Reservation Ranch, Westbrook Wood Products, Inc., And Westlog, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 464 (N.L.R.B. 1985)

464' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry Westbrook and Robert Westbrook d/b/a Res-
ervation Ranch , Westbrook Wood Products,
Inc., and Westlog , Inc. and Local Union No. 3-
261, International Woodworkers of America,
AFL-CIO. Cases 36-CA-4553 and 36-CA-
4675
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 28 December 1984 Administrative Law
Judge Russell L. Stevens issued the attached deci-
sion. The General Counsel and the Charging Party
filed exceptions and supporting' briefs and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.--- • - --
' The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance'of all the relevant evidence convinces us that they
are incorrect 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
Dale B. Cubbison, Esq.; of Portland, Oregon, for the
General Counsel.
Lindberg Porter, Jr., Esq. (Littler, Mendelson, Fastiff &
Tichy), of San Francisco, California, for the Respond-
ent.
Lynn-Marie Crider, Esq., of Gladstone, Oregon, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Coos Bay, Oregon, on September . 13,
14, and 25, 1984.1 The charge in Case 36-CA-4553 was
filed on September 21, 1983, by Local Union No. 3-261,
International Woodworkers of America; AFL-CIO
(Union) and was amended November 1, 1983. The
charge in Case 36-CA-4675 . was filed by the Union on
February 27, 1984, and was amended June 4, 1984. By
order dated April 11, 1984, the Regional Director for
i All dates hereinafter are in 1983, unless otherwise stated
Region 19, National Labor Relations Board (Board) con-
solidated the two cases for trial and issued a consolidated
complaint. The complaint alleges that Henry Westbrook
and Robert Westbrook d/b/a Reservation Ranch, West-
brook Wood Products, Inc., and Westlog, Inc., as joint
employers (Respondent), violated Section 8(a)(1) and (3)
of the National Labor Relations Act (Act).2
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs The
General Counsel waived submission of a written brief,
and made an oral closing argument at trial Written
briefs, which have been carefully considered, were filed
on behalf of counsel for the Charging Party and Re-
spondent.
Upon the entire record, and from my observation of
the witnesses and their demeanor, I .make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, Respondent Reservation
Ranch has been jointly owned by Henry and Robert
Westbrook, copartners doing business as, and trading
under the name of, Reservation Ranch.
At all times material herein, Respondent Reservation
Ranch has been the sole owner of Respondents Westlog
and Westbrook, both being Oregon corporations.
Based on the record, it is found that Respondents Res-
ervation Ranch, Westbook Wood- Products, Inc. (West-
brook) and Westlog, Inc. (Westlog) are, and' at all times
material herein have been, joint employers within the
meaning of the Act.3 -
During the past 12 months, which period-is representa-
tive of all times material herein, in the course and con-
duct of business operations, Respondent sold and shipped
goods and provided services from facilities within the
State 'of Oregon, to customers outside the State, or sold
and shipped goods or provided services to customers
within the State, which customers were themselves en-
gaged in interstate commerce by other than indirect
means, of a total value in excess of $50,000.
I find that Respondent is, and at all times material
herein has been, comprised of employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 3-261, International Woodworkers of
America, AFL-CIO is, and at all times material herein
has been , a labor organization within the meaning of Sec-
tion 2(5) of the'Act.
2 The complaint formally was amended June 12, 1984 , and also was
amended at trial to add two allegations of unlawful threats
3 Respondent did not deny this joint employer allegation of the-com-
plaint, nor did it argue the matter in its brief
276 NLRB No. 57
RESERVATION RANCH 465
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background' ,
Respondent is engaged in the lumber industry, and its
driver-employees transport logs, chips, and other prod-
ucts to and from logging and production sites and be-
tween various production mills. Respondent's main office
is located at Smith River, California, and all operations
are directed from that office. There, are no production fa-
cilities at Smith-River, but a production facility is locat-
ed at Crescent City, California. Respondent's facilities
principally involved in this controversy are located in
and near Coos Bay, Coquille, and Norway, Oregon.
Hank Westbrook is president of Westbrook and West-
log, and is a partner with his brother Robert in Reserva-
tion Ranch, .which owns Westbrook. Hal Westbrooks is
general manager of Westbrook, and primarily works at
Coquille Floyd Hampton is superintendent of West-
brook's plants numbers 1 and 2, located at Norway and
Coquille. Westbrook's office is near Coos Bay, _in Mill-
ington, Oregon. Dan Brattain is an administrative assist-
ant, stationed in Smith River. He has several -duties, in-
cluding that of supervising Respondent's trucking depart-
ment. Floyd Page supervises Respondent's highway
trucks, and Gerald Campbell supervises' the log trucks.
Campbell also `is Westbrook's shop foreman and dis-
patcher Orlen Pickle, superintendent of the Crescent
City facility, supervises highway and logging trucks in
California.6 - '
'Westbrook presently has approximately 90 employees,
of which approximately 40 are truckdrivers located in
California and at Millington. - -
In mid-1981 Brattain instituted a study of Respondent's
bucking operation, and completed the study by July
1983. Trucks then-in use were old and badly worn, and
required extensive and costly maintenance and repair, of
approximately $1800 per truck per month. Brattain rec-
ommended that the entire fleet of trucks be retired, and
replaced by new trucks of advanced design. That recom-
mendation was adopted, and Respondent purchased a
new fleet of -trucks at a cost of approximately $3,000,000,
or $80,000 each. Maintenance costs of the new trucks
were estimated to be $300 or $400 per truck, per month.
In July 1983, after the new truck fleet was acquired,
Respondent held a meeting of all its truckdrivers, me-
chanics, and others associated with its trucking..oper-
ations. Also present were representatives of the: manufac-
turers of the new trucks and their components, including
International Harvester Company, the maker of the
trucks. Those representatives explained all phases of op-
erating the new trucks and, their components, showed
films about them, and conducted personal demonstrations
of their use. Seminars were held, and Respondent's em-
ployees were encouraged. to ask questions and ,to partici-
pate in the seminars. At an open forum, Brattain ex-
plained to all drivers Respondent's concern that the
* This background summary is based upon credited testimony and evi-
dence not in dispute
Hal is Hank Westbrook's son
8 The supervisory status of Hank Westbrook, Hal Westbrook, Hamp-
ton, Campbell, Brattam, Page, and Pickle is not in dispute The manager
trucks be operated carefully and properly and that their
abuse would not be tolerated, and stated that warnings
would be issued to drivers in case of abuse of the equip-
ment. Respondent announced a 10-cent-per-hour bonus7
to be paid if drivers maintained the trucks properly and
in clean condition. Between July and September the new
trucks were phased into Respondent's trucking operation
under the supervision of Campbell, and all old trucks
were retired from service.
The record does not show how interest in organizing
Respondent's employees began, but it does show that the
first overt organizational activity was instituted by union
representatives who appeared in August at Respondent's
Coquille, Norway, and Millington facilities, and com-
menced distribution of union leaflets and authorization
cards. As of that time it was apparent to Respondent's
management representatives that the Union was attempt-
ing to organize its employees. Jerry Deadmond, an em-
ployee of Weyerhaeuser Company, distributed union
leaflets and cards at Respondent's Millington facility.
Richard Hunt first began work for Respondent as a
truckdriver on February 10, 1980. Initially he drove chip
trucks and later was changed'to a log truckdriver. Hunt
was not an organizer of the Union, but he received sev-
eral union authorization cards from Deadmond and dis-
tributed them to employees. He attempted to give cards
to Campbell 'and Bill Richards, a contract administrator,
but they refused to receive or sign them. The Union filed
a representation petition with the NLRB on August 23,
and two hearings were held on the petition. Hunt testi-
fied on behalf of the Union at both hearings-once while
he was employed by Respondent and once when' he no
longer worked for Respondent. During the preelection
period, Respondent held two meetings with all employ-
ees to explain Respondent's position. Hunt spoke out at
one meeting and asked about the reinstatement of wage
scales that earlier had been reduced.8 Hunt was a union
observer at the election, which was held on November
22. On December 11 the Union held a meeting of em-
ployees to elect a shop committee, and Hunt was chosen
as shop steward and for the Millington truck shop. On
December 13 the Union wrote a letter to Hal West-
brook, giving him the names of 11 employees, including
Hunt , who had been elected chairmen and committee-
men of union plant committees. On one occasion in early
January 1984 Hunt attempted, without success, to proc-
ess an employee's grievance through Don Meachum, a
lead mechanic.' On January 20, 1984, Hunt was driving a
new truck, number 33, on Morgan Ridge.-The road in
one place was not in good condition, and Hunt experi-
enced some difficulty climbing a hill. During the inci-
dent, discussed in detail infra,- a driveline on the truck
twisted and broke. Meachum came from the shop, re-
paired the truck, and reported the incident to Campbell.
When Hunt later returned to the shop, Campbell gave
him a written. warning (pink slip) reading "broke drive-
line by shifting gear on steep hill." Hunt denied that
' This bonus is in addition to the safe-driving bonus, discussed infra
8 Hunt testified that other employees asked more questions than he did,
with some of them asking about the same thing he did, i e, restoration of
at Crescent City is Frank Peterson .-- the earlier pay reduction
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement , and issuance of the slip is alleged in the com-
plaint as a violation of the Act. On January 26 Hunt was
driving the same truck , loaded with logs, at another
place where logging operations were underway. At or
near a place where the road made a sharp turn , the rig
slipped off the road and had to be-pulled out with a
large piece of shovel equipment . Campbell instructed
Hunt by radio to return to the shop . When - Hunt re-
turned as instructed , Campbell discharged him. Hunt
denied .doing anything to warrant discharge , and the dis-
charge is - alleged in the complaint as a violation of the
Act. This incident is discussed in detail infra.
The General Counsel - also argues that , on various
dates, Respondent unlawfully interrogated and threat-
ened employees , and issued warning slips to employees.
A. Supervisory Status
1. Contract administrators
Paragraph 5(b) of the complaint alleges.-that,- in
August, Roy Mast threatened plant closure - and move-
ment of log trucks to California if employees selected the
Union as their bargaining representative. ,
Paragraph 5(c) of the complaint alleges that, on or
about August 25, Glenn Shields threatened plant closure
and movement of log trucks to California in the event
employees selected the Union to represent them.
The General Counsel in no testimony in sup-
port of paragraph 5(c) of the complaint . Mast 's alleged
supervisory status is in issue. -
Carl Bortner formerly worked for Respondent as a
driven-He testified that , a few days after employees had
signed cards for the Union, he talked with Mast:
A. Oh, I just said good morning . He said good
morning , did they put the gates up at plant two yet?
I just answered him that I didn't know anything
about any gates He said if we pursued the union,
that they were going to close the plant down, that
Westbrook was going to close the plant down.
Q. Did you reply?
A. I didn't reply anything. I didn 't know any-
thing about it.
Relative to Mast 's status as- an employee , Bortner testi-
fied: -
A. He's the woods boss that was down running
the south end, down out of the Gold Beach and
Port Orford area. .
Q.. What does Roy Mast do as woods boss?
A. Just see that the loggers get the timber out
right , and it 's cleaned up and everthing runs
smoothly in the woods. -
Q. To your knowledge and experience , does Roy
Mast have any authority over log truck drivers
such as yourself? - - •
A. Not that I know of.
Q. Does he give you directions?
A. Well, - sometimes where to take the logs to,
what mill to go to. .
Q. Does he direct the loggers under him?
A. Yes he does. -
Q. How many loggers under him?
A. Well, sometimes there 's only one side , consists
of maybe two, three or four men , and sometimes
there 's two or three sides and he might have a
dozen under him.
Hunt testified that he talked with Mast in early August:
THE WITNESS' Well, he told me that the compa-
ny would probably shut down and move back to
California if the union went in . I informed him that
the company-has said that we weren 't permitted to
talk about the union on company time and I tried to
change the subject , to talk about fishing or hunting
or something else. And everytime I'd pause for
breath , he'd start talking about the union again. He
kept on for about ,an hour-and-a-half there . I don't
remembei all that was said , but he kept insinuating
that the company would close the operations down.
Hunt further testified that Mast , Bill Richards, and
Shields all did the same work , as woods bosses. Hunt tes-
tified when asked about Richards: - -
A. He worked in the woods . He.gave orders to
the contract loggers , he told -us 'where the logs
were-he directed the trucks out there in the
woods. When the trucks get to the woods , there's
roads going in all directions and they'll have decks
of loads here and there . They'll tell us on which
road the - logs were on , where the loading machine
was at .- Sometimes we couldn 't get . them on- the
radio . if their radio was out, or -if the truck radio
was out you couldn 't get them . So, Bill Richards
and some of the other-I keep wanting to call them
contract administrators , but I guess- .
Q. How do you refer to them out there m.-the
woods?
A. We call them woods bosses.
i,
Q. Okay. Go ahead. ' -
A. Well, his job is to show us where the logs
- were at and tell us where the logs were at, and also
his job is to tell the contract-make sure the con-
tract loggers are doing what they're supposed to be
doing.
Neither Mast nor Shields, nor Richards , testified.
Fred Green, timber manager for Reservation Ranch,
buys and sells timber and logs, and supervises all con-
tract logging and road construction . Reporting to Green
are two timber ' cruisers and Bob Brown , who is a super-
visor - in Coos Bay. Mast, Shields , and Richards are di-
rectly supervised by Brown , and are titled contract ad-
ministrators . Green testified : contract administrators are
responsible for, seeing that , contractors working for Re-
spondent are doing what Respondent wants on the land
being worked . • "They are my eyes and ears out there."
The contractors and their employees are not employees
of Respondent in any sense . No employees are assigned
to, or are subordinate to, Mast, Shields, or Richards.
They do not supervise or hire anyone , although on one
occasion 'Shields hired two temporary employees upon
the specific instructions of Green . They have no author-
RESERVATION RANCH
ity to fire or discipline anyone or to adjust employee
grievances
Hank Westbrook testified that Roy Mast is a supervi
sor of gypo logging jobs 9 and He doesn t have any
employees working for him He s a contract supervisor is
what he is He goes out and sees that they comply
with the state law and so forth like that
Discussion
Fred Green was a convincing witness and his testimo
ny on this subject is credited That testimony was neither
challenged nor contradicted and was credibly corrobo
rated by Hank Westbrook
It is quite clear that Mast Shields and Richards super
vise no one Thus as the Board consistently has held
they are not supervisors within the meaning of the
Act 10 Their responsibility does not extend to employees
of Respondent-it is limited to watching the logging op
erations of Respondents contractors and reporting to
Green or Brown any infractions of contract They are
not managerial employees and any power of agency
they may have (with none having been shown) would be
limited to the contractual relationship between Respond
ent and its contractors Anything Mast Shields or Rich
ards may have said to Hunt or any other employee is it
relevant to this controversy
Paragraphs 5(b) and (c) are not supported by the
record
2 Wayne DeWalt
Paragraph 5(e) of the complaint alleges that during
January and February 1984 Yard Foreman DeWalt
threatened discharge of employees in the event of a re
cognitional strike and threatened that Respondent never
would recognize the Union or sign a contract
The General Counsel introduced no testimony or evi
dence in support of this allegation and no violation of
the Act is found It is noted however that the record
clearly shows DeWalt was not a supervisor within the
meaning of the Act He was a senior employee some
times acting in the manner of a leadman See the testimo
ny of Engelke and Gus Sanford
B Interrogations and Alleged Threats by Hampton
Paragraph 5(a) of the complaint alleges that on
August 11 12 and 16 Hampton interrogated and threat
ened employees in violation of the Act
1 August 11
Frances Starry a unit employee testified that on
August 11 while she was working in the dunnage room
she talked with Hampton
A We had been discussing why I had been taken
off the eight foot chain Then he asked me did I
start the union and I said no Then he asked me
well who did? I said I wouldn t rat on anybody
° A gypo is a small contractor who cuts timber for mills such as
Respondent and others
10 See e g Montgomery Ward d Co 226 NLRB 184 (1976)
467
Then he said well a umon will never go in here or
we 11 close the plant down
Q Was there anything else said at that time?
A Not that I remember
Beverly Wintjen a unit employee testified that she
talked with Hampton alone on August 11
A He come in and said good morning He asked
me if I d received anything when I entered the
plant and I said yes I got a handbill from the union
He said he d gotten one also He said the union
would never go in here he 11 shut her down first
and he turned around and left
I
Hampton denied Starry s testimony and testified that
he never said to Starry or in her presence that the plant
would close if the Union came in
Relative to Wintjen Hampton related in considerable
detail his conversation with her and said they talked
about jobs on the clipper and green chain and about se
monty They parted and Wintjen returned to talk again
A Bev came up to me and she said Floyd what
has Hank got against unions? And I said well Bev
I don t know what he s got against unions but I
think it s the rate of pay here in this small plant
Q Okay
A And I told her I said Bev you ve been here
eight years you know this plant I said take and
look at the equipment and so on I said there s no
way this company can pay G P and Weyerhaeuser s
wages She raised her hand and said no no no
Floyd I know that but she said will they give us
our money back?
Q What was she referring to?
A She was referring to a wage cut that we had
had I think March 1 of 82
Q Okay
A And our vacation pay I said Bev I don t
know and I walked off
Hampton testified that a day or two before the NLRB
hearing in September
A Well Bev called me out of the little office
there and told me she needed to talk to me I told
her okay She said in private So we went around
the building She said she had been subpoenaed to
the hearing
Q Did she say who had subpoenaed her?
A No she did not
Q Okay
A I told her that was okay you know she could
have the time off She said Floyd I had nothing to
do with this I did go to the meetings but she said I
don t think this will ever go through
Q Did you ask her anything about that?
A No I did not
Q Did you ask her any questions about whether
she had gone to a meeting?
A No I didn t
468 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Q. Did you ask her any question about whether
she had anything to do with the union?
A. No, I didn't.
Hampton said he had no other conversations with Wint-
jen about the Union.
2. August 12
Starry testified that, on August 12 at approximately 6
a.m., she talked with Hampton while employee Ruth
Caudle and one other employee were-present. She said
Caudle was 10 or 15 feet from her. She said Hampton
stated, "You really did mean what you said, and I said I
talked with nobody." Starry testified that she thought
Hampton was referring to their conversation of the pre-
vious day.
Caudle testified that she worked with Starry in August
and September, and, that Hampton has come to her work
area, but that she never heard Hampton say that if the
Union came in the Company would shut down. -
3. August 16
Donna Talley, a unit employee, testified that she
talked with Hampton on August 16, with employee Dar-
lene Monteith present, when Hampton, came to relieve
Talley and Monteith for break. Talley testified, "He said
everybody else is guessing, but I know for a fact this
plant will never go union, he'll shut it down first."
Monteith, a unit employee, testified that, at the con-
versation related by Talley, she` (Monteith) asked Hamp-
ton "if the union came in if we were going to shut -down
or if we was going to keep running;" and "He said union
or no union, we will keep the doors open." "He said the
ones that want to work will work, the ones that don't,
that's their tough luck." Monteith said Hampton never
said in her presence that if the union came in, the plant
would close. Monteith was an observer for Respondent
during the election.
Hampton testified relative to this conversation, and
said Monteith asked him "if they was going to shut
down if they went union," and he replied, "This plant
will run, union or no union ." He denied that Talley
asked him during the conversation whether or not the
plant would close, and he denied ever telling Talley or
anyone else that the plant would close if the Union came
in.
Discussion
Hank Westbrook testified that he told all employees in
meetings with them, that the plant would continue to op-
erate, with or without a union, and he denied ever telling
anyone that the plant would close if the Union came in.
Hal Westbrook corroborated Hank's testimony relative
to Respondent's position on this subject, and that posi-
tion was supported by Hampton. While it may be true
that the issue is whether or not Hampton violated the
Act, regardless of the position of Respondent, that posi-
tion may, and should, be considered along with all the
circumstances in determining whether or not Hampton
made the statements, and asked the questions, attributed
to him.
As noted above, Caudle,- who according to Starry was
present at the conversation of August 12, did not cor-
roborate Starry's testimony, and Hampton 'denied that
testimony. i i Further, Talley testified that Monteith was
present at the conversation of August 16, yet 'Monteith
did not corroborate Talley's testimony and Hampton
denied it. So far as the conversations of August 11 are
concerned, it is a simple question of comparative credi-
bility. Hampton gave much more detailed and extensive
versions of the conversations than Starry- and Wintjen,
and in view of all the circumstances, his version seemed
to be more believable. • - '
The General Counsel did not- sustain its burden of
proof on. these issues, - and no violation of the Act is
found. -
C. Alleged Threat by Campbell
Paragraph 5(d) of the complaint -alleges that, in or
about' August, Campbell threatened -plant closure if the
employees selected the Union as their representative.
Hunt testified that he-had a -conversation with Camp-
bell "early on in the campaign" when "several ' drivers
were present. He said he did not remember who - the
drivers were, but that the conversation was "outside the
regular office shack"' at - Millington. 'Hunt testified: "Mr.
Campbell said to me that the company would probably
shut the'operation down and move it to California if the
union came in." Later, Hunt said, Campbell talked with
him in the presence of several other drivers whose names
he could not remember, "it might have been the last part
of August, the first part of October," right after "a hear-
ing, or something," and Campbell said, "Somebody had
ratted on me to the NLRB about talking about the fact
.that the company, him making the statement - that the
company would probably shut down."- Hunt replied, "I
had nothing to do with that."
Respondent . denied this allegation, and Campbell '
denied Hunt's testimony concerning a conversation just
after an NLRB hearing. Campbell was not asked about
the alleged threat of plant closure. `
Discussion
As discussed infra, Hunt's testimony. is subject to
doubt. That doubt is enhanced when this issue is consid-
ered; his testimony was vague and indecisive. He said
several drivers were present at both the conversations he
related, yet he could not remember any' names of those
he said were present. He could not remember the ap-
proximate date of the first conversation, and recalled the
approximate date of the second one only-after consider-
able probing by counsel for General Counsel. A charge
was filed by the Union relative to this allegation, thus it
would seem that some corroboration would be offered, if
•i i In his closing statement , counsel for General Counsel referred to the
fact that in his pretrial affidavit Hampton said he did not remember talk-
ing with any unit employee about the Union Counsel concluded, there-
fore , "So, he's a liar " That conclusion is not supported by the record
Differences between pretrial affidavits and testimony arse for numerous
reasons. They do not, per se, brand a witness a liar . This record , and trial
conduct of all who participated , does not permit such a per se conclusion
in Hampton's case.
RESERVATION RANCH
it existed Hunt denied giving the NLRB the information
for the charge so some other driver whose name was
known must have given it
There is too much doubt concermng this issue to
permit the finding of a violation of the Act and none is
found Counsel for the General Counsel did not sustain
his burden of proof 12
D Written Warning Issued to Hunt
Paragraph 6(a) of the complaint alleges that on Janu
ary 21 1984 Campbell unlawfully issued a written warn
ing to Hunt
The fact that the warning was issued is not in dispute
The General Counsel argues that the warning was issued
because of Hunt s union activity Respondent argues that
the warning was issued solely because of Hunt s abuse of
a new truck
The fact that Respondent knew of union activity at the
time of the warning is not in dispute Possibly Respond
ent had heard rumors of such activity prior to union lea
fletting in August but there is no proof of that fact and
in any event knowledge is clear commencing with the
leafletting Equally clear is Respondents opposition to
union organization of its employees
Hunt was an active union advocate and Respondent
knew that fact Hunt distributed union authorization
cards testified for the Union at the first NLRB hearing
approximately in September in the presence of several
members of Respondents management was a union shop
steward" and committeeman and was a union observer
at the representation election all with the knowledge of
Respondent However those facts do not resolve the
issue since other employees not involved in this contro
versy equally were active union advocates within Re
spondent s knowledge Hunt was not the instigator of
union activity so far as the record shows and there is no
indication that he was more active in union affairs than
many other employees of Respondent For example the
Union advised Respondent by letter dated December 13
that 11 employees had been elected chairmen and com
mitteemen of union plant committees and it is clear that
many employees were involved in card distribution oral
union advocacy testimony at NLRB hearings and at
tendance at union meetings 14 By November 22 the
show was just about over-the election had been held
and the Union had won 15 Of the 11 employees who
were elected union chairmen and committeemen all
except 3 or 4 still are employed by Respondent At least
three employees quit their jobs
12 The notice posted by Respondent after an earlier settlement in this
controversy dated February 24 1984 refers only to interrogation of em
ployees No reference is made to threats
18 A total of nine shop stewards were elected Hunt testified that he
was chosen chief shop steward
14 Hal Westbrook credibly testified without challenge or contradic
non that Wintjen testified at the hearing on Respondents objections to
the election and while testifying said she was 100 percent for the
union and wanted to see it certified Counsel stipulated that Wintjen
also testified at both prior NLRB representation hearings and was on the
organizing committee Wintien still is employed by Respondent
15 Respondents objections to the election were pending at time of
trial
469
In concluding that the written warning was unlawful
the General Counsel contends (1) The incident giving
rise to the warning was not actionable and was a pre
text and (2) the warning was unusual and contrary to
Respondents regular practice thus it shows Respond
ent s discrimination against Hunt
1 The incident
Hunt testified While hauling logs on January 20 he
was faced with a steep hill of 12 to 15 percent upgrade
where many trucks had been having difficulty and where
a tractor was stationed to assist drivers He stopped at
the bottom of the hill and put the truck into gear As he
went up he unexpectedly encountered fresh loose
gravel The truck began to hop up and down and before
he could stop a dnveline twisted and broke He backed
down the hill 100 to 150 yards into a wide spot He
called the shop on his radio and Meachum came out
with a new dnveline which was installed He pulled
away in the lowest gear found a level spot shifted into
one gear higher and proceeded up the hill He hit the
gravel again could go no further backed down the hill
put the truck in the lowest gear and made it up the hill
The entire period of delay was approximately 1 1/2
hours When he later returned to the shop Campbell said
he was going to give him a pink slip for changing gears
on a hill and twisting a dnveline which broke He denied
that he had changed gears on the hill and said he only
changed gears when he first left the low area where the
drivelme had been repaired
Campbell testified that Meachum reported to him after
going to the hill to change the dnveline that another of
the dnvehnes on Hunt s truck would have to be changed
because it had a slight twist in it Campbell further stated
that Meachum said Hunt had shifted gears at the gray
eled spot when he started up after the driveline was
changed
Meachum testified From his observation of the road
it appeared that Hunt had changed gears in a soft spot
twisted the dnveline and coasted back down the hill
His conclusion that Hunt had changed gears on the hill
was occasioned by the appearance of the gravel which
appeared kicked While Meachum was changing the
dnveline two other trucks went up the hill after chang
mg gears at the bottom of the hill After he changed the
dnveline Hunt started up the hill and from the puff of
smoke that is characteristic of gear change it was appar
ent that Hunt changed gears approximately where the
road showed that the dnveline had broken He later re
ported to Campbell everything he had observed about
the incident He also told Campbell about the loose
gravel on the road where the incident occurred He tests
feed that the road generally was wet muddy and in poor
condition but that road conditions alone generally do
not cause twisted or broken dnvelines He said the twist
on the dnvehne of Hunt s truck could have been caused
by something other than changing gears
Discussion
The road where the incident occurred was a regularly
used logging road traveled daily by many trucks Two
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks went up the hill while Meachum was changing
the driveline Yet so far as the record shows no other
driver experienced a broken driveline on the road
The General Counsel and Charging Party argue that
the incident whatever its real nature was not serious
enough to warrant action by Respondent However
Hunt testified They d had a lot of trouble on the hill
One driver was fired for spinning his tires on the hill
Meachum was a credible witness He testified in a
straightforward convincing manner He was a company
observer at the election but there is nothing including
his demeanor on the stand to cast doubt on his objectivi
ty He is not a supervisor or management employee He
has been a mechanic working on logging trucks and
equipment for 20 years He appeared quite knowledgea
ble in his field and his answers to questions were respon
sive and logical There is no basis for concluding that he
was antagonistic or biased toward Hunt It is clear that
when he reported the incident to Campbell his report
was factual or he reasonably believed it was factual
based on his observations at the scene of the incident
Campbell did not discipline Hunt independently The
warning was based on Meachum s report
The old logging trucks called Astros often were re
ferred to at trial as junk They were obsolete badly
worn and prone to breakdowns Drivelmes were of dif
ferent construction and configuration from those on the
new trucks and they frequently broke so frequently in
fact, that no record was kept on the breaks Some dnv
ers broke many drivelines and one broke so many he
was referred to by other employees as driveline How
ever the breaks were the result of equipment age and
nature as much as the kind of driving involved Because
of those factors drivers generally were not disciplined
for breaks except in case of obvious abuse of the trucks
Generally it was recognized by management and by
drivers that broken dnvelines were to be expected as a
matter of course The entire old fleet had to be replaced
As pointed out above Respondents trucking operation
underwent substantial change when the fleet of new
trucks was purchased and drivers explicitly were told
that they would have to treat the new trucks in a manner
quite different from the past It was made clear to the
drivers that broken dnvelines no longer would be toler
ated as an inevitable part of trucking life Hunt and other
witnesses testified that broken drivelmes are common
The record supports that testimony as it refers to the old
fleet of trucks However it is clear that such breaks on
the new trucks were not common One of the first breaks
on the new trucks involved driver Jack Brown Mea
chum credibly testified that the break was caused by the
steepness of the incline on a hard dry road No shifting
of gears on an incline was involved and Brown was not
given a warning On September 26 Dan Majors broke a
dnvelme on a new truck and was given a written warn
ing by Brattain The line was broken as a result of shift
mg gears on a hill which Majors acknowledged
It is quite clear that this incident was an actionable
one so far as Respondent was concerned There is no in
dication that the incident was treated any differently
from other incidents Campbell sent Meachum to the
scene as he customarily did Meachum reported the mci
dent as he customarily did Campbell did not fire Hunt-
he only warned him Malice or union vmdicativeness are
not indicated There is no indication that Campbell used
the incident as a pretext to punish Hunt for his union ac
tivity Meachum s testimony is credited but even assum
ing arguendo that Hunt did not shift gears on the hill
Meachum reasonably concluded that he did based on his
long experience with logging trucks and his personal ob
servations at the scene i 8
It is found that the incident properly and reasonably
was actionable by Respondent and was not a pretext for
warning Hunt
2 The warning
The General Counsel contends that issuance of the
warning slip to Hunt was a vindicative act and that
prior to its issuance Respondent had no warning system
for its employees It is argued that the warning system
was created for Hunt or at least used discriminatorily to
get at Hunt The record does not support that conclu
sion Hunt never received a warning slip prior to Janu
ary 20 1984 and he had a good safety record prior to
that time Further he had never broken a dnvelme prior
to that date even on the old Astros However those
facts do not settle the issue Since as discussed above
the incident of January 20 1984 reasonably and properly
was actionable the question is whether or not issuance
of a warning slip shows that Respondent was out to get
Hunt because of his union activity As noted earlier
many employees were active in union affairs but suf
fered no retaliation at the hand of Respondent and fur
ther the election had been concluded in favor of the
Union almost 2 months before Hunt received a warning
Hunt testified that to the best of his knowledge Re
spondent did not have a written warning system prior to
November 22 1983 Further he said Respondent did
not announce institution of a system until after the union
election The employees he stated learned of the system
through rumors and word of mouth Also employee
John Ligons told him in January 1984 that he (Ligon)
had been given a warning for stopping and drinking a
cup of coffee at a restaurant Hunt testified that he knew
of no drivers being warning or disciplined for breaking a
dnvelme and that Campbell told him when he received
the warning I d get one more warning slip and then
the third time I got a slip I d be discharged
Campbell testified He was Hunt s supervisor and con
suited with no one prior to disciphning Hunt He issues
warning slips without conferring with anyone in manage
ment He had never issued a warning to any employee
prior to Hunt for twisting a driveline He denied know
mg Hunt was a union shop steward or that Hunt proc
essed grievances for employees 17 The day prior to the
trial of this controversy an employee broke a drivelme
on a new truck but has not yet been disciplined After
the union election warning slips were sent to him by
management and he was told to start issuing them It
16 See Huck Mfg Co 254 NLRB 739 (1981) Vaughn Printers 196
NLRB 161 (1972)
17 Hunt only tried to process one gnevance and that attempt was un
successful as earlier noted
RESERVATION RANCH
was not company policy to discharge employees after
two warnings-discharge depends on circumstances. He
gave Hunt W. warning slip because, he had been told to
start issuing them. However, he has warned employees
in the past on several occasions, both orally and in writ-
ing. Included were warnings to Russell Lake in Novem-
ber for speeding and going to the woods empty when
Lake was driving a new International truck; to Jim. Hill
for abusing trucks; to Hunt for eating breakfast -on com-
pany time; to. Marvin Nyre (discharged in 1984 without
prior warning) for wrecking a truck; to Ken Pierce in
1976 or 1977 for ruining two tires on a truck; to Gary
Turner; and to John Verger. Seven drivers have broken
drivelines on the new trucks. Jack Brown was the first,
and he was not warned because of the press of business
at the time. Hunt -was the second, and he was warned
after Meachum reported what he had observed. Bill
Goddard was the third-he had shifted gears incorrectly
and came down a hill too fast. He was given a warning.
Jessen was the fourth-he changed gears on a'hill, and
was given a warning. The fifth was the one •broken' the
day before the trial, noted above. The sixth and seventh
occurred at Bessie Creek, and both -drivers" were given
.oral warnings. He gave written warnings to Delmar
Allen and-William Goddard, discussed infra.
Allen testified that he once slid a trailer off the road,
but was not given a warning.
Goddard testified that he "spun out" with a side-heavy
load on one occasion, but was not given a warning.
Jack Brown, who has been a truckdnver for Respond-
ent more than 8_ years, testified "that, although a driveline
b'ioke on his new truck in August or September 1983, he
received no warning.18 He was talked to by Campbell
about the-incident, and no reason for the break was as-
certamned.. He got stuck in -December 1983 and May
1984, and had to be pulled out both times, but was given
no warning because the condition of the road, and not
he, was at fault. Brown said he has never received a
written warning, and • knew of no. driver -who has re-
ceived one. He knew of no company system to discipline
drivers for broken drivelines.
Ray Engelke testified that he knows of incidents
wherein employees have been stuck and have caused
damage- to -trucks,19 but have not been warned or disci-
plined. -
Tommy Huntley testified that he has been employed
by Respondent as a driver approximately 2-1/2 years. H.
said he knew of no warning system prior to the union
election, but that he believes Brattain stated during a spe-
cial meeting of drivers and * mechanics in Smith River
concerning- the new trucks, that "they were going to
start issuing pink slips."
Bortner testified that he broke a driveline in 1982, but
did not receive a warning. However,, that was on an old
Astro truck. He said he never has heard of a driver re-
18 Brown testified that he reported to Campbell that he had not shifted
gears on the hill He said the road was dry and well-packed, and he was
in low gear.
19 This employee, Engelke said, was fired in August.1983
471
ceiving a warning slip for breaking a driveline, and never
has heard of a warning system.20
Brattain testified that he gave driver Bob Jacobs a
warning on September 29, 1983 for rolling over a chip
truck;21 that he gave Ed Morgan a written warning on
July 30, 1983,• for truck abuse;22 that he gave Dennis
Brandt a written warning on December 16, 1983, for
rolling a truck over;23 that he gave Jack Harrah a "w"rit-
ten warning on October 25, '1983, for having an zacci-
dent;24 that Pickle gave Bob Kizer a written warning on
July 21, 1982, for rear-ending an automobile;25 and that
warning slips have been in use for 4 or 5 years, sporadi-
cally for drivers before the new truck fleet was pur-
chased, and commonly in the mills. He said he sent
Campbell a supply of warning slips approximately. 8 or
12 months ago. 26 Brattain testified that Respondent ,has
had a safe driving bonus system for some- time-since
prior to-July 1983. The bonus is withheld primarily for
employees having accidents. The bonus is 25 cents per
hour, and a warning does not necessarily stop the bonus.
If the bonus is affected, the warning slip will so state.27
There is no general policy stating what is considered to
be an accident.
Page testified that he disciplines and discharges truck-
drivers as a part of his job. Page testified that he, gave
Ron Saylor a warning slip on February 23,' 983, for
turning a truck over, and discharged Saylor April 13,
1984, for abuse of equipment, since it was his second ac-
cident.28 He said he gave a warning slip to' Charles
Perry on March 27, 1984, for damaging a loading screen
on his truck; he gave Dave Weaver' a warning slip on
January 24, 1984, for improperly going off his route and
discharged him on February 28, 1984, for permitting a
passenger to ride with him in violation of company
rules;29 that he orally reprimanded Jim Carter on
August 4, 1983, for damaging a truck in the amount of
$50; that he terminated Robert Scheidemantel on, April 5,
1983, for abuse of equipment;30 that he discharged Mi-
,chael Vanosdel on December 9, 1982, for rolling a
loaded truck off the road" (no previous warnings), that
he gave an oral warning to driver Siebel for negligent
driving; that he discharged Allen Boyd on June 22, 1982,
for rear-ending an automobile;32 that he gave a written
20 Hunt testified that , on one occasion , Gary Minor told him not to
talk about union matters on truck radios, but -counsel stipulated that
Minor is not a supervisor , and that testimony is given no weight-
2 1 R Exh 1
22R Exh 3
28 R Exh 4 In spite of this warning, Brandt was permitted to keep
his safe driving bonus
24 R Exh 5
25 R Exh 6.
28 Counsel stipulated that Campbell signed no driver waning slips
prior to the one he issued to Hunt
27 See R Exhs 1, 4, and 5 , all of which were issued prior •to Hunt's
warning
28 R Exhs 8(a) and (b)
29 R Exhs 10(a) and (b)
e0 R Exh 12
31RExh 13-. - -
22 R Exh . 15 Boyd previously had been warned
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprimand to David Snodgrass on September 24, 1982,
for improper parking on a , highway;33 that he gave
George Ligthner a written reprimand on July 15, 1982,
for going off his route and parking at a bowling alley;34
and that he discharged Doug Rhen on November 11,
1982, for getting stuck off the road too many times.35
Page testified that a company policy of issuing written'
warnings was instituted early in 1984, and he was not
told the reason.
Hal Westbrook testified that, when he met with em-
ployees prior to the union election, Dave Pohl and one
other employee objected that a driver had been dis-
charged ' without a prior warning. He talked with Hank
Westbrook and Brattain, and they decided to start keep-
ing records of all' incidents, to meet possible union com-
plaints. . -
Hank Westbrook testified that he gave an oral repri-
mand to Bob Roeser in 1981 for tailgating and improper
work performance;36 that he instructed Brattain- to fire
Ed-Morgan-for abuse of a truck; and that he instructed
Page to discharge' Ron Saylor.
Discussion
Hunt and other General Counsel witnesses, and the
General Counsel, contend that Respondent never has
had-an employee, warning system, or if it had one, it was
disparately applied to Hunt. That contention' is not sup-
ported by the record. Respondent has given oral and
written warnings to its drivers for years before this con-
troversy arose. Warnings often have been given for acci-
dents, abuse of equipment, negligence, and improper or
unsafe driving. The system has not been a formal one,
nor has it been rigidly and consistently enforced, but it
has been a - fairly regularly applied management tool.
Brattain credibly testified that supervisors are given
broad discretion in the issuance of warnings. Each- in-
stance is adjudged on its own merit.
Respondent made it clear at the employee meeting rel-
ative to the new fleet of trucks, held in July 1983.prior
to inception of this controversy, that employees would
be held strictly to, account for, their use of the new
trucks; truck abuse would result in written warnings.
General Counsel's witness Huntley testified that.he knew
of Respondent's intention to issue "pink slips" for, abuse
of the trucks, and said he was fairly sure he obtained that
knowledge at the meeting of July 1983. 37.Brattain's ac-
count of that meeting was convincing, was not denied by
any witness, was supported in part by Huntly, and is
credited.
,Hunt denied that he was at fault in any way when the
drivellne on his truck broke, but it was found, supra, that
the facts indicated otherwise, and that the incident reson-
ably was actionable by Respondent. Employees frequent-
!y were warned about shifting gears on hills, and-in Sep-
iember 1983 driver Majors was disciplined for the same
" R. Exh 16.
3* R. Exh 17. -
as R. Exh. 18
36 Exh . 31. Roeser was fired later in 1981 for driving improperly.
" Goddard also testified that he had "heard of Respondent's warning
system See sec. E, infra
thing Hunt was disciplined for-breaking a driveline by
shifting gears on a hill.
Some of the warnings testified to by Respondent's wit-
nesses were issued after Hunt was warned and subse-
quently discharged, but the record does not support the
General Counsel's argument that those warnings were
pretextual and given to support Hunt's warning. Two of
the warnings-those of Allen and-Goddard-are dis-
cussed in detail infra. The nature and number of the later
warnings belie the General Counsel's argument. Further,
it is apparent that those warnings were in conformance
with Respondent's practice, as made formal in July 1983,
of disciplining drivers when circumstances required disci-
pline. . .
This allegation of the complaint is found not to be sup-'
ported by the record. ,
E. Warning' of Allen and Goddard
Paragraph 6(b) of the complaint alleges that, on or
about March -16, 1984, Campbell unlawfully disciplined
Goddard and Allen in an effort to justify the discrimina-
tory warning of Hunt.
Allen testified that he has been a truckdriver for Re-
spondent approximately 5 years.- He stated: on January
10, 1984, he backed into, and daaged; a'pickup. He was
not given a written warning until March 16, 1984.
The warning is dated January 10; 1984.38 He did not
see the pickup, which was parked in the dark with its
lights out, in a place where it should not have been. Cost
of the damage was $300 or $400. He asked Campbell
why he was so late in issuing the warning slip, and
Campbell replied that he had just' discovered that Re-
spondent was going to have to pay for the damage.
Goddard has been a driver for Respondent approxi-
mately 2 years. He testified that a dnveline on his truck
broke on a smooth, dry,-clay road, and that he_ was not
driving improperly at the time., He did not receive a
warning slip until approximately 10 days later, on March
15 or • 16. The warning was backdated to the date of the
incident. He did not ask why it was backdated, because,
"I really didn't think it was that big of a deal."- He said
he had heard of the warning system. After the incident
he received another warning for sliding off the road.'
Campbell testified: He does not always issue warning
slips on the date of incidents, but he always dates them
as of the dates the incidents occurred. During the NLRB
investigation of this' controversy, he was' advised by an
investigator, thiough Respondent's attorney, that Allen
and Goddard had been involved in incidents for which
they had not been warned. At that time, the slips had not
been prepared. However, later when he was interviewed
by the investigator, he presented the slips for Allen and
Goddard, among others. He did not tell the investigator
that he had prepared the slips only 2 or 3 days earlier.
He did not issue Allen's slip earlier because he was wait-
ing for the insurance company's assignment of fault. On
the day of the incident he did not feel that Allen was at
fault, but when Respondent was assessed costs, he con-
cluded that Allen was, at least partially, at fault and
38 G C Exh. 4
RESERVATION RANCH
should be warned. His warning slip given Gary Turner
was issued 2 or 3 days after the incident, but is dated as
of the date of the incident. The delay was occasioned by
the trial herein. He had no intent to deceive anyone
when he prepared the slips for Allen and Goddard.39
- Discussion
The record is not thorough, so far as this issue is con-
cerned. The nature of the incidents is not explained in
detail. However, based on the record as made, it is clear
that the two incidents occurred, and that they are the
types of incidents Respondent customarily guards against
and issues warnings for. Allen had an accident for which
Respondent was held liable; and Goddard dropped a dri-
veline on a new truck. So far as the record shows, nei-
ther Allen nor Goddard protested the warning slips, and
Goddard did not even think it was a "big deal." Patent-
ly, the incidents were actionable on the part, of Respond-
ent, and considered in a vacuum, issuance of warning
slips was not improper.
The General Counsel contends, however, that the slips
were issued not because of the incidents, but because Re-
spondent wanted to validate its issuance of a warning
slip to Hunt. As evidence to support that contention, the
General Counsel points to Campbell's alleged deceit.
That contention is not convincing. Campbell denied any
desire or attempt to deceive, and in view of the age of
Hunt's warning and the doubt that Respondent was out
to get Hunt, as discussed above, Respondent' s argument
is more convincing than the General Counsel's. It is pos-
sible that Campbell had Hunt in mind when he made out
slips for Allen and Goddard after being reminded that he
had not issued them, but it is more nearly possible that
he simply had overlooked issuance of the to slips or
forgot them or, in the case of Allen, actually was waiting
for the insurance agent's assignment of blame. It seems
more likely that if Campbell had Hunt in mind , he would
have issued slips to Allen and Goddard immediately
upon occurrence of the incidents. If he had been out to
get Hunt, it is not likely that he would have overlooked
a golden opportunity to justify his warning of him-not
once, but twice. Those opportunities did not occur every
day. -
Finally, the issuance of slips to Allen and Goddard
was not based upon fictitious incidents. Evidence was
not manufactured. Copies of the slips were not con-
cealed-they were given to Allen and Goddard. What-
ever the reason for delay in issuing the slips, fiction is
not involved, and there is no basis for concluding that
their issuance was effected because of Hunt's warning.
As discussed above, Respondent's files already contained
ample support for the action taken against Hunt.
This allegation of the complaint was not proved by the
General Counsel.
79 It was stipulated that Campbell issued written warnings to two em-
ployees on March 29, 1984, for not checking truck oil and water.
473
F. Hunt's Discharge
Paragraph 7 of the complaint alleges that, on January
26, 1984, Respondent - discharged Hunt because of his
union activity. -
Hunt testified: On January 26,-1984, he was hauling a
load of logs on Morgan Ridge with truck number 33 (a
new truck):-
I came' down the road approximately half-a-mile
from,the landing where there's a 180-degree comer,
makes a .complete 180 degree right turn around the
face of the hill, a sheer rock bluff on the right side
and a sheer dropoff on the left. The road is just as
wide as the truck is. There's a two-track road. I
mean , you stay in the tracks.
When I came around the comer, the road was
wet, had an area of water and mud on the road,
sort of like a mirrored surface. When •I came around
the corner, I was looking right straight into the sun.
I was completely blinded by the sun. I tried to stop,
and at the same time I was getting reflection off the
hood and reflection off the road itself. I reached up
and slopped the visor down so that I could see.
I was. approximately, by the time-I felt the
truck slide off to one side a little bit and I drove it
back into the road. I -looked at my tracks later and I
was approximately that far (indicating) out of the
track in the road. '
JUDGE STEVENS: Eight inches?. Ten inches?
THE WrrNEss: About eight inches out of the
track.
JUDGE STEVENS: All right.
THE WrrNEss: When I swerved' back in, my trail-
er slid off into the ditch. I felt the truck start pull-
ing hard, so I stopped. I got out and looked and my
trailer was sitting in the ditch, the truck was sitting
on the road itself. It was approximately in about
this attitude (indicating), with the tractor still on
here, with the load and the trailer, sitting approxi-
mately on the edge of the ditch.
I walked up around the hill approximately a
quarter mile to Butch Stevens' landing, where I
talked to the shovel operator, and he started up the
TD-25 International Cat. He came down the hill
and said he'd pull me back on the road. This is a
common occurrence, nobody got excited about it.
He drove the Cat down the road. There was one
flat spot just in front of the truck, on the left-hand
side, where he could park the Cat. Otherwise, there
was a sheer dropoff of about 400 feet into the
bottom of a canyon. I pulled , the bull line, the
seven-eighths bull line, off of the winch and we
wrapped the line around the load, and put the hook
up on the load back onto the bull line, and he
pulled the load up, tipped the load up. I drove
ahead and he winched ahead at the same time, and
we approximately moved the truck from about a
truck-length-and-a-half to two truck lengths ahead.
There was a large culvert hole on the right-hand
side, right up against the bank, approximately six
feet deep by the width of the ditch. I imagine it was
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probably eight feet wide by six feet-deep The trail-
er was sitting just opposite the culvert hole when
he stopped winching. He said he was afraid that the
trailer was going to go off into the' culvert hole
which might have turned the truck over. So, he
stopped and 'asked me to call Jerry Campbell on the
radio to come up and make sure everything was
going to be all right. ' -
So, I did, I called on the company radio which
all the trucks are equipped with, called Jerry Camp-
bell. Mr. Campbell came up about an hour later and
,he looked the situation over. We backslacked off
the line, and slid the hook up to the top' of the load
and took another' strain on it. I -got back in the
truck and- Mr. Campbell told me to drive for the
front end-of the dozer. The dozer was sitting ap-
proximately- alongside of me, this way (indicating),
and I drove the truck straight ahead Then the trail-
er was pulled up out of the ditch and out of the cul-
vert hole by the Cat.
We unhooked the bull line, winched the bull line
back up. I went on up to the top of the hill. There
was no damage done to the truck or the trailer, or
it did not slip the load, which is slide the load back
on the load of logs. All I did was tighten my wrap-
pers up. Mr. Campbell took off past me going into
town. ' • '
The total delay, Hunt said, was approximately 1-1/4 or
1-1/2 hours. Hunt continued: he and Campbell had only
-a brief conversation at the top of the hill, during which
Hunt said he was blinded by the sun, and his trailer went
into the ditch. It was a common occurrence. It happened
all the time. Campbell did not then reprimand, warn, or
criticize him. Campbell later told him. to take his load to
plant number 2 and then come back to 'the shop, but a
few minutes later changed his instructions and told Hunt
to bring the truck back immediately to the shop. Hunt
did as he was told, and on arrival at the shop Campbell
told him, "I have nothing against you personally ,but I'm
going to have to let you go." Hunt took his belongings
out of the truck, gave his truck record and log to Camp-
bell, and left Another driver took the load of logs to the
mill, in truck number 33. Hunt said it, is common for
trucks to get stuck, and that caterpillars commonly are
stationed near bad places in roads, to pull out trucks that
are stuck. Neither he, nor anyone he knows, ever has
been disciplined for going- off a road or for getting stuck.
He was thoroughly familiar with the road where the in-
cident occurred-he had, driven over it many times, as
had other drivers.
Campbell testified: When he arrived at the scene after
talking with Hunt on the radio, Hunt's truck was in the
ditch by the culvert with two wheels off the road 2 or 3
feet. It had been pulled to that position by a caterpillar.
Hunt told -him "The sun had got in his eyes and he ran
into the ditch. Campbell said trucks commonly get
stuck and have to be pulled out of the mud. He said he
could tell, by looking at - the road where Hunt's truck
went into the ditch. The truck had been pulled" some dis-
tance before he arrived on the scene. He and Butch Ste-
pulled the truck out, with Hunt steering the :truck. He
told Hunt to take the load to the log dump , went down
the hill and talked with Stevens , and inspected the area
again When he talked with Stevens:
The only thing-I guess I thanked Butch or offered
to pay him or something for helping us there I do
remember saying to Butch what do you do with a
guy like that , and he ' said , well, that guy's not
making me any-money, that 's for sure, and I don't
think he's making you any, he said I 'd fire him.
He didn't decide at once what to do with Hunt, but as
he came back down the hill, he "thought about some of
the things that happened'40 I thought, well, I don't think
we need to. put up with it.anymore. He called Hunt on
the radio 'after he decided to fire him, and told him to go
to the office rather than to the dump. When Hunt ar-
rived at the office, he fired him. Hunt stated something
to the effect of, "I expected that." The place where Hunt
went into the ditch was four or five'truck lengths past
the curve in the road. Campbell testified that Hunt's
union activity had nothing to do with his discharge.
Allen -testified that he was following Hunt on Morgan
Ridge on January "26, 1984, and, when he first saw
Hunt's truck, "the whole rig, the truck trailer; the front
axle, drivers and trailer" were in the ditch and Hunt
either was waiting to be pulled out; or had gone to get a
caterpillar to pull him out. He saw Hunt's vehicle from
across a draw, approximately 600 feet away. He made a
note of the incident "because I could see there was going
to be trouble so I made a note of it." He brought his
notes to trial. Charging Party's attorney "advised us that
we should-carry a notebook and keep important things
down,. you know, and I have several of them." He later
showed his notes concerning the incident to Charging
Party's attorney, to Campbell,-and to others.
Engelke testified that he and other drivers commonly
get stuck on muddy, roads and have to be pulled out. On
one occasion his trailer went off the road, but his truck
,did not. .
Calvin Shaw, who is employed by Butch Stevens log-
ging , testified: Hunt asked- him in January on Morgan
Ridge for assistance . Hunt said "something about the sun
got in his eyes and he was off the road down there.
When Shaw went to the site, Hunt "was badly stuck in
the ditch." The entire right side of the truck and the
trailer were in the ditch. Shaw put a line onto the truck
and pulled with the caterpillar for 6 or 8 feet. He
stopped and refused to pull any more. "because I was
afraid it was going to do serious damage to a brand new
truck." Shaw told Hunt he would do no more until Hunt
got in touch with his boss. In his opinion, based on what
he observed, Hunt "was probably off in the ditch back
before he got in the corner, and just kept going right
-down the ditch line and hung up."41- Shaw said he
pulled Hunt's truck to a point approximately 6 feet from
a concrete culvert, where he stopped pulling. The road
where Hunt went into the ditch had been completely re-
40 Campbell recited several past incidents of truck abuse by Hunt.
vens made some adjustments on the pulling lines, and 91 Photographs in evidence show the site where the incident occurred
RESERVATION RANCH 47.5
built,-,both before and after Hunt went off, . and "this
piece of road where he ran off the -road -was probably in
the best shape of all -the road ' there." When Hunt got
Campbell on the radio, Shaw "told him I wouldn't pull
any further unless he said to and 'I told him the reason
why," that is , "that I was afraid it would pull the rear-
ends off the truck ." Shaw then left and told his boss
about .the incident His boss, Stevens, then went to' the
scene. . Shaw testified ..that it - was not uncommon for
trucks to be pulled out of the ditch.
Biitch Stevens , who is - an independent logger , testified
that he went to the place where Hunt went off the road,
and found the truck and trailer in the ditch , with a line
tied to the truck . Shaw had told him what had happened
prior to that time . He waited for Campbell to arrive, and
then pulled the truck out, after first making some adjust-
ments for the load on . the trailer . After the truck and
trailer were back on the road , he back -bladed the road
surface to repair the damage done in getting the rig out
of the ditch . The road just recently had been repaired,
and he did not want to be reprimanded for damaging it.
Stevens testified:
A. Mr. Campbell was real quiet - the whole time-
he was there . I hadn't been around him that much
and I thought maybe that 's just the way he was.
But, he said I don 't know what to do with a guy
that does that . I said , well, it 's real easy . He's not
making you any money , he's not making me any
money , he's not even-I'm not working for you,
you know , he's not working for me , I. said I'd can
his ass. That 's exactly what I said.
Q. What did Mr. Campbell say?
A. Nothing. -
Q. Then what happened?
A. We went about our business.
Stevens said he has assisted Westbrook drivers a maxi-
mum of five times, but that none of those drivers were in
the ditch-they spun out on - a slippery place in the road
and on the shoulder.
Discussion
Hunt insisted " that his truck never left the road, and
that only the trailer slipped into the ditch. He minimized
the incident as-being little more than just a minor inci-
dent-somewhat like a spinout on a wet, muddy road, or
like being stuck in the mud. Hunt's version of the matter
credibly and convincingly was put to rest by two inde-
pendent witnesses-Butch Stevens - and his employee
Calvin Shaw . Campbell corroborated the testimony of
Stevens and Shaw . It is quite clear that Hunt's recitation
was not accurate , and that he did create a serious situa-
tion , for whatever reason . Campbell credibly testified
that , even assuming arguendo that Hunt was blinded by
the sun , he should have been able - to stop . in ample time
to avoid going ' into the ditch , considering the slow speed
at which he should have been traveling'. General Coun-
sel's witness Allen recognized when he saw Hunt's rig in
the ditch that "there was - going to - be trouble," and he
made a special written note of the situation because of
that recognition . Patently , more than getting stuck or
spinning out was involved . In the latter instance, which
is common , and for which discipline usually is not given,
rigs do not leave the road and the trucks are under con-,
trol to ' the extent that accidents are avoided. Being
pulled out of a muddy spot in the road is quite different.
from being pulled out of a ditch alongside the road. Ste-
vens credibly testified that his reaction , -to what he had
seen was that , had Hunt been his employee , he would
have fired him. That is not probative evidence, of
course , but it does illustrate the nature of the incident
from the standpoint of a disinterested witness . That reac-
-tion paralleled the one Allen, General Counsel 's witness,
had- "trouble" was imminent because of the incident.
Respondent was shown to have a disciplinary system
that is somewhat loose , but nonetheless is definite and
generally followed . The fact that each incident is judged
on its own merits , and that supervisors generally act ac-
cording to their own assessments , albeit sometimes with
review by management , is clear . Campbell credibly
denied that Respondent has a system of discharging only
after two or three warnings , or that he so told Hunt.
Indeed , at one meeting management held with employ-
ees, an employee complaint was registered that Respond-
ent had fired a driver without giving him a prior warn-
ing. Respondent has warned , discharged , and otherwise
disciplined drivers for a wide range of improper conduct,
including dropping drivelines and having accidents.
There was nothing unusual in the fact that - Hunt was
warned for one incident and later was fired for an unre-
lated incident . In both instances Hunt 's negligence was
clear, and both instances were of the sort that consistent-
ly resulted in discipline of drivers . Hunt 's two infractions
of good driving requirements within a few days of each
other certainly and logically would raise doubts of his
value to Respondent as a driver , as Campbell stated. It is
noted that Campbell did not decide to fire Hunt until
after he inspected the scene where the incident occurred,
and reflected on the matter . He did not act in the precip-
itate and opportunistic manner that would be expected of
a supervisor who was out to get an employee. '
The General Counsel and Charging Party argue that
some other employees , including Mast, were not disci-
plined for having accidents or for infractions, but that
fact alone does not show disparate treatment of drivers.
As earlier noted, incidents were handled on an ad hoc
basis, and further as discussed supra , the record shows
neither reason nor intent to pick on Hunt . Many employ-
ees just as supportive of the Union as Hunt still are em-
ployed by Respondent . Certainly there is no evidence
that Hunt bedeviled Respondent with his union activity,
'or that management resented that activity , or that Camp-
bell or any other supervisor was told to nail him. Camp-
bell alone made the decision to warn , and later fire,
Hunt.
This allegation is not supported by the record. -
CONCLUSIONS OF LAW
1. Henry Westbrook and Robert Westbrook d/b/a
Reservation Ranch , Westbrook Wood Products, Inc.,
and Westlog , Inc. are , and at all times material herein
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been engaged in commerce within the meaning of On these findings of fact and conclusions of law and
Section 2(6) and (7) of the Act on the entire record I issue the following recommend
2 Local Union No 3-261 International Woodworkers ed42
of America AFL-CIO is and at all times material
ORDER
herein has been a labor organization within the meaning
of Section 2(5) of the Act The complaint is dismissed in its entirety
3 Respondent did not as alleged violate Section
8(a)(1) and (3) of the Act 42 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 objections to them shall be deemed waived for all pur
poses