from the lim-
ited evidence as to them, were such that management direc-
tion and control emanated only at sporadic, focused times
from each of them. However the key names in higher man-
agement remained Anderson and Lundmark, and they plainly
exercised this authority over the months of 1987 preceding
Kahler’s hiring.
In generalizing about the situation I am convinced that a
sufficient need for supervisory oversight and direction, to be
both authoritative and frequent in its exercise, was present
for all the crafts. In general, therefore, I conclude that the
three persons frequently named as supervising the principal
craft of machinist, and, except as determined below, the
other ‘‘craft heads’’ were instrumental in effectiveness of
overall, combined operations. It must be remembered that
Kahler did not arrive until well into mid-summer, and he was
immediately enmeshed in the several administrative concerns
of the business at that time. Finally, a point not touched on
in the arguments, but one of considerable importance to me,
is the fact that Lundmark, perhaps the most completely
versed of Respondent’s officials in ship repair work, took
sporadic business trips to Japan approximately around July,
thus diluting the supervisory scheme and calling more on the
residual authority of the craft heads during that significant
period.
2. Application of Section 2(11)
Section 2(11) of the Act reads:
Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Based on the facts of this case, and settled Board doctrine
as to resolving first-line supervisory issues, it is established
from the evidence that Gardner, DeSerrano and Bolton each
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claimed, possessed and exercised authority to effectively di-
rect others of their craft by the use of independent judgment
rooted in their skills and experience. I find the same to be
true as to Lightfoot, Van Domelen, Canucci, Mathieu and
Eubanks, for in each of these cases the manifestation differed
only in frequency and degree, but not in its essential signifi-
cance.
3. Secondary indicia
On the basis of several admissions of having attended pro-
duction meetings, the spontaneous agreement by Anderson
that these did take place with the respective craft heads, and
discrediting Canucci’s contrary denial, I note first that this is
a secondary factor influencing any definitive conclusion on
the point. The white hat wearing also militates this way, as
does the permission of these specially recognized employees
to park their vehicles inside the security perimeter of the
shipyard when reaching work. Further, there was accepted
evidence that the three men overseeing machinists regularly
used a desk within a trailer spotted at the Swan Island prem-
ises. Finally, the group at issue is largely set apart by reason
of their insurance coverage. This fringe benefit signifies with
some impact that Respondent considered them as special in-
dividuals in the business scheme.
4. The OCAW meetings
On the afternoon of July 27, and with Anderson’s permis-
sion to do so during working hours, Watts conducted a meet-
ing of employees to solicit their authorization for collective-
bargaining representation. This occurred at the Vancouver fa-
cility, where the entire work force was present. Lightfoot in-
formed them all about attending, and as the group assembled
to hear Watts they were also joined by Rohde. Watts opened
the meeting by asking that any supervisors excuse them-
selves, and on this Rohde departed. Watts proceeded to de-
scribe the benefits of his organization, and on concluding the
entire group of 10 persons present each signed a typical au-
thorization card for OCAW.
These became the cards supplied to Cramer for his card
check meeting 4 days later, following which he returned
them to Watts at OCAW’s Richland, Washington office. Still
later these cards were submitted by OCAW to the Board as
intervention in the MTC-generated representation petitions.
On September 24 Watts held ratification meetings with
employees now at the Swan Island location of Respondent.
A secret ballot procedure was followed, leading to unani-
mous ratification of the contract reached between OCAW
and Respondent.
5. The whiting-out
The trial involved consideration of the fact that seven of
the OCAW authorization cards bore ‘‘white-out’’ opaquing
over the line for a statement of the signer’s classification.
White-out is the brushed on fluid that quickly dries to a cov-
ering crust on paper.
The whiting-out had been directed be done by Watts after
the July 31 card check. Testimony of Federal Bureau of In-
vestigation document examiner Gary Kanaskie established
that on an official request these whited-out cards long in the
possession of NLRB Subregion 36 were sent to Washington,
D.C. and examined there at the FBI laboratory. Kanaskie tes-
tified that by use of lighting enhancement, chemical and pho-
tographic procedures he was able to determine in all but one
case that the obscured classification entry was the word
‘‘Foreman.’’
e. Holding
The overall evidence on the supervisory issue of the case
shows that most of the persons in question did possess, and
had regularly exercised, the authority to responsibly direct
work of others at times preceding, and in effect on, July 27
and July 31. The preponderance of secondary indicia in the
case, involving habitual wearing of white hats as emblematic
of supervisory status in a ship repair facility, confirms and
supports the chief outlook above. Further, the candid entry
of the term ‘‘Foreman’’ when executing OCAW authoriza-
tion cards indicates this as the view most of the individuals
held of themselves.
On this basis I conclude that Lightfoot, Van Domelen,
Canucci, Gardner, Bolton, DeSerrano, Mathieu, and Eubanks
were at times material to this case supervisors as defined in
Section 2(11) of the Act. The evidence is insufficient to
reach the same conclusion as to Routley, for this individual
had infrequent contact with other employees. His participa-
tion in a driving caravan for a brief Alaska project was not
indicative of supervisory status, and until his new designation
in September he functioned essentially as an unclassificable
employee experienced in materials, transportation and general
‘‘trouble-shooting.’’ No contention remains that Lindsay was
a supervisor, and the record would not support that conclu-
sion in any event.
On this basis I find that the recognition extended by Re-
spondent to OCAW was again on a separate and independent
ground violative of Section 8(a)(2) of the Act, because of the
near-complete involvement of supervisors. The apparent bar-
gaining relationship is for this reason void at its inception.
CONCLUSIONS OF LAW
1. Respondent Cascade General is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Oil Chemical and Atomic Workers Local 1-369, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By recognizing OCAW, by executing a collective-bar-
gaining agreement with it, and by maintaining in effect and
enforcing the provisions of said contract, which contained
union-security and dues-checkoff provisions, Respondent has
rendered, and is rendering, unlawful assistance and support
to OCAW, and has interfered with, restrained, and coerced
and is interfering with, restraining, and coercing its employ-
ees in the exercise of Section 7 rights in violation of Section
8(a)(1) and (2) 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.
REMEDY
Having found that Respondent has engaged in unfair labor
practices, I find it necessary to order it to cease and desist
and to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, I shall order Respondent
675CASCADE GENERAL
10 As described in sec. II,C,2, of this decision above, the Party to the Con-
tract has already renounced any current interest in representing employees of
this employer. While this disclaimer is noted, its full confirmation becomes
a compliance matter.
11 The motions to reopen record made by Respondent and OCAW are now
denied.
12 The official reporter has included a R. Exh. 4 in the record of this case
by adding it in a separate exhibit jacket dated June 2, 1989. In fact this exhibit
was identified only during the trial, but never successfully introduced or admit-
ted into evidence.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
14 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
to withdraw all recognition from OCAW as representative of
its employees for purposes of collective bargaining in the ap-
propriate unit herein, unless and until OCAW has been duly
certified by the National Labor Relations Board as the exclu-
sive representative of such employees. I shall also order Re-
spondents to cease giving force and effect to the collective-
bargaining agreement executed on September 24, or any re-
newal, modification, or extension thereof; provided, however,
that nothing in the Order shall authorize or require the with-
drawal or elimination of any wage increase or other benefits,
terms, or conditions of employment which may have been
established pursuant to those agreements.10 In addition, I
shall order Respondent to reimburse, with interest, all present
and former employees for all initiation fees, dues, and other
moneys which may have been exacted from them by, or in
behalf of, OCAW. The latter requirement is a remedial meas-
ure serving to restore to Respondent’s employees sums invol-
untarily withheld pursuant to the checkoff provision in an
unlawfully executed and maintained collective-bargaining
agreement or as accepted directly by OCAW. See NLRB v.
Forest City/Dillon-Tecon Pacific, 522 F.2d 1107 (9th Cir.
1975); R.J.E. Leasing Corp., supra; Special Service Delivery,
259 NLRB 993, 994 and cases cited (1982); and Hudson
River Aggregates, 246 NLRB 192 (1979). General Counsel’s
further remedial requests are denied.
Disposition11
On these findings of fact and conclusions of law and on
the entire record,12 I issue the following recommended13
ORDER
The Respondent, Cascade General, Portland, Oregon, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Assisting or contributing support to the OCAW by rec-
ognizing or bargaining with such labor organization as rep-
resentative of its employees for the purpose of collective bar-
gaining unless and until OCAW is certified by the National
Labor Relations Board as the exclusive representative of
such employees pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any force and effect to the col-
lective-bargaining agreement between Respondent and
OCAW dated September 24, 1987, or any renewal, exten-
sion, modification or supplement thereof; provided, however,
that nothing in this Order shall authorize or require the with-
drawal or elimination of any wage increase or other benefits,
terms or conditions of employment which may have been es-
tablished pursuant to those agreements.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withhold all recognition from OCAW as
the exclusive collective-bargaining representative of its em-
ployees unless and until it has been duly certified by the Na-
tional Labor Relations Board as the exclusive representative
of their employees in an appropriate unit.
(b) Reimburse all former and present employees for all ini-
tiation fees, dues, assessments and other moneys, if any,
withheld from or paid by them, in the manner provided in
the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its Portland, Oregon facility, copies of the at-
tached notice marked ‘‘Appendix.’’14 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.