Christofferson Logliners

National Labor Relations Board - Board Decisions

Sep 24, 1993

312 N.L.R.B. 388 (N.L.R.B. 1993)

388
312 NLRB No. 67
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 No exceptions were filed to the judge’s finding that the failure
to recall employee Richard Ostbye did not violate the Act.
3 Indeed, in its brief on exceptions, the Respondent admits that it
knew that the alleged discriminatees signed their names to employee
notices and letters concerning unionization during the organizing
campaign.
4 The judge found that the ‘‘evaluation system was merely a clum-
sily devised effort to justify refusing to recall employees identified
with unionism.’’
5 In adopting the judge’s finding that counsel for the General
Counsel met her evidentiary burden, we do not rely on the judge’s
findings and inferences with respect to the written evaluation of em-
ployee Terry Mayer. The record does not establish with sufficient
clarity that Mayer abandoned support for the Union.
Christofferson Logliners, Inc. and Lumber, Produc-
tion & Industrial Workers Union Local 3038,
affiliated with the United Brotherhood of Car-
penters and Joiners of America. Case 19–CA–
21763
September 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 6, 1993, Administrative Law Judge David
G. Heilbrun issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommend Order.
We agree with the judge that the Respondent vio-
lated Section 8(a)(3) and (1) by failing to recall from
layoff employees Cahoon, Golden, Johnson, Kellough,
and Stevens.2 In adopting the judge’s finding that
counsel for the General Counsel met her evidentiary
burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), we note initially
that these five employees engaged in a variety of union
activities during the organizing campaign and that, in
view of the often open nature of these activities, the
Respondent was well aware of its employees’ union
activities and sentiments.3 Further, we note that the
timing of the Respondent’s new and unprecedented
written employee evaluation rating system coincided
with the union campaign and the Union’s certification.
We also observe that, in view of the judge’s credi-
bility resolutions, the Respondent’s stated reasons for
giving the generally negative evaluations of Cahoon,
Golden, Johnson, Kellough, and Stevens do not with-
stand scrutiny, thereby raising the inference that other
factors actually underlie the evaluations.4 Finally, we
note that coowner Jacquelyn Christofferson, architect
of the written rating system, admittedly told Dispatcher
Bruce Johnson, a supervisor who rated employees
under this system, that unions were ‘‘frightening’’ and
that they ‘‘cheat,’’ ‘‘lie,’’ and ‘‘corrupt other employ-
ees.’’
In these circumstances, and in light of all these fac-
tors, we agree with the judge that the General Counsel
made a sufficient showing that union activities were a
motivating factor in the Respondent’s failure to recall
these employees.5
In adopting the judge’s finding that the Respondent
failed to demonstrate that it would have denied recall
to these employees even absent their union activities,
we note that the record does not support the Respond-
ent’s contention that the rating system and the failure
to recall them were necessitated by the need to ‘‘cut’’
some incumbent employees. In fact the record con-
tradicts this claim. Commencing June 1, 1991, the Re-
spondent found it necessary to hire 16 drivers for the
1991–1992 season to complement the group of recalled
incumbent employees. Accordingly, the Respondent
failed to demonstrate that positions were unavailable
for Cahoon, Golden, Johnson, Kellough, and Stevens
during the June 1991–1992 season.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Christofferson Logliners,
Inc., Missoula, Montana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Catherine M. Roth, Esq., for the General Counsel.
Greg R. Tichy, of Veradale, Washington, for the Respondent.
Harlan Bernstein, of Portland, Oregon, for the Union.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried at Missoula, Montana, on April 21 and 22, 1992.
The original charge was filed October 28, 1991, by Lumber,
Production & Industrial Workers Union Local 3038, affili-
ated with the United Brotherhood of Carpenters and Joiners
of America (the Union), and the complaint, later amended,
issued December 12, 1991. The primary issue is whether
Christofferson Logliners, Inc. (the Respondent) refused to re-
call certain employees from seasonal layoff because they as-
sisted the Union by engaging in concerted activities, and to
discourage employees from engaging in such activities.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
389CHRISTOFFERSON LOGLINERS
1 All dates and named months hereafter are in 1991, unless other-
wise indicated.
by the General Counsel, Respondent, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Montana corporation engaged in the busi-
ness of transporting logs, with annual gross sales of goods
and services valued in excess of $500,000. During the rep-
resentative 12-month period of 1991, Respondent sold and
shipped goods or provided services having a total value in
excess of $50,000 from its facilities within Montana to cus-
tomers in other States, or to customers within Montana
which were themselves engaged in interstate commerce by
other than indirect means. Further, during the same rep-
resentative 12-month period, Respondent purchased and re-
ceived goods and materials valued in excess of $50,000 at
its Montana facilities directly from sources outside Montana,
or from suppliers within the State of Montana, which in turn
had obtained such goods and materials directly from sources
outside the State. On these admitted facts I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and, as is
also admitted, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
Respondent’s principal business activity is to transport
newly cut timber from remote forest areas to lumber mills.
Each spring the thawing ground makes accessways to the
pickup sites impassable, even by logging trucks. When ef-
fects of seasonal thawing ended in late spring 1991 certain
laid-off drivers were not recalled, assertively because of poor
work evaluations done by a management panel.
The Union had secured certification as exclusive bargain-
ing representative early that winter. The group of six drivers
involved had been, for the most part, openly active support-
ers of the organizing campaign that led to certification. Gen-
eral Counsel contends that these activities caused discrimina-
tory selection of the particular six drivers, as disguised retal-
iation for their having assisted bringing in the Union.
B. General Facts
Respondent has been in business for about 20 years. Its
coowners and chief officers are Leroy and Jacquelyn
Christofferson, husband and wife. During peak operations,
Respondent has had up to 50 employees as logging truck-
drivers, forest site loaders, and shop repair mechanics. A
wide area measured in hundreds of miles may be involved
from remote forest cutting sites to distant lumber mills.
Mountain terrain, off-road passaging, stringent weather con-
ditions, and long driving times are all factors leading to
rough wear and use of the sturdy logging trucks. Drivers are
paid on a combination basis of tonnage hauled and distance
traveled.
The annual spring breakup of thawing ground frost usually
begins sometime in March, and its effects are over by May.
As material to this case, Respondent’s principal customer has
been Champion International, with a large lumber mill in the
vicinity. Effective on February 14, 1991, Champion
uncharacteristically shut off all acceptance of logs, and gave
Respondent no firm assurance about when deliveries were to
resume.1 Many drivers were immediately laid off, and the
spring breakup, coupled with diminishing demand for lumber
products, resulted in later-than-usual recalls. Eventually such
recalls as did occur started around early June. Laid-off em-
ployees were recalled only when they showed a minimum
consolidated job rating by management, and the reconstituted
work force of June onward was augmented by hiring 16 new
drivers.
The rating process was based on a written format devel-
oped by J. Christofferson. It consisted of six categories of
job evaluation; these being (1) quality/accuracy of work, (2)
cooperation/attitude, (3) quantity, (4) safety (accidents, inju-
ries), (5) care of equipment, and (6) initiative. The
supplementing definitions of each factor, as also prepared by
J. Christofferson, were, respectively, (1) job knowledge
which includes timeliness and ability to find location, (2) is
just that, (3) production ability, (4) is just that which is re-
quired by contractors, (5) is just that—grease, wash, do safe-
ty check, and, finally, (6) do certain amount of thinking on
their own—reliability.
Bruce Johnson and James Dyke Sr. are each combination
driver-dispatchers, who make daily assignment changes of
logging truckdrivers. They also coordinate longer term as-
signments, as with repeatedly required trips to a pickup site,
either solo or as part of a timed ‘‘string’’ of trucks. Both
these dispatchers were stipulated to be statutory supervisors
for purposes of this case. They each served as evaluators for
purposes of driver recall to employment, along with L.
Christofferson.
The three-member rating panel was oriented by J.
Christofferson in techniques to be used on or about April 15,
and performed their ratings independently during the balance
of that month. When completed the documents were returned
to J. Christofferson for tabulation. They were done for all
employees on the payroll at the time of suspended operations
from the combination Champion’s cut off of logs and the
weather changes. She determined the median rating to be 54
based on a graduated scale of 1 to 5 per factor, and rounded
this off to 50 as the number below which an employee was
unsatisfactory to qualify for recall. On this basis she docu-
mented a report of termination for each of the six persons
at issue, entering a short explanation about each one which
drew from the principal weaknesses as a composite view of
the raters. This document was placed in personnel files; how-
ever, advice to affected employees about their status was not
given out. The situation lent itself to simply withering away
of the prior employment relationship, because logging trucks
ordinarily retained at home by their regular users over past
spring breakups had been called into the shop for repair and
the economy of removal from insurance coverage.
The issues of this case associate to the Union’s organizing
campaign of late 1990. With support from an employee com-
mittee of about a dozen persons, the Union closely won a
Board-conducted election on December 6, 1990. In the
course of this campaign, at least 2 supportive items of lit-
erature were sent to employees’ homes, on which the signa-
tures of most alleged discriminatees appeared. One of these
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Chief mechanic William Turner was also at this meeting, a per-
son for whom Respondent had supplied business cards titling him
as ‘‘Shop Foreman.’’ There is limited, conclusionary testimony
about his duties, and from the evidence as a whole, I do not find
he has been shown to be Respondent’s statutory supervisor or agent.
3 Approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
letters had also been prominently posted in Respondent’s
shop area, a place physically adjacent to the Christoffersons’
residence and commonly entered by both of them. Both su-
pervisory dispatchers had also noticed the posting and the
signatures which appeared. Shortly after the election a union
meeting was held to discuss bargaining objectives, and Su-
pervisor Dyke attended the meeting as a passive observer. He
was in fact a former member of several unions. The Union’s
certification did not issue until April, and inclusive contract
negotiations followed that.
As further context for issues of this case, the opinion of
the Christoffersons as to unionism generally is known. This
was contained in testimony of J. Christofferson, who termed
unions frightening and that they lie, cheat, and corrupt other
employees. When pressed about whether her husband also
held this view, she only recalled him being present at times
of such talk but that he was negatively inclined toward
unions because they made people lazy and could force un-
wanted membership.
C. Particular Employees at Issue
1. Wells Cahoon was first employed January 1987, and
last worked actively as a logging truckdriver on February 13.
He was in the approximate top one-third of the drivers by
seniority. His testimony was expressed with somewhat la-
bored difficulty, but acceptably persuasive in the overall as
a matter of credibility.
Cahoon had a background in union activism in the area
and had signed both preelection letters as an ‘‘organizing
committee’’ participant. He talked openly with other employ-
ees about favoring the Union, and later served informally in
research toward contract objectives. In May Cahoon tele-
phoned L. Christofferson to inquire about recall, and was
simply told things were ‘‘pretty slow’’ with no plans for get-
ting all trucks back in operation. Cahoon was compositely
rated to a 41 total, being seen best in quality of his work
and worst in care of equipment.
2. Thomas Golden Jr. was first employed July 1988 and
last worked actively on January 16 because of injury sus-
tained during that month. He was also an experienced log-
loader operator, both from previous employment and time in
that occupation with Respondent. Golden claimed without
contradiction to have been about 10th on the Company’s se-
niority list. He was an extremely impressive witness from a
demeanor standpoint, with excellent consistency in recalling
specific details about subjects and episodes.
Golden had signed both preelection letters and actively
communicated his support for the Union over the truck radio
which had voice pickup even in the company office. When
he obtained a medical release in April to resume active em-
ployment, he telephoned L. Christofferson with such advice,
but was simply told there would be some cutting back as yet
not determined in scope. Golden was compositely rated to a
48 total, being seen best in quality and worst in categories
of attitude and care of his equipment.
3. Steven Johnson was first employed in July 1988 and
last worked actively on February 17. He testified with an
honest-seeming intent, sufficient that I am persuaded to cred-
it his various assertions.
Johnson had signed both preelection letters and carried out
frequent discussions with other employees to convince them
of benefiting from the Union. He received a written warning
dated January 2 from dispatcher Dyke for claimed disregard
of an assigned starting time that morning. Johnson was reluc-
tant to dispute the warning because of his recent and open
association with the Union’s organizational campaign, how-
ever, he denied the factual validity of the supervisor’s criti-
cism. His own version of the incident was that heavy mid-
winter snow left it impossible for him to dig out in time to
make the earliest 4 a.m. loading time, but he appeared later
as a driver for the first round of loading that day. Johnson
was compositely rated to a 41 total, being seen best in qual-
ity and quantity of his work but worst in attitude.
4. The Charles J. Kellough was first employed in Novem-
ber 1989 and last actively worked on February 11. He testi-
fied in an honest and directly responsive manner, with over-
all consistency such that I fully credit him.
Kellough had not signed either letter as an organizing
committee participant for the Union, but was in attendance
at the meeting where Dyke also appeared.2 Kellough was
compositely rated to a 47 total, being seen approximately av-
erage in most categories but unanimously worse as to care
of equipment.
5. Richard Ostbye was first employed on July 30, 1990,
and last actively worked February 1. He was the only alleged
discriminatee not called as a witness by General Counsel.
Ostbye had signed at least one of the Union’s letters to
employees and, as reliably described by Union Representa-
tive Jim Hill, attended all campaign meetings and obtained
needed supporting signatures from coworkers. Ostbye was
compositely rated to a 45 total, being seen as best in quality
of his work and worst in quantity.
6. Dennis Stevens was first employed in September 1988
and last actively worked on February 17. Stevens did not tes-
tify with a fully convincing demeanor. His hesitancy in an-
swering questions was suspect, however, company accusation
that he missed considerable work was contradicted as he
himself claimed, by daily work records. These showed that
in the critical period of late 1991 and early 1992 he was
roughly averaging the 12-hour workdays customary for most
logging truckdrivers. Overall, I credit his testimony as being
reasonably responsive to dispatch assignments, and alert to
important work messages called to his answering machine.
Stevens was a signer of one union committee letter, ob-
tained signatures in support of the Union from several other
employees, and attended organizational meetings. He was
compositely rated to a 42 total, being seen as best in regard
to safety and worst in initiative.
D. Holdings
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),3 the
Board set forth its causation test for cases of job termination
alleging violations of the Act turning on employer motiva-
tion. First, General Counsel must make a prima facie show-
ing sufficient to support the inference that protected conduct
391CHRISTOFFERSON LOGLINERS
4 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966).
5 Asociacion Hospital Del Maestro, 291 NLRB 198, 204 (1988);
ACTIV Industries, 277 NLRB 356, 374 (1985); Heath International,
196 NLRB 318, 319 (1972).
was a ‘‘motivating factor’’ in the employer’s adverse action.
Once this showing is accomplished, the burden then shifts to
the employer to demonstrate that the same action would have
taken place notwithstanding such protected conduct. How-
ever, it is also well settled that when an employer’s claimed
motives for its actions are found to be false, such cir-
cumstances may warrant an inference that true motives are
unlawful and meant to be concealed.4 True motives may be
inferred from total circumstances of the record as a whole,
and the Board may infer such animus in the absence of direct
evidence.5
It is first convincingly established here that Respondent
had knowledge of significant union activities by five of the
alleged discriminatees, and as to Kellough from the observa-
tions of its agent Dyke that he was supportive enough of col-
lective objectives to be in attendance at a union meeting. The
intracompany use of truck radios, with voice identification
readily made by any listener, added to its knowledge of
which employees were in this activist group. Several of the
alleged discriminatees were among the most vocal in this re-
gard, particularly around the time of the election.
I infer that Respondent harbored severe animus toward the
prospect of unionism on the part of its particular husband-
wife ownership duo. While an employer may lawfully hold
views on the subject, the strident description of J.
Christofferson as to what unions represented more than sug-
gests a capacity for translating such opinions into impermis-
sible action. Her testimony implicates L. Christofferson in
this same outlook, for even his conceded beliefs about unions
would likely result in clever stratagems to avoid collective
bargaining or to retaliate against those most responsible for
this prospect.
In general terms, the downturn in timbering activity is evi-
dent from employee levels of the past. Two seasons back
there were 17 employees that did not return to employee sta-
tus following that spring breakup, and for the season prior
to 1990–1991 at issue that number was 23. Here the number
was the extremely more limited six persons that are involved,
and the loss of active employee status was involuntary in
each case. Further, Respondent claimed to use the structured
evaluation system with its measured cutoff at a composite of
50 points in rating. I greatly discredit the authenticity of this
exercise, believing instead the entire evaluation system was
merely a clumsily devised effort to justify refusing to recall
six employees that were sufficiently identified with unionism.
I believe this because of the system’s extreme crudeness and
deficiency as a legitimate business tool, and because J.
Christofferson testified in unimpressively unctuous fashion
about its purposes, as well as with only a slight comprehen-
sion of rating criteria being conveyed to both participating
dispatchers. In addition there was a strange disharmony in
the rating accorded returned employee Terry Mayer, a person
who from the evidence had abandoned support for the Union
but for whom only L. Christofferson’s unexplainedly high
rating of 21 gave this person the exact 50 total supposedly
needed for retention. On this narrow point I apply the ad-
verse inference rule as to L. Christofferson’s failure to testify
in support of his unshared view about Mayer. International
Automated Machines, 285 NLRB 1122 (1987). Finally Re-
spondent did not give significant weight to the seniority of
most alleged discriminatees, a factor that makes General
Counsel’s case more persuasive as to presumed satisfaction
with the group over several past years. In sum, it is not the
fact that Respondent’s rating program was simplistic that to-
tally influences me; rather that it was openly spurious. Cf.,
Bardaville Electric, 309 NLRB 337 (1992). My resultant
holding as part of a Wright Line analysis is that General
Counsel has established a prima facia case as to each alleged
discriminatee.
There remains under such analysis the question of whether
Respondent would have taken the same refusal to recall ac-
tion in the absence of involvement in, or identification with,
concerted activities. It is evident, initially, that recent years
of operation have shown a decreased number of trucks in use
and decreased payments to subcontract haulers. I also factor
in that Respondent’s employee handbook doubly treats
seniority/recall in general and spring breakup procedures in
particular, by reciting at least that ‘‘qualifications’’ and ‘‘per-
formance during previous season’’ are respective consider-
ations. This leads to individual treatment of each person
named in the complaint in terms of Respondent’s principal
criticisms or any impressively mounted defenses.
As to the first of these, Wells Cahoon, I credit his testi-
mony that he had not peculiarly inquired about falsely devel-
oping facts for use in his divorce proceeding, and that his
truck lubrication responsibilities were fulfilled in reasonable
fashion and without supervisory criticism while actively em-
ployed. He conceded occasional absences from work for
legal affairs, but not to the extent Respondent attempts to de-
pict. He was uncontradicted in attributing a ‘‘good driver’’
compliment from L. Christofferson as recently as summer
1990, as well as generally in prior years, and was also once
routinely allowed a short leave of absence for personal com-
mitments. Overall, his credited testimony negates the per-
ceived deficiencies in cooperation, attitude and care of equip-
ment as claimed by Respondent to have existed.
As to Golden, I credit his testimony of being an accom-
plished loader operator, and one who actually preferred log-
ging truckdriving at which he was also competent. He
credibly rebutted personnel file notes of being once
unreachable, and having permitted an out-of-service truck to
be dangerously low on coolant and oil. Golden convincingly
recalled several instances in which various employees of Re-
spondent had in the past had truckdriving accidents, estab-
lishing by such testimony that rough usage of equipment was
a reality in this type of business. Golden himself had once
been Respondent’s ‘‘driver of the year,’’ and while his life
was later touched by disturbing personal tragedy he testified
that his overall job performance level did not slip for that
reason. Respondent’s witness David Dixon testified in con-
tradiction to much of what Golden asserted, however, I find
Dixon to be a completely unreliable witness because of opin-
ionated, fanciful expression, and I completely discredit him.
Overall, Golden’s credited testimony negates the perceived
deficiencies in cooperation, attitude, and care of equipment
as claimed by Respondent to have existed.
As to Johnson, I credit his testimony of being as
uncomplaining employee who kept his equipment sufficiently
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
maintained and orderly, given the condition under which it
was used. He credibly denied the criticism about being
unreachable, and showed to the contrary that while keeping
a particularly conservative sleeping pattern he also had a
family mechanism in effect to keep him informed of job
needs. He had volunteered for distant work, and had in the
past been complimented as a good employee by top manage-
ment. As was the case with Golden above, I discredit Dix-
on’s attemptedly supportive testimony against Johnson. Over-
all, Johnson’s credited testimony negates the perceived defi-
ciencies in cooperation, attitude, and care of equipment as
claimed by Respondent to have existed.
As to Kellough, I credit his testimony of greasing and
maintaining equipment according to periodic instructions
from management. He credibly described being com-
plimented about his work by both Christoffersons, and to
being blameless in certain incidents associated to him by
hearsay. Even the suspect testimony of Dixon attributes but
slight negative criticism of Kellough, a testimonial in itself
that his attitude toward work and coworkers must have been
satisfactory. Overall, Kellough’s credited testimony negates
the perceived deficiency in care of equipment as claimed by
Respondent to have existed.
As to Stevens, I sufficiently credit his testimony that while
admittedly late for loading assignment on occasion it was no
more than ‘‘a lot of them,’’ including a close Christofferson
family member. Stevens’ testimony concerning a mud-bound
logging truck in the off-road Little Valley area persuasively
neutralized Dixon’s extreme version of the incident, and sat-
isfactorily shows Stevens to have been without fault at the
time. His denial of a claimed reluctance to perform a specific
next-day haul, as assigned by Dyke, was sufficient to rebut
the intrinsically vague accusation of unsatisfactory behavior
in such a regard. Stevens had also received compliments on
his work from both Christoffersons. Overall, Stevens’ cred-
ited testimony negates the perceived deficiencies in coopera-
tion, attitude, and initiative as claimed by Respondent to
have existed.
In all five of the immediately foregoing instances, I hold
that credible and often detailed rebuttal testimony of the al-
leged discriminatees is more probative than the very general-
ized and often insincere-seeming summary of complaints by
the supervisory dispatchers. Absent L. Christofferson’s testi-
mony, and considering that J. Christofferson had little per-
sonal knowledge of day-to-day operational happenings in the
woods and on the roads, I find that Respondent has not met
its burden of showing that it would have refused to recall
these individuals even given that a motivating reason to dis-
criminate against them for concerted activities was present.
In the case of Ostbye, I cannot reach the same conclusion
from the evidence in the absence of his live testimony. While
I am not impressed greatly with the witnessing of Johnson
and Dyke, it is more a matter of their bias rather than their
not having some legitimate memory of justifiable criticism.
In the case of Ostbye this criticism was sharply focused on
his poor attitude and quantity of work achieved. While even
this is sketchy at best, my ultimate holding is that a bare bur-
den of proof has been met by Respondent as to Ostbye. In
reaching this conclusion, I do not rely on the undocumented,
and otherwise improbable, testimony of Controller Pri Fer-
nando that Ostbye had voiced an intention of quitting his em-
ployment in early February. He was, however, newest in se-
niority of all persons at issue, and I propose dismissing the
complaint to the extent that it alleges his termination to be
unlawful.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to recall employees Wells Cahoon, Thomas
Golden Jr., Steven Johnson, Charles Kellough, and Dennis
Stevens from layoff because they joined or supported the
Union, Respondent violated Section 8(a)(1) and (3) of the
Act.
4. General Counsel failed to prove that Respondent unlaw-
fully refused to recall employee Richard Ostbye from layoff.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative action
necessary to effectuate the policies of the Act.
Having found that Respondent decided on or about April
15 to refuse recall from layoff of employees Wells Cahoon,
Thomas Golden Jr., Steven Johnson, Charles Kellough, and
Dennis Stevens, I shall recommend that Respondent be or-
dered to offer employees immediate and full reinstatement to
their former positions of employment, without prejudice to
their seniority or other rights and privileges, and to make
them whole for any loss of earnings suffered by reason of
the unlawful discrimination against them, less interim earn-
ings, with backpay and interest thereon to be computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987).
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Christofferson Logliners, Inc., Missoula,
Montana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recall employees from layoff because they
assisted Union Local 3038 and engaged in other concerted
activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employes 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) Offer Wells Cahoon, Thomas Golden Jr., Steven John-
son, Charles Kellough, and Dennis Stevens immediate and
full reinstatement to their former jobs or, if those jobs no
393CHRISTOFFERSON LOGLINERS
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of the decision.
(b) Remove from its files any reference to the unlawful
termination of Wells Cahoon, Thomas Golden Jr., Steven
Johnson, Charles Kellough, and Dennis Stevens and notify
them in writing that this has been done and that the unlawful
refusals to recall them will not be used against them in any
way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Missoula, Montana, copies of the
attached notice marked ‘‘Appendix.’’7 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found herein.
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 vio-
lated the National Labor Relations Act has ordered us to post
and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize.
To form, join, or assist any union.
To bargain collectively through representatives of
their own choice.
To act together for other mutual aid or protection.
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to recall employees from layoff be-
cause they assisted Union Local 3038 and engaged in other
concerted activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Wells Cahoon, Thomas Golden Jr., Steven
Johnson, Charles Kellough, and Dennis Stevens immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, plus interest.
WE WILL remove from our files any reference to the termi-
nation of Wells Cahoon, Thomas Golden Jr., Steven Johnson,
Charles Kellough, and Dennis Stevens and notify them in
writing that this has been done and that our refusals to recall
them will not be used against them in any way.
CHRISTOFFERSON LOGLINERS, INC.